Lewis v. Graham
| Decision Date | 10 August 2018 |
| Docket Number | No. 1:13-cv-00933-MAT,1:13-cv-00933-MAT |
| Parties | KEVIN R. LEWIS, JR., Petitioner, v. HAROLD D. GRAHAM, Superintendent, Respondent. |
| Court | U.S. District Court — Western District of New York |
Pro se petitioner Kevin R. Lewis, Jr. ("Petitioner") filed an amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on February 15, 2018. In the amended petition, Petitioner challenges his detention in Respondent's custody pursuant to a January 4, 2008 judgment entered in Monroe County Court of New York State (Keenan, J.), convicting him, following two separate jury trials, of Murder in the Second Degree (New York Penal Law ("P.L.") § 125.25(1)), Attempted Murder in the Second Degree (P.L. §§ 110.00/125.25(1)), two counts of Robbery in the First Degree (P.L. §§ 160.15(1), (2)), two counts of Assault in the First Degree (P.L. §§ 120.10(1), (4)), two counts of Burglary in the First Degree (P.L. § 140.30(1), (2)), two counts of Criminal Possession of a Weapon in the Second Degree (P.L. § 265.03(1)(b)), and two counts of Criminal Possession of a Weapon in the Third Degree (P.L. § 265.02(4)). Petitioner is currently serving an aggregate prison term of 65 years to life.
In July of 2006, Deanna Durden ("Durden") lived with her two-month-old baby at an apartment on Marlborough Road in the City of Rochester. Durden, who had recently won the lottery, had $9,500 in the apartment. She also had some small bags of marijuana in the apartment for her personal use. On the morning of July 7th, Durden awoke to the doorbell ringing. When she looked out the door, she observed a man wearing what appeared to be a Rochester Gas and Electric uniform and holding a binder. Thinking the man was from the electric company, Durden cracked the door open to tell him to go to the back of the residence where the meters were located. Instead, the man pushed the door open, hitting her infant in the head.
Once inside, the man pointed the gun at Durden, asked if anyone else was in the home, and pushed her and her baby onto the couch. Another male then entered the residence; Durden recognized the second man as someone she knew from her childhood. The second man went upstairs, while the gunman kept the weapon trained on Durden and her baby, repeatedly asking her "Where is the shit?" and instructing her, Durden attempted to grab the gun out of his hands and a struggle ensued. The gunman thenpistol-whipped Durden, fired two shots into her face, and fled the scene.
Durden was able to contact 911 and was taken to the hospital, where she has underwent several surgeries and suffered permanent nerve damage to her face.
Durden later identified Petitioner as the gunman. The man whom Durden recognized from her childhood was identified as Gerard Singleton ("Singleton"). Testifying for the prosecution pursuant to a plea agreement, Singleton described in detail the preparation and planning in which he and Petitioner engaged with regard to the robbery of Durden's home, including conducting reconnaissance and purchasing a uniform for Petitioner to wear to help him gain entry to Durden's residence.
On August 17, 2006, at about 9:00 p.m., Lashunda Robertson ("Robertson") was hanging out at her residence on Dewey Avenue in the City of Rochester smoking a "blunt" and a cigarette. Robertson, Petitioner's girlfriend, had spent the earlier part of the evening with him and Singleton, his accomplice from the Durden home invasion.
While Robertson was consuming her blunt, Leroy Buggs ("Buggs"), also known as "Life," rode by on his bicycle and attempted to kiss Robertson. After she rebuffed his advances, Buggs snatched the pack of cigarettes out of her lap and removed a "dime-bag of weed" and a "nickel-bag of weed" from it. Upset that Buggs had stolen her marijuana and was being disrespectful to her, Robertson called Petitioner several times to ask him to come over and sit with her. When she finally reached Petitioner and related what had happened, he replied that he would be there in a minute. Meanwhile, Robertson's friend and neighbor, Nikkole Lewis ("Nikkole"), had come over to spend time with her.
As promised, Petitioner shortly arrived on the scene. Robertson stated, "Yo, that's him," referring to Buggs. Petitioner walked up to Buggs, then fired several shots from a revolver at Buggs at close range, striking him in the chest and stomach. Robertson and Nikkole both observed the shooting. Petitioner, Robertson, and Nikkole left the scene and went back to Robertson's apartment.
Buggs was still alive when the police arrived on the scene, but later succumbed to his injuries.
Back at Robertson's apartment, Petitioner wiped fingerprints from the revolver and wiped the shell casings, which he placed in an Altoids® box and dropped in a crevice in a wall of Robertson's apartment building. Robertson and Nikkole were both present and observed him doing this.
A crime scene technician from the Rochester Police Department ("RPD") recovered an Altoids® tin secreted within a crawl space atRobertson's house. In the tin were three shell casings that were free of any fingerprints.
Petitioner stayed at Robertson's apartment overnight. The next day he traded the revolver with which he had shot Buggs for a vehicle. Petitioner told Nikkole not to say anything about what she had seen.
After Petitioner was arrested, he had an opportunity to speak with Robertson. During the conversation, Petitioner told her that "he didn't want to go to jail for 25 to life."
Prior to trial, the Monroe County Court severed the counts related to the Buggs murder from the counts related to the Durden robbery and shooting. The first trial began on November 26, 2007. On November 29, 2007, a jury returned a verdict convicting Petitioner on all counts related to the Durden shooting.
The second trial began on December 10, 2007. On December 13, 2007, a separate jury convicted Petitioner on all of the remaining counts. On January 4, 2008, Petitioner was sentenced to an aggregate prison term of 25 years to life on the Buggs murder and weapons-related counts, to be served consecutively to an aggregate prison term of 40 years, plus 5 years of post-release supervision, on the counts related to the Durden robbery and shooting.
The Appellate Division, Fourth Department, of New York State Supreme Court unanimously affirmed the judgment of conviction, and the New York Court of Appeals denied leave to appeal. People v.Lewis, 93 A.D.3d 1264 (4th Dep't), lv. denied, 19 N.Y.3d 963 (2012).
Petitioner filed a pro se motion to vacate the conviction pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10, which was denied without a hearing.
In his timely filed amended petition, Petitioner asserts the following grounds for relief: (1) his statement to the police concerning the Buggs murder was coerced by police threats to arrest Robertson and place her child in foster care; (2) the identification evidence admitted at the Buggs murder trial should have been suppressed because the photo arrays were unduly suggestive; (3) the prosecution failed to comply with their discovery obligations by withholding the statement that Buggs made to a police officer; (4) Petitioner was denied his right to testify before the grand jury; (5) the sentence was excessive and vindictive; (6) the prosecutor improperly waived a preliminary hearing; (7) trial counsel at both trials was ineffective because counsel failed to (a) present an expert witness at the attempted murder/robbery trial; (b) retrieve one of two buccal swabs for independent testing for the attempted murder/robbery trial; (c) call an expert in victim identification testimony to challenge Durden's identification of him; (d) present an alibi defense at the Buggs murder trial despite telling the jury that he would presentone during opening statements; and (e) offer into evidence Robertson's recantation statement.
Respondent filed an answer and memorandum of law in opposition to the amended petition. Petitioner filed a reply.
Petitioner reprises his claim, raised on direct appeal, that his statement to the police was induced by allegedly coercive tactics.
At a pre-trial suppression hearing, RPD Investigator John Conner ("Conner") testified that on October 6, 2006, at approximately 10:34 p.m., he advised Petitioner of his Miranda rights. Petitioner indicated that he understood his rights and, when asked if he agreed to speak with Conner, Petitioner replied, "uh-huh." When asked to clarify, Petitioner said, "I want to hear what you've got to say." Petitioner provided no statements to Conner in connection with the Durden shooting.
Petitioner remained in continuous police custody. Before he was booked in connection with the Durden shooting, he also was questioned by RPD Investigator William Lawler ("Lawler") at approximately 1:47 a.m., on October 7, 2006, in connection with the Buggs homicide. Lawler did not re-administer Miranda warnings. He informed Petitioner that the police "had two eyewitnesses, a deposition from his girlfriend, Licente [sic] Robertson, and a VHStape from the library across the street that showed the shooting." In reality, there was no videotape of the shooting.
Lawler told Petitioner that Robertson might get "wrapped up in this because she made a phone call and she's got two kids." Lawler commented that he thought Petitioner was a good person who cared for Robertson and her kids. Lawler noted that Buggs was an "awful large man," who was "high on coke, crack or ecstasy and intoxicated," and suggested that maybe Petitioner was acting in self-defense. Petitioner said that he loved Robertson and again asked to see her. Lawler remarked that Petitioner seemed "troubled, maybe torn, conflicted," and suggested that "[p]art of him might...
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