May v. Griffin
| Decision Date | 19 November 2021 |
| Docket Number | 17-CV-6319 (KMK) (JCM) |
| Parties | ELLIOT MAY, Petitioner, v. THOMAS GRIFFIN, Superintendent, Respondent. |
| Court | U.S. District Court — Southern District of New York |
Elliot May Ossining, NY Pro Se Petitioner
John Sergi, Esq. Lisa Denig, Esq. Westchester County District Attorney's Office White Plains, NY Counsel for Respondent
ORDER ADOPTING REPORT & RECOMMENDATION
Elliot May ("Petitioner"), proceeding pro se, has filed a Petition for a Writ of Habeas Corpus (the "Petition") pursuant to 28 U.S.C. § 2254 challenging his October 23, 2009 conviction, following a jury trial in New York Supreme Court, Westchester County ("County Court"), for two counts of Burglary in the First Degree, one count of Assault in the First Degree, and two counts of Bribing a Witness in the First Degree. (See generally Pet. for Writ of Habeas Corpus ("Pet") (Dkt. No. I).)[1] On May 20, 2010, Petitioner moved before the County Court to set aside the verdict pursuant to New York Criminal Procedure Law ("NY CPL") § 330.30 ("330.30 Motion"), which the County Court denied on June 22 2010. (See Resp't's Mem. of Law in Opp'n to Pet. ("Resp't'sOpp'n")Exs. 5(Dkt.Nos. 11-7-11-11) & 7 (Dkt. No. 11-13).) On August 16, 2010, Petitioner filed a notice of appeal from the judgment of conviction, but before filing his brief, moved before the County Court to vacate his conviction pursuant to NY CPL § 440.10 ("440.10 Motion"). (See Resp't's Opp'n Ex. 11 (Dkt. Nos. 11-17-11-20); see also Pet. 2-3; Aff in Opp'n to Pet. ("Resp't's Aff") 16-17 (Dkt. No. 11).) On December 9, 2014, Petitioner filed his brief on his direct appeal before the Second Department. (See Resp't's Opp'n Ex. 14 (Dkt. Nos. 11-23-11-25).)
The County Court denied Petitioner's 440.10 Motion on January 13, 2015. (See Resp't's Opp'n Ex. 15 (Dkt. No. 11-26).) On February 18, 2015, Petitioner sought leave to appeal the County Court's denial of the 440.10 Motion, (see Resp't's Opp'n Ex. 17 (Dkt. No. 11-30)), which the New York Supreme Court Appellate Division, Second Department ("Second Department") denied on September 11, 2015, (see Resp't's Opp'n Ex. 18 (Dkt. No. 11-31)).
On April 20, 2016, the Second Department affirmed Petitioner's conviction. See People v. May, 138 A.D.3d 1024 (NY. App. Div. 2016). Petitioner sought leave to appeal the Second Department's affirmance via letters dated April 20, 2016, May 16, 2016, and June 10, 2016, (see Resp't's Opp'n Ex. 22 (Dkt. Nos. 11-36-11-37)), which the New York Court of Appeals ("Court of Appeals") denied on August 1, 2016, see People v. May, 28 N.Y.3d 933 (2016).
Petitioner timely filed the Petition on August 11, 2017. (See Pet.) Respondent filed a Memorandum of Law opposing the Petition on December 6, 2017. (See Resp't's Opp'n; Resp't's Aff.) Petitioner filed a Reply and "Supplement to Petition" on March 5, 2018. (See Pet'r's Reply & Suppl. to Pet. ("Pet'r's Reply") (Dkt. No. 21).) Respondent submitted a supplemental letter on March 27, 2018, (Dkt. No. 22), to which Petitioner replied on April 6, 2018, (Dkt. No. 23).
In a Report and Recommendation ("R&R") dated March 15, 2021, Magistrate Judge Judith C. McCarthy ("Judge McCarthy") recommended that the Petition be denied in its entirety. (See Report & Recommendation ("R&R") 1 (Dkt. No. 25).) Petitioner filed Objections to the R&R on May 16, 2021, after seeking and receiving an extension of time to object. (See Objections ("Obj's") (Dkt. No. 32).)[2] Respondent has not responded to the Objections. After a review of the R&R and Petitioner's Objections, the Court adopts the result recommended in the R&R and denies the Petition.
The factual and procedural background of this case is set forth in the R&R and the Court assumes the Parties' familiarity therewith. (See R&R 1-12.) The Court nevertheless summarizes the relevant facts.
Late at night on October 10, 2007, Petitioner knocked on the door of a third-floor apartment in New Rochelle in which Pedro Gonzalez ("Gonzalez") lived with a roommate. (Resp't's Aff. 2-3.) At the time, both Gonzalez and his roommate were inside the apartment, along with Gonzalez's girlfriend, Tracy Steadman ("Steadman"). (Id. at 2.) Gonzalez and Steadman had at that time been dating for several months, and Steadman had repeatedly commented on Gonzalez's jewelry collection, which led Gonzalez to become concerned that Steadman would attempt to steal from him. (Id. at 2.) As a result, Gonzalez stored his jewelry in his roommate's padlocked safe. (Id.)
Steadman shares a child with Petitioner, and the two had been in close telephone contact throughout the entire day of October 10, 2007, speaking on the phone approximately 39 times, including 3 calls in the minutes before Petitioner arrived at the apartment. (Id. at 2-3.) When Petitioner knocked on the door of the apartment, Steadman urged Gonzalez to open it, and Petitioner and an accomplice forced themselves inside. (Id. at 3.) Petitioner pointed a gun at Gonzalez and demanded that Gonzalez give Petitioner his jewelry, pistol-whipping Gonzalez in the head upon Gonzalez's refusal. (Id.) Petitioner's accomplice held Gonzalez's roommate at gunpoint. (Id.) After additional violence which caused Gonzalez's head to split open, Gonzalez freed himself from Petitioner and jumped out of his bedroom window, landing feet first on the ground. (Id. at 3-4.) Gonzalez suffered paralysis from the waist down due to the injuries he sustained from the jump, and required approximately 100 stitches for his head wounds. (Id.) Petitioner, Steadman, and Petitioner's accomplice fled the scene without Gonzalez's jewelry; the padlocked safe was still intact and closed when police arrived later that night. (Id. at 3; Resp't's Opp'nll.)
Based on information from Gonzalez, police were able to get in contact with Steadman, who inculpated Petitioner. (Resp't's Aff 4.) On November 30, 2007, Gonzalez identified Petitioner as his assailant in a photographic array. (Id. at 4 n.2.) Petitioner and Steadman were both arrested on January 9, 2008, and on June 6, 2008, were indicted and charged with two counts of Burglary in the First Degree, two counts of Attempted Robbery in the First Degree, and one count of Assault in the First Degree. (Id. at 4-5.)
While in detention prior to his indictment, Petitioner met Kendall Miller ("Miller"), who told Petitioner that he knew Gonzalez and had heard about the robbery and Gonzalez's injuries. (Id. at 5.) Petitioner told Miller that he had been arrested in connection with that incident, but said he was innocent, and offered Miller $2, 000 to get in touch with Gonzalez upon Miller's release. (Id.) Miller agreed. (Id.) Several weeks later, Miller and a friend of Petitioner's, Kyrie Baum ("Baum"), visited Gonzalez in the nursing home in which Gonzalez was convalescing, and Baum offered Gonzalez $5, 000 and clothing if he would agree not to testify against Petitioner. (Id. at 5-6.) Over the next several weeks, Petitioner called Miller and Baum repeatedly on recorded phone lines from the jail asking Miller and Baum to do additional tasks, including to show Gonzalez bodybuilding photographs of Petitioner, buy Gonzalez medication, find a place for Gonzalez to live, and arrange a hotel room for Gonzalez during Petitioner's trial so that Gonzalez could testify to Petitioner's innocence. (Id. at 6.)
In July 2008, Petitioner's private investigator, Dwayne Kirkland ("Kirkland"), illegally gained access to a restricted area of a hospital where Gonzalez was a patient in order to interview Gonzalez—and surreptitiously recorded that interview. (Id. at 7.) During the interview, Kirkland showed Gonzalez a photographic array to determine if Gonzalez would be able to identify Petitioner as his assailant. (Id. at 7.) Gonzalez made at least a partial identification of Petitioner to Kirkland. (Id. at 14.) Kirkland also offered Gonzalez $10, 000. (Id. at 7.)
In December 2008, Baum and Miller were both arrested and Baum, Miller, and Petitioner were all charged with bribery counts. (Id.) A superseding indictment filed on January 6, 2009 charged Petitioner with two counts of Burglary in the First Degree, two counts of Attempted Robbery in the First Degree, one count of Assault in the First Degree, and two counts of Attempted Bribing of a Witness. (Id.)
At trial—as relevant to Petitioner's Objections—Petitioner called Kirkland to testify in his case-in-chief. (Id. at 13.) On a Friday afternoon Petitioner's counsel notified the County Court of his intent to call Kirkland the following Monday, and informed the County Court that Kirkland's car had been broken into and the recordings of his conversation with Gonzalez had been stolen, though Kirkland may have retained the photographic array allegedly used when he interviewed Gonzalez. (Id.) After a lengthy discussion on the following Monday morning, the County Court ruled that the prosecution could not explore the photographic array unless Petitioner's counsel opened the door. (Id.) Later that day, during the prosecution's cross-examination of Kirkland, Kirkland indicated that he did, in fact, possess a copy of the recording, plus a transcript that he had created. (Id.) During a recess, Petitioner's counsel informed the County Court that Kirkland had brought the recording and the transcript to court that morning, and claimed that he had forgotten to raise the issue because he was focused on preparing his summation. (Id. at 13-14.) The County Court then sanctioned Petitioner's counsel and allowed the prosecution to cross-examine Kirkland on the topic of the photographic array. (Id. at 14.) Despite Kirkland's testimony to the contrary on direct examination (in which Kirkland testified that Gonzalez told him that he was not able to see his assailant due to...
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