Hodges v. Bezio, 09-CV-3402 (ENV)
| Decision Date | 14 February 2012 |
| Docket Number | 09-CV-3402 (ENV) |
| Parties | WILLIAM HODGES, Petitioner, v. NORMAN BEZIO, Respondent. |
| Court | United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York) |
WILLIAM HODGES, Petitioner,
v.
NORMAN BEZIO, Respondent.
09-CV-3402 (ENV)
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
February 14, 2012
VITALIANO, D.J.
Pro se petitioner William Hodges is before the Court on his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the writ is denied and Hodges's habeas petition is dismissed.
On November 12, 1999, Officer David Gonzalez was shot in the front right hip after responding to a 911 call in Queens. Officers who were present at the scene testified that they witnessed and intervened in a struggle between Gonzalez and Hodges, which resulted in Hodges discharging one round from Gonzalez's police-issued handgun. After the shooting, the struggle continued between Hodges and police, which resulted in a stolen handgun falling to the floor.
Following the incident, Hodges was taken to the police precinct, where Detective Edward Dowd issued Miranda warnings and later obtained Hodges's confession to firing Gonzalez's weapon. On November 18, 1999, Hodges was charged under Queens County Indictment Number 3345/99 with attempted murder in the first degree in violation of N.Y. Penal Law §§ 110.00, 125.27[l][a][i]; attempted murder in the second degree in violation of N.Y. Penal Law §§ 110.00, 125.25[1]; aggravated assault on a police officer in violation of N.Y. Penal Law § 120.11; two counts of assault in the first degree in violation of N.Y. Penal Law §§
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120.10[3], [4]; two counts of criminal possession of a weapon in the second degree in violation of N.Y. Penal Law § 265.03[2]; two counts of criminal possession of a weapon in the third degree in violation of N.Y. Penal Law § 265.02[4]; criminal possession of stolen property in the fourth degree in violation of N.Y. Penal Law § 165.45[4]; resisting arrest in violation of N.Y. Penal Law § 205.30; criminal possession of a controlled substance in the third degree in violation of N.Y. Penal Law § 220.16[1]; and criminal possession of a controlled substance in the fifth degree in violation of N.Y. Penal Law § 220.06[5],
On August 2, 2000, defense counsel served subpoenas on the Civilian Complaint Review Board and the District Attorney's Office in search of records relating to Hodges' arrest. The People moved to quash the subpoenas upon receipt, but Supreme Court denied the motion. The District Attorney filed a motion to reargue, which the court granted on November 14, 2000, but only modified its original order. Still aggrieved, on March 15, 2001, the Queens District Attorney commenced an Article 78 proceeding seeking a writ of prohibition to block enforcement of Supreme Court's orders. On July 30, 2001, the Appellate Division granted the writ. Four months later, on November 20, 2001, the Court of Appeals denied Hodges's application for leave to appeal. Brown v. Grosso, 285 A.D.2d 642, 729 N.Y.S.2d 492 (2d Dept.), appeal denied, 97 N.Y.2d 605, 762 N.E.2d 930, 737 N.Y.S.2d 52 (2001).
In the meantime, beginning on May 1, 2001, the trial court held pre-trial Mapp/Huntley hearings, where defense counsel argued that Hodges's confession was made in violation of his right to counsel. To support this claim, counsel elicited testimony indicating that then Judge-elect Duane Hart had placed a phone call to the precinct on the night of the arrest, invoking petitioner's right to counsel and demanding that the police cease questioning of the suspect. (Hr'g Tr. 259, 265-66.) However, Judge Hart admitted that in his conversation with the precinct he was advised that Hodges had "already rendered a statement." (Id. at 259.) Deciding to credit
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the testimony of two detectives who had interrogated Hodges, the court found that petitioner failed to demonstrate that he was represented by counsel at the time he made his statement. Accordingly, the court denied Hodges's motion to suppress the statement.
On June 24, 2002, defense counsel moved to dismiss the indictment under New York's speedy trial statute, alleging a violation of N.Y. Crim. Proc. Law § 30.30 for prosecutorial delays exceeding six months. On December 6, 2002, the court granted the motion and dismissed the indictment on all counts. However, on April 27, 2004, that decision was reversed. The indictment was reinstated on November 15, 2004, and leave to appeal was denied on June 2, 2005. People v. Hodges. 12 A.D.3d 527, 784 N.Y.S.2d 638 (2d Dept. 2004), appeal denied, 5 N.Y.3d 763, 834 N.E.2d 1267, 801 N.Y.S.2d 257 (2005).
Hodges's jury trial commenced on March 7, 2006. On April 24, 2006, Hodges was convicted of assault in the first degree; criminal possession of a weapon in the second degree; two counts of criminal possession of a weapon in the third degree; criminal possession of stolen property in the fourth degree; and resisting arrest. The jury acquitted Hodges of attempted murder in the second degree and aggravated assault on a police officer. The charge of attempted murder in the first degree was dismissed before trial; one count of assault in the first degree and one count of criminal possession of a weapon in the second degree were not submitted to the jury. Following his conviction, Hodges also pleaded guilty to criminal possession of a controlled substance in the third degree, which had been severed for trial along with the charge of criminal possession of a controlled substance in the fifth degree. Petitioner received a 25-year prison sentence for first-degree assault, paired with lesser concurrent sentences for the other charges. With respect to his guilty plea, petitioner received a two to six year sentence, also running concurrently with his other sentences.
Petitioner appealed his conviction to the Appellate Division, arguing that: (1) the court's
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failure to suppress petitioner's statement was erroneous because petitioner's Fifth Amendment right to counsel was invoked before he made a statement to police, (2) the police failure to videotape the confession violated petitioner's right to due process under the Fifth and Fourteenth Amendments, and (3) petitioner's conviction for possession charges should be reversed in the event that the reviewing court granted relief on either of the first two claims.
On January 13, 2009, the Appellate Division found that the hearing court properly denied defendant's suppression motion. People v. Hodges. 58 A.D.3d 642, 869 N.Y.S.2d 912 (2d Dept.), appeal denied, 12 N.Y.3d 817, 908 N.E.2d 933, 881 N.Y.S.2d 25 (2009). The court noted that "[t]he credibility determinations of the hearing court are entitled to great deference on appeal" and that "[t]he record supports the hearing court's determination to credit the detective's testimony, which established that the [petitioner's] right to counsel had not attached when the [petitioner] made the statements to detectives." Id. at 642 (citations omitted). Moreover, the Second Department held that petitioner's claim that his due process rights were violated by the police failure to videotape the interview was "unpreserved for appellate review" and, in any event, "without merit." Id. In light of the court's decision on the first two grounds, petitioner's third claim became moot. On April 1, 2009, the Court of Appeals denied petitioner's application for leave to appeal. People v. Hodges, 12N.Y.3d817, 908 N.E.2d 933, 881 N.Y.S.2d 25 (2009).
On July 14, 2009, petitioner filed a pro se motion with the Appellate Division for a writ of error coram nobis, arguing that he was denied his right to effective assistance of trial and appellate counsel under the Fifth, Sixth, and Fourteenth Amendments. The Appellate Division denied petitioner's application on January 19, 2010. People v. Hodges, 69 A.D.3d 879, 892 N.Y.S.2d 781(2d Dept. 2010). Petitioner never appealed the decision.
On July 27, 2009, Hodges filed the instant petition. He argues that: (1) his right to a speedy trial under the Sixth and Fourteenth Amendments was violated, (2) his right to counsel
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under the Fifth and Fourteenth Amendments was violated by the court's failure to credit the testimony of Judge Hart and suppress petitioner's statement, and (3) his right to due process under the Fifth and Fourteenth Amendments was denied by the police failure to videotape his interrogation. On August 26, 2009, Hodges filed a motion to expand and clarify his petition. There, he restates his speedy trial and right to counsel claims but adds a claim for ineffective assistance of trial and appellate counsel. He also claims that his "pre-trial right[] to discovery" was not adequately protected by the trial court since the police never provided the defense with phone records relating to Hart's call to the precinct.
On February 18, 2010, after filing his petition, Hodges filed a motion to vacate in state court, raising ineffective assistance of trial counsel claims. The trial court denied the motion on April 29, 2011 and permission to appeal was denied by the Appellate Division on February 2, 2012. The Appellate Division did not issue a certificate granting leave to appeal to the Court of Appeals. No further appeal of that order is available under state law. See Roache v. Connell, No. 06 Civ. 3567, 2011 WL 1465989, at * 1 (S.D.N.Y. April 14, 2011).
The Supreme Court of the United States has made it clear that "[a]s amended by [the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA")], § 2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings." Harrington v. Richter, 562 U.S. ___, 131 S. Ct. 770, 786 (2011). "Section 2254(d) reflects the view that habeas corpus is a 'guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal. Id. (quoting Jackson v. Virginia, 443 U.S. 307, 332n. 5, 99 S. Ct. 2781, 2795 n.5 (1979)). Following AEDPA, a federal court is not free to issue a writ of habeas corpus under...
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