Foddrell v. Lavalley
| Decision Date | 05 August 2016 |
| Docket Number | 12 Civ. 6562 (CS) (LMS) |
| Parties | FODDRELL, Petitioner, v. LAVALLEY Respondent. |
| Court | U.S. District Court — Southern District of New York |
REPORT AND RECOMMENDATION
1
On August 27, 2012, Petitioner, Dyego Foddrell ("Petitioner"), filed a petition for a writ of habeas corpus ("petition") pursuant to 28 U.S.C. § 2254, challenging his 2004 judgment of conviction for one count of Depraved Indifference Murder in the Second Degree (N.Y. Penal Law § 125.25(4)), one count of Endangering the Welfare of a Minor (N.Y. Penal Law § 260.10(1)), and his aggregate indeterminate term of imprisonment of from 25 years to life in prison. D.E. 1, at 1.
Petitioner asserts the following three grounds for relief: (1) Petitioner was denied due process when the court declined to suppress Petitioner's statements to the police and admitted the statements at trial (D.E. 3, at 5), (2) Petitioner was denied due process when the trial court declined to grant a mistrial after a juror made improper comments (D.E. 3, at 10), and (3) Petitioner was deprived of the effective assistance of appellate counsel (D.E. 3, at 12).
For the following reasons, I conclude, and respectfully recommend that Your Honor should conclude, that this petition should be dismissed in its entirety.
Respondent's factual recitation is materially consistent with the record. Accordingly, the Court adopts Respondent's factual recitation, and assumes the reader's familiarity with the information contained therein. In brief, however, in December of 2002, Petitioner lived with his girlfriend, Sharrell Johnson, and Johnson's two year old son, Maurice Campbell, Jr. During the weeks preceding December 6, 2002, Petitioner and Johnson had been hitting Maurice whenever he wet the bed, soiled himself, or misbehaved. On the evening of December 6, 2002, Petitioner was home with Maurice while Johnson was at work. After Maurice defecated in his pants, Petitioner repeatedly hit him in the head and abdomen so severely that, when Johnson returned home, Maurice was unconscious. Although Johnson insisted that they get help, Petitioner initially disagreed; he warned Johnson that seeking medical attention would result in Maurice being taken away from them. Johnson ultimately prevailed, and they took Maurice to a hospital. There, Petitioner fabricated stories to explain Maurice's dire condition and the scores of bruises over his body. Less than two hours later, Maurice died; he had bled to death from multiple internal injuries. D.E. 11, at p. 2.
The Westchester County Grand Jury charged Petitioner and Johnson with two counts of Murder in the Second Degree (N.Y. Penal Law §§ 125.25(2), (4)), Manslaughter in the First Degree (N.Y. Penal Law § 125.20(4)), and Endangering the Welfare of a Child (N.Y. Penal Law § 260.10 (1)). D.E, 12, Ex. 1. On May 9, 2003, Petitioner moved to suppress post-arreststatements that he had made to the police. D.E. 12, Ex. 2. By decision and order dated June 10, 2003, the Supreme Court, Westchester County (Smith, J.), ordered that a Huntley2 hearing be conducted to determine the admissibility of the statements. D.E. 12, Ex. 3. Pursuant to that order, a Huntley hearing was conducted in the Supreme Court, Westchester County, on August 7, 8, and 11, of 2003. By decision and order dated September 9, 2003, the court granted Petitioner's motion in part and denied it in part. D.E. 12, Ex. 4. The court (Smith, J.), found that Petitioner was in custody when the police detained him at the hospital and transported him to an interview room, that Petitioner's statements which were made in response to Detective Michael LaRotunda's pre-Miranda questioning should be suppressed, that the pre-Miranda questioning rendered Petitioner's subsequent Miranda waiver invalid, and that Petitioner's post-Miranda statements to LaRotunda should be suppressed. Id. at 6, 8-9. Similarly, the court suppressed Petitioner's subsequent oral and videotaped statements to Detective George Ossipo because the court found that there was "no pronounced break" between the questioning of Petitioner by LaRotunda and Ossipo. Id. at 9. The court, however, did not suppress Petitioner's videotaped statements to Detective Arthur Glover, made several hours later and after another recitation of Miranda warnings, because the court determined that this final statement was sufficiently attenuated from the earlier statements to cure any taint from those earlier statements. Id.
Following a jury trial, on June 29, 2004, Petitioner was convicted of Murder in the Second Degree under count two of the indictment, and Endangering the Welfare of a Child. D.E. 11, at 4. On August 24, 2004, Petitioner was sentenced to an aggregate indeterminate term of imprisonment of from 25 years to life in prison. Id.
On December 31, 2008, Petitioner filed a direct appeal in the Appellate Division, Second Department. Petitioner argued that (1) the trial court failed to properly charge depraved indifference murder to the jury in accordance with People v. Feingold, 7 N.Y.3d 288 (2006), (2) Petitioner was denied a fair and impartial jury because of remarks made by the trial court during jury selection, (3) all of Petitioner's post-arrest statements to the police should have been suppressed, and (4) the trial court erroneously denied a mistrial motion made by Petitioner based upon a mid-trial comment made by one of the jurors. D.E. 12, Ex. 5.
On September 29, 2009, the Appellate Division, Second Department, unanimously affirmed Petitioner's judgment of conviction. People v. Foddrell, 65 A.D.3d 1375 (2d Dept. 2009). The Appellate Division found that Petitioner's challenge to the trial court's depraved indifference murder instruction was unpreserved for appellate review and declined to review the issue in the interest of justice. Id. at 1376. Further, the Appellate Division found that Petitioner's motion to suppress his videotaped statement was properly denied because the statement was preceded by the re-administration of Miranda warnings and was attenuated from the earlier statements that were suppressed by the lower court. Id. The Appellate Division also found that (1) Petitioner's challenge to the trial court's comments during jury selection was unpreserved for appellate review and review of that issue in the interests of justice was unwarranted, (2) the trial court had properly denied Petitioner's mistrial motion based upon a juror's mid-trial comment, and (3) Petitioner's remaining contentions were meritless. Id.
On October 29, 2009, Petitioner sought leave from the New York State Court of Appeals to appeal from the Appellate Division's affirmance of Petitioner's judgment of conviction. D.E. 12, Ex. 8. Petitioner sought leave, in part, "on the grounds that the Appellate Division, Second Department, made reversible error on all the grounds they mentioned in their decision." D.E. 12,Ex. 8. On December 22, 2009, a Judge of the New York State Court of Appeals denied Petitioner's leave application. People v. Foddrell, 13 N.Y.3d 910 (2009).
On December 16, 2010, Petitioner sought a writ of error coram nobis in the Appellate Division, Second Department, on the ground that he was denied the effective assistance of appellate counsel. D.E. 12, Ex. 10. Petitioner claimed that his appellate attorney was ineffective because counsel failed to argue that (1) Petitioner's depraved indifference murder conviction was based upon legally insufficient evidence because there is "no doubt" that he "intentionally killed" the victim, (2) Petitioner's trial counsel was ineffective for not raising a legal insufficiency argument at trial, and (3) Petitioner was deprived of a fair trial because testimony that the victim's anus was "gaping" impermissibly suggested to the jury that Petitioner had inserted an object into the victim's anus. Id.
On May 17, 2011, the Appellate Division denied Petitioner's request for a writ of error coram nobis on the ground that Petitioner had failed to establish that he was deprived of the effective assistance of appellate counsel. People v. Foddrell, 84 A.D.3d 1113 (2011); D.E. 12, Ex. 15. On August 11, 2011, a Judge of the New York State Court of Appeals denied Petitioner's application for leave to appeal from the denial of his petition for a writ of error coram nobis. People v. Foddrell, 17 N.Y.3d 816 (2011).
On November 1, 2011, Petitioner submitted a second petition for a writ of error coram nobis. D.E. 12, Ex. 18. In his second petition, Petitioner argued that appellate counsel was ineffective because he did not argue on appeal that Petitioner had been denied a fair trial when the court failed to either strike the testimony of Sharrell Johnson, after she repeatedly consulted with her attorney during her direct testimony, or instruct the jury that it could consider the consultations in evaluating Johnson's credibility. Id. Furthermore, Petitioner argued that hisappellate counsel was ineffective for not challenging the effectiveness of his trial counsel on the ground that trial counsel allegedly failed to object to remarks made by the trial court to, and in front of, prospective jurors and a witness. Id.
On April 24, 2012, the Appellate Division denied Petitioner's second petition for a writ of error coram nobis on the ground that Petitioner failed to establish that he was deprived of the effective assistance of appellate counsel. People v. Foddrell, 94 A.D.3d 1138 (2012). On July 12, 2012, Petitioner sought leave to appeal to the New York State Court of Appeals from the denial of his application for a writ of error coram nobis. D.E. 12, Ex. 22. On August 10, 2012, the New York State Court of Appeals denied Petitioner's leave application. People v. Foddrell, 19 N.Y.3d 996 (2012).
In November of 2011, Petitioner moved to vacate his judgment of conviction pursuant to NYCPL § 440.10 on the ground that he was denied a fair trial because (1) his trial counsel had...
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