Jiang v. Larkin

• Decision Date: 28 April 2016
• Docket Number: 12 Civ. 3869 (PGG) (SN)
• Parties: AI JIANG, Petitioner, v. ROLAND LARKIN, Respondent.
• Court: U.S. District Court — Southern District of New York

AI JIANG, Petitioner, v. ROLAND LARKIN, Respondent.

12 Civ. 3869 (PGG) (SN)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

April 28, 2016

MEMORANDUM OPINION & ORDER

PAUL G. GARDEPHE, U.S.D.J.:

Pro se Petitioner Ai Jiang, who is currently imprisoned by the State of New York on assault and attempted murder convictions, petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Petition ("Pet.") (Dkt. No. 1)) Magistrate Judge Sarah Netburn has issued a Report and Recommendation ("R & R") recommending that Jiang's petition be denied. (Dkt. No. 22) Jiang filed timely objections to the R & R. (Objections to Magistrate's R & R ("Petitioner's Objections") (Dkt. No. 24)) For the reasons stated below, Jiang's petition will be denied.

BACKGROUND

The relevant facts and procedural history of this action are set forth in detail in Judge Netburn's R & R and are summarized below.

I. PRETRIAL PROCEEDINGS AND TRIAL

Jiang was initially charged in two separate indictments for the February 12, 2004 assault and attempted murder of Zheng Chao Pan ("Zheng") and Zhong Hai Pan ("Zhong") (the "February Incident"), and the November 3, 2004 assault and attempted murder of Weng Yu Tuan ("Weng") (the "November Incident"). (R & R (Dkt. No. 22) at 4)

As detailed in Judge Netburn's R & R, the February Incident began when Zheng, the owner of a Chinatown bus company, received a phone call on February 10, 2004, from an unidentified caller warning him to "prepare [his] coffin." (Id. at 2 (quoting Trial Transcript ("Tr.") (Dkt. Nos. 11, 17) 117)) Zheng testified that Jiang, another man named Ai Jiang Yong ("Yong"), and an unidentified man appeared at his business the next day and told him to "get his coffin ready." (Id.) On the evening of February 12, 2004, a group that included Jiang and Yong viciously attacked Zheng in front of 88 East Broadway in Manhattan, beating him with a hammer and metal rod and stabbing him with a knife. (Id. (citing Tr. 121-23, 145-46)) Zheng's friend Zhong was also struck and stabbed when he attempted to come to Zheng's aid. (Id. (citing Tr. 77-78)) Prior to Jiang's trial, Yong pled guilty to second-degree assault in connection with the February Incident. (Id. at 3 (citing Tr. 312))

At trial, Jiang testified in his own defense. He maintained that he was not present at the February Incident, and had instead spent the evening at home after picking up his daughter from school at 3:00 p.m. (Id. at 3 (citing Tr. 337-38)) Jiang further testified that he did not know either Zheng or Zhong. (Id. (citing Tr. 339-41)) Yong's wife, Wu Lan Yum ("Ms. Wu"), testified that she had witnessed the attack and Jiang was not present. (Tr. 303)

The November Incident occurred at the Fuzhou Lan Chi Hai Yu Association, a social club located at 43 Market Street in Manhattan. (R & R (Dkt. No. 22) at 3) The People presented evidence that Jiang arrived at the club at about 10:00 p.m. armed with a knife and a cleaver (Id. (citing Tr. 221-22, 236, 256-57, 274-77, 280)), and that Jiang stabbed Weng thirteen times following an altercation. (Id. (citing Tr. 221-22, 236, 237-38, 256-52, 280)) Jiang was also injured during this incident, and he testified that Weng was the aggressor and that Jiang had acted in self-defense. (Id. (citing Tr. 347-48, 351-53, 356-57, 375-77, 380-82)) Jiang and adefense witness also testified that Jiang had been drinking heavily on the night of the attack. (Id. at 36 (citing Tr. 317-19, 349, 357, 377))

Jiang was arrested at a Brooklyn hospital after receiving treatment for injuries he sustained during the November Incident. (Id. at 4 (citing Tr. 155-56)) In February 2005, he was placed in a police line-up and separately identified by Zheng and Zhong as having participated in the February Incident. (Id. (citing Tr. 51-53, 85-86, 130))

Attorney Verena C. Powell was assigned to represent Jiang. (Declaration of Priscilla Steward in Opposition ("Steward Decl.") (Dkt. No. 9), Ex. B (Affirmation of Verena C. Powell ("Powell Aff.")) ¶ 1)

Following Jiang's arraignment, the People successfully moved - over Jiang's objection - for the two indictments to be consolidated for trial. (R & R (Dkt. No. 22) at 4) On February 21, 2006, the case proceeded to trial before New York Supreme Court Justice William Wetzel and a jury. (Tr. 5) On February 27, 2006, the jury convicted Jiang of attempted second-degree murder, first-degree gang assault, and first-degree assault for the attack on Zheng; second-degree assault for the attack on Zhong; and first-degree assault for the attack on Weng. (R & R (Dkt. No. 22) at 4; Tr. 495-96) The jury acquitted Jiang of first-degree gang assault and attempted second-degree murder for the attack on Zhong, and also acquitted him of attempted second-degree murder for the attack on Weng. (Tr. 495-96)

II. POST-TRIAL PROCEEDINGS

A. Motion to Set Aside the Verdict

Prior to sentencing, Jiang - now represented by a different attorney, Joel S. Cohen - moved to set aside the verdict pursuant to N.Y. Crim. Proc. L. ("CPL") § 330.30 on the ground that Powell, his trial lawyer, had been constitutionally ineffective. (Steward Decl. (Dkt. No. 9),Ex. A (Petitioner's CPL § 330.30 Motion to Set Aside the Verdict)) Jiang claimed that Powell had failed to: (1) conduct a sufficient investigation, (2) interview or call exculpatory witnesses, (3) warn him of the dangers of testifying, and (4) adequately prepare him to testify. (Id. at 15-18) Jiang asserted that Powell "met with him only three times," failed to investigate "a number of witnesses who could [have] provide[d] evidence that was favorable to him," and - most critically - "never sought to interview . . . and never sought to conditionally preserve" the testimony of Yong, Jiang's alleged accomplice in the February Incident. (Id. at 6-9) Jiang claims that Yong was "prepared to testify that [] Jiang was not involved in the 'bus company' stabbing, and that in fact [Yong's] cousin had been responsible for that incident and had fled to China." (Id. at 8-9)

Cohen, Jiang's new lawyer, submitted an affidavit in support of the CPL § 330.30 motion containing the following assertions:

7. . . . When Mr. Jiang told Ms. Powell that there were a number of witnesses who could provide exculpatory evidence that he wanted her to call, she told him, in substance, that he should not worry about the case, that it would be okay, and that he would only be sent to immigration. . . .

8. Mr. Jiang has told me, as he indicated he told Ms. Powell, that the witnesses are Qiu Xin Qin and Xue Dexing, who were eyewitnesses to the "bus company" stabbing, and Chen Hua and Gong Ching Yu, witnesses to the Market Street stabbing. He offered to provide their addresses to Ms. Powell, as well as that of a neighbor who could testify that [Jiang] was at home at the time of the 'bus company' stabbing.[] She never took the addresses, apparently never contacted the witnesses and did not subpoena them to testify at trial. . . .

. . . .

10. Chen Feng Ming, who is Mr. Jiang's wife, has advised me that she went to Ms. Powell's office on several occasions. The first such meeting was about six months after Mr. Jiang's arrest, the last about a month before trial. At each meeting Ms. Chen told Ms. Powell that there were five witnesses that could provide evidence that would help her husband. . . .

11. The undersigned has interviewed a number of defense witnesses. Two of them testified at Mr. Jiang's trial. One such individual is Wu Lan Yum. Ms. Wu met with Ms. Powell and advised her that her husband, Ai Jiang Yong, had pleaded guilty [] in connection with one of the offenses the defendant was charged with, had served a short jail sentence and was in immigration custody awaiting imminent deportation. She further advised that her husband was willing to provide exculpatory testimony on Mr. Jiang's behalf, but that he would soon be deported. This meeting occurred in or around October, 2005.

12. Ai Jiang Yong was deported to the People's Republic of China in December of 2005. Mr. Jiang's counsel never interviewed him and never made arrangements to conduct a conditional examination when he was available. (See Affidavit of Wu Lan Yum, annexed as Exhibit D).

(Steward Decl. (Dkt. No. 9), Ex. A (Affidavit of Joel S. Cohen ("Cohen Aff.")) ¶¶ 7- 8, 10-12 (emphasis in original))

In addition to his own affidavit, Cohen submitted affidavits from Qiu Xin Qin, Xue Dexing, Cheng Feng Ming, and Wu Lan Yum.¹ (Id., Exs. B-D to Cohen Aff.) Ms. Wu's affidavit states that

[d]uring a meeting with Ms. Powell I told her that my husband Ai Jiang Yong was present during the incident on February 12, 2004 near the 888 mall. I told her he had pleaded guilty in connection with this incident. I also told her in around October of 2005 that he was willing to testify on behalf of Ai Jiang, but that he was in Immigration custody and would soon be deported to China.

(Id., Ex. D to Cohen Aff. (Affidavit of Wu Lan Yum) ¶ 2)

In response to Jiang's motion, the People submitted an affirmation from Powell, which states the following:

8. It was through my conversations with Jiang that I discovered that another individual with the same name had previously been arrested for theFebruary 200[4] assaults. Additionally, Jiang told me there was a witness, Ms. Wu. However, he did not provide me with her number.

9. Jiang did, however, provide[] me with the name of the defense attorney on that case, Hugh Mo, Esq. I spoke with Mr. Mo on June 6, 2005, about the other 'Ai Jiang'. Mr. Mo informed me that the other 'Ai Jiang' had pled guilty to an assault and was deported. . . .

. . . .

12. Ms. Chen came to my office on numerous dates. . . . She did inform me she knew of the witnesses of which Jiang spoke and stated she could bring them to my office. Again, she stated she needed time to contact them, and could not provide me with telephone numbers for any of them. . . .

. . . .

14. On Monday October 24, 2005, [Ms. Chen] brought Wu Lan Yum [Ms. Wu] . . . to my office. . . .

. . . .

16. Ms.

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