Joseph v. Conway
| Decision Date | 26 April 2023 |
| Docket Number | 07-CV-5223 (DC) |
| Parties | ROY JOSEPH, Petitioner, v. JAMES CONWAY, Superintendent, Attica Correctional Facility Respondent. |
| Court | U.S. District Court — Eastern District of New York |
APPEARANCES:
GEORGIA J. HINDE, Esq. Attorney for Petitioner ERIC GONZALEZ Esq. District Attorney Kings County
By Diane R. Eisner, Esq. Assistant District Attorney Attorney for Respondent
On January 8, 2002, following a jury trial, petitioner Roy Joseph ("Joseph") was convicted in the Supreme Court of the State of New York, Kings County (Firetog J.), of depraved indifference murder, attempted murder, and criminal possession of a weapon. See Dkt. 39-17 at 32. He was sentenced, as a second violent felony offender, to an indeterminate term of imprisonment of forty years to life on all three counts. Id. His convictions were affirmed by the Appellate Division, Second Department, People v. Joseph, 797 N.Y.S.2d 310 (2d Dep't 2005) ("Joseph I"), and the New York Court of Appeals denied leave to appeal, People v. Joseph, 836 N.E.2d 1159 (N.Y. 2005) (Rosenblatt, J.) ("Joseph II").
On December 11, 2007, Joseph, proceeding pro se, petitioned this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (the "Petition"). See Dkt. 1. The Kings County District Attorney's Office filed its opposition on February 29, 2008. See Dkt. 6. The timeliness of Joseph's Petition was the subject of litigation -- including in the Second Circuit -- for more than a decade, until August 4, 2021, when, by memorandum and order, this Court held that the Petition was eligible for statutory tolling. See Dkt. 28. On April 15, 2022, after exhausting his state court remedies on an additional claim, Joseph, now represented by counsel, supplemented his Petition. See Dkt. 34. On January 17, 2023, the case was reassigned to the undersigned. See Dkt. Sheet at 6. The District Attorney's Office filed its opposition on March 1, 2023, and Joseph replied on March 15, 2023. See Dkt. 40, 41.
For the reasons set forth below, Joseph's Petition is denied.
The evidence at trial established the following:
On March 12, 2000, Edwin Innis threw a birthday party in a dark, foggy, and crowded club in Brooklyn. See Dkt. 39-5 at 8. After hours of dancing and drinking, around 4:00 A.M., an unknown man at the party -- identified in court as Joseph by Shawn Cave ("Shawn") -- approached David Clark ("David") about a verbal altercation David had earlier that night with another person. Id. at 34. Shawn heard David tell Joseph to "leave [him] alone" and that the incident was "none of [his] fucking business." Id. at 19. Shawn saw that Joseph "got upset," and "went to reach for something" under his shirt, at which point Shawn concluded that Joseph had a gun, and tried, unsuccessfully, to restrain him. Id. at 19-21. Shawn did not see Joseph fire a gun, but he heard multiple shots fired on the dance floor and into the disc jockey ("DJ") booth. Id. at 21-22.
Daniel Foster ("Foster") was in the DJ booth when he heard shots coming from the dance floor. See Dkt. 39-9 at 8. Foster could not see who was shooting, but he saw David get shot. Id. at 9. David was shot five times and he suffered severe injuries to his lungs, intestines, spine, and ribs. See Dkt. 39-6 at 44-45.
Moments later, during a break in the shooting, Foster moved from the DJ booth onto the dance floor, from where he was still unable to view the shooter's face. See Dkt. 39-9 at 11-12. Foster then witnessed Carlos Cave ("Carlos") unsuccessfully attempt to apprehend the shooter, after which Carlos was fatally shot two or three times. Id. at 13-15. The autopsy conducted on Carlos showed that he died because of a gunshot wound to his head, shot from no less than "12 to 18 inches" away. Id. at 73, 78.
After Carlos was shot, Foster, with the help of Shawn, Roosevelt Walker ("Walker"), Dion Clark ("Dion"), and others, disarmed Joseph. See Dkt. 39-9 at 18. Once Foster got control of the gun, he shot Joseph once. Id. at 18-19. Foster and the others then proceeded to beat Joseph with glass bottles and took turns striking him in the head with the gun. See Dkt. 39-5 at 31-32; Dkt. 39-6 at 71-74, 97-98. Foster testified that he "tried to kill him" and would have done so if he "had more time" before the police came. Dkt. 39-9 at 19. When the police arrived, Shawn and the others informed them that Joseph was "the guy who killed [Carlos] and shot [David]." Dkt. 39-5 at 36.
Joseph was charged with one count of first-degree murder, two counts of second-degree murder, one count of attempted second-degree murder, two counts of first-degree assault, and one count each of second- and third-degree criminal possession of a weapon. See Dkt. 39-17 at 6-7.
At trial, numerous individuals who attended Innis's party testified to the shootings, but most witnesses could only provide a vague and general description of the shooter as a dark-skinned, short, stocky man, see, e.g., Dkt. 39-5 at 20; 39-6 at 9; 39-11 at 14, and they inconsistently described the shooter's clothing -- wearing either a "plaid" and "multi-colored" shirt, Dkt. 39-6 at 18; a "bluish/greenish sweatshirt," id. at 62; or a "[d]ark jacket," Dkt. 39-11 at 12. Although Shawn identified Joseph as the shooter in court, he admitted that he never saw Joseph fire a gun. See Dkt. 39-5 at 27. Dion and Walker also testified that they never saw Joseph shoot anyone. See Dkt. 39-6 at 83, 100. Other witnesses, including Foster, admitted to never seeing the shooter's face. See, e.g., Dkt. 39-5 at 68-69; 39-6 at 18, 38, 129; 39-7 at 5; 39-9 at 11-12.
Defense counsel pointed out the above weaknesses of the prosecution's case to the jury. See Dkt. 39-11 at 25-28. Defense counsel also challenged Foster's credibility on grounds that he did not come forward until twenty months after the crimes, that he first met with the prosecution a week before he testified at trial, and that he was testifying pursuant to an immunity agreement such that he would not be prosecuted for shooting and assaulting Joseph if he testified at trial. Id. at 30-33.[1]
In summation, the prosecution emphasized the importance of Foster's testimony to its case, stating that "[b]ut for Dave Foster, but for him, [Joseph] might have gotten away," id. at 46, and that Foster's testimony is "how" the prosecution "knows [Joseph] is the right guy," id. at 41. The prosecution also stated that Foster was not granted immunity "until after he told [the prosecution] the truth." Id. at 39.
When instructing the jury, the trial court advised that summation arguments "are not evidence," and that neither attorney had any "power to tell [the jury] that one witness is telling the truth or another witness is not." Id. at 54. As relevant to this Petition, the trial court instructed the jury that intentional second-degree murder requires "intent to cause the death of another." Id. at 64. The trial court also instructed the jury on the lesser included offense of depraved indifference second-degree murder, which requires reckless conduct that "creates a grave risk of death to another person," id. at 70, and "under circumstances evincing a depraved indifference to human life," such as "firing [a] gun in close proximity to Carlos Cave's head," id. at 71. Defense counsel objected to the court's instruction that an example of depraved indifference murder is "firing a gun in close proximity of Carlos Cave's head." Id. at 78.
On December 3, 2001, during deliberations, the jury requested clarification of the difference between intentional murder and depraved indifference murder. See Dkt. 39-22 at 53. The trial court re-read the charges as to these two crimes, to which defense counsel did not object. Id. at 51. That same day, the jury found Joseph guilty of attempted second-degree murder of David, depraved indifference second-degree murder of Carlos, and criminal possession of a weapon. See Dkt. 39-13 at 16. Joseph was acquitted of first-degree murder and intentional second-degree murder. Id.
On January 8, 2002, the trial court sentenced Joseph to consecutive terms of imprisonment of twenty years to life for the murder conviction and twenty years for the attempted murder conviction, as well as a concurrent term of ten years for the weapon possession conviction. See Dkt. 39-12 at 16.
On October 4, 2004, Joseph, represented by counsel, appealed his convictions to the Appellate Division, Second Department, on the sole ground that "he was denied due process by the prosecutor's improper and prejudicial summation arguments, including vouching, mischaracterizing the defense, shifting the burden of proof, and appealing to the sympathies of the jurors." Dkt. 39-22 at 55-56. Shortly thereafter, in another case, the New York Court of Appeals clarified depraved indifference murder, stating that "[w]hile we have identified instances in which a killing could qualify as depraved indifference murder, a point-blank shooting is ordinarily not one of them." People v. Payne, 819 N.E.2d 634, 635 (N.Y. 2004), abrogated by People v. Feingold, 852 N.E.2d 1163 (N.Y. 2006). Given the recent decision and with permission from the Appellate Division, Joseph filed a supplemental brief that challenged the sufficiency of the evidence as to the depraved indifference murder charge, arguing that the evidence that Carlos was shot in the head at close range was consistent only with intentional conduct -- charges of which the jury acquitted Joseph. See Dkt. 39-16 at 3.
By decision dated July 5, 2005, the Appellate Division affirmed Joseph's conviction. See Joseph I, 797 N.Y.S.2d at 310. As to the claim of improper prosecutorial conduct in...
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