Johnson v. Griffin

Decision Date12 August 2022
Docket Number13-CV-4337 (MKB) (SMG)
PartiesERIK JOHNSON, Petitioner, v. PATRICK GRIFFIN, Respondent.
CourtU.S. District Court — Eastern District of New York
MEMORANDUM & ORDER

MARGO K. BRODIE, United States District Judge:

Petitioner Erik Johnson, proceeding pro se and currently incarcerated at Sullivan Correctional Facility in Fallsburg, New York, filed the above-captioned petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2554 on July 25, 2013, alleging that he is being held in state custody in violation of his federal constitutional rights. (Pet. for Writ of Habeas Corpus (“Pet.”) 1, Docket Entry No 1.)[1] Petitioner's claims arise from a judgment of conviction following a jury trial in the Supreme Court of New York State, Queens County (the Trial Court), on charges of murder in the second degree and criminal possession of a weapon in the fourth degree. (Id. at 1; Tr. of Sentencing Proceedings before the Hon. Gregory Lasak dated Mar. 25, 2010 (“Sentencing Tr.”) 20:12-20, annexed to State Ct. R. as Ex. 8, Docket Entry No 10-8, at 106-26.) Petitioner challenges his conviction on the grounds that: (1) he was denied the right to a fair trial because the prosecution did not call Thomas Livingston as a witness and the Trial Court did not give a missing witness charge; (2) he was denied the right to confront witnesses for the same reason; (3) he was denied the right to a fair trial because the Trial Court admitted hearsay testimony recounting statements describing his prior bad acts; and (4) he was denied the right to the effective assistance of trial counsel. (Pet. 20-21, 23, 26 31.) In his reply, he also argues that (5) the evidence presented at trial was insufficient to support his conviction. (Pet'r's Traverse & Mem. of Law (“Pet'r's Reply”) 12, 14-15, Docket Entry No. 12.) On April 30, 2020, the Court referred the petition to Magistrate Judge Steven M. Gold for a report and recommendation, (Order dated Apr. 30, 2020), and, on November 25, 2020, Judge Gold recommended that the Court deny the petition in its entirety (the “R&R”), (R&R 40, Docket Entry No. 14). On April 22, 2021, Petitioner timely filed objections to the R&R.[2](Pet'r's Objs. (“Objs.”), Docket Entry No. 16.) For the reasons set forth below, the Court adopts the R&R in its entirety and denies the petition for a writ of habeas corpus.

I. Background

a. Factual background

Petitioner's ex-girlfriend, Asma Johnson (the Victim),[3] was found stabbed to death in her apartment on November 8, 2006. (Aff. of Ellen Abbot (“Abbot Aff.”) ¶ 4, Docket Entry No. 8.) Police arrested Petitioner at his mother's home in Pennsylvania two weeks later. (Id.) Petitioner was charged with murder in the second degree, N.Y. Penal Law § 125.25(1), and criminal possession of a weapon in the fourth degree, Id. § 265.01(2). (Id. ¶ 5.)

i. The trial

Petitioner's jury trial commenced on January 27, 2010, in the Trial Court before Judge Gregory Lasak. (State Trial Tr. (“Tr.”) 1, Docket Entry Nos. 10-2 to 10-8.)

1. Evidence at trial

A. Petitioner's relationship with the Victim

Petitioner began dating the Victim in the late summer or early fall of 2006. (Tr. 502:4-7, 539:11-540:4, 645:17-21, 676:23-677:6.) By late October, their relationship had deteriorated, and the Victim had instructed her daughter, Najiyah Livingston, who was seven years old at the time, not to let Petitioner into her apartment. (See Tr. 497:6-7, 502:8-505:15.) Najiyah testified that Petitioner waited outside of the apartment and pushed his way in once she opened the door on two occasions in late October. (Tr. 502:11-506:1.) On one of those occasions, Petitioner pushed the Victim, causing her to fall and bruise her legs, thigh, and head, and on the other occasion, Najiyah heard Petitioner and the Victim arguing. (Tr. 502:18-504:15, 505:22-507:4, 514:3-9.)

The Victim's friend, Angela Willis, testified that the Victim told her in late October that Petitioner had “hit her, beat her,” but that the Victim did not want to report this to the police “because he was on parole.” (Tr. 677:7-678:8.) The Victim's friend and neighbor who lived across the hall, Yahaira Cabrera, testified that she saw the Victim throwing out the trash a week before her murder and noticed bruises on her face, which the Victim told her had come from Petitioner hitting her. (Tr. 657:14-658:10.) That same week, Cabrera saw Petitioner “banging” on the Victim's door, which she had seen him do “several times” before. (Tr. 658:16-659:2.) On two of these previous occasions, she had “called the cops,” who went to the Victim's door, but the Victim “wouldn't open the door.” (Tr. 659:2-659:15.) Another neighbor, Brenda Jordan, testified that she saw Petitioner “either . . . sitting on the stairs or standing next to [the Victim's] door, or knocking on the door, calling her” and the Victim “not answering” approximately twenty times in the weeks leading up to the Victim's murder. (Tr. 764:1-24.)

B. Day of the murder

On the day of the murder, Cabrera saw Petitioner banging on the Victim's door between 2:00 PM and 3:00 PM and heard him yell “open the f***ing door.” (Tr. 647:16-648:24.) Jordan saw Petitioner standing at the Victim's door between 2:45 PM and 3:45 PM. (Tr. 762:20-763:7.) After Petitioner went down the stairs, Cabrera and the Victim spoke. (Tr. 648:25-649:17.) The Victim told Cabrera “that she was scared and that she was trying to leave [Petitioner], but he threatened her,” telling her that “if she calls the cops on him or decides to do anything against him, that he would not only hurt her son” but also “come back and kill her.” (Tr. 656:3-24.)

At about 5:45 PM, the Victim told Najiyah and her brother, Khalil, to go downstairs, where their father, Thomas Livingston, was waiting to drive them to Najiyah's school to play math games. (Tr. 347:12-16, 497:8-9; 497:24-499:5.) When Najiyah opened the apartment door, she heard footsteps and saw Petitioner, who pushed her and ran into the apartment. (Tr. 499:13-500:13.) Najiyah asked the Victim if she was going to be okay and the Victim said yes and told the children to go downstairs. (Tr. 501:13-19.) The children left with Livingston for Najiyah's school, leaving the Victim alone in the apartment with Petitioner. (Tr. 501:21-502:3.)

Later, while Livingston was driving the children back to the Victim's apartment, he spoke on the phone to the Victim, who told him not to bring the children home. (Tr. 508:3-17, 526:16-18.) Livingston asked Najiyah who was at the apartment with the Victim when they left earlier, and Najiyah responded that Petitioner was at the apartment. (Tr. 508:3-17.) Livingston then brought the children to the house of Petitioner's aunt, Gloria Tippins (Gloria Tippins). (Tr. 352:12-15, 508:15-22.)

Livingston and the children arrived at Gloria Tippins's house at around 8:10 PM. (Tr. 540:24-541:10.) Livingston told Gloria Tippins and her daughter, Petitioner's cousin Shauna Tippins (Shauna Tippins), that Petitioner and the Victim were arguing and Petitioner was “causing all types of problems, and that [they] should make him leave.” (Tr. 509:4-8, 541:14541:22.) Shauna Tippins and Gloria Tippins testified that they walked to the Victim's apartment building, which was two buildings from their own. (Tr. 542:9-25, 573:12-574:13.) Shauna Tippins and Gloria Tippins entered the Victim's building and walked through a foyer to the stairs to go to the Victim's apartment on the second floor. (Tr. 574:14-575:4.) As they ascended the stairs, they saw Petitioner coming down from the second floor. (Tr. 543:5-544:3, 575:5-10.) As Petitioner passed them on the stairs, he told them he had done something “wrong” or “stupid” and pointed up, then left the building. (Tr. 544:24-545:7, 575:23-576:7.) Shauna Tippins and Gloria Tippins proceeded up the stairs to the Victim's apartment, where they found the door ajar and discovered the Victim's body lying in a pool of blood. (Tr. 545:8-21, 576:12-577:7.)

Shauna Tippins and Gloria Tippins ran back downstairs to get help. (Tr. 545:25-546:2, 577:311.) Gloria Tippins was saying “Oh, my God,” “oh, my God,” and her friend, Glenn Burgess, who lived on the first floor of the Victim's apartment building, heard her and came out into the hall to ask what the problem was. (Tr. 577:17-578:6, 605:21-608:13.) Gloria Tippins told Burgess what had happened and Burgess went upstairs with her to the Victim's apartment, then ran back downstairs to get his phone and call 911. (Tr. 577:17-578:1, 608:8-610:9.) Meanwhile, Shauna Tippins ran outside, saw Petitioner walking away from the building, and asked, [W]hat did you do?” (Tr. 546:5-15, 577:14-15.) Petitioner “didn't say anything, he just looked back.” (Tr. 546:17.) Surveillance cameras captured video recordings of Livingston going to Gloria Tippins's apartment with the children, Gloria Tippins and Shauna Tippins' encounter with Petitioner on the stairs, and Burgess coming out of his apartment, checking the Victim's apartment, and running back downstairs to get his phone. (See Tr. 549:13-553:8, 579:11-586:4, 611:20-613:10.)

Burgess testified that he heard Gloria Tippins's voice in the hall and called the police at around 8:21 PM. (Tr. 577:17-21, 606:12-607:24, 610:4-9, 614:3-6.) Burgess's sister, Luxzoria Hope, lived with Burgess and testified that she had heard a female voice coming through the pipes above her kitchen saying [h]elp me, help me, this man is killing me” a couple minutes after 8:00 PM. (Tr. 620:18-622:12, 630:11-631:20, 633:7-11.)

Police arrived at the Victim's apartment at approximately 8:30 PM. (Tr. 391:19-393:6.) Several minutes later, a paramedic arrived, however the Victim “was in cardiac arrest” and “there was no hope of resuscitation.” (Tr. 372:14-373:9, 375:3-19.) The Victim had been stabbed...

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