Gee v. Conway

• Decision Date: 14 October 2009
• Docket Number: No. 03-CV-6184L.,03-CV-6184L.
• Citation: 664 F.Supp.2d 225
• Parties: Carl Z. GEE, Petitioner, v. James CONWAY, Respondent.
• Court: U.S. District Court — Western District of New York

664 F.Supp.2d 225

Carl Z. GEE, Petitioner, v. James CONWAY, Respondent.

No. 03-CV-6184L.

United States District Court, W.D. New York.

October 14, 2009.

Donald M. Thompson, Rochester, NY, for Petitioner.

Loretta S. Courtney, Rochester, NY, for Respondent.

DECISION AND ORDER

DAVID G. LARIMER, District Judge.

Petitioner, Carl Z. Gee ("Gee"), filed this petition, pro se, pursuant to 28 U.S.C. § 2254, seeking to vacate his conviction for a robbery in the first degree. The petition was referred to United States Magistrate Judge Victor E. Bianchini pursuant to 28 U.S.C. § 636(b). After his review, Magistrate Judge Bianchini issued a thorough, detailed 17-page Report and Recommendation (Dkt. # 22) recommending that the petition be dismissed. Gee duly filed objections (Dkt. #24) to that Report and Recommendation.

Magistrate Judge Bianchini discussed the facts relating to petitioner's participation in a robbery at a gas station in Greece, New York on November 14, 1997. Magistrate Judge Bianchini set out the procedural history, the motions that were filed and other evidentiary matters relating to the trial.

Gee seeks relief on the grounds that both his trial and appellate counsel provided ineffective assistance of counsel. Magistrate Judge Bianchini discussed the standard for determining such claims under principles established in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Gee must show that his lawyers' representation was not within the range expected of attorneys in criminal cases, and that there was a reasonable probability that, but for counsels' ineffectiveness, the result of the trial and appeal would have been different.

Magistrate Judge Bianchini discussed at length Gee's claims of ineffective representation by both his trial and appellate counsel. Magistrate Judge Bianchini found that none of the matters raised by Gee constituted ineffective assistance of counsel. The matters suggested simply do not rise to the level of ineffective assistance. To some extent, counsel's actions at trial may have involved tactical decisions, for example, declining to have Gee testify before the grand jury and this Court is in no position to second guess such a tactical decision. I have considered all the matters raised by Gee and the discussion of them by Magistrate Judge Bianchini, and I find no error or reason to modify the Magistrate Judge's decision on these points. The same can be said for the claims that appellate counsel erred for not pursuing the claims Gee has advanced about his trial counsel's deficiencies. In sum, Gee has failed to establish either prong of the two-prong test set forth in Strickland for establishing an ineffective assistance of counsel claim.

CONCLUSION

I accept and adopt the Report and Recommendation (Dkt. # 22) of United States Magistrate Judge Victor E. Bianchini. I find no reason to alter, modify or reject that Report and Recommendation. I accept it, deny the relief requested and DISMISS the petition for habeas corpus relief.

Finally, I decline to issue a certificate of appealability because Gee has failed to make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c).

IT IS SO ORDERED.

REPORT AND RECOMMENDATION

VICTOR E. BIANCHINI, United States Magistrate Judge.

I. Introduction

Pro se petitioner Carl Z. Gee ("Gee" or "petitioner") was convicted of robbery for an armed hold-up of a clerk in a convenience store. On November 14, 1997, Gee and a female accomplice entered the convenience store and, after asking the clerk for cigarettes, Gee brandished a gun case and ordered the clerk to open the cash register. Gee's accomplice then went behind the counter and took the money. Realizing that the robbery was being filmed on the store's surveillance camera, Gee ordered the clerk to show him where the surveillance equipment was located. Gee then unsuccessfully tried to get at the videotape, and the pair fled. Later that night, the police showed the clerk the surveillance videotape, which she authenticated. Petitioner subsequently was apprehended and indicted for first and second degree robbery.

Following a jury trial, Gee was convicted of one count of robbery in the first degree (N.Y. Penal law § 160.15(4)). Gee was adjudicated as a persistent violent felony offender and sentenced to an indeterminate term of imprisonment of 20 years to life. The Appellate Division, Fourth Department, of New York State Supreme Court, unanimously affirmed his conviction. People v. Gee, 286 A.D.2d 62, 730 N.Y.S.2d 810 (App.Div. 4th Dept.2002). The New York Court of Appeals granted leave to address, inter alia, Gee's assertion that the clerk's identification testimony should have been precluded, owing to the People's failure to serve the defense with notice of the surveillance tape viewing by the store clerk. See N.Y. CRIM. PROC. L. § 710.30. The Court of Appeals held that in viewing the videotape the clerk did not "previously identify [defendant] as such"— i.e., as the defendant in the case—within the meaning of C.P.L. § 710.30(1),¹ and therefore preclusion of the identification testimony was not required. Accordingly, the Court of Appeals affirmed the Fourth Department's order. People v. Gee, 99 N.Y.2d 158, 753 N.Y.S.2d 19, 782 N.E.2d 1155 (2002), rearg. denied, 99 N.Y.2d 652, 760 N.Y.S.2d 105, 790 N.E.2d 279 (2003).

Gee then filed numerous state-court collateral attacks on his conviction, all of which were denied.

This timely habeas corpus petition followed. See Docket Nos. 1, 3 & 4. Respondent filed an Answer to the Petition. See Docket No. 9. The matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1), for the purpose of hearing and deciding non-dispositive motions and issuing a report and recommendation regarding the disposition of Gee's petition.

On April 6, 2005, attorney Donald M. Thompson, Esq. ("habeas counsel") filed a notice of appearance on behalf of petitioner. See Docket No. 12. Gee, acting pro se, subsequently filed a Motion for Leave to File a Supplemental Habeas Petition. See Docket Nos. 16-1 & 16-2. The Court ordered respondent to respond to the motion, and respondent consented to petitioner's request to file a supplemental petition. See Docket Nos. 17 & 18. Upon respondent's consent, the Court issued an Order granting petitioner's motion to file a supplemental petition. See Docket No. 19. In this Order, the Court indicated that the operative pleading in this matter is now the "Proposed Supplemental Petition" (hereinafter, the "Supplemental Petition") attached as part of Docket Nos. 16-1 & 16-2. At the Court's direction, respondent submitted an Answer in opposition to Gee's Supplemental Petition. See Docket No. 20.

Gee's Supplemental Petition raises only claims of ineffectiveness of counsel; he asserts errors on the part of the attorney who represented him during the pre-trial phase of the proceedings; the attorney who represented him at trial; and appellate counsel. For the reasons that follow, I recommend that Gee's request for a writ of habeas corpus be denied and that the Supplemental Petition be dismissed.

II. Factual Background

Amy Butler testified at trial that she was working alone at the Kwik-Fill gas station in Greece, New York, on November 14, 1997, when two people, a black man with a beard and a thin white woman, came in at about 11:20 p.m. The man asked for cigarettes and rolling paper and as Butler reached for the items, he told her to step back and follow his instructions. He had his hand inside a gun case that he pointed at her. He commanded her to open the cash register and his accomplice took out the money, about $86, and put it into a plastic handbag. The man then ordered Butler into the back room and told her to show him where the video surveillance equipment was located. She did, but the cabinet was locked and she did not have a key. The man ripped the wires out, but was unable to reach inside to the cassette. Trial Transcript ("Tr.") 205-19.

A customer then drove up and began pumping gas. That caused a "beep" which was heard in the store and the woman who took the money evidently mistook the sound, because she told her companion that Butler must have pulled an alarm. In any case, the woman said, they had been there long enough and she and the gunman fled. Butler then rang the silent alarm and shortly thereafter the police arrived. Tr. 220-22.

In earlier testimony, Police Officer Lou Buduson, the first to respond to the scene of the robbery, testified that he retrieved the videotape and that he had played it that night for Butler. Tr. 175-76. The prosecutor had been unaware of that viewing and had not included it in his pretrial notice. Tr. 195. The defense moved in limine to preclude Butler from identifying the defendant at trial on the ground that such notice was required, but the court held otherwise, reasoning that the purpose of such notice was to enable the defense to make a pretrial motion to suppress on constitutional grounds and that, without more, "the viewing of a videotape of a criminal event as it unfolds" would not give rise to such a motion. Tr. 193. Butler was therefore permitted to testify that she had given a statement to the officers and to confirm that she been shown the videotape, which depicted "the whole incident." It was played for the jury as she narrated. Tr. 223-33, 254; Trial Exhibit ("Tr. Exh.") 17.

Butler further testified, without objection, that on December 29, 1997, she attended a line-up at the Public Safety Building and recognized petitioner as the man who had robbed the store and who appeared on the videotape, although by the time of trial he had more facial hair and less on top of his head. Tr. 234-37. In cross-examination, the defense brought out that on November 19, a few days after the robbery, Butler had been shown a number of still photographs "taken from the videotape." Tr. 255, 262; Tr. Exh. 19. Both the display of these...