Flowers v. Perez
| Decision Date | 22 August 2017 |
| Docket Number | 14-CV-2743(JS) |
| Parties | RANDOLPH N. FLOWERS, Petitioner, v. ADA PEREZ, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
For Petitioner:
Randolph N. Flowers, prose
Woodbourne Correctional Facility
99 Prison Road
P.O. Box 1000
Woodbourne, New York 12788
For Respondent:
Alyson Gill, Esq.
New York State Attorney General's Office
300 Motor Parkway, Suite 230
Hauppauge, New York 11788
Marian M. Tang, Esq.
District Attorney's Office, Suffolk County
Criminal Courts Building
200 Center Drive
Riverhead, New York 11901
In 2008, Randolph Flowers, along with two accomplices, staged a home invasion where he struck the victim with a weapon. After Flowers was arrested, a Suffolk County jury convicted him of one count of first-degree burglary in violation of New York Penal Law § 140.30(4) and one count of second-degree assault in violation of New York Penal Law § 120.05(6). His appeals proved unsuccessful, and so Flowers filed this pro se Petition for a writ of habeas corpus. See 28 U.S.C. § 2254. He raises five issues: (1) sufficiency of the evidence; (2) whether trial testimony violated People v. Trowbridge, 305 N.Y. 471, 113 N.E.2d 841 (1953), because of witness bolstering; (3) deficiencies in the grand jury proceeding; (4) whether his sentence was excessive and retaliatory; and (5) ineffective assistance of counsel. For the following reasons, his Petition is DENIED in its entirety.
The Court will start with a general overview, adding greater detail in the ensuing analysis. As is the usual practice, the facts are viewed in the light most favorable to the verdict. See Garbutt v. Conway, 668 F.3d 79, 80 (2d Cir. 2012).
In the early hours of January 17, 2008, Randolph Flowers hatched a plan to rob his former landlord at a three-bedroom apartment in Huntington Station. (5/15 Tr. 47:23-48:3, 50:8-13, 63:8-20.) Flowers brought a silver B.B. gun, which resembled a pistol, and recruited two other men. (5/15 Tr. 51:3-52:17.) Donning black masks and gloves, the trio arrived at the apartment with the help of Daniel Dickinson, their getaway driver. (5/15 Tr. 53:5-25.)
Inside the apartment was Francisco Garcia, a Honduran immigrant, who awoke from a knock at the door. (5/14 Tr. 63:21-24, 66:14-25.) Guessing that his neighbor German Velasquez forgot his key, Garcia unlocked the door and opened it. The three men burst in, and Flowers smashed Garcia in the face with his gun. (5/14 Tr. 67:2-20, 69:8-15.) The men threw Garcia on his bed, kicked him, and stole at least one cell phone.2 (5/14 Tr. 73:4-15; 5/15 Tr. 55:9-15.)
Meanwhile, Velasquez, who was already home, heard the commotion from Garcia's room. (5/15 Tr. 9:12-18.) Velasquez knocked on Garcia's door and threatened to call the police. (5/15 Tr. 10:14-16.) At this point, the intruders fled, and Velasquez went to the front door and watched the men run awayfrom the house. (5/15 Tr. 11:3-20.) Velasquez identified Flowers as one of the perpetrators because the two had prior run-ins when Flowers lived in Garcia's room a few months earlier. (5/15 Tr. 4:17-5:25.)
Flowers and the accomplices returned to Dickinson's car, telling him that they "kicked somebody in the face, and somebody got hit with a gun." (5/15 Tr. 54:11-13.) Dickinson then drove the men to a friend's house and then went home himself. (5/15 Tr. 54:2-8.) Around the same time, Velasquez called 911 and informed them of the break-in. (5/15 Tr. 43:10-23.) Following a brief investigation, Flowers was arrested on February 2, 2008.3 (5/18 Tr. 30:4-18.)
After a two-week trial, Flowers was convicted of Burglary in the first-degree and Assault in the second-degree.4 (5/22 Tr. 10:9-16.) The State's case included testimony from a number of key witnesses: (1) the victim, Francisco Garcia, (5/14 Tr. 67:2-20, 69:8-25); (2) the other eyewitness, German Velasquez (5/15 Tr. 8:24-9:15); (3) the getaway driver, Daniel Dickinson, (5/15 Tr. 47:23-48:8, 49:14-50:13); (4) the 911 dispatcher, (5/13 Tr. 86:12-19, 89:14-25); (5) the crime sceneofficer, (5/14 Tr. 4:14-22, 8:11-18); (6) Officer Channon Rocchio, a first responder, (5/13 Tr. 33:6-14, 34:25-36:2); and (7) Detective Daniel Murphy, the lead detective in the case, (5/18 Tr. 2:22-23, 4:14-24).5
The defense presented Flowers's fiancée, Maureen Mohr, as an alibi witness. (5/19 Tr. 16:12-13, 18:19-20:24.) Flowers testified on his own behalf, asserting that he had no involvement. He explained that he could not run away, as Velasquez described, because he injured his leg in a motorcycle accident. (5/19 Tr. 78:14-19, 79:6-17, 80:2-6, 84:22-85:14.)
After his conviction, the trial court sentenced Flowers to concurrent terms: a fifteen-year term followed by five years of supervised release for first-degree burglary and a five-year term followed by three years of supervised release for second-degree assault. (S. Tr. 12:5-13.) At his sentencing, Flowers's lawyer had delivered an impassioned plea, which persuaded the judge to grant a sentence lower than the maximum. (S. Tr. 12:18-25.)
One other point about the trial is relevant here. During jury selection, Flowers's lawyer informed the court that he had received a partial Rosario package, which included the victim's grand jury testimony. The victim's testimonyestablished the date of the attack as August 17, 2007, but the indictment established the correct date: January 17, 2008. (5/11 Tr. 28:12-24.) Using this "incorrect" date as support, Flowers's lawyer made an application to the court to dismiss the indictment as "based upon insufficient facts inconsistent with the Indictment itself." (5/11 Tr. 29:15-25.) The prosecutor contested the motion, arguing that the sole reference to the incorrect date was likely a typographical error because the correct date was provided by German Velasquez, other witnesses, the felony complaint, and the bill of particulars. (5/11 Tr. 33:10-13, 32:5-24.) The court ultimately denied the motion, in part, because it did not find that Flowers suffered any prejudice. (5/11 Tr. 34:6-13.) The court also noted that any inconsistencies were "fodder for cross-examination." (5/11 Tr. 34:14-17.)
Flowers, with aid of appellate counsel, appealed to the Second Department, presenting four bases of error: (1) the evidence was legally insufficient for a jury to convict him; (2) the trial court improperly allowed state witnesses to bolster testimony; (3) he was denied his right to a grand jury; and (4) the sentence was excessive. (Appellant's Br. at 7.)6Unpersuaded, the Second Department affirmed his conviction. People v. Flowers, 95 A.D.3d 1233, 1233-34, 945 N.Y.S.2d 701, 702-03 (2d Dep't 2012). First, the sufficiency-of-the-evidence argument was "unpreserved for appellate review," the court said, and, at any rate, there was no shortage of evidence at trial to support the convictions. Id. at 1233-34, 945 N.Y.S.2d at 702-03. Second, the bolstering argument was "unpreserved for appellate review, as defense counsel either failed to object to the challenged testimony, or objected on general hearsay grounds." Id. at 1234, 945 N.Y.S.2d at 703. The court further held that Detective Murphy's "testimony regarding the complainant's identification of the defendant from a photo array was improper, the error was harmless" because the trial evidence was "overwhelming" and "there was no significant probability that, but for the error, the jury would have acquitted the defendant." Id. Third, the court determined that the grand-jury arguments were "not reviewable" because Flowers's "guilt was proven beyond a reasonable doubt at trial" and that alternatively, the arguments lacked merit. Id. Finally, the court determined that "[t]he sentence imposed was not excessive." Id.
Flowers requested leave to appeal, which was denied by the New York Court of Appeals. People v. Flowers, 19 N.Y.3d 1025, 978 N.E.2d 110, 953 N.Y.S.2d 558 (2012).
Flowers then filed a pro se motion to set aside his sentence under New York Criminal Procedure Law § 440.20. (440.20 Mot. at 109-10.) In this 440.20 motion, he argued that his sentence was excessive and in retaliation for his decision to reject a plea deal and proceed to trial. (Id. at 111-12.) He also argued that his lawyer was ineffective during the sentencing phase. (Id. at 114-17.) Flowers attached a sworn statement from his mother detailing a supposed plea deal that the trial judge offered during jury deliberations.
The Suffolk County Supreme Court denied the motion. (440.20 Decisions at 139.) The court concluded that Flowers's ineffective-assistance-of-counsel claim was based on the trial record and accordingly "not available for review under Article 440 of the Criminal Procedure Law." (Id.) As for the sentencing claims, the court determined that Flowers "had a full and fair opportunity to litigate his sentence" before the Second Department and thus rejected those claims. (Id.) Flowers then sought leave to appeal to the Second Department, but his request was denied. (Id. at 178.) This Petition followed.
Congress enacted the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996), to restrict "the power of federal courts to grant writs of habeas corpus to state prisoners." Williams v. Taylor, 529 U.S. 362, 399, 120 S. Ct. 1495, 1516, 146 L. Ed. 2d 389 (2000). While not a rubber stamp, the statute gives substantial deference to state court decisions. See Virginia v. LeBlanc, 137 S. Ct. 1726, 1729, 198 L. Ed. 2d 186 (2017). The rationale is straightforward: A high bar for relief "avoids unnecessarily 'disturbing the State's significant interest in repose for concluded litigation, denying society the right to punish some admitted offenders, and intruding on state sovereignty to a degree matched by few exercises of federal judicial authority.'" Id. (quoting Harrington v. Richter, 562 U.S. 86, 103, 131 S. Ct. 770, 787, 178 L....
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