Layne v. Capra
| Decision Date | 14 September 2018 |
| Docket Number | 17 Civ. 6736 (AT) (GWG) |
| Parties | JAQUAN LAYNE, Petitioner, v. MICHAEL CAPRA, Superintendent, Respondent. |
| Court | U.S. District Court — Southern District of New York |
REPORT AND RECOMMENDATION
Petitioner Jaquan Layne, currently incarcerated at the Sing Sing Correctional Facility, New York, brings this petition for a writ of habeas corpus under 28 U.S.C. § 2254.1 On October 20, 2011, Layne was convicted of two counts of conspiracy to possess or distribute narcotics under N.Y. Penal Law §§ 105.17 and 105.15, and two counts of conspiracy to possess weapons unlawfully under N.Y. Penal Law §§ 105.13 and 105.10(1). Layne, who is proceeding pro se, contends that: (1) his convictions were based on legally insufficient evidence; (2) the trial court improperly admitted into evidence out of court statements of his co-conspirators; (3) he was denied his right to be present at trial when he was not produced for a portion of voir dire; and (4) the trial court erred in not instructing the jury on "multiple conspiracies." Layne has also movedthis Court to stay and hold in abeyance his petition pending his exhaustion in state court of a new claim.2 For the following reasons, Layne's petition and motion for a stay should be denied.
In February 2011, a New York County grand jury issued a fourteen-count indictment against Layne and thirteen co-conspirators. See Indictment, dated Feb. 14, 2011 (SR 50-101). It contained four conspiracy charges against Layne: (1) conspiracy in the first degree in violation of N.Y. Penal Law § 105.17; (2) conspiracy in the second degree in violation of N.Y. Penal Law § 105.15; (3) conspiracy in the third degree in violation of N.Y. Penal Law § 105.13; and (4) conspiracy in the fourth degree in violation of N.Y. Penal Law § 105.10(1).
The first conspiracy charge alleged that from approximately June 2008 through February 2011 Layne participated in a scheme to sell and possess crack cocaine. Indictment (SR 50-52). It charged that Layne was over 18 during the time of the conspiracies and that at least one of his co-conspirators was under 16 years of age when he or she entered the conspiracy. Id. (SR 50-51). The indictment alleged 129 overt acts in furtherance of the conspiracy. See id. (SR 54-92). Layne was alleged to have directed the conspiracy largely from the Rikers Island Jail Complex ("Rikers"). See id. The members of this conspiracy were alleged to be part of a gang known as "The 137th Street Crew" (the "Crew"), which distributed crack cocaine in the vicinity of West137th Street between Lenox and Seventh Avenues in Manhattan where they "had residential, family or social ties." Id. (SR 51).
The second conspiracy charge alleged Layne engaged in the same conduct as in the first count but without regard to the participants' ages. Id. (SR 93).
The third conspiracy charge alleged that the Crew conspired to possess weapons unlawfully. Id. (SR 94). Specifically, the Crew was alleged to have used firearms to protect their territory from intrusion and themselves from attack by other gangs, to enforce discipline within the Crew, and to discourage Crew members and others from providing information to law enforcement. See id. (SR 52-53, 94). The third count charged that Layne was over 18 during the time of the conspiracy and that at least one of his co-conspirators was under 16 years of age when he or she entered the conspiracy. Id. (SR 94).
The fourth conspiracy charge alleged Layne engaged in the same conduct as in the third count but without regard to the participants' ages. Id. (SR 95).
Finally, Layne was also charged with two counts of criminal possession of a weapon in the second degree in violation of N.Y. Penal Law § 265.03(1)(b) (), and 265.03(3) (outside residence or place of business) based on co-conspirator Afrika Owes's carrying a gun at Layne's direction in 2009. See Indictment (SR 50, 96).
Starting on September 13, 2011, Layne was tried before a jury in New York County along with four of his co-conspirators — Jeffrey Brown, Jonathan Hernandez, Jahlyl Layne (his younger brother), and Habiyb Mohammed. (See 9/13 Tr. 1).3 He was represented at trial byFranklin Rothman. (Id.). We summarize next the relevant testimony.
New York City Police Officer Hameed Armani, who from 2006 to 2010 patrolled the area where the Crew operated, testified that the block on which the Crew principally operated was "pretty violent." (Armani: 9/20 Tr. 126, 128, 133-34). As a result, Officer Armani stated that he would visit the area between 15 and 20 times a day. (Armani: 9/20 Tr. 134-35, 164, 169). He frequently observed Layne's two younger brothers — both co-conspirators — and sometimes Layne himself, milling around on the block, often standing in a group of people outside the entrance to one particular building. (Armani: 9/20 Tr. 144-46, 150, 164-65). When Officer Armani would approach the group in his vehicle, he would hear members of the group whistle and then would watch the group disperse. (Armani: 9/20 Tr. 150-51). On one of these occasions, October 30, 2009, Officer Armani detained one of Layne's younger brothers, Jahlyl, and following a search uncovered "nine small bags of . . . crack cocaine." (Armani: 9/20 Tr. 154, 157-58; Tumbrink: 9/22 Tr. 522-33); Stipulation (SR 114-15).
Various other individuals alleged to be part of the four charged conspiracies had been arrested for narcotics and firearm offenses before the Indictment was filed charging the conspiracies. On July 26, 2008, Dashawn Davis was found in possession of 19 plastic bags containing crack cocaine on Seventh Avenue near West 147th Street. (Padin: 9/20 Tr. 204-17, 229). On July 19, 2009, Brandon Santiago was arrested for possession of a loaded .25 caliber handgun on West 139th Street. (Gregorio: 9/20 Tr. 75-104; Sepulveda: 9/20 Tr. 105-24; Polosin: 9/26 Tr. 708-23). On July 5, 2010, Jonathan Hernandez pulled a nine millimeter pistol on a crowd celebrating the Fourth of July at the corner of Lenox Avenue and West 137th Street, shooting at least 10 times at the crowd in full view of two police officers. (Krutys: 9/22 Tr. 400-38; Hennessy: 9/20 Tr. 238-95; Williams: 9/20 Tr. 296-367). While Hernandez was caught atthe time, the gun was not retrieved until a month later when Tyrone Gibbs was arrested in possession of it after shooting nine times into a crowd on West 135th Street. (Krutys: 9/22 Tr. 400-38; J. Hernandez: 9/22 Tr. 439-73; Fitzgerald: 9/22 Tr. 545-75; Torres: 9/26 Tr. 652-87; Nowak: 9/27 Tr. 870-96). A prosecution expert witness, Detective Alfred Hernandez, testified at trial that narcotics dealers frequently rely on guns to protect their territory, drugs, and cash proceeds. (See A. Hernandez: 9/28 Tr. 982-83, 1023-24, 1030-31).
The central evidence supporting the conspiracy charges was recordings of telephone calls petitioner Layne and others made from Rikers to co-conspirators between October 2009 and November 2010 (the "Rikers Phone Calls"). See generally Transcripts of Recorded Calls (SR 152-321). In these calls, Layne and his co-conspirators discussed selling crack cocaine and marijuana on West 137th Street, where to locate repeat customers, purchasing large quantities of drugs, placing money into Layne's prisoner commissary account, and the acquisition and use of firearms. See id. Some telephone calls were played at trial. (See Bennett: 9/27 Tr. 806). We examine these conversations in more depth in Section III.A below.
On February 15, 2011, the police executed search warrants at Layne's residence and the residences of Layne's various co-conspirators, including Afrika Owes, Jeffrey Brown, Jonathan Hernandez, and Brandon Santiago. At Owes's residence, the police seized a cellphone and two laptop computers on which the police found photographs of Owes kissing Layne in September 2009; a photograph of Owes holding a significant amount of cash in August 2010; and three photographs from August, October, and November 2010, showing hundreds of dollars in cash spread out like a fan. (Tobon: 10/3 Tr. 1107-28; Brooks: 10/3 Tr. 1128-41; Ho: 10/3 Tr. 1229-59). At Brown's residence, the police discovered marijuana, but did not find any guns, cocaine, or supplies for the sale of drugs. (MacKenzie: 10/5 Tr. 1369-74, 1450). At Layne'sresidence, the police discovered plastic bags of the type used to bag crack cocaine, what appeared to be a memorial to slain members of the Crew, and seven cell phones. (Id. 1421-23, 1449-59). At Hernandez's and Santiago's residences, the police seized small amounts of crack cocaine and plastic bags of the type used to bag crack cocaine. (Id. 1426-30).
On October 20, 2011, the jury convicted Layne of first and second degree conspiracy to distribute and possess narcotics, and third and fourth degree conspiracy to possess weapons. (V. 49-50). The jury acquitted him of the gun possession counts. (Id.). A month later, Layne was sentenced, as a second felony offender, to an aggregate indeterminate prison term of 20 years to life. (S. 18).
Layne was represented on his state court direct appeal by Marianne Karas. Pet. at 14; Brief for Defendant-Appellant, dated Oct. 2015 (annexed at SR 322-418) ("Layne State Ct. App. Brief"). He also filed a pro se appellate brief. See Supplemental Brief for Defendant/Appellant Pro-Se, dated Mar. 27, 2014 (annexed at SR 420-49) ("Pro Se App. Brief"). In his counseled brief, Layne raised the following five issues: (1) that the trial court improperly refused to charge the jury with a multiple conspiracies instruction because there was a reasonable view of the evidence that multiple conspiracies existed instead of the single, integrated conspiracy charged in the indictment, Layne State Ct. App. Brief at 22-37; (2) that the trial court improperly admitted the Rikers Phone Calls because a prima facie case of conspiracy had...
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