Jones v. Lavalley

• Decision Date: 03 April 2014
• Docket Number: 11 Civ. 6178 (AT) (AJP)
• Parties: SHAUN-DA JONES Petitioner, v. THOMAS LAVALLEY, Respondent.
• Court: U.S. District Court — Southern District of New York

SHAUN-DA JONES Petitioner, v. THOMAS LAVALLEY, Respondent.

11 Civ. 6178 (AT) (AJP)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

April 3, 2014

REPORT AND RECOMMENDATION

ANDREW J. PECK, United States Magistrate Judge:

To the Honorable Analisa Torres, United States District Judge:

Pro se petitioner Shaun-da Jones seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his July 21, 2008 conviction following a jury trial in Supreme Court, New York County, of two counts of first degree robbery, one count of second degree robbery and two counts of second degree criminal possession of a weapon, and his sentence to an aggregate prison term of twelve years. (Dkt. No. 1: Pet. ¶¶ 1-5.)

Jones' habeas petition asserts that: (1) Jones' conviction was based on legally insufficient evidence and was against the weight of the evidence (Pet. ¶ 13(1)); (2) police lacked reasonable suspicion to pursue Jones, and physical evidence obtained during the arrest should have been suppressed (Pet. ¶ 13(2)); and (3) Jones' trial counsel was ineffective for failing to request Dunaway and Mapp hearings (Pet. ¶ 13(3)).

For the reasons set forth below, Jones' habeas corpus petition should be DENIED.

FACTS

On August 18, 2007, Jones, Kenneth Stanley and Allen Stewart robbed Kenneth McCoy and Tarik Bailey in a Manhattan parking lot, stealing a medallion, chain and watch. (Dkt. No. 17: Litsky Aff. Ex. A: Jones 1st Dep't Br. at 3; Litsky Aff. Ex. B: State 1st Dep't Br. at 1-2.) During the robbery, Jones fired two shots at McCoy's feet. (Jones 1st Dep't Br. at 3; State 1st Dep't Br. at 2.) Jones, Stanley and Stewart fled down Fifth Avenue. (Jones 1st Dep't Br. at 3; State 1st Dep't Br. at 2.) Police heard the shots, saw the men running from the parking lot, and pursued them down Fifth Avenue. (Jones 1st Dep't Br. at 4; State 1st Dep't Br. at 2.) The police apprehended Jones, Stanley and Stewart on 19th Street and recovered a loaded gun nearby and McCoy's stolen jewelry from Stanley's pocket. (Jones 1st Dep't Br. at 4; State 1st Dep't Br. at 2-3.) In separate lineups, McCoy and Bailey identified Jones as the individual who fired the shots. (Jones 1st Dep't Br. at 4; State 1st Dep't Br. at 3.)

The Pre-Trial Suppression Hearing¹

Prior to trial, Jones' counsel moved for Wade and Huntley hearings to suppress suggestive lineup identifications and a statement Jones made at the precinct. (Dkt. No. 17: Litsky Aff. Ex. A: Jones 1st Dep't Br. at 6; Litsky Aff. Ex. B: State 1st Dep't Br. at 3.) Stanley and Stewart participated in the same suppression hearing. (Suppression Hearing Transcript ("H.") 1-2; see State 1st Dep't Br. at 3-4 & n.1.) Stanley and Stewart also moved for Mapp and Dunaway hearings to suppress identification testimony and physical evidence, specifically the gun found near the sceneof the arrest and the gold chain and watch found in Stanley's pocket. (H. 3-7, 448-49.) Justice James Yates held the suppression hearing on June 3, 2008. (H. 1.)

On August 18, 2007, at around 4:30 a.m., Sergeant Michael O'Sullivan was on patrol at the corner of Fifth Avenue and 21st Street and heard a "crashing, boom kind of sound" coming from the direction of a parking lot on 21st Street between Fifth and Sixth Avenues. (O'Sullivan: H. 16-17, 27-28, 32-33, 56-57, 62, 71-72.) He was unsure if the sound was a gunshot. (O'Sullivan: H. 27-28.) At the same time, Lieutenant Nicholas McAteer, walking nearby toward 21st Street and Fifth Avenue, heard two "pops" that sounded like "distant gunshots." (McAteer: H. 84-86, 181-82, 208-11.)

Both Lt. McAteer and Sgt. O'Sullivan observed three African American men, all wearing light-colored t-shirts and one wearing a light-blue doo-rag, running together down Fifth Avenue between 21st and 22nd Streets. (O'Sullivan: H. 18-22, 28-29, 34, 57-58; McAteer: H. 86-87, 135-36, 182-83, 185, 213-14, 217-19.) A taxicab passenger told Sgt. O'Sullivan that there was "something going on around the corner" and pointed towards 22nd Street. (O'Sullivan: H. 20-21, 43-46.) Sgt. O'Sullivan pursued the three men down Fifth Avenue. (O'Sullivan: H. 21-22.) Sgt. O'Sullivan saw Lt. McAteer, gestured toward the three men, and shouted that "they just shot somebody or they just robbed somebody." (O'Sullivan: H. 18-22, 39-43, 74; McAteer: 87-88, 137, 184-88.) Lt. McAteer and two other officers continued the pursuit while Sgt. O'Sullivan headed down 21st Street "to see if something actually did happen." (O'Sullivan: H. 22-23, 38; McAteer: H. 84-88, 184-89.)

The officers followed the men as they turned east on 20th Street and then south on Broadway. (McAteer: H. 89.) Lt. McAteer repeatedly identified himself as a police officer and ordered the three men to stop, but they continued to run. (McAteer: H. 89, 143-44, 190, 250-53.) Lt. McAteer observed Jones "fiddling around with his waistband" on Broadway between 19th and 20th Streets but did not see what, if anything, Jones removed from his pants. (McAteer: H. 90-91, 95-96, 144-45, 191-92; Capers: H. 305, 337-38, 356-57.) The officers stopped Jones, Stanley and Stewart on 19th Street. (O'Sullivan: H. 50; McAteer: H. 83, 89-93, 139, 143, 223-27.)

Detective Capers searched the three men and found, inter alia, two cellular telephones, money and keys in Jones' pocket, and a watch, a medallion, money, keys, and a cell phone in Stanley's pocket. (Capers: H. 262-66, 309-11, 339-43, 353-55, 374-75.) Lt. McAteer retraced his steps and found a loaded .380 caliber pistol near the corner of 19th Street where he had observed Jones "fiddling around with his waistband." (McAteer: H. 90, 93-97, 157-58, 193; Capers: H. 267-72, 343-46.) Lt. McAteer gave the gun to Detective Capers for processing. (McAteer: H. 96, 157-58; Capers: H. 272.)

Sgt. O'Sullivan went to the parking lot on 21st Street between Fifth and Sixth Avenues where the robbery occurred and observed that a light pole was knocked down. (O'Sullivan: H. 22-23, 48-49.) Detectives spoke with the parking lot attendant who explained that an "altercation," possible robbery or "attempted robbery" of a white SUV had occurred in the parking lot. (O'Sullivan: H. 23-24, 49, 62-63.) The SUV backed into the light pole causing the suspects to run toward Fifth Avenue and 22nd Street. (O'Sullivan: H. 23-26, 49-50, 62-63.) Sgt. O'Sullivan walked to 19th Street where he recognized the men in custody as the three men he had seen running from the parking lot. (O'Sullivan: H. 25.)

The police located and interviewed the victims, Bailey and McCoy. (McAteer: H. 98-102, 147-52; Capers: H. 275-77, 317-18, 347-48, 372-74.) Bailey stated that while returning to his car in the parking lot with McCoy, three men approached and robbed them. (McAteer: H. 101-03; Capers: H. 275-79.) One of the men fired a gun in McCoy's direction. (McAteer: H. 103-07; Capers: H. 275-79.) McCoy handed over his watch and medallion. (Capers: H. 275-79.) McCoy stated that the men wore white t-shirts and the shooter was wearing a blue doo-rag. (Capers: H. 278, 348-49, 364-66, 369, 372.) Afraid that the men would steal the SUV, Bailey and McCoy drove off, hitting the light pole. (McAteer: H. 101-07; Capers: H. 272-76, 321, 348.) Both McCoy and Bailey identified Jones in lineups as the shooter. (McAteer: H. 110-14, 129-32, 206; Capers: H. 325-26.)

Jones' counsel attempted to include Mapp and Dunaway issues at the suppression hearing although he had not filed theses motions prior to the hearing:

[Jones' Counsel]: This is something that just came to my attention. A blue doo-rag was seized from Mr. Jones when he was brought in for a lineup at the Manhattan District Attorney's Office.

. . . .

THE COURT: In other words, on the day of arrest he is wearing a blue doo-rag. They let it go. During the interim he comes back on the other day for the lineup still wearing the blue doo-rag.

By then the police figured out it has evidentiary value so they asked a judge to seize it and they did.

[Prosecutor]: Exactly right.

THE COURT: We will make that part of the hearing.

[Jones' Counsel]: We can have the Mapp with respect to the blue doo-rag?

THE COURT: Yes. What else?

[Prosecutor]: There is an order signed by [Judge Mayer], I am not prepared, I don't have the witness who seized the blue doo-rag here.

THE COURT: Most of what he's doing is moving to controvert the order. I'll look at the order and see what is in it and based on that I'll rule. . . . You are not complaining [Jones' counsel] about the manner of the seizure, you are complaining about whether there was sufficient cause and whether the order was issued properly.

So I'll look at the order and rule on whether it was issued properly.

[Jones' Counsel]: Right, not the order itself, what I'm trying to say I would have made the application in my omnibus motion for a Mapphearing with respect to that doo-rag had I known that was something the People planned --

THE COURT: You are asking for permission to move to controvert the order. I'll look at the order and motion.

(H. 8-11.) However, when Jones' counsel attempted a line of questioning implicating a Mapp issue, the judge reminded him that he was "not granted a Mapp or Dunaway hearing." (H. 48.) Jones' counsel attempted to argue a Dunaway issue for his client anyway, but was unsuccessful:

[Jones' Counsel]: . . . [T]he facts [d]o suggest there was no basis to detain them and chase them, and therefore, everything subsequent to the chase should also be suppressed.

[Prosecutor]: I hate to interrupt. If your Honor wants to hear it, I'll sit down. I think that is the definition of what a Dunawayhearing would be.

THE COURT: Yes. I asked what does this have to do with a Huntley, Wadeand I have not heard a good answer yet.

(H. 394.) Justice Yates only determined Jones' Huntley and Wade motions. (See H. 448: "First of all, at the outset I understand that for Mr. Jones, this is a Huntley, Wade hearing, and at issue are in effect two line-ups and a statement given at the precinct.")

Justice Yates' Decision

Justice Yates denied Jones' ...