King v. Cunningham
| Decision Date | 09 August 2006 |
| Docket Number | No. 04 Civ. 02620(VM).,04 Civ. 02620(VM). |
| Citation | 442 F.Supp.2d 171 |
| Parties | Joesun Kacrown KING, Petitioner, v. Raymond J. CUNNINGHAM, Respondent. |
| Court | U.S. District Court — Southern District of New York |
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v.
Raymond J. CUNNINGHAM, Respondent.
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COPYRIGHT MATERIAL OMITTED
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Joesun Kacrown King, Petitioner, pro se, Woodbourne, NY.
MARRERO, District Judge.
Pro se petitioner Joesun Kacrown King ("King") filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (" § 2254") in response to a court order directing King to amend an earlier petition submitted on December 22, 2003 ("Original Petition").1
Upon a plea of guilty, King was convicted in State Supreme Court, New York County, of Assault in the First Degree and was sentenced to a determinate prison term of nine years. In the instant petition (the "Amended Petition"), King argues that (1) he did not consent to an "illegal and harsh" sentence of nine years' imprisonment and (2) he should have been given a competency evaluation pursuant to N.Y.Crim. Proc. Law § 730.30 (McKinsey, 2006). For the reasons set forth below, the Court denies King's petition.
On March 3, 1999, King was arrested after repeatedly firing a beebee gun in a
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New York City subway car. While King's fire was directed at fellow passenger Gene Serrano, one of the beebee pellets hit another passenger, Becky Kozer, permanently damaging her eyesight. An indictment filed on March 23, 1999, charged King with one count each of Assault in the First Degree in violation of New York Penal Law ("NYPL") § 120.10(1), Assault in the Second Degree, NYPL § 120.05(2), and Criminal Possession of a Weapon in the Third Degree, NYPL § 265.02(1).
King entered a plea of guilty on December 6, 1999, to the assault charge, which alleged that with intent to cause serious physical injury to another, he injured Becky Kozer by means of a dangerous instrument. King, who had two previous larceny convictions, was adjudicated as a predicate felony offender. As such, King's sentence range was eight to twenty-five years' imprisonment. On December 20, 1999, he was sentenced to nine years' imprisonment. King was represented by counsel at his plea and sentencing hearings.
Two psychiatrists, one retained by the defense and the other by the prosecution, examined King and issued reports on his mental condition prior to the plea hearing. Both psychiatrists noted King's history of mental illness. (After age seventeen, King was hospitalized multiple times for chronic schizophrenia.) Robert Goldstein ("Goldstein"), King's psychiatrist, concluded that at the time of the incident on the subway King lacked substantial capacity to know or appreciate the wrongfulness of his conduct. Goldstein found that King, under delusions of persecution, fired the beebee gun in self-defense. On the other hand, the prosecution's psychiatrist, David Weber ("Weber"), concluded that, mental illness notwithstanding, King possessed substantial capacity to know and appreciate that his conduct was wrong.
On January 6, 2000, King filed a motion pro se in State Supreme Court, New York County, to vacate the judgment of conviction pursuant to N.Y.Crim. Proc. Law § 440.10 (" § 440.10"). King checked off the following grounds for relief from a template § 440.10 motion: (1) lack of jurisdiction of person or subject matter, (2) material evidence known by prosecutor or court to be false before judgment, (3) existence of mental disease or defect making defendant incapable of understanding proceedings, and (4) newly discovered evidence. On April 22, 2000, Judge Carol Berkman denied King's § 440.10 motion ("First § 440 Motion") without a hearing. The court quickly disposed of King's jurisdictional and evidentiary claims and found his incapacity claim "belied by the record" because at the plea proceedings King was "fully allocuted," "did not display any confusion," and "was able to appropriately answer" the questions posed him. (People v. King, No.1921-99 (N.Y.Sup.Ct.2000) at 3, attached to Resp. Aff. as Exhibit C.) King did not seek leave to appeal the court's decision.
In November, 2000, King, represented by counsel from the Legal Aid Society, appealed his conviction to the New York Supreme Court Appellate Division, First Department (the "Appellate Division"). King, citing N.Y.Crim. Proc. Law §§ 450.10 and 470.15(6)(b), argued that his sentence should be reduced in the interest of justice because his conduct resulted from untreated mental illness. On March 14, 2002, the Appellate Division unanimously
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affirmed King's conviction without an opinion. People v. King, 292 A.D.2d 882, 739 N.Y.S.2d 661, 661 (App. Div., First Dep't.2002). On June 17, 2002, King's request for leave to appeal to the New York Court of Appeals was denied.
King filed a pro se petition for a writ of habeas corpus ("First Petition") pursuant to 28 U.S.C. § 2254 in the Eastern District of New York on November 18, 2002.3 That petition, later transferred to this District, was amended on April 22, 2003. In the amended First Petition, King argued for a sentence reduction because he was innocent and the shooting was an accident.
On November 6, 2003, Chief Judge Mukasey dismissed the amended First Petition for failure to specify grounds for relief and failure to satisfy the state exhaustion requirement under 28 U.S.C. § 2254(b). The court did not issue a certificate of appealability, and the Second Circuit Court of Appeals dismissed King's appeal "with prejudice" for failure to file a motion for a certificate of appealability pursuant to Local Rule 22(a).
On January 22, 2003, King filed a second pro se petition ("Second Petition") for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the Eastern District of New York.4 A liberal reading of this petition indicates that King argued for a lesser sentence and for the chance to testify against the victim, Becky Kozer. In this submission, King attached a copy of the plea and sentencing transcripts with his comments and edits.
On May 5, 2003, Chief Judge Mukasey dismissed the Second Petition as duplicative of the First Petition and did not issue a certificate of appealability because King failed to make a "substantial showing of the denial of a constitutional right." (Order of the Hon. Michael B. Mukasey, Chief Judge, at 2, dated May 5, 2003, attached as Exhibit N to Resp. Aff.) However, King appealed, and the Second Circuit dismissed his appeal with prejudice for noncompliance with Local Rule 22(a).
King moved for a second time on January 25, 2003, to vacate his conviction pursuant to § 440.10 ("Second § 440 Motion"). Again reading that pro se motion liberally, it argued that: (1) King did not want to plead guilty; and that (2) his sentence should be reduced because he is not guilty. On March 13, 2003, the Supreme Court, New York County denied the Second § 440 Motion without a written a decision. King did not seek leave to appeal to the Appellate Division.
On December 28, 2004, King moved to set aside his sentence pursuant to N.Y.Crim. Proc. Law § 440.20 ("Third § 440 Motion"). In essence, as grounds for relief, that motion asserted that: (1) King's lawyer told him he would receive a lesser sentence; (2) his sentence and postrelease supervision are excessive; (3) the reason he pled guilty instead of going to trial was ineffective assistance of counsel; and (4) he should have been hospitalized for mental illness, not imprisoned.5 The State Supreme Court, New York County, denied the motion on the grounds that
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King did not raise a legal challenge to his sentence and was deemed competent by his counsel and the trial court.
On December 22, 2003, King filed the Original Petition asserting as grounds for relief: (1) his "constitutional right," (2) ineffective assistance of counsel, (3) neither the victims nor any witnesses spoke to him in court about what happened, and (4) he takes medication that makes him confused.6 On April 7, 2004, Chief Judge Mukasey ordered King to amend his petition "to clearly state" any grounds in support of his claim of "unlawful detention and the facts supporting each ground." (April 7, 2004 Order, at 1-2.) Noting that the petition might be premature or untimely, the court directed King to detail his state post-conviction filings and explain why his submission was not barred by the statute of limitations. The court ordered the amended petition to entirely replace the Original Petition and stayed proceedings sixty days or until compliance with the Order.
On May 5, 2004, King filed the instant Amended Petition pursuant to the April 7, 2004 Order. This petition alleges and argues that: (1) King's sentence is excessive in violation of the Eighth Amendment; (2) King's plea was not knowing and voluntary; and (3) King's right to due process was violated because the trial court did not order an evaluation of his competency to plead guilty.7 On September 30, 2004, Chief Judge Mukasey reassigned King's case to this Court.
On February 6, 2006, King moved this Court to issue an order "of relief of sentence."8 In his motion, King's asserts the following grounds for relief: (1) ineffective assistance of counsel, (2) Confrontation Clause violation because he could not confront the witnesses against him, (3) excessive
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sentence, and (4) plea not entered knowingly and voluntarily.9 Because two of these claims are already asserted in King's Amended Petition, the Court will separately review only King's ineffective assistance of counsel and Confrontation Clause claims. For the reasons set forth below, King's Amended Petition and motion are denied.
A. THE AMENDED PETITION SHOULD NOT BE CONSTRUED AS A "SECOND OR SUCCESSIVE" PETITION
The Court must first consider whether or not King's Amended Petition should be construed as a "second or successive" petition subject to the more stringent requirements of 28 U.S.C. 2244(b).10
"[A] § 2255 petition [for a writ of habeas corpus] will...
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