Lau v. Goord
| Decision Date | 31 March 2008 |
| Docket Number | No. 06-CV-1419 (SLT)(RER).,06-CV-1419 (SLT)(RER). |
| Citation | 540 F.Supp.2d 399 |
| Parties | John LAU, Petitioner, v. Glenn S. GOORD, Commissioner of New York State Department of Correctional Services; Eliot L. SPitzer, The Attorney General of the State of New York; and Todd Craig, Warden, FCI Ray Brook, Respondents.<SMALL><SUP>1</SUP></SMALL> |
| Court | U.S. District Court — Eastern District of New York |
Monica Jacobson, Esq., New York, NY, for Petitioner John Lau.
Thomas S. Burka, Esq., Assistant District Attorney, Kings County District Attorney's Office, Brooklyn, NY, for Respondent.
On March 28, 2006, petitioner, John Lau, commenced this action seeking federal habeas corpus relief pursuant to 28 U.S.C. § 2254. On January 3, 2007, this Court referred this matter to Magistrate Judge Ramon E. Reyes, Jr., to prepare and submit a Report and Recommendation (the "R & R") containing findings of fact conclusions of law, and a recommended disposition of the petition, pursuant to 28 U.S.C. § 636(b)(1).
Magistrate Judge Reyes filed the R & R on August 2, 2007, in which he recommended that petitioner's petition for a writ of habeas corpus be denied. On August 22, 2007, petitioner filed timely objections to Magistrate Judge Reyes' R & R.
This Court has thoroughly reviewed Magistrate Judge Reyes' R & R and petitioner's objections thereto. Upon due consideration, this Court finds no legal or factual error in Magistrate Judge Reyes' R & R, and that petitioner's objections are without merit. Accordingly, petitioner's objections are denied and this Court accepts and adopts Magistrate Judge Reyes' R & R in its entirety. Accordingly, it is hereby
ORDERED, that petitioner's petition seeking federal habeas corpus relief is DENIED for the reasons set forth in the Report and Recommendation.
This Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal of this Order would not be taken in good faith.
The Clerk of Court is directed to close this case.
The Honorable Sandra L. Townes referred John Lau's ("Petitioner's") petition for a writ of habeas corpus to me for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1). Petitioner claims that his constitutional rights were violated because the trial court's supplemental jury charge coerced a guilty verdict. For the following reasons, I respectfully recommend that the petition be denied.
Petitioner was charged with the murders of Alessandro Barone ("Mr. Barone") and Liane Barone ("Mrs. Barone"). Petitioner was indicted on two counts of first degree murder as part of the same criminal transaction, two counts of first degree murder to prevent witness testimony, and two counts of second degree murder. Petitioner was also indicted on two counts of second degree murder under a depraved that petitioner murdered Mr. and Mrs. Barone in order to prevent them from revealing a fraudulent land sale by petitioner.2
A jury trial commenced on October 12, 2001 and the case was submitted to the jury on October 31, 2001. After two days of deliberations the jury reached a verdict. The jury acquitted petitioner of counts one and two, first degree murder as part of the same criminal transaction. The jury found petitioner guilty of counts three and four, first degree murder to prevent witness testimony. The jury acquitted petitioner of counts five and six, second degree murder.
After the verdict was rendered, the trial court excused the jury and noted that there was an inconsistency in the verdict. Tr. 1369.3 The trial court stated it should have originally charged the jury in the alternative with instructions not to consider second degree murder if it rendered a guilty verdict of first degree murder. Tr. 169-70. The prosecutor agreed and suggested that the court charge in the alternative. Tr. 1371. The trial court also stated that the jury should have the option of "either acquitting him of everything or convicting him of counts ?." Tr. 1371. Defense counsel pointed out that the acquittal of counts one and two were consistent with an acquittal of counts five and six. Tr. 1371.
The trial court advised counsel that it would charge in the alternative and have the jury correct the verdict sheet over defense counsel's objection. Tr. 1371-72. Once the jury returned to the courtroom, the judge charged the following:
Ladies and gentlemen, in reviewing your verdict, it is apparent, that there is a logical inconsistency concerning counts five and six. If it is your verdict that the defendant is guilty of counts three and four, counts five and six would seem to indicate that that too should be a conviction.
On the other hand, given the fact that you found him not guilty of counts one and two then finding him not guilty of five and six would be consistent.
What I would like you to do, I know it is late, is to go back and I want to just rephrase what happens at the end of counts three and four. If in fact your verdict is unanimous as to counts three and four and that the defendant is in fact guilty, you need not consider the lesser offenses of counts five and six, if that is in fact your verdict. And that would obviate the need of the inconsistency, and. I'm not sure exactly how you came to your decision on it, but the fact is that what counts three and four are, are really a higher degree of counts five and six. What's happening there is an intentional murder plus something else happens, the motive part that makes it into a murder one. So, it becomes inconsistent and I think I probably should have charged you in this fashion: That you need not consider counts five and six unless you acquitted on all the other accounts. So, if you convicted on any of those counts, you need not consider five and six, and I'm just going to have a new verdict sheet. I'm going to send it back in and you will discuss it.
If that is in fact what your verdict is then you will come back out and you will redo this. I'm sorry for the confusion.
Tr. 1372-73. After the jury was excused, defense counsel objected to the court's charge stating that the court did not effectively clarify the problem with the verdict or communicate its intent to the jury. Tr. 1374.
The jury returned fifteen minutes later and rendered their verdict. Tr. 1375. The jury again acquitted petitioner of two counts of first degree murder as part of the same criminal transaction. The jury also convicted petitioner again of two counts of first degree murder to prevent the witnesses from testifying. N.Y. Penal Law § 120.27(1)(a)(V). The jury foreperson stated that the jury did not consider the second degree murder — counts five and six. Tr. 1376. On November 30, 2001, petitioner was sentenced to concurrent sentences of life imprisonment without the possibility of parole on both counts.
On December 7, 2001, petitioner appealed his conviction, arguing: (1) that the jury rendered a repugnant verdict, convicting him of first degree murder while at the same time acquitting him of the lesser included offense of second degree murder, that the court failed to order the jury to reconsider both verdicts and essentially directed a verdict of guilt on the first degree murder charge; (2) that the court deprived him of a fair trial by failing to instruct the jury that the circumstantial evidence must exclude "beyond a reasonable doubt" every reasonable hypothesis of innocence; and (3) ineffective assistance of counsel for failure to challenge the fingerprint expert's "surprising" testimony. On October 4, 2004, the Appellate Division affirmed the judgment stating that the evidence of petitioner's guilt was sufficient, and that all of his other claims were without merit. See People v. Lau, 11 A.D.3d 482, 782 N.Y.S.2d 777 (2d Dep't 2004).
On November 15, 2004, petitioner sought leave to appeal to the New York Court of Appeals raising the same claims he raised in the Appellate Division. Petitioner also argued that his conviction of first degree murder in order to prevent witness testimony against him was repugnant to the acquittal of first degree murder under the same criminal transaction theory. On December 22, 2004, petitioner filed a follow-up letter to his leave application in order to "highlight the issue resulting from the trial court's coercive supplemental instructions given after the jury rendered a repugnant verdict." Petitioner's Letter to the N.Y. Court of Appeals dated 12/22/04. Petitioner's application for leave to appeal was denied without opinion on January 19, 2005. See People v. Lau, 4 N.Y.3d 765, 792 N.Y.S.2d 9, 825 N.E.2d 141 (2005).
On or about March 28, 2006, petitioner filed the instant petition for a writ of habeas corpus. Docket Entry 1. In his petition, petitioner asserts only one claim: that "[t]he court deprived petitioner of a jury verdict, where the jury rendered a repugnant verdict under New York law and the court's supplemental charge coerced and essentially directed a verdict of guilt of first-degree murder." Petition For a Writ of Habeas Corpus at 6. Respondent opposes the petition on the grounds that petitioner failed to properly exhaust his claim in State court, and that petitioner's claim is meritless. Resp. Aff. ¶ 7.
An application for a writ of habeas corpus may not be granted unless the petitioner has exhausted the remedies available in the courts of the state in which the petitioner was convicted. 28 U.S.C. § 2254(b)(1)(A). The exhaustion requirement applies to every federal habeas claim alleged by the petitioner. See Caballero v. Keane, 42 F.3d 738, 740 (2d Cir.1994). State prisoners are required to "give state courts a fair opportunity to act on their claims" by "invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 844, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1...
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