Green v. Kirkpatrick, 9:16-CV-1407 (FJS)

• Decision Date: 19 September 2017
• Docket Number: 9:16-CV-1407 (FJS)
• Parties: SHAUN GREEN, Petitioner, v. MICHAEL KIRKPATRICK, Respondent.
• Court: U.S. District Court — Northern District of New York

SHAUN GREEN, Petitioner, v. MICHAEL KIRKPATRICK, Respondent.

9:16-CV-1407 (FJS)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

September 19, 2017

APPEARANCES

SHAUN GREEN

13-A-1994

Attica Correctional Facility

Box 149

Attica, New York 14011

Petitioner pro se

OFFICE OF THE NEW YORK

STATE ATTORNEY GENERAL

120 Broadway

New York, New York 10271

Attorneys for Respondent

OF COUNSEL

LISA E. FLEISCHMANN, AAG

SCULLIN, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Petitioner Shaun Green filed a petition for a writ of habeas corpus and a memorandum of law pursuant to 28 U.S.C. § 2254. See Dkt. No. 1, Petition; Dkt. No. 1-1, Memorandum of Law ("Petitioner's Memorandum"). He raised the following substantive grounds for habeas relief: (1) the trial court erred in denying his motion for a mistrial (Ground One); (2) the trial court improperly admitted photographs of the victim (Ground Two); (3) the trial court should have precluded evidence of the victim's call to 911 due to an inadequate foundation (Ground Three); (4) the trial court should have precluded the recording of the victim's call to 911 because the prosecutor failed to serve timely notice of intent to offer at trial, and trial counsel was ineffective to the extent she did not adequately object to the introduction of the 911 recording (Ground Four); (5) the trial court should have precluded evidence of a photo array identification (Ground Five); and (6) the police lacked probable cause to arrest him (Ground Six). See Petition at 6-15; Petitioner's Memorandum at 4-24.

Respondent opposes the petition. See Dkt. No. 14, Answer; Dkt. No. 14-1, Memorandum of Law in Opposition to the Petition for a Writ of Habeas Corpus ("Respondent's Memorandum"); Dkt. No. 15, State Court Records ("SR").

II. RELEVANT BACKGROUND

Petitioner was convicted, following a jury trial in Albany County Court, of burglary in the second degree, see N.Y. Penal Law § 140.25(2), and robbery in the third degree, see N.Y. Penal Law § 160.05. See Petition at 1; People v. Green, 127 A.D.3d 1473, 1473 (3d Dep't 2015); Dkt. No. 15-4, ("Trial Transcript")¹ at 76-77. The charges stemmed from an incident that occurred on June 14, 2012, in Cohoes, New York. See Green, 127 A.D.3d at 1473-74. The Appellate Division found as follows:

Around midnight on June 14, 2012, defendant and his three accomplices -- two men and one woman -- forcibly entered the home of an 86- year- old man (hereinafter the victim) in the City of Cohoes, Albany County. Once inside, defendant and the others repeatedly beat the victim, including kicking him and striking him in the head and face with a BB gun. While in the residence, the perpetrators breached the victim's safe and stole approximately $30,000 worth of jewelry and rare coins. The following day, two of defendant's accomplices were apprehended, both of whom implicated defendant. Thereafter, defendant was arrested and charged in a five-count indictment with crimes stemming from the home invasion.

* * * * * * * * * *

Here, the victim informed the police that, at about midnight on the night in question, a woman he had previously met through one of his tenants rang the doorbell, knocked on his back door and requested to use his telephone. The victim obliged and allowed the woman to use the telephone on his back porch. When the woman knocked again, she and three masked men rushed into the house. The victim described all three as black men of average build and average height. After speaking with the victim's tenant, the police learned the location of the female accomplice's residence. That apartment was searched and its numerous occupants -- including, but not limited to, the leaseholder and Nekaya Rodriguez, who matched the victim's description of the female perpetrator -- were interviewed. During her interview, Rodriguez admitted to her role in breaking into the victim's house and identified one of her accomplices by the street name of SG. Similarly, the leaseholder informed police that an individual she knew as SG was at her apartment on the night of the incident and that he had gone for a walk with three others. According to the leaseholder, when SG and the others returned, they openly talked about having robbed someone and splitting up the proceeds. Although Rodriguez, the leaseholder and one of defendant's accomplices did not know SG's full name, they were able to identify the building where he lived. The resulting investigation into that residence uncovered defendant's real name and identity. Shortly thereafter, on June 15, 2012, defendant's photograph was identified in two separately administered photo arrays as depicting SG.

Id.²

On April 25, 2013, the trial court sentenced Petitioner to a determinate 15-year prison term with five years of post-release supervision on the second-degree burglary count and an indeterminate term of two-and-one-third to seven years on the robbery count with the sentences to run concurrently. See Green, 127 A.D.3d at 1473; Dkt. No. 15-4 at SR 99-100.

Petitioner, through appellate counsel, appealed, raising the same arguments that he has set forth in this petition. See Dkt. No. 15, at SR 1-99 ("Appellant's Brief"). On April 23, 2015, the Appellate Division, Third Department, affirmed Petitioner's convictions. See Green, 127 A.D.3d at 1476. Petitioner, through appellate counsel, moved for leave to appeal to the New York Court of Appeals. See Dkt. No. 15-1, at SR 292. The New York Court of Appeals denied the leave application on March 7, 2016. See id. at SR 293; People v. Green, 27 N.Y.3d 965 (2016). This action followed.

III. DISCUSSION

A. AEDPA standard of review

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant habeas corpus relief with respect to a claim adjudicated on the merits in state court only if, based upon the record before the state court, the state court's decision (1) "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;" or (2) "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1), (2); Cullen v. Pinholster, 563 U.S. 170, 181, 184-85 (2011) (quoting 28 U.S.C. § 2254(d)); Premo v. Moore, 562 U.S. 115, 120-21 (2011) (quoting 28 U.S.C. § 2254(d)); Schriro v. Landrigan, 550 U.S. 465, 473 (2007). This standard is "'highly deferential'" and "'demands that state-court decisions be given the benefit of the doubt.'" Felkner v. Jackson, 562 U.S. 594, 598 (2011) (per curiam) (quoting Renico v. Lett, 559 U.S. [766, 773], 130 S. Ct. 1855, 1862, 176 L. Ed. 2d 678 (2010)).

The Supreme Court has repeatedly explained that "a federal habeas court may overturn a state court's application of federal law only if it is so erroneous that 'there is no possibility fairminded jurists could disagree that the state court's decision conflicts with th[e Supreme] Court's precedents.'" Nevada v. Jackson, ___ U.S. ___, 133 S. Ct. 1990, 1992 (2013) (per curiam) (quoting Harrington v. Richter, 562 U.S. [86, 102], 131 S. Ct. 770, 786, 178 L. Ed. 2d 624 (2011)); see Metrish v. Lancaster, 569 U.S. 351, 358 (2013) (explaining that success in a habeas case premised on § 2254(d)(1) requires the petitioner to "show that the challenged state-court ruling rested on 'an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.'" (quoting Harrington v. Richter, 562 U.S. ___, ___, 131 S. Ct. 770, 786-87, 178 L. Ed. 2d 624 (2011))).

Additionally, the AEDPA foreclosed "'using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts.'" Parker v. Matthews, 567 U.S. 37, 38 (2012) (per curiam) (quoting Renico v. Lett, 559 U.S. ___, ___, 130 S. Ct. 1855, 1856, 176 L. Ed. 2d 678 (2010)). A state court's findings are not unreasonable under § 2254(d)(2) simply "because the federal habeas court [reviewing the claim] would have reached a different conclusion in the first instance." Wood v. Allen, 558 U.S. 290, 301 (2010) (citation omitted). "The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable -- a substantially higher threshold." Schriro, 550 U.S. at 473 (citation omitted). Finally, federal habeas courts must presume that the state courts' factual findings are correct unless a petitioner rebuts that presumption with '"clear and convincing evidence.'" Id. at 473-74 (quoting § 2254(e)(1)).

B. Petitioner's claim that the trial court erred in denying his motion for a mistrial due to alleged juror misconduct (Ground One)

Petitioner argues the trial court erred in denying his motion for a mistrial due to alleged juror misconduct. See Petition at 6-8; Petitioner's Memorandum at 4-9. Respondent argues that, although the claim is unexhausted because Petitioner relies exclusively on state law, that the Court should, nonetheless, deem the claim exhausted and procedurally barred. See Respondent's Memorandum at 13-17. Respondent also argues that, in any event, the claim is not cognizable on habeas review because it is based on state law and that, in the alternative, the Appellate Division's rejection of the claim was consistent with Supreme Court law. See id. at 17-21; Green, 127 A.D.3d at 1474-75.

A federal court may grant habeas relief only on the ground that a petitioner "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The Supreme Court has "stated many times that 'federal habeas corpus relief does not lie for errors of state law.'" Estelle v. McGuire, 502 U.S. 62, 67 (1991) (quoting Lewis v. Jeffers, 497 U.S. 764, 780, 110 S. Ct. 3092, 3102, 111 L. Ed. 2d 606 (1990)) (citing Pulley v. Harris, 465 U.S. 37, 41, 104 S. Ct. 871, 874-75, 79 L. Ed. 2d 29 (1984)). Moreover, "it is not the province of a federal habeas ...