Lawson v. Smith, 10-CV-0477(JS)

• Court: United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
• Writing for the Court: Joanna Seybert
• Parties: ALTON L. LAWSON, SR., Petitioner, v. JOSEPH SMITH, Superintendent of Ulster Correctional Facility, Respondent.
• Docket Number: 10-CV-0477(JS)
• Decision Date: 27 May 2014

ALTON L. LAWSON, SR., Petitioner,
v.
JOSEPH SMITH, Superintendent of Ulster Correctional Facility,¹ Respondent.

10-CV-0477(JS)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

Dated: May 27, 2014

MEMORANDUM & ORDER

APPEARANCES

For Petitioner:

Alton L. Lawson, Sr., pro se
Ulster Correctional Facility

For Respondent:

Jason Richards, Esq.
Nassau County District Attorney's Office

SEYBERT, District Judge:

Alton L. Lawson, Sr. ("Petitioner") petitions this Court pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, his Petition is DENIED.

BACKGROUND

I. Factual Background

"Between 2004 and 2005, [P]etitioner convinced Esther Service and Beatrice Williams to refinance their homes with his assistance. Instead of refinancing the properties, however, the

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P]etitioner tricked each woman into selling her home without her knowledge." (Resp't's Aff., Docket Entry 15, ¶ 5.) "[B]y taking advantage of his victims' lack of sophistication and trust in him, [P]etitioner enriched himself." (Resp't's Aff. ¶ 6.)

A. Esther Service Transaction

In 2004, after losing her jobs and missing four mortgage payments, Esther Service ("Service") received a foreclosure notice from her mortgage lender, Wells Fargo Bank. (Trial Tr., Docket Entry 15-6, 517:16-518:5.) Around the same time, Service received a call from Petitioner who told Service he could help her refinance her home in order to avoid foreclosure. (Trial Tr., Docket Entry 15-6, 518:11-519:13.) Service agreed to meet with Petitioner at her home. (Trial Tr., Docket Entry 15-6, 519:25-520:1.)

Before the scheduled meeting, Service found, on her front door, a business card that read "Gregory Abram and Associates". (Resp't's Am. Br.² at 3-4.) On the back of the card, a handwritten note (that matches Petitioner's handwriting) "suggested that the firm specialized in real estate refinancing." (Resp't's Am. Br. at 4.) "Unbeknownst to Service, Gregory Abram's law firm had dissolved and was no

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longer in existence in 2004," nor did Abram practice law at the time. (Resp't's Am. Br. at 4.)

At one of their subsequent meetings, Petitioner told Service to execute a document, which he told Service related to the refinance and a service agreement. (Trial Tr., Docket Entry 15-6, 529:3-7.) Petitioner did not show Service the entire document, which, in actuality, was a contract of sale; instead, he showed her only the signature page. (Trial Tr., Docket Entry 15-6, 529:8-530:24.) Petitioner also covered a portion of the signature page with his hand; this portion stated "contract of sale". (Trial Tr., Docket Entry 15-6, 538:11-539:2.) Service believed she was signing a document related to a refinancing, not a contract of sale. (Trial Tr., Docket Entry 15-6, 539:3-8.)

On August 2, 2004, Petitioner called Service and told her that the closing would take place on the same day. (Trial Tr., Docket Entry 15-6, 539:17-18.) Service expected the closing would regard her refinancing her home, not selling it. (Trial Tr., Docket Entry 15-6, 540:5-10.) Petitioner told Service she would receive $10,000 at the closing. (Trial Tr., Docket Entry 15-6, 540:18-23.) Service stated that she never received the $10,000 at the closing or at any time through the underlying criminal trial. (Trial Tr., Docket Entry 15-6, 540:24-541:4.) Petitioner told Service to sign papers,

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including her deed, which she believed related to refinancing, not selling, her home. (Trial Tr., Docket Entry 15-6, 543:7-19.) Petitioner actually sold Service's home to Chester Matthews ("Matthews"). (See Resp't's Am. Br. at 5.)

Petitioner also told Service to sign a "Service Agreement", which Petitioner told Service regarded her refinanced mortgage. (Trial Tr., Docket Entry 15-7, 591:7-16; Resp't's Am. Br. at 5.) The agreement required Service to pay $10,616 as an immediate down payment and $1,000 per month for eight months. (Resp't's Am. Br. at 5.) At the end of the ten-month term, Service would have the opportunity to repurchase the house at the fair market value. (Trial Tr., Docket Entry 15-7, 594:7-10.) Service would not have signed the agreements if she knew she was selling her home. (Trial Tr., Docket Entry 15-7, 595:24-596:8.)

Matthews, though the named purchaser on the contract, never bought Service's home; instead, Petitioner told Matthews to sign the contract papers and Matthews would receive ten-to-fifteen thousand dollars. (Trial Tr., Docket Entry 15-14 1300:21-1301:11.) Matthews never signed the agreements, which, instead, were handled by Petitioner. (Trial Tr., Docket Entry 15-14, 1306:9-14.)

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B. Beatrice Williams Transaction

In 2004, Petitioner went to Beatrice Williams' ("Williams") home and asked Williams if she was interested in selling her home. (Trial Tr., Docket Entry 15-9, 859:11-18; 862:1-5.) Although she had a tax lien on her home, Williams said she was not interested. (Resp't's Am. Br. at 8.) Petitioner told Williams she would not have to sell her home. (Trial Tr., Docket Entry 15-9, 864:16-18.) Petitioner told Williams to give him $1,000 and sign papers that, he said, would pay off the tax lien. (Trial Tr., Docket Entry 15-9, 869:1-5.) Petitioner did not tell Williams the document she signed was a contract of sale. (Trial Tr., Docket Entry 15-9, 873:23-25.) Like Service, Williams did not know that she was signing her deed and selling her house to Matthews. (Trial Tr., Docket Entry 15-9, 896:19-24.)

On February 11, 2005, Petitioner showed up unannounced at Williams' home and drove Williams and her son to an office. (Resp't's Am. Br. at 8.) Like the sale of Service's home, Matthews was listed as the buyer of William's home. (Resp't's Am. Br. at 8.) Matthews saw Williams signing documents on this date at the closing. (Trial Tr., Docket Entry 15-15, 1372:7-9.) Petitioner paid Matthews $20,000 for his role in the sale of Williams' home. (Trial Tr., Docket Entry 15-15, 1385:1-18.)

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"From Service, [P]etitioner took $46,383.54 in proceeds that should have been paid to her; from Williams, he stole $110,500." (Resp't's Am. Br. at 2.)

II. Legal Background

Petitioner was charged with Grand Larceny in the Second Degree (New York Penal Law ("N.Y.P.L.") § 155.40(1)), Grand Larceny in the Third Degree (N.Y.P.L. § 155.35), and scheme to defraud in the First Degree (N.Y.P.L. § 190.65(1)(b)). (Resp't's Aff. at 5-6.) On September 4, 2007, at the conclusion of a jury trial, Petitioner was found guilty of each charge. (See Trial Tr., Docket Entry 15-18, 1727:11-17.) On November 16, 2007, after the court confirmed Petitioner's prior felony record (Sentencing Tr., Docket Entry 15-19, 4:14-5:7), the court sentenced Petitioner to a total of five-to-ten years in prison and restitution in the amount of $156,883.54. (Sentencing Tr., Docket Entry 15-19, 23:2-15.)

In January 2008, Petitioner filed a motion to vacate judgment. (Mot. to Vacate, Docket Entry 15-24.) Petitioner claimed he was denied effective assistance of counsel at trial. (See Aff. in Supp. of Mot. to Vacate, Docket Entry 15-24 at pp. 2-5, ¶ 3.) On February 7, 2008, the county court denied Petitioner's motion to vacate. (Order of the County Court, Docket Entry 15-28.) Petitioner did not appeal this decision.

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On August 5, 2008, Petitioner filed a second motion to vacate his sentence arguing that it was harsh and excessive. (Second Mot. to Vacate, Docket Entry 15-26.) On December 16, 2008, the county court denied Petitioner's second motion to vacate. (Order of the County Court, Docket Entry 15-29.) Petitioner sought leave to appeal, which the Appellate Division denied on March 19, 2009. (Decision & Order, Docket Entry 15-30.)

In November 2008, Petitioner filed a direct appeal regarding his prison sentence. (See Appellant's Br., Docket Entry 15-31.) Petitioner argued that: (i) the trial court unlawfully imposed restitution, (ii) the jury's verdict was insufficiently supported by law, (iii) Petitioner's Fifth Amendment rights were violated when the trial court ordered Petitioner's hired attorney to testify against Petitioner; and (iv) Petitioner's Sixth Amendment rights were violated when the trial court disqualified his defense counsel. (See, e.g., Appellant's Br. at 2.)

On September 29, 2009, the Appellate Division affirmed the judgment. People v. Lawson, 65 A.D.3d 1380, 885 N.Y.S.2d 621 (N.Y. App. Div. 2d Dep't 2009). The court held that the evidence was legally sufficient to establish Petitioner's guilt beyond a reasonable doubt. Id. at 1380. The court also held that the disqualification of his original attorney "did not

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deprive [Petitioner] of the right to the counsel of his choice . . . . The County Court properly concluded that continued representation . . . would create an actual conflict of interest, as well as a violation of the 'advocate-witness' rule." Id. (internal citations omitted).

Finally, the court held that Petitioner's restitution claim was unpreserved and, thus, procedurally denied as well as substantively denied due to sufficient support in the record to determine the specific amount ordered by the trial court. Id. at 1380-1381.

Petitioner applied for leave to appeal to the New York Court of Appeals, which denied the application on December 14, 2009. People v. Lawson, 13 N.Y.3d 908, 895 N.Y.S.2d 322, 922 N.E.2d 911 (N.Y. 2009).

III. The Petition

Petitioner asserts the following grounds in his Petition: (1) he was denied protection of attorney-client privilege and Fifth Amendment protection against self-incrimination; (2) he was denied his right to choose his counsel under...