Khan v. Capra
| Decision Date | 26 May 2021 |
| Docket Number | 18 Civ. 1967 (CS)(JCM) |
| Parties | GENGHIS KHAN, Petitioner, v. MICHAEL CAPRA, Respondent. |
| Court | U.S. District Court — Southern District of New York |
REPORT AND RECOMMENDATION
Petitioner Genghis Khan ("Petitioner"), proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on February 12, 2018 ("Petition").1 (Docket No. 2 at 22).2 On July 10, 2018, Respondent Michael Capra ("Respondent") opposed the Petition, (Docket No. 14), accompanied by a supporting memorandum of law ("Resp't Br."), (Docket No. 15). For the reasons set forth below, I respectfully recommend that the Petition be denied in its entirety.
Petitioner's convictions arise out of an incident that occurred on April 30, 2012 in Clarkstown, New York. At approximately 4:40 p.m., State Trooper Miguel Berberena ("Berberena") was traveling northbound along Interstate 87 when he observed a gray Chevrolet Impala ("Impala") traveling "very closely" behind another vehicle. (Docket No. 17 at 777, 779-80). Trooper Berberena stopped the Impala, which was occupied by three individuals driving to Vermont. (Id. at 781-82, 784; Docket No. 17-1 at 590). When he approached the vehicle, Trooper Berberena smelled a strong odor of raw marijuana. (Docket No. 17 at 784). He asked the driver, Alex Spanos ("Spanos"), and the passengers, Shawna Barrier ("Barrier") and Petitioner, for identification. (Id. at 785, 787, 790-92).
Trooper Berberena returned to his patrol car, which is known as an IT-19 or "cage car" because of the partition between the front and rear seats, where he called State Trooper Harold Edwards ("Edwards") for backup. (Id. at 764-66, 787-88, 790). Trooper Edwards arrived approximately five minutes later. (Id. at 790). Trooper Berberena asked Spanos to exit the Impala and he performed a "pat-down" search of Spanos's exterior to ensure that he was not carrying weapons or contraband. (Id. at 790, 793-94). The search did not uncover anything on Spanos's person. (Id. 789). Spanos was placed in the back of Trooper Berberena's patrol car. (Id. at 799).
Trooper Edwards then asked Petitioner to exit the vehicle. (Id. at 800). Petitioner "walk[ed] strangely" toward the troopers, "taking little[,] small choppy steps" with his hands raised in the air. (Id. at 800-02). Trooper Berberena performed a pat-down search of Petitioner and noticed an unusual bulge near Petitioner's crotch, which felt like "a little pack of flour" and was not "consistent" with either the human body or a weapon. (Id. at 807). Trooper Berberena asked Petitioner if he had something in his pants. (Id. at 810). At first, Petitioner remarked that he did not know what the Trooper was talking about. (Id. at 810-11). Later, Petitioner insisted the bulge was marijuana. (Id. at 836). Trooper Berberena attempted to handcuff Petitioner and place him in his patrol car. (Id. at 818, 815). Petitioner resisted the handcuffs, forcing Trooper Berberena to "wrestle with [Petitioner's] hands." (Id. 812-13). After he was handcuffed, Petitioner dropped to his knees and "let out a whimper." (Id. at 814). Trooper Berberenagrabbed Petitioner off the ground, carried him to his patrol car, and sat him down next to Spanos. (Id. at 815). Spanos was placed in Trooper Edwards' patrol car after the troopers observed Spanos and Petitioner conversing. (Id. at 822; Docket No. 17-1 at 217).
Trooper Edwards approached Petitioner to read him his Miranda warnings when he saw Petitioner "stomping on a black plastic bag [] with a white powdery substance coming out of it." (Docket No. 17-1 at 218). Shocked, he "dove in the car and held [Petitioner] down" in an attempt to stop him from destroying evidence. (Id.). Trooper Berberena ran over and observed a "chunky white substance" strewn across the floor of his patrol car. (Docket No. 17 at 825). He then drew his taser and threatened to "[shoot] the shit out of [Petitioner] if he moved." (Id. at 826, 828). Petitioner complied and was placed under arrest. (Id. at 828).
Trooper Edwards photographed and collected the substance on the floor of Trooper Berberena's patrol car. (Id. at 830). He then searched the Impala, where he found a silver handgun in the center console and a plastic bag containing cocaine in the trunk. (Docket No. 17-1 at 227-33). Spanos and Barrier were placed under arrest and taken to the state police station in Tarrytown, New York ("S.P. Tarrytown"). (Id. at 846). Spanos was strip searched when he arrived at the station. (Id. at 843). Nothing was found on Spanos's person. (Id.).
Petitioner was transported to S.P. Tarrytown where he was also strip searched. (Id. at 832, 836-37). The search uncovered a "small amount of marijuana in a plastic bag" that Petitioner had placed in his underwear. (Id. at 838). Upon his arrival at S.P. Tarrytown, Petitioner complained of injuries sustained during his arrest. (Id. at 861). Petitioner was transported to Phelps Memorial Hospital in Sleepy Hollow, New York where he was triaged and discharged shortly thereafter. (Id. at 862). Petitioner was returned to S.P. Tarrytown and interviewed by Investigator Skylar King ("King"). (Docket No. 17-1 at 53). Petitioner told Investigator King that the object Trooper Berberena felt in his pants was marijuana, not cocaine.(Id. at 55-56). Petitioner further alleged that the plastic bag that he "was seen stomping" on in the back of Trooper Berberena's vehicle also contained marijuana. (Id.).
The substance found on the floor of Trooper Berberena's patrol car was weighed by the New York State Bureau of Criminal Investigation Office and confirmed to be approximately 185 grams of cocaine. (Id. at 839, 843; Docket No. 17-1 at 241-42). The Criminal Investigation Office also confirmed that approximately three grams of marijuana was found on Petitioner's person. (Docket No. 17 at 860). Petitioner was charged with Criminal Possession of a Controlled Substance in the Second and Third Degree and Unlawful Possession of Marijuana.
Spanos was charged with Criminal Possession of a Weapon in the Fourth Degree for the handgun found in his glove compartment. (Id. at 124-25). He was released from the custody of Rockland County Correctional Facility after his father posted bond on his behalf. (Id. at 96). Upon his return to Vermont, Spanos was arrested and charged with second degree murder and manslaughter following an incident in which he killed an individual while driving under the influence. (Id. at 128-29).
On February 6 and 7, 2013, a Huntley hearing was held concerning the admissibility of statements Petitioner made to Trooper Berberena and Investigator King. (Docket No. 17 at 1-102 ). The People called Trooper Berberena, (id. at 7-31, 84-95); Trooper Edwards, (id. at 32-48); and Investigator King, (id. at 48-75), to testify at the hearing. At the close of the prosecution's case, the defense moved to stay the hearing to afford the defense time to contact witnesses to testify on Petitioner's behalf. (Id. at 99, 102). The court denied defense counsel's request. (Id. at 102). On February 11, 2013, the court denied Petitioner's motion to suppress his statements made to law enforcement. (Id. at 116).
On February 25, 2021, a Sandoval hearing was held regarding the prosecution's latitude in questioning Petitioner about his prior criminal history. (Id. at 174-88). The court ruled that if Petitioner testified at trial, the prosecution could impeach Petitioner with questions concerning: (1) his use of aliases, (id. at 186); (2) his March 6, 2006 conviction for theft of services, i.e., obtaining public transportation without payment, and the underlying facts, (id.); (3) his July 27, 2009 conviction for fourth degree grand larceny with a limited inquiry into the underlying facts and any sentence imposed, (id. at 187); (4) his June 12, 2016 second degree attempted robbery charge and the underlying facts, (id.); and (5) whether he was convicted of a felony in Vermont on September 8, 2010, but not the underlying charge, (id.).
Jury selection took place on February 25, 27 and 28, 2013 and March 1 and 4, 2013. At the outset of jury selection, the judge asked the prospective jurors to meet with him and counsel privately if they felt they were unable to serve because of health concerns, vacations or close personal contacts that they had with the criminal justice system. (Id. at 162-66).
Andrea Sappleton ("Sappleton") requested a private meeting with the court, in which she informed the judge that she wished "to be exempt from th[e] process" because she had a brother who had been "in the system on marijuana charges" and alternatively, she was a single parent and was unable to take off of work. (Id. at 228-29). She then asked, "[n]ow are you getting rid of me," and indicated that she "would be biased toward [Petitioner]," stating: (Id. at 229-30). Defense counsel asked Sappleton if she felt she could render a decision based on the evidence, to which Sappleton replied "I—I—I—I guess." (Id. at 230). The defensedid not consent to Sappleton's removal, prompting the judge to ask defense counsel: "Are you serious?" (Id. at 231).
Thereafter, the prospective jurors were asked to complete an eleven item questionnaire. (Id. at 326). Upon receipt of the questionnaire, Sappleton asked to speak privately with the court. (Id. at 328). Sappleton told the court that she found the "entire batch" of "questions to be offensive," specifically, the question asking her age. (Id. at 329). Sappleton inquired how her age was going to make her "decision capacities a little bit better or a little bit less." (Id.). She also stated that she is "not one of the sheeps [sic]." (Id.). The parties returned to the courtroom and questioning resumed.
The...
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