Hare v. Rockwood

• Docket Number: 22-CV-3190 (CM) (KHP)
• Decision Date: 28 August 2023
• Parties: Maxwell Hare, Petitioner, v. Mark Rockwood, Superintendent of Gouverneur Correctional Facility, Respondent.
• Court: U.S. District Court — Southern District of New York

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Maxwell Hare, Petitioner,
v.
Mark Rockwood, Superintendent of Gouverneur Correctional Facility, Respondent.

No. 22-CV-3190 (CM) (KHP)

United States District Court, S.D. New York

August 28, 2023

REPORT AND RECOMMENDATION

KATHARINE H. PARKER, UNITED STATES MAGISTRATE JUDGE

TO: THE HONORABLE COLLEEN MCMAHON, United States District Judge

On August 19, 2019, Petitioner Maxwell Hare (“Petitioner”), was convicted of one count of Attempted First-Degree Gang Assault, one count of Attempted Second-Degree Assault, one count of Second-Degree Riot, and two counts of Attempted Third-Degree Assault after a jury trial in the Supreme Court of the State of New York. Petitioner was sentenced to four years in prison followed by five years of post-release supervision. The Appellate Division, First Department, affirmed the convictions. People v. Kinsman, 191 A.D.3d 539 (2021). The New York Court of Appeals denied leave to appeal. People v. Hare, 36 N.Y.3d 1120 (2021). Before the Court for a Report and Recommendation is a Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, I recommend that the Petition be denied.

BACKGROUND

1. Facts Giving Rise to Conviction

In 2018, Petitioner lived in New Jersey and worked for Amtrak. (Hare Tr. A.880.)^[1] On October 12, 2018, Petitioner went to a bar on the Upper East Side of Manhattan where he met

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up with several individuals who, like Petitioner, were members of the right-wing extremist group, the Proud Boys. (Id. at A.891.) Petitioner wore Dr. Martens boots that he had purchased earlier that day. (Id. at A.888-90, A.1058.) At around 6:30 p.m. that evening, Petitioner and approximately 30 other Proud Boys members left the bar together to attend an event (the “Event”) at the Metropolitan Republican Club (“MRC”), which is located in Manhattan on 83rd Street between Park Avenue and Lexington Avenue. (Id. at A.892.) Gavin McInnes, founder of the Proud Boys, was the guest speaker at the Event.

A large group of protestors gathered outside the MRC Event. Among the protestors were individuals associated with “Antifa,” a “loosely affiliated movement” comprised of individuals who oppose fascism, including through violent tactics. (Segal Tr. A.195.) Earlier that day, Antifa-affiliated protestors had made threatening calls to the MRC president asking that the event be cancelled and had left a “manifesto” outside the MRC that threatened violence if the Event moved forward. (Id. at A.215.) As Petitioner walked towards the MRC, he yelled to the protesters, “I'll see you at the parking lot.” (Mays Tr. A.548.)

The Event concluded at 8:00 p.m. To avoid a confrontation between Event attendees and protestors, police officers directed the attendees to walk west toward Park Avenue and southward to the train station and directed the protestors to remain on the north side of 83rd Street. (Id. at A.505.) When Petitioner left the MRC, he walked south on Park Avenue with a group of other Proud Boys and with a police escort. When Petitioner reached 82nd Street, he observed a group of six protestors to his left who appeared to be affiliated with Antifa. The protestors were over 100 feet away from Petitioner and were walking west along 82nd Street

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toward Park Avenue. (Hare Tr. A.926; Schoenfeld Tr. A.1193-94.) They wore masks and black sweatshirts with hoods that covered their faces.

On observing the protestors, Petitioner clapped his hands and yelled to alert the other Proud Boys members to the presence of the protesters. (Hare Tr. A.1016-17; People's Exs. 3, 7, 8). Petitioner dropped his backpack and ran towards the protestors. One of the protestors threw a clear plastic bottle in Petitioner's direction, which missed Petitioner and landed on the sidewalk. (Hare Tr. A.910; Mays Tr. 607-11.) At this point, the protestors were standing in one spot and were not walking toward Petitioner. Petitioner then charged towards the group and “grab[ed] the first guy that [he] could see” - “JD Ponytail.”^[2] (Hare Tr. A.911.) This occurred on the sidewalk just outside a gated service entrance for the building located at 969 Park Avenue. Petitioner then punched JD Ponytail, pulled him to the ground, and removed his mask. (People's Exs. 3, 7.)

(Image Omitted)

Still Image from People's Exhibit 7 shows Petitioner (in the red hat) grab JD Ponytail.

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A group of about nine other Proud Boys joined Petitioner outside the service entrance, and a physical fight broke out between the ten Proud Boys and the six protestors. The fight lasted approximately one minute and was captured on video from security cameras in the area and bystander cell phone cameras. The footage shows the individuals grab, hit, punch, and kick each other. As for Petitioner, video footage shows that after Petitioner removed JD Ponytail's mask, another Proud Boy held onto JD Ponytail while Petitioner held JD Ponytail's head against the concrete sidewalk and punched him in the head and shoulder four times and elbowed him in the torso twice. (People's Exs. 5, 7, 8.) Cell phone footage captured Petitioner yell, “Take this, motherfucker,” and “I just stomped the shit out of him.” (Id.; Hare Tr. A.1178.) Petitioner then walked away from JD Ponytail as another Proud Boy kicked JD Ponytail in the back, and Petitioner joined two other Proud Boys who were kicking JD Shaved Head while she was on the ground. Petitioner punched JD Shaved Head twice in the torso and kicked her once while she sat with her head tucked between her knees and her hand over her head. (Id.)

(Image Omitted)

Images from People's Exhibit 6 show Petitioner's arm extended before punching JD Shaved Head

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Shortly thereafter, a Proud Boys member pulled Petitioner away from JD Shaved Head as police arrived at the scene. The individuals who were present at the altercation disbursed, and nobody was arrested at the scene. Officer Patrick Conley responded to the scene and observed two people sitting on the ground, one of whom was a woman with a shaved head, and he heard the woman say that she had been “punched like 70 times.” (Conley Tr. A.403.) Officer Conley tried to speak with the woman but a group of people standing near her asked him to leave and blocked his view of the two individuals. (Id. at 409.) Officer Conley overheard the individuals refuse medical help from an EMT, but he did not get close enough to observe whether the individuals had visible injuries. (Id. at 410.)

(Image Omitted)

Image from People's Exhibit 6 shows Petitioner being pulled away from JD Shaved Head.

Petitioner walked away from the scene with the other Proud Boys members. As Petitioner walked away, he exclaimed that he “had one of their fucking heads,” and that he had “ripped that motherfucker's mask off and then fucking hit him right in the head.” (Mays: A.556-57.)

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At the corner of 79th Street and Park Avenue, Petitioner posed with a group of other Proud Boys members for a photograph.

The New York Police Department (“NYPD”) investigated the incident and reviewed video footage of the altercation. As part of the investigation, Detective Thomas Mays reviewed video footage taken by individuals who observed the altercation, including the journalist Sandi Bachom, and Proud Boys member Christopher Wright. (Mays: A.500-01, 508-511.) Mays also reviewed surveillance video recorded by security cameras in the area. From the footage, the NYPD identified all of the Proud Boys members who participated in the attack, including Petitioner. On October 22, 2018, Petitioner voluntarily surrendered to police after learning that they were looking for him. A grand jury charged Petitioner for his involvement in the altercation.

2. Trial

Petitioner was tried in New York County Supreme Court from August 1 through August 15, 2019 before Justice Mark Dwyer. Petitioner was tried with a co-defendant, fellow Proud Boys member John Kinsman, who had also participated in the altercation. Petitioner and Kinsman were represented at trial by Ronald Hart and Jack Goldberg, respectively.

At trial, the prosecution introduced multiple videos from witnesses and security footage as evidence. The videos depicted the entire altercation from multiple angles. Additionally, Mays testified to his investigation into the incident and Conley testified to his observations on the night of the altercation. The prosecution also introduced testimony from Oren Segal, an expert on extremist and terrorist groups. Segal testified regarding Antifa and the Proud Boys' ideology, background, and existing mutual animosity.

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Segal testified that people associated with the Antifa movement share the primary belief that “the only way to prevent [N]azism and fascism from rising in this country, is to physically confront those that support those ideas [such as the Proud Boys], in the street.” (Segal Tr. at A.195.) Similarly, Segal testified that the Proud Boys are a “sort of group slash movement” whose members “view themselves as . . . defending conservative values in this country, but have put a premium on the need to attack physically and confront their opponents who they view as the left; that is Antifa [and] the left, more broadly.” (Id. at A.200.) He testified that McInnes, the founder of the Proud Boys, “really has made violence . . . one of the core tenets of the Proud Boys,” and publicly directed Proud Boys members to “fight with” any “Antifa” members that they see. (Id. at A.202.)

Segal also testified that there are four levels of Proud Boys membership. (Id.) An initiation process is required to be accepted as a member at the first level, which includes pledging an oath of allegiance to the Proud Boys. (Id. A.203.) To rise to the second level, a Proud Boys member must “get beat up by” other members while “reciting the names of five breakfast cereals.” (Id.) To rise to the third level, a Proud Boys member must get a “Proud Boys” tattoo. (Id.) To reach...