Lawson v. McGinnis
| Decision Date | 28 February 2013 |
| Docket Number | 04-CV-2345 (RRM) |
| Parties | AMEER LAWSON, Petitioner, v. M. P. McGINNIS, Superintendent, Southport Correctional Facility, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
Pending before this Court is petitioner Ameer Lawson's pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner seeks relief from his February 24, 1998 conviction in the New York State Supreme Court, Queens County, for murder in the second degree under New York Penal Law ("N.Y.P.L.") § 125.25(2), and criminal possession of a weapon in the second degree under N.Y.P.L. § 265.03. (Am. Habeas Pet. (Doc. No. 23) at 2.) He was sentenced to concurrent terms of twenty-five years to life for the murder conviction, and seven-and-a-half years to fifteen years for the weapon conviction. (Id.) As grounds for his petition, Lawson asserts: (1) the trial court's ruling on the reverse-Batson challenge was erroneous; (2) ineffective assistance of appellate counsel for not arguing the evidence was insufficient to support a conviction of depraved indifference murder; (3) ineffective assistance of appellate counsel for not arguing ineffective assistance of trial counsel based on trial counsel's failure to preserve the insufficiency of the evidence claim; and (4) insufficient evidence to support a depraved indifference murder conviction. (Id. at 7-8.)
For the reasons set forth below, the petition is DENIED in its entirety.
The jury selection process took place over the course of three days in January 1998. (See Tr. (Doc. No. 44) at 26-378.) In the first round of jury selection, defense counsel exercised two peremptory strikes against a Hispanic female and a white male. (Tr. 117.) In the second round, defense counsel exercised two peremptory strikes against a white male and a white female. (Tr. 179.) In the third round, after defense counsel exercised a peremptory strike against Mr. Cullado, a white male, the prosecutor raised a reverse-Batson challenge.1 (Tr. 240.) However, defense counsel withdrew the peremptory strike before the prosecutor could state her reasons for making the challenge. (Tr. 240.) Defense counsel then exercised another peremptory strike in the third round against Mr. Vallejo, a white male. (Tr. 240.) In response, the prosecutor renewed the reverse-Batson challenge and alleged a pattern of racial discrimination, pointing out that defense counsel's first round peremptory strikes were against a "Hispanic Caucasian" and a "white male," and the second round peremptory strikes were against "a male white and . . . a female white." (Tr. 240-41.) The trial court held that the prosecutor had not established "any pattern here." (Tr. 241.)
Later in the third round, defense counsel exercised another peremptory strike against Ms. Dibernardo, a white female. (Tr. 243.) The prosecutor yet again renewed the reverse-Batson challenge, arguing that defense counsel's last two peremptory strikes were against white venire persons and that all of defense counsel's peremptory strikes up to that point were against white venire persons. (Tr. 243.) The trial court noted that the all seven peremptory strikes exercisedby defense counsel were against white venire persons and that a pattern of discrimination had been established that required defense counsel to give a "race neutral reason" for using a peremptory strike against Ms. Dibernardo. (Tr. 243-44.) Defense counsel responded:
Your Honor, with respect to [Ms. Dibernardo], when I questioned her, although she didn't say anything specific to me in terms, including in terms of cause, otherwise I would have made a cause challenge, she seemed to me to be not able to look straight at me when I looked at her. She seemed to be more nervous than some of the other jurors were except for the ones who said they were nervous. She had some difficulty, although she later added to the question correctly with respect to the issue of reasonable doubt as to the People's burden of proof beyond a reasonable doubt and she hesitated on the question of whether or not I would have to prove my client's innocence or she would expect me to prove my client's innocent, although she answered the questions correctly. But there was a hesitancy that I saw with her on those issues that led me to challenge her.
(Tr. 244-45.)
Ms. Dibernardo was asked three questions by defense counsel during voir dire. When asked if she would "keep the burden of proving the guilt in this case on the People beyond a reasonable doubt," Ms. Dibernardo unequivocally stated, "Yes." (Tr. 233.) When asked whether she would shift the burden to the defendant to prove his innocence, she answered "It would be up to you to prove it - well, the prosecution I guess to prove that." (Id.) Finally, when asked what the People "would have to prove he's guilty beyond what," Ms. Dibernardo stated that the People had to prove defendant guilty beyond "a reasonable doubt." (Tr. 233-34.)
After the defense counsel proffered his reason for exercising the peremptory strike, the prosecutor responded that Ms. Dibernardo properly "indicate[d] that the burden of proof is on the people." (Tr. 245.) The trial court went on to describe that, contrary to defense counsel's explanation, it observed Ms. Dibernardo's facial, vocal, and body language, and that she did not "appear to be nervous at all." (Tr. 245-46.) Additionally, the court commented that Ms. Dibernardo made eye contact with the court and with "everyone" during voir dire, and found thatMs. Dibernardo had "answer[ed] all of the questions [during voir dire] in the right way." (Id.) Although defense counsel continued to assert that Ms. Dibernardo appeared "nervous and hesitant" as through she was "trying to give what appeared to be the correct answers," rather than what "she actually felt," the trial court ultimately concluded that not only did Ms. Dibernardo want to give the right answers, but that in fact she did give the right answers and granted the prosecutor's reverse-Batson challenge, sitting Ms. Dibernardo as juror number eight. (Tr. 246.)
A five day trial was held, and on February 24, 1998, petitioner was convicted by a jury of murder in the second degree under N.Y.P.L. § 125.25(2), and criminal possession of a weapon in the second degree N.Y.P.L. § 265.03. (Tr. 874-75.)
At trial, Christopher Rivera testified that he was standing outside the Queensbridge Housing Development at approximately 1:00 AM on November 26, 1995, when he was approached by petitioner and another individual known as "Flip." (Tr. 586-595.) He testified that these two individuals "walked a few feet past" him while he was "leaning up against the gate" and that they were "no more than three to four feet away." (Tr. 594.) Rivera also testified that he had seen Flip in the Queensbridge Housing area "once every three days . . . for about five months" and that he knew petitioner through a mutual friend. (Tr. 595-597.) Rivera then recounted that after petitioner and Flip had walked by, "Flip asked Marty come here, [and] Marty went over to him." (Tr. 599.) Then as "they was talking, [petitioner] said: You don't remember the conversation we had down the block[,] [a]nd [petitioner] pushed [Marty] back and [petitioner] pulled out [a gun] and shot [Marty]." (Tr. 599-600.) Specifically, Rivera saw, from "four feet" away, petitioner pull a ".45 . . . chrome" gun "from his waist" and Marty "tr[ying] to turn around and run and then [petitioner] shot and then [Marty] tried to run again" when petitioner shot him a second time. (Tr. 600-601.)
This testimony was corroborated by Lisa Velasquez, a passenger in her sister's car, who was "looking for someone on the street to do business with [i.e. buy drugs from]" when she "heard [multiple gun] shots" and observed petitioner "with his arm out" and saw "flashes . . . [come] [f]rom the end of his arm." (Tr. 506-509, 521-522.) Velasquez also testified that she was approximately "ten, fifteen feet away," the area was well lit, and she was not under the influence of narcotics at the time. (Tr. 507, 523.) Another witness, Erica Brown, testified that she heard multiple gunshots around 1:40 AM on November 26, 1995 and that when she went to investigate, she saw Rivera standing over Marty Gantt and observed that neither man had any weapons (Tr. 473-476.)
Once the police arrived, Rivera left the scene because he "was [ ] scared" and went to inform Marty Gantt's mother that her son had been shot. (Tr. 605.) Mrs. Gantt testified that "about close to two o'clock" in the morning on November 26, 1995, Rivera informed her that Marty Gantt "had been shot in his back." (Tr. 425.) Dr. Cary Reiber, a medical examiner, testified that Marty Gantt was shot twice, once in the "left lower back" and once to the "right side of the torso of the right flank," and that the "cause of death was a gunshot wound to abdomen with perforations of major vessels and bowel." (Tr. 414-420, 426.)
On the day of the murder, Rivera was taken to the police precinct where he gave the police a description of the shooter but did not identify the shooter because he "was scared and [ ] didn't want nothing to do with" the investigation. (Tr. 606.) Nevertheless, on December 11, 1995, after speaking with his mother who was "best friends" with Mrs. Gantt, Rivera went to the police and stated that petitioner was the shooter who committed the murder. (Tr. 608-609, 425-426.) On cross-examination, Rivera testified that while he was incarcerated on an unrelated arrest, he spoke to petitioner's aunt, Sherlah Carpenter, and told her that petitioner had nothing todo with the shooting. (Tr. 616.) Rivera also testified that he told petitioner's counsel, sometime in 1996, that Flip was the real shooter, that Flip was accompanied by an individual named "Nino" on the day of the murder, and that Flip had...
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