Hughes v. Phillips

• Decision Date: 12 June 2006
• Docket Number: No. 04 CV 2975 CM.,04 CV 2975 CM.
• Citation: 457 F.Supp.2d 343
• Parties: Michael HUGHES, Petitioner, v. William PHILLIPS Superintendent of Green Haven Correctional Facility Respondent.
• Court: U.S. District Court — Southern District of New York

457 F.Supp.2d 343

Michael HUGHES, Petitioner, v. William PHILLIPS Superintendent of Green Haven Correctional Facility Respondent.

No. 04 CV 2975 CM.

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

June 12, 2006.

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Michael Hughes, 99-A-4172, Green Haven Correctional Facility, Stormville.

A.D.A. Joseph Sergi, A.D.A. Joseph M. Latino, Office of the District Attorney, Westchester County, White Plains.

DECISION AND ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS

MCMAHON, District Judge.

This petition, filed pursuant to 28 U.S.C. § 2254, collaterally challenges a judgment rendered on November 18, 1998 in the County Court of Westchester County (Lange, J, sitting with a jury) convicting petitioner of the burglary in the first degree, robbery in the first degree, robbery in the second degree, unlawful imprisonment in the second degree, and grand larceny in the third degree. On March 3, 1999, petitioner was adjudicated a persistent violent felony offender and was accordingly sentenced to concurrent prison terms of 25 years to life each for the crimes of burglary in the first degree, robbery in the first degree and robbery in the second degree. He was sentenced to concurrent terms of one year for unlawful imprisonment in the second degree and 3½ to 7 years for grand larceny in the third degree.

On October 8, 2002 the Appellate Division unanimously affirmed the judgment of conviction. People v. Hughes, 298 A.D.2d 403, 751 N.Y.S.2d 379 (Exhibit F, R: 224).

On October 30, 2002, petitioner sought leave to appeal therefrom to the Court of Appeals. On June 18, 2002, petitioner moved in the trial court to vacate the judgment pursuant to NYCPL 440.10 claiming that his trial counsel was ineffective. (Exhibit G; R: 113-168). Judge Lange denied the motion in a decision and order entered October 25, 2002. (Exhibit G, R: 280-83). On December 26, 2002, the New York Court of Appeals (Ciparik, J.) issued its certificate denying leave to appeal. People v. Hughes, 99 N.Y.2d 559, 754 N.Y.S.2d 211, 784 N.E.2d 84 (Exhibit F, R: 225).

The instant petition seeks habeas relief on five separate grounds:

(1) THE STATE SUPPRESSED EXCULPATORY AND IMPEACHMENT EVIDENCE IN VIOLATION OF BRADY AND GIGLIO;

(2) THE INTRODUCTION OF EVIDENCE BY THE PROSECUTION THRU CROSS-EXAMINATION OF A DEFENSE WITNESS REGARDING THE EXISTENCE OF AN ILLEGAL WEAPON AT [PETITIONER'S] RESIDENCE WAS IMPROPER, PREJUDICIAL

AND CONSTITUTED REVERSIBLE ERROR;

(3) PETITIONER WAS DENIED HIS CONSTITUTIONAL RIGHT TO A JURY OF HIS PEERS;

(4) PETITIONER'S GUILT WAS NOT PROVEN BEYOND A REASONABLE DOUBT; and

(5) PETITIONER WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

(Petition Attachment Sheet).

I. Background

A. Evidence at the Trial

In early January of 1998, Ian Tai purchased a 2 ½ by 2 foot safe from Tremont Locksmith for his home at 127 N. High Street in Mount Vernon, a multifamily house with three separate living areas. (T: 472-73; 476-77PE: 34A-F).¹ Tai and his family occupied the second and third floors, accessible by entering the front door and traveling up a flight of stairs, at the top of which the entrance of his apartment opened into its dining room. (T: 472-73; PE: 32, 34A-F). At this time, the first floor was vacant and Tai's mother-in-law occupied the basement apartment. (T: 472-73).

Two employees of Tremont Locksmith, Eddie Diaz and Jose Ortero, installed the 200 pound safe in the closet of Tai's bedroom, located on the third floor of the house. (T: 477-78). The bolts normally used to secure the safe to the floor were too short, so Tai told the installers that he would obtain longer bolts at a later date. (T: 478, 853-54). Soon afterwards, Tai went on a previously scheduled trip to Mexico and as a result, did not bolt the safe down. (T: 522).

After installing the safe and returning to Tremont Locksmith, Diaz and Ortero talked to the other employees about the large amount of cash that Ian Tai had in his house, which they had seen when he transferred it to the safe. (T: 856-57). This discussion occurred in front of another employee, Orlando Mendoza. (T: 859, 866). Mendoza contacted an acquaintance of his, Gabriel Falcones, who had a history of committing robberies and burglaries, about breaking into the Tai house (T: 1095). Mendoza told Falcones and Vincente Urbina, whom Falcones knew through his work at a jewelry store, about the large amounts of money in the house. (T: 1096). Later, Falcones contacted petitioner about breaking into the house. (T: 1096).

Mendoza gave his fellow conspirators Tai's address, telling them that Tai was on vacation and that nobody would be in the house. (T: 1097). Four days later, using a car belonging to Falcones' boss, Mendoza, Falcones and Urbina drove to Mount Vernon, where they located and observed Tai's house. (T: 1097). On January 26, 1998 and the early morning of January 27, 1998, Falcones spoke to petitioner and Urbina to firm up the plans for the robbery. (T: 1100; PE: 48A-I).

Telephone records reflected the following calls on January 26, 1998: Falcones called Urbina at 10:00 p.m. and again at 11:49 p.m. (PE: 48A-I); Falcones called petitioner's beeper at 10:02 p.m. (PE: 48A-I); Urbina called Falcones at 8:35 p.m. and 11:07 p.m. (PE: 48A-I). The records of petitioner's mother, Daisy Hughes, and his fiancee, Lavonne Dunlop, also reflected calls to Falcones at 10:05 p.m. and 11:46 p.m. on that day. (PE: 48A-I).

On the next morning, January 27, 2000, those records reflected the following: Falcones called petitioner or his beeper four times between 7:06 a.m. and 8:23 a.m.; Falcones called Urbina at 7:09 a.m.; Urbina called Falcones twice between 7:00 a.m. and 8:00 a.m. (PE: 48A-I).

On that morning, January 27, 1998, petitioner and Urbina picked up Falcones in petitioner's white car and drove to Tai's house at 127 N. High Street in Mount Vernon. (T: 1101). Upon arriving, they saw a car parked in front of the house, indicating that someone was home, whereupon they went around the block to a gas station, where they unsuccessfully tried to contact Orlando Mendoza. (T: 1101, 1129-31,1133).

In the meantime, around 11:00 a.m., Tai was home getting ready to go to work at several buildings that he owned, when his fifteen year-old daughter, Sherrica, returned home from school. (T: 479-80). In her sophomore year of high school at St. Catherine's Academy, she had taken a midterm exam that day and so was released early. (T: 480, 610). Ian Tai left for work at 12:00 p.m., leaving Sherrica in the house watching television and eating lunch. (T: 611).

Seeing Tai's car leave, petitioner and his accomplices made their move. (T: 1101). Moments after Tai left, petitioner rang the doorbell and Sherrica ran from the second floor living room down the stairs to the front door and looked through the peephole, but was unable to see who was standing there. (T: 611). Thinking that her father had returned for something, Sherrica opened the door to find petitioner, dressed in black baggy jeans, a short dark coat and black gloves, standing on the doorstep. (T: 611, 635, 660, 661-62, 674, 696).

Surprised that someone had answered the door, petitioner recovered enough to improvise, pretending to be a salesman and asking Sherrica if she wanted to buy any beauty supplies. (T: 612,672). When Sherrica declined, petitioner pushed his way into the house while struggling to remove a silver gun from his pocket. (T: 612, 697). As he forced his way inside the house, Sherrica saw Vincente Urbina, also wearing black baggy jeans and gloves, coming across the porch from a side door leading to the first floor apartment. (T: 612-13, 635, 746, 757).

Petitioner commanded Sherrica to walk up to the apartment and followed her as she complied. (T: 613, 673). As they entered, he told her to sit at the dining room table, then told her to sit on the couch in the adjacent living room. (T: 614, 1102; PE: 32). Urbina then entered the apartment, followed soon after by Falcones, and petitioner directed his cohorts upstairs to the bedroom where the safe was located. (T: 614, 698, 747, 1102; PE: 32). Petitioner then told Sherrica to stand and turn around and he taped her hands together behind her back with duct tape he had brought, then had her sit on the sofa and similarly bound her ankles. (T: 615, 698).

As this occurred, Sherrica heard loud banging from upstairs and, assuming the safe was being removed, repeatedly asked petitioner why they were doing this (T: 615). While petitioner remained watching over her, Sherrica observed Urbina and Falcones pushing the safe down the hallway toward her and proceed down the front staircase. (T: 615-616, 632-634, 747, 1102).

After Urbina and Falcones had removed the safe, petitioner also left the house, leaving a bound Sherrica sitting on the sofa.(T: 616). She heard a car door slam, waited a few seconds and hopped over to the living room window, which overlooked the street in front of the house, in time to see a white car, with petitioner driving, pulling away. (T: 616, 676, 677, 678, 701-02). Sherrica worked on her bonds, finally freeing her wrists, and called her mother at work. (T: 617, 634-35, 702). When that call was inadvertently disconnected, Sherrica called her father, who told her to call the police. (T: 617). Sherrica immediately called the police, who arrived while she was still on the phone with the authorities. (T: 618,703).

Detective Robert Waters of the Mount Vernon Police Department responded with his partner, Detective Louisa, at around 12:42 p.m. (T: 930, 1026). He was advised by uniformed officers already on the scene that a burglary had occurred and that a young girl had been tied up. (T: 931). Entering the house, Waters met with Sherrica in the dining room and she gave him a description of the three perpetrators, adding that they had driven off in a small white car and that the driver was wearing a heavy black jacket. (T: 931, 936, 996, 1027, 1047). The...