Jones v. Bell

Decision Date04 October 2021
Docket Number20-CV-1951 (CM)(RWL)
PartiesALLEN JONES, Petitioner, v. EARL BELL, Superintendent, Respondent.
CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York

REPORT & RECOMMENDATION TO HON. COLLEEN MCMAHON PETITION FOR HABEAS CORPUS

ROBERT W. LEHRBURGER, UNITED STATES MAGISTRATE JUDGE.

Allen Jones brings this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for inter alia, first-degree manslaughter. Jones argues that (1) the State withheld Brady material from the defense; and (2) Jones was denied his right to confrontation when the trial court refused to strike the testimony of a critical cooperating witness who invoked his Fifth Amendment right and refused to answer numerous questions on cross-examination. (Petition at 6-8.[1]) For the reasons that follow, I recommend that Jones's petition be DENIED and the action dismissed.

BACKGROUND
A. The Crime And Arrest

On May 5, 2010, 18-year-old Elias Peguero was shot and killed inside the La Plaza Grocery Store (the "bodega"), located at the corner of 206th Street and 10th Avenue in New York County. (Tr. 17-18.[2]) A surveillance video from a nearby gas station captured four men - Allen Jones, Nakae Thompson, Danny Barnhill, and an unidentified fourth person - walking towards the bodega, with Jones leading the group. (BP Video at 21:43:37-57.[3]) Around the same time, video surveillance from outside the bodega captured Peguero walking across the street and pausing in front of the store to look behind him as the four men approached. (Bodega Video IV at 22:39:52-40:08.[4]) Peguero looked over his shoulder again as he entered the store. (Bodega Video at 22:40:08.)

Video surveillance from inside the store captured Peguero walking into the bodega and speaking to a man wearing a white t-shirt and dark baseball cap (later identified as Yandwin Corniel, whose testimony is at the heart of this Petition). (Bodega Video VI at 22:40:16-21.) Peguero then walked back towards the entrance of the store with Corniel close behind him as Jones, followed by Thompson, entered the store. (Bodega Video II at 22:40:22; III at 22:40:28, IV at 22:40:19, IV at 22:40:22-24.) Thompson wore a blue sweatshirt with white stripes, and Jones wore a blue shirt and a blue Yankee's baseball cap. (Bodega Video IV at 22:40:21.) Thompson blocked the entrance as Jones stood to the left of Peguero. (Bodega Video VI at 22:40:26.) According to testimony from the store clerk, Arafet Saleh, who is also visible in the videos, someone said "hit him." (Tr. 150.) Jones then punched Peguero and grabbed his neck and head with both hands. (Bodega Video II at 22:40:26-33.) Peguero attempted to break free as they both struggled towards the back of the store. (Bodega Video II at 22:40:26-33.) Corniel attempted to intercede, but Jones did not engage with him. (Bodega Video Hi at 22:40:28-29.)

Meanwhile, Thompson attempted to pull out a gun, dropped it on the ground, picked it back up, and ran towards the back of the store. (Bodega Video VI at 22:40:29-34). Jones tried to hold onto Peguero and looked back at Thompson who approached with a gun in his hand. (Bodega Video VI 22:40:33; Tr. 170-173).

When Peguero broke free from Jones's grip, Jones and Thompson watched as Peguero made his way around the back of the store to the left aisle. (Bodega Video VI at 22:40:33-37.) Barnhill, who wore a white hooded sweatshirt and carried a white bag full of ice, entered the store and waited at the end of left aisle by the entrance as Thompson made his way back towards the front of the store and Jones followed Peguero down the left aisle. (Bodega Video VI at 22:40:32-40.) Peguero grabbed a broom and ran down the left aisle towards Barnhill. (Bodega Video VI at 22:40:33.) Barnhill then hit Peguero in the face with the bag of ice, and Thompson shot him. (Bodega Video VI at 22:40:39-40.) At that time, Corniel was running toward the back of the store and down the basement stairs. (Bodega Video III at 22:40:40-44.)

Peguero stumbled towards the back of the store as Thompson and Barnhill ran out of the store. (Bodega Video VI at 22:40:36-42.) Jones walked out after them. (Bodega Video VI at 22:40:36-44.) Paramedics arrived shortly thereafter, and Peguero was pronounced dead at the scene. (Tr. 343.)

On May 6, 2010, Corniel was interviewed by police officers and informed them of what he had seen in the bodega, including that the man in the Yankees baseball cap (Jones) said "pop him." (May 6, 2010 Police Report.[5]) The next day, police arrested Jones at his residence and found a blue Yankees baseball cap outside of one of his windows. (Tr. 366-70, 767-71.) Jones was placed in a lineup; the store clerk, Saleh, identified him; and he was arrested and charged with one count of murder in the second degree, N.Y. Penal Law § 125.25(1); one count of gang assault in the first-degree N.Y. Penal Law § 120.07; one count of gang assault in the second degree, N.Y. Penal Law § 120.06; and two counts of criminal possession of a weapon in the second degree, N.Y. Penal Law §§ 265.03 (1)(b) and (3). (Indictment.[6])

B. Pretrial Proceedings

On June 22, 2010, Jones's attorney, Daniel J. Gotlin, filed an omnibus motion, a request for a Bill Of Particulars, and a Demand To Produce. (Disc. Mot. at A. 394-423.[7]) In the motion, Mr. Gotlin demanded that the prosecution provide any exculpatory evidence pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1983), as well as any evidence that might adversely affect the credibility of any prosecution witness pursuant to United States v. Giglio, 405 U.S. 150, 92 S.Ct. 763 (1972). (Disc. Mot. at A. 427, 419-20.) In response to the motion, the State acknowledged its duty to disclose exculpatory material under Brady and maintained that Jones's indictment, felony complaint, and Voluntary Disclosure Form ("VDF"), all of which it had already provided, satisfied its obligations. (Disc. Mot. Resp. A. 236-27.[8])

On March 18, 2013, at a suppression hearing pursuant to Dunaway v. State Of New York, 442 U.S. 200, 99 S.Ct. 2248 (1979), Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684 (1961), and People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838 (1965), the State asked the court to keep redacted the names and contact information of certain witnesses, including "witness three" (later identified as Corniel). (Huntley Hearing Tr. 7-8.[9]) Jones objected, but the court ruled that the State gave good cause for sealing the witnesses' names and authorized the protective order. (Huntley Hearing Tr. 7-8.)

On June 24, 2013, prior to jury selection, the court kept the protective order in place, but the State agreed to turn over a list of criminal convictions of the protected witnesses. (Pretrial Proceeding Tr. 15, 61-62.[10]) The list revealed extensive prior contact with law enforcement for "witness three" (Corniel). On June 30, 2011, Corniel was adjudicated as a youthful offender for petit larceny. He had a February 1, 2012 conviction for possession of a weapon in the fourth degree and disorderly conduct and a July 31, 2012 conviction for possession of marijuana. He also had three pending cases: one for a July 26, 2012 arrest for possession of marijuana; one for an August 14, 2012 arrest for reckless driving and endangerment; and one for possession of a weapon and ammunition (the "open gun case"). All of that was disclosed to defense counsel before trial. (Disclosure List, A. 476.)

On February 1, 2011, the court granted the State's motion to consolidate the cases against Jones, Thompson, and Bamhill, but Barnhill was later severed, and the trial proceeded with Thompson and Jones as co-defendants. (Order to Consolidate at 1.[11]) On June 27, 2013, during jury selection, Thompson's attorney, Thomas Klein, told Jones's attorney, Mr. Gotlin, that he had discovered that the State's "witness three" was Corniel and subsequently provided Mr. Gotlin with information about Corniel, including a felony complaint and VDF related to the open gun case. (Pretrial Proceeding Tr. 283-85.)

The complaint for the open gun case, filed by Assistant District Attorney Fionnuala O'Doherty ("ADA O'Doherty"), included the following:

Deponent recovered from the drawfer] in the defendant's bedroom a loaded 9mm pistol, ammunition for a 9mm and 380 caliber ammunition. Deponent also recovered from the defendant's bedroom a bullet proof vest and marijuana.
Deponent is informed by the defendant that the gun and vest are his and that he has had the gun for over 3 years because he is in the business of selling fake drugs and needs the gun because he has problems in the streets.

(Corniel Complaint at 1.[12])

The VDF revealed that Corniel had made a statement to ADA O'Doherty related to his open gun case and included the following:

Defendant admitted that the gun was his. He stated he had a problem on the street and needed the guns and a vest. He admitted that he had a second gun, but sold it. He admitted he had worn vest and guns out on the street due to the problem. He said that he had the one gun for a long time as he sold fake drugs and that due to the dangers of the drug trade he need[s] the gun.

(VDF at 2.[13]) Although not disclosed by the state, all of that information about Corniel thus was also available to defense counsel before trial.

C. Trial

At the jury trial of Jones and Thompson, which commenced on or about June 24, 2013, the State's case consisted of seventeen witnesses, including two eyewitnesses; two video recordings; a redacted recording of a call made by Jones while incarcerated at Rikers Island; and five stipulations, including one related to Corniel. (Tr. 41-830.)

The jury saw the videos and heard the testimony about the incident and subsequent investigation outlined above. (See Tr. 42-60, 110-744,...

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