Johnson v. Kirkpatrick
| Decision Date | 03 August 2011 |
| Docket Number | 11 Civ. 1089 (CM) (AJP) |
| Parties | LEROY JOHNSON, Petitioner, v. ROBERT KIRKPATRICK, Superintendent, Wende Correctional Facility, Respondent. |
| Court | U.S. District Court — Southern District of New York |
REPORT AND RECOMMENDATION
Pro se petitioner Leroy Johnson seeks a writ of habeas corpus from his June 27, 2006 conviction, after a jury trial in Supreme Court, New York County, of two counts of first degree rape, three counts of first degree sodomy, two counts of first degree robbery, and one count of first degree burglary (Dkt No. 18: Trial Transcript ["Tr."] 838-40), and sentence of eight consecutive terms of 25 years imprisonment . (See also Dkt. No. 1: Pet. ¶¶ 1-5.)1
Johnson's habeas petition asserts that: (1) Johnson was denied legal counsel during questioning by police (Pet. ¶ 13; Pet. Att. at 7); (2) the police fabricated a statement later attributed to Johnson (Pet. ¶ 13; Pet. Att. at 8); (3) a sample of Johnson's DNA taken by police detectives during questioning was never presented to him or used at trial (Pet. Att. at 9); and (4) Johnson's prosecution was time-barred by "the 5 yrs statute of limitations" (Pet. ¶ 13; Pet. Att. at 10-11).Johnson's habeas petition also attached the Table of Contents pages of his First Department brief (Pet. Att. at 12-14) which asserted additional claims that: (1) Johnson "was deprived of the effective assistance of counsel when counsel failed to . . . develop a statute of limitations defense at trial . . . due to his erroneous belief that [this] was a purely legal issue that could not be submitted to the jury" (Pet. Att. at 13, Johnson 1st Dep't Br. Point II); and (2) "in light of the unusual circumstances arising from the delay in prosecution," Johnson's sentence violates his due process rights (Pet. Att. at 14, Johnson 1st Dep't Br. Point III).
For the reasons set forth below, Johnson's habeas petition should be DENIED.
On November 18, 1996, Leroy Johnson forced his way into a Greenwich Village apartment where he raped, sodomized and robbed two women. (Dkt. No. 19: Axelrod Aff. Ex. B: Johnson 1st Dep't Br. at 3; Axelrod Aff. Ex. C: State 1st Dep't Br. at 1-2.) Semen recovered from the back of one of the victims was tested in 2005 and found to match Johnson's DNA. (Johnson 1st Dep't Br. at 3, 16, 19; State 1st Dep't Br. at 3-4.) Johnson was charged with robbery, burglary, and the rape and sodomy of both women. (Johnson 1st Dep't Br. at 1, 3; State 1st Dep't Br. at 4.)
In 1996, a sample of the perpetrator's DNA was taken from his ejaculate on the back of one of the rape victims. (Dkt. No. 19: Axelrod Aff. Ex. B: Johnson 1st Dep't Br. at 5; Axelrod Aff. Ex. C: State 1st Dep't Br. at 19.) This sample was analyzed using a 6-loci test and compared to the DNA of a suspect the police had in custody, but there was no match. (Johnson 1st Dep't Br. at 5-6; State 1st Dep't Br. at 19.) In March 2000, the New York City Police Department and the Office of the Chief Medical Examiner sent approximately 18,000 DNA evidence samples to be re-analyzed using a more modern 13-loci test. (Johnson 1st Dep't Br. at 4, 6; State 1st Dep't Br. at 19.)2 In April 2005, the DNA sample from the 1996 rape was analyzed using the 13-loci test, and matched a sample that had been obtained from Leroy Johnson while he was serving a sentence for a 1997 robbery conviction. (Johnson 1st Dep't Br. at 4-5; State 1st Dep't Br. at 20.) Police arrested Johnson on May 13, 2005. (Johnson 1st Dep't Br. at 14; State 1st Dep't Br. at 11.)
Prior to trial, Johnson's counsel moved to dismiss the charges, arguing that the prosecution had not been commenced within the statute of limitations specified by New York Criminal Procedure Law § 30.10. (Johnson 1st Dep't Br. at 3-4; State 1st Dep't Br. at 18.) In 1996, when the rapes were committed, C.P.L. § 30.10 provided that a prosecution for rape, sodomy, robbery, or burglary (i.e., non-Class A felonies) had to be commenced within five years of the crime. See C.P.L.§ 30.10(2)(b) (as codified in 1996).3 C.P.L. § 30.10 also provided for tolling:
C.P.L. § 30.10(4)(a) (as codified in 1996).
Johnson's motion to dismiss asserted that Johnson's identity could have been ascertained as early as March 2000, when investigators began sending DNA samples to be analyzed using the 13-loci test and Johnson's DNA profile was present in the State's DNA databank. (Johnson 1st Dep't Br. at 4-5; State 1st Dep't Br. at 18-19.) Johnson argued that the C.P.L. § 30.10(4)(a)(ii) tolling ended in March 2000, meaning prosecution was time barred after March 2005, and since Johnson was not arrested until May 2005, the charges should be dismissed. (Johnson 1st Dep't Br. at 5; State 1st Dep't Br. at 18-19.)
The State countered that the police had exercised "'reasonable diligence'" from 1996 to 2005 while the identity of the perpetrator remained "'continuously unknown and continuously unascertainable'" and, as such, the C.P.L. § 30.10(4) tolling provision should apply to the entire period. (Johnson 1st Dep't Br. at 5; State 1st Dep't Br. at 20.)
Justice Renee A. White denied Johnson's motion. (See Johnson 1st Dep't Br. at 7-8; State 1st Dep't Br. at 20.) Justice White found that the backlog of 17,000 DNA samples awaiting retesting delayed analysis of the DNA sample from the 1996 crime. (See Johnson 1st Dep't Br. at 7-8; State 1st Dep't Br. at 20.) Justice White found that Johnson had failed to demonstrate that this delay represented a lack of reasonable diligence in determining the perpetrator's identity. (See Johnson 1st Dep't Br. at 8; State 1st Dep't Br. at 20.)
Johnson's new counsel moved to reargue, asserting that the police could have obtained a 6-loci DNA profile from the incarcerated Johnson in 2000, and failure to do so meant the police had not exercised reasonable diligence. (Johnson 1st Dep't Br. at 9; State 1st Dep't Br. at 21.) Johnson's counsel also argued that because Johnson's prior crimes fit the profile of the 1996 crime, failing to test his DNA as a potential suspect was a further failure of reasonable diligence. (State 1st Dep't Br. at 21.) Finally, Johnson's counsel argued that the DNA backlog should not give rise to an extended tolling period for the statute of limitations. (Johnson 1st Dep't Br. at 9; State 1st Dep't Br. at 21.)
The State responded that Johnson's profile in the State DNA databank was a 13-loci sample while the DNA from the 1996 crime scene was analyzed using a 6-loci profile, meaning no match was possible until the crime scene DNA was re-analyzed in 2005. (Johnson 1st Dep't Br. at 9-10; State 1st Dep't Br. at 22.) Furthermore, the State argued that failing to analyze Johnson's DNA while he was in prison was not a not a failure of due diligence, because the police would have needed probable cause to obtain a 6-loci sample from Johnson and his criminal history was not enough to amount to probable cause. (State 1st Dep't Br. at 22.) Instead, Johnson's DNA sample was acquired pursuant to a state statute that required violent felons to submit DNA samples to the New York State DNA databank, and not because he fit the profile of the perpetrator of this crime. (Johnston 1st Dep't Br. at 43, 44 n. 28; State 1st Dep't Br. at 22.)
Justice White again denied Johnson's motion to dismiss, finding that the State had "'exercised reasonable diligence to ascertain the identity of the perpetrator'" from the time of the crime through Johnson's May 2005 arrest. (See Johnson 1st Dep't Br. at 11; State 1st Dep't Br. at 22.)
On June 5, 2007, Johnson proceeded to a jury trial before Justice White in Supreme Court, New York County. (Dkt. No. 18: Tr. 1.)
Around 5:00 p.m. on November 18, 1996, MG4 came home from work to a fourth floor apartment she shared with others in Greenwich Village. (Dkt. No. 18: MG: Tr. 460-62.) As she was unlocking the apartment door, a man approached her from behind, put his gloved hand over her mouth and held a knife to her throat. (MG: Tr. 466-67, 488, 502.) The man told MG that he would kill her if she screamed and that she should open the door and throw her keys on the ground. (MG: Tr. 466, 502.)
Roommate KY was in the living room watching television when she "heard a commotion at the door." (KY: Tr. 527, 529; see MG: Tr. 467.) She saw a "six foot tall black man" wearing gloves and a knit cap pulled down to his upper lip. (KY: Tr. 529-30, 551.) The man was restraining MG and told KY that he had a gun. (KY: Tr. 530.) The man took a knit cap from a nearby coatrack and pulled it down over the hat he was already wearing, covering his face. (MG: Tr. 467, 503; KY: Tr. 531.)
The man pushed MG and KY into MG's bedroom and demanded money. (MG: Tr. 467; KY: Tr. 531-32.) MG gave the man some money and jewelry, but he asked for more. (MG: Tr. 468, 499; KY: Tr. 532.) MG offered him their TV, but the man said "'[n]o, I want money andmoney and jewelry.'" (KY: Tr. 532; MG: Tr. 469, 491.) Brandishing a six-inch knife, the man took KY to her room so that she could retrieve money and jewelry to give to him. (MG: Tr. 469-70; KY: Tr. 533-34.)
Returning with KY to MG's room, the man ordered the two women to take off their clothes. (MG: Tr. 469, 471; KY: Tr. 535.) Using a bed-sheet, he attempted to bind KY's wrist, but became agitated when he...
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