Jenkins v. Greene

• Decision Date: 18 August 2009
• Docket Number: No. 06 Civ. 7171.,06 Civ. 7171.
• Citation: 646 F.Supp.2d 615
• Parties: Taiwu JENKINS, Petitioner, v. Gary GREENE, Respondent.
• Court: U.S. District Court — Southern District of New York

646 F.Supp.2d 615

Taiwu JENKINS, Petitioner, v. Gary GREENE, Respondent.

No. 06 Civ. 7171.

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

August 18, 2009.

COPYRIGHT MATERIAL OMITTED

Malvina Nathanson, Esq., New York, NY, for Petitioner.

Andrew M. Cuomo, Attorney General of the State of New York, by Frederick Wen, Esq., Ashlyn Dannelly, Esq., New York, NY, for Respondent.

OPINION

SWEET, District Judge.

Petitioner Taiwu Jenkins ("Jenkins" or the "Petitioner") has petitioned for a writ of habeas corpus under 28 U.S.C. § 2254 asserting a violation of his federal constitutional rights arising out of the ineffective assistance of counsel. His petition is opposed by Gary Greene, Superintendent of the Great Meadow Correctional Facility (the "State"). Based on the conclusions set forth below, the petition is denied.

I. PRIOR PROCEEDINGS

The Underlying Action

Shortly before midnight on October 20, 1998, Mimsi Nieves and Jamel Verdejo entered a grocery store in upper Manhattan. Petitioner approached Nieves and asked her for change. Nieves recognized Petitioner as a man she had seen on various occasions in her neighborhood. After Nieves refused to give Jenkins any change, he argued with her and then with Verdejo, and followed them outside the store where he struck Verdejo and Nieves in the head and face. Although neither Verdejo nor Nieves immediately realized that Petitioner had slashed them, Verdejo saw blood dripping down Nieves's face and realized that both he and Nieves had been cut. Verdejo and Nieves ran to a nearby hospital, where they both received stitches to close lacerations on their faces.

Petitioner was arrested on November 15, 1998, and arraigned in Criminal Court on or about November 16, 1998. By Indictment No. 9730/98, filed on November 30, 1998, Jenkins was charged in New York County with two counts of Assault in the First Degree, in violation of New York Penal Law § 120.10(1), and one count of Possession of a Weapon in the Second Degree, in violation of New York Penal Law § 265.03. After a jury trial, the Honorable John E.H. Stackhouse presiding, Jenkins was found guilty of the two assault charges and sentenced on August 10, 2000, to consecutive, determinate terms of 25 years on each count, for an effective sentence of 50 years. The conviction was affirmed by the Supreme Court, Appellate Division, First Department, on February 18, 2003. People v. Jenkins, 302 A.D.2d 247, 756 N.Y.S.2d 151 (2003). On July 17, 2003, Petitioner's application for leave to appeal to the New York State Court of Appeals was denied. People v. Jenkins, 100 N.Y.2d 583, 764 N.Y.S.2d 393, 796 N.E.2d 485 (2003).

Dominic J. Profaci ("Profaci") of The Legal Aid Society was initially assigned to represent Petitioner. Profaci remained his attorney until December 11, 1998, at which time he moved to be relieved due to a conflict of interest involving Jenkins' right to testify before the grand jury. After Profaci was relieved, Jenkins hired Oliver A. Smith ("Smith"), an attorney he had met during an earlier prosecution. Smith represented Jenkins throughout the pre-trial and trial proceedings. After the trial, Petitioner retained a new attorney, Hyman Dechter, who represented Petitioner at sentencing.

Petitioner's C.P.L. § 440.10 Motion to Vacate

Jenkins, pro se, filed a habeas corpus petition dated April 26, 2004, in the Southern District of New York on June 9, 2004, raising the same five claims he raised on his direct appeal from the judgment of convictions, namely that the trial court erred in rejecting Petitioner's explanations for his challenges of three jurors and improperly imposed on him the burden of disproving that the reasons he offered were pretextual; that the photographic array was unduly suggestive and, thus, all subsequent identifications should have been suppressed; that he was deprived of his right to a fair trial when the trial court admitted prejudicial hearsay testimony in violation of the Confrontation Clause; that the cumulative impact of the prosecutor's "misconduct in summation" deprived him his right to a fair trial; and finally, that the sentence imposed was harsh and excessive. See Jenkins v. McGuinness, No. 04 Civ. 4348(RWS) (S.D.N.Y. June 9, 2004). On May 10, 2005, Jenkins' court-appointed counsel asked that the petition be held in abeyance while the Petitioner exhausted his state remedies on an ineffective assistance of counsel issue. By order of May 13, 2005, the case was dismissed "with leave to reopen without penalty and without the payment of filing fees" because Petitioner sought to exhaust his state remedies based on the advice of counsel.

In July 2005, Jenkins filed a motion in the Supreme Court, New York County, pursuant to Criminal Procedure Law ("C.P.L.") § 440.10, seeking vacatur of his conviction on the basis of ineffective assistance of counsel during plea negotiations. Petitioner contended that in June 1999, Smith advised him to reject a plea offer under which he would serve a seven-year prison term, that Smith told him that he only faced a ten- to twelve-year sentence if he were convicted after trial, and that Petitioner "had a fifty-fifty chance of winning." Aff. of Malvina Nathanson in Support of Petition for a Writ of Habeas Corpus ("Nathanson Aff."), Exh. D at ¶ 5. Petitioner contended that, after that conversation, he asked Smith to try to obtain a better plea offer. Petitioner also claimed that Smith never advised him that he faced a maximum sentence of twenty-five years on each assault count, or that those sentences could be imposed consecutively. Had his counsel properly advised him about his sentencing exposure, Petitioner asserted that he would have accepted the seven-year plea offer.

In support of his § 440.10 motion, Petitioner submitted an April 17, 2005 letter from Jenkins to Smith, in which Jenkins accused Smith of misconduct.¹ Petitioner also submitted Smith's April 21, 2005 letter in response, in which Smith stated that he was "just as surprised as you" when he learned Petitioner's sentence, but that he "was not the one that represented you at the sentence so I am not aware as to how the Judge reached that computation." Aff. of Malvina Nathanson in Further Support of Habeas Corpus Petition, Exh. M. Smith also stated that his estimate about Petitioner's sentencing exposure had been "based on certain factors including my belief that the Judge would not give you consecutive time. It appears that he did in this case and it also seems that [he] gave you the maximum." Id. Smith disputed Petitioner's questions about his trial performance and stated that "[t]he case was lost as our main witness was caught in a lie. I did not know that she was having contact with you while you were in jail. She testified to the contrary and the Prosecution was able to produce phone records detailing recent calls. Once the jury heard that we were up against it I told you so at the time." Id. Counsel then wished Petitioner "luck" with his federal habeas petition and asked Petitioner to let him know "if there is anything that I can do to assist you in that regard." Id.

In response, the District Attorney's office filed an affirmation asserting that "there is no indication that an offer of seven years imprisonment was ever extended to [Petitioner]" and that "[e]very notation in the file shows that the People were requiring that [Petitioner] plead to the top count of the indictment." Nathanson Aff., Exh. E at ¶ 13.

Petitioner's § 440.10 motion was denied on October 27, 2005, by the Honorable Charles Tejada without a hearing. The decision stated: "Defendant fails to establish that he was not aware of his maximum sentence exposure before trial, that he was made the plea offer he alleges or that his first and/or second [attorney] and/or the Court did not advise him of his maximum sentence exposure during plea negotiations." Id., Exh. F. Jenkins moved for permission to appeal the denial to the Appellate Division, First Department. In support of his motion, Petitioner submitted a supplemental affirmation stating that he had asked his trial counsel to provide an affidavit, that he had waived confidentiality, and that he had not received a response to the request. His application was denied on June 6, 2006.

On June 29, 2006, Jenkins filed another petition for a writ of habeas corpus in this Court, adding the claim raised in his § 440.10 application concerning his lawyer's ineffectiveness. On September 28, 2006, Jenkins wrote the Court again asking that his new petition be held in abeyance so that he could return to the state courts with additional evidence he had just received in support of his § 440.10 application. The request was granted on January 9, 2007, on the condition that Jenkins return to federal court "no more than thirty days after state exhaustion is completed." Jenkins v. Greene, No. 06 Civ. 7171(RWS) (S.D.N.Y. Jan. 11, 2007).

By motion dated September 19, 2006, Jenkins moved in state court to renew the denial of his earlier § 440.10 application. He attached to the motion two letters, dated May 10, 2005, and June 12, 2006, from Petitioner to Smith requesting an affidavit explaining what Smith had told him about his sentencing exposure, as well as a July 21, 2006, affirmation by Smith in which Smith stated that, during his representation of Petitioner, "there were various plea offers made and I communicated them to [Petitioner]." Nathanson Aff., Exh. P. Smith further stated that, "[g]iven the fact that the offenses in question were simultaneous, my discussions with [Petitioner] focused on concurrent time and currently, I did not inform [Petitioner] that his exposure was 50 years." Id. Finally, counsel stated that he was "available to be called as a witness in the event that a hearing is ordered in this case." Id. On February 8, 2007, the motion to renew was denied.

Jenkins then moved in the Appellate Division for permission to appeal the order denying his motion to renew. That...