Hayes v. Lee
| Decision Date | 30 July 2013 |
| Docket Number | 10 Civ. 5134 (PGG) (RLE) |
| Parties | GEORGE HAYES, Petitioner, v. WILIAM E. LEE, Respondent. |
| Court | U.S. District Court — Southern District of New York |
George Hayes, a New York state prisoner incarcerated at Green Haven Correctional Facility, has filed a pro se petition for a wit of habeas corpus. On July 16, 2010, this Court referred the petition to Magistrate Judge Ronald L. Ellis for a Report and Recommendation ("R&R"). (Dkt. No. 3) On July 27, 2010, Hayes filed an Amended Petition. (Dkt. No. 5) On April 8, 2011, Judge Ellis issued an R&R recommending that this Court deny the petition in its entirety. (Dkt. No. 16) Hayes has filed objections to the R&R. (Dkt. No. 20) For the reasons stated below, this Court will adopt the R&R and will deny Hayes's Amended Petition.
On July 10, 2007, Hayes was convicted by a jury in Supreme Court of the State of New York, New York County, of criminal possession of a weapon in the third degree, criminal possession of a controlled substance in the fourth degree, and criminal use of drug paraphernalia in the second degree. (R&R at 1)
Hayes's convictions arose from the execution of a search warrant at 201 Linden Boulevard, Apartment 22D, in Brooklyn, on August 17, 2006. (R&R at 2 (citing Trial Tr. at 33-34)) The police officers executing the search warrant used a hydraulic ram to take down the door of the apartment. (Trial Tr. at 36) When the police entered, Patrick McGuilkin ran into a bedroom, and Rasean Williams threw a plastic bag containing cocaine out of the living room window. (R&R at 2 (citing Trial Tr. at 37, 39); Trial Tr. at 38-39, 233) Several officers followed McGuilkin into the bedroom, where he threw himself onto the bed and appeared to reach for something under the mattress. (R&R at 2; Trial Tr. at 231-32) Officers found a fully-loaded, chrome-plated, semi-automatic 9 mm. Norinco-brand handgun under the mattress in the bedroom. (R&R at 2 (citing Trial Tr. at 196); see also Trial Tr. at 89-90)
When the police entered the bedroom, they found Hayes standing by a window. (Trial Tr. at 39) Detectives searched Hayes and found cocaine in his pocket; he was holding tinfoil wrappers used to package drugs. (R&R at 2; Trial Tr. at 39, 43, 196) In the bedroom, police also found three large black trash bags that contained clear, zip-lock plastic bags used to package drugs, a number of photographs showing Hayes in the apartment, and a bank statement addressed to Hayes at a post office box. (R&R at 2 (citing Trial Tr. at 45-55)) One of the photographs the police recovered from the trash bags in the bedroom showed Hayes sitting in that bedroom, on the bed, holding what appeared to be the same handgun found under the mattress (the "Photograph"). (Trial Tr. at 46-48, 92-94)
Before trial, defense counsel moved to exclude the Photograph as unfairly prejudicial, arguing that there was no proof as to when it was taken, and that because the Photograph "was taken on an unknown date, one cannot infer [that] my client even knew the gun was still in the apartment." Defense counsel also mentioned, in passing, that he didn't "think [the People] could prove that it is the same gun." (June 4,2007 Pre-Trial Tr. 6-10; June 5, 2007Pretrial Tr, at 14-15) The trial judge ruled that the Photograph was admissible, commenting that (June 5, 2007 Pre-Trail Tr. at 20) Defense counsel then asked the trial judge whether there were any limitations on the use of the Photograph:
(June 5, 2007 Pre-Trial Tr. at 20-21)
The decision to admit the Photograph prompted an outburst from Hayes, which led the trial judge to remove Hayes from the courtroom for the balance of the trial. (R&R at 3 (citing June 5, 2007 Pre-Trial Tr. at 21-27, 55))
At trial, the Photograph was admitted through Detective Selwyn Fonrose, who had discovered the photographs in one of the trash bags while searching the bedroom. (Trial Tr. at 44-48) Detective Desmond Stokes, a firearms expert, testified that the handgun Hayes was holding in the Photograph was the same type of semi-automatic pistol that was recovered in the bedroom, and that it was also the same color. (Trial Tr. at 82-86, 92-94) Del. Stokes conceded,however, that he could not determine whether it was "the exact same gun," because that could only be determined by a serial number comparison, and the serial number of the handgun shown in the Photograph was not legible. (Trial Tr. at 93-94).
In summation, defense counsel conceded that the gun Hayes was holding in the Photograph was - if not the same gun - (Trial Tr. at 256) Counsel argued, however, that the People had not proven that Hayes had dominion and control over the gun, or that he even knew that it was under the mattress when the search warrant was executed, noting that it was Patrick McGuilkin who had reached for the gun and therefore it was under his control. (Trial Tr. at 257-58; see also Trial Tr. at 263-64 () With respect to the Photograph, defense counsel argued that Hayes had been "stoned" and may "not [have] even [been] aware that somebody put this gun in his hand." (Trial Tr. at 256)
In response to defense counsel's argument that McGuilkin had dominion and control over the gun, the prosecutor argued - over defense counsel's objection - that (Trial Tr. at 276) Theprosecutor also ridiculed defense counsel's argument that someone had slipped the gun into Hayes's hand and then snapped the Photograph:
Now, does it look like he was set up here? Do you think someone slipped that gun into his hand [and] then snapped a quick picture? Look at how comfortable he is in this picture holding that gun. Look how comfortable he is in the surroundings in all of the pictures. He's comfortable in the apartment. He knew the gun was there, and he obviously had dominion and control over the gun. You could see it.
The jury found Hayes guilty on all counts. (R&R at 4 (citing Trial Tr. at 318-19))
counsel moved to set aside the verdict, arguing that the Photograph portrayed a "prior bad act," and should only have been received for a limited purpose. (R&R at 4 (citing Litsky Decl., Ex. N)) The trial judge denied the motion. (R&R at 4 (citing Sentencing Tr. at 2)) Hayes then moved pro se for a reconstruction hearing, claiming that the transcript of the pretrial proceedings did not accurately reflect the trial judge's ruling admitting the Photograph for all purposes. (R&R at 4 (citing Litsky Deck, Ex. O)) Hayes submitted an affidavit from trial counsel, who claimed that when he asked the judge, "Is that picture admissible for all purposes, any purpose the People want?", the trial judge replied, "For all purposes." (R&R at 4 (citing Litsky Deck, Ex. O)) The court denied Hayes's motion, finding that there was no reason to question the accuracy of the transcript. (R&R at 4 (citing Litsky Deck, Ex. P))
Hayes then appealed his conviction to the Appellate Division, First Department. (R&R at 4) On appeal, Hayes argued, inter alia, that the evidence was insufficient, that the verdict was against the weight of the evidence, and that trial counsel had been constitutionallyineffective in not requesting a different limiting instruction concerning the use of the Photograph. The Appellate Division rejected these arguments and affirmed Hayes's conviction:
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