Khan v. Capra
| Decision Date | 10 November 2020 |
| Docket Number | 19-CV-533 (KAM) |
| Parties | ARSHAD KHAN, Petitioner v. SUPERINTENDENT MICHAEL CAPRA, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
Presently before the court is a petition brought by pro se petitioner Arshad Khan, seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("Section 2254"). (See generally ECF No. 1, Pet. for a Writ of Habeas Corpus ("Pet.").) Mr. Khan is currently incarcerated at the Sing Sing Correctional Facility pursuant to a judgment of conviction imposed in the New York Supreme Court, Queens County, for Assault in the First Degree. In his petition, Mr. Khan principally alleges that his constitutional rights were violated because he was denied: (1) effective assistance of counsel at trial, (2) due process through the admission of certain evidence, and (3) due process when the trial court denied his New York Criminal Procedure Law ("CPL") § 440 motion without a hearing. (See generally Pet.) For the reasons set forth below, Mr. Khan's petition is denied.
During the early morning of October 28, 2012, Ashwin Daljeet and Khermraj Sankar were celebrating at a nightclub in Queens, New York when they got into a physical altercation with petitioner and another person. (ECF No. 12, State Court Record ("R.") at 230-31.) While at the nightclub, Daljeet accidentally bumped into an acquaintance from his neighborhood. (Id. at 234-35.) When Daljeet turned around to apologize, the man pushed Daljeet. (Id. at 234.) They began "exchanging words," and Sankar intervened, grabbing Daljeet to prevent further escalation. (Id. at 234, 312.)
As Sankar and Daljeet began to walk away, Daljeet looked back and saw petitioner approach the man and ask what had happened. (Id. at 235.) Although Daljeet did not recognize petitioner, Sankar was familiar with the petitioner from a prior interaction. (Id. at 336-37.) Petitioner then looked at Daljeet and ran straight to him. (Id. at 236.) According to Daljeet, petitioner appeared to be "[v]ery angry, and he looked drunk." (Id. at 237.) Petitioner punched Daljeet in the face, causing Daljeet's mouth to bleed. (Id. at 236.) In response, Daljeet "punched [petitioner] right back," knocking petitioner to the ground. (Id. at 238.) Later, petitioner swung his arm at Daljeet in an "overhead motion," striking Daljeet in the facea second time. (Id. at 240.) Daljeet then "started swinging" at petitioner knocking him down on the ground. (Id. at 242.) After realizing that he was bleeding, Daljeet stopped fighting and went to the emergency room at Jamaica Hospital with his friends. (Id. at 243-44.)
According to Dr. Anna Aronova, the on-call surgery resident at Jamaica Hospital, Daljeet told the hospital staff that he had been drinking alcohol, but he did not appear to be intoxicated. (Id. at 366.) Daljeet had an "extensive" laceration on the right side of his face, and smaller lacerations on his neck, arm, and chest. (Id. at 365-66.) His sinus cavity had been fractured and it took Dr. Aronova two hours to suture the wounds on Daljeet's face. (Id. at 370-71.) At the time of trial, Daljeet had a scar from the bottom his right eye to the right side of his lip. (Id. at 251.)
After he was discharged from the hospital on the morning of October 28, 2012, Daljeet went home, changed his clothes, and then traveled to the 102nd Police Precinct, where he filed a report with Detective Albert Hawkins. (Id. at 252.) Daljeet did not know petitioner's name at the time he spoke with Detective Hawkins. (Id. at 253.) Nonetheless, Daljeet subsequently learned petitioner's name from Sankar, who sent Daljeet a link to a photograph of petitioner from the night club website. (Id. at 253-54.) Daljeet printed out the photographand gave it to Detective Hawkins. (Id.) On November 15, 2012, Detective Hawkins showed a photo array to Daljeet and Daljeet identified petitioner in the photos. On November 17, 2012, Daljeet returned to the 102nd Precinct, where Detective Hawkins conducted a lineup procedure. (Id. at 259, 346-52.) Daljeet identified petitioner in that lineup as the man who attacked him. (Id.)
On June 6, 2013, at petitioner's arraignment, the State provided CPL § 710.30 notice for three identification procedures: a line-up and a photo array with Daljeet at the 102nd Precinct on November 15, 2012 and November 17, 2012, and a photo array with another eyewitness on June 5, 2013, at the Queens District Attorney's office. (R. at 193.)
On March 10, 2015, petitioner proceeded to a jury trial before the Honorable Barry A. Schwartz in Queens County Supreme Court. (R. at 202.) At trial, Daljeet and Sankar identified petitioner in court. (Id. at 236, 314.) When asked on cross-examination whether Sankar's in-court identification was the "first time" he had identified petitioner, Sankar replied, "No," and stated that he had previously identified petitioner from a photograph during a meeting with an Assistant District Attorney. (Id. at 314.) Trial counsel objected to the evidence of the out of court identification with a singleobjection, which the court sustained, but counsel did not move to strike Sankar's in-court identification of defendant, move for a mistrial, or any other relief. (Id. at 338.)
During jury deliberation, the sole requested readback was for Sankar's testimony. (Id. at 561.) On March 13, 2015, the jury found petitioner guilty of first-degree assault. (Id. at 460.) On May 11, 2015, the court sentenced petitioner to a determinate prison term of 12 years, to be followed by 2.5 years of post-release supervision. (Petitioner's Sentencing Tr. at 8-9.)
On December 8, 2015, petitioner moved to vacate his conviction pursuant to CPL § 440.10 on the ground that he was deprived of the effective assistance of counsel. (See R. at 1-88.) At trial, petitioner learned that Sankar had previously identified petitioner from a photograph during what respondent describes as a pretrial preparation meeting with an Assistant District Attorney. (Id. at 5.) Petitioner argued that his counsel was ineffective because counsel did not move to strike Sankar's in-court identification of petitioner after the State failed to serve petitioner with pre-trial notice of the prior identification pursuant to CPL § 710.30(1)(b).1 (Id. at 6-10.)
On March 21, 2016, the New York Supreme Court denied petitioner's CPL § 440.10 motion (the "CPL § 440 court"). (Id. at 111-17.) In doing so, the court found that petitioner's claim was procedurally barred pursuant to CPL § 440.10(2)(b) because it was a record-based claim that could be raised on petitioner's then-pending direct appeal. (Id.) In the alternative, the court found that petitioner's claim was meritless. (Id. at 114.) The court reasoned that, at the time of petitioner's trial, "an exception to the [CPL § 710.30(1)(b)] notice requirement existed for pre-trial witness preparation where a prosecutor displayed a photograph of a defendant prior to trial and it did not constitute an identification procedure." (Id. at 116 (citing People v. Herner, 85 N.Y.2d 877 (1995).) Moreover, even under People v. Marshall, 26 N.Y.3d 495, 498 (2015), where the New York Court of Appeals disavowed the exception to the notice requirement recognized in Herner, Sankar's in-court identification of petitioner still would not be precluded because Sankar and petitioner "were known to one another making the identification confirmatory." (R. at 116-17.) For these reasons, the court concluded that petitioner's counsel was not ineffective for failing to strike the in-courtidentification and denied petitioner's CPL § 440.10 motion. (Id.)
On May 20, 2015, petitioner filed a notice of appeal to the Second Judicial Department of New York Supreme Court's Appellate Division (the "Appellate Division"), arguing on appeal that: (1) trial counsel was ineffective for failing to seek preclusion of Sankar's in-court identification of petitioner; (2) Sankar's in-court identification testimony should have been precluded; (3) the CPL § 440 court erred in denying petitioner's motion without a hearing. (Id. at 549-81.)
On August 30, 2017, the Appellate Division issued a Decision & Order, unanimously affirming the judgment of conviction and the order denying petitioner's CPL § 440 motion. (Id. at 618-19.) The Appellate Division concluded that petitioner's CPL § 440 motion was properly denied without a hearing because, "the [CPL § 440] court could determine from the parties' submissions that [petitioner] was not deprived of the effective assistance of counsel." (Id. at 618.) The Appellate Division also found that petitioner's challenge to the admission of Sankar's in-court identification was unpreserved for appellate review, and "decline[d] to reach [the claim] in the exercise of [the court's] interest of justice jurisdiction." (R. at 618-19.) Petitioner sought leave to appeal to the New YorkCourt of Appeals, which was denied on May 8, 2018. (Id. at 620-26, 631.)
In a pro se petition dated January 17, 2019, petitioner seeks federal habeas corpus relief, claiming that: (1) he was denied the effective assistance of counsel as a result of trial counsel's failure to seek preclusion of Sankar's in-court identification testimony; (2) he was denied due process by the admission of Sankar's in-court identification testimony; and (3) he was denied due process when the trial court denied his CPL § 440 motion without a hearing. (Pet. at 2.)
Pursuant to Section 2254, a federal district court shall issue a writ of habeas corpus to an individual in state custody "only on the ground that he is in custody in violation of the Constitution or law or treaties of the United States." 28 U.S.C. § 2254(a). A court may only issue such a writ if the state court adjudication (1) "resulted in a decision that was contrary to, or involved an unreasonable...
To continue reading
Request your trial