May v. Griffin
| Docket Number | 17 Civ. 6319 (KMK)(JCM) |
| Decision Date | 15 March 2021 |
| Parties | ELLIOT MAY, Petitioner, v. THOMAS GRIFFIN, Superintendent, Respondent. |
| Court | U.S. District Court — Southern District of New York |
REPORT AND RECOMMENDATION
Petitioner Elliot May (“Petitioner”), proceeding pro se, filed a petition for a writ of habeas corpus (“Petition”) pursuant to 28 U.S.C. § 2254 on August 18, 2017.[1] (Docket No. 1 at 26).[2] On December 6 2017, Respondent Thomas Griffin (“Respondent”) opposed the Petition, (Docket No. 11), accompanied by a supplemental memorandum of law (“Resp't Br.”), (Docket No. 11-1), and supporting exhibits (Docket Nos. 11-2-11-39). Petitioner replied on March 15 2018 (“Pet'r Reply”), (Docket No. 21), and Respondent submitted a supplemental letter on March 27, 2018, (Docket No. 22). Petitioner submitted a sur-reply on April 13, 2018. (Docket No. 23). For the reasons set forth below, I respectfully recommend that the Petition be denied in its entirety.
Petitioner's convictions arise out of an incident that occurred on October 10 and 11, 2007, whereby Petitioner, Tracy Steadman (“Steadman”), with whom Petitioner shares a child, and an unknown accomplice attempted to burglarize Pedro Gonzalez's (“Gonzalez”) apartment. Construing the evidence in the light most favorable to the state, see, e.g., Murden v. Artuz, 497 F.3d 178, 184 (2d Cir. 2007), the following facts were established at trial.
At the time of the incident, Gonzalez and Steadman had been romantically involved for approximately four months. (Trial Tr. at 733-34). Gonzalez owned an extensive jewelry collection, (id. at 735-36), which Steadman repeatedly commented on, (id. at 744), including on one occasion in early October 2007, (id. at 747). About ten days prior to the incident, Gonzalez gave his jewelry to his roommate, Wilfredo Morales (“Morales”), to place in Morales' padlocked closet for safekeeping. (Id. at 660-62, 745-46).
On October 10, 2007, around 11:10 p.m., Steadman told Gonzalez that she was on her way to his apartment, located at One Odell Place in New Rochelle, New York. (Id. at 748-49). Prior to this, Gonzalez was not expecting her arrival. (Id.). At approximately 11:30 p.m., Steadman called Gonzalez to ensure that the lobby door to One Odell Place was unlocked. (Id. at 750-51). Steadman arrived shortly thereafter, retrieved a beverage from the kitchen, and went into Gonzalez's bedroom. (Id. at 750-53). Morales had already gone to sleep in his makeshift bedroom, traditionally used as a living room. (Id. at 1050).
Gonzalez was preparing to take a shower when Steadman told him that she heard a knock at the door. (Id. at 755). Wearing only a towel, Gonzalez cracked open his front door. (Id. at 754-55). Petitioner and his accomplice kicked in the door and entered the apartment. (Id. at 756). Gonzalez called out to Morales, but before Morales could get out of bed, Petitioner's accomplice pushed him facedown onto the floor and held him there at gunpoint. (Id. at 665-67).
Petitioner asked Gonzalez where he kept his jewelry, to which Gonzalez averred that he did not have any. (Id. at 759). Gonzalez and Petitioner began to fight physically. (Id.). Petitioner hit Gonzalez several times on the head with his pistol before physically dominating Gonzalez and ushering him into the kitchen at gunpoint. (Id. at 760-64). Gonzalez then heard one of the men say: “let's kill[] these motherfuckers, ” and observed Petitioner take out a roll of silver duct tape. (Id. at 762, 767). Gonzalez pushed Petitioner in the chest, hurling him eight to ten feet backwards, and ran into his bedroom, where he saw Steadman standing quietly by his closet. (Id. at 770). Gonzalez jumped through the open window in his bedroom to escape and try to “save [his] life.” (Id. at 770-72). Gonzalez fell three stories and landed feetfirst on the soil outside of the building. (Id. at 772-73). He tried to stand up but was unable to move. (Id. at 773). A neighbor came to Gonzalez's aid and called the police. (Id. at 774).
At approximately 12:00 a.m. on October 11, 2007, Pedro Castro (“Castro”), who lived in One Odell Place, heard a “strange” noise while walking out of his lobby, which he later realized was the sound of a person running down the stairwell in flip-flops. (Id. at 862). Castro walked outside and saw a woman wearing flip-flops and two black men moving quickly away from the building. (Id.). Castro watched the individuals enter a mini-van and speed away. (Id. at 863, 866). A few minutes later, Officer Adam Castiglia (“Castiglia”) responded to the scene where he observed Gonzalez laying on the ground naked. (Id. at 464). Gonzalez's head was bloody, and he was attempting to cover himself with debris and leaves. (Id. at 466). He told Castiglia that there may be armed men in his apartment and that he feared his roommate was dead. (Id. at 469). Gonzalez was stabilized on a backboard and taken to Sound Shore Medical Center in New Rochelle. (Id. at 1051). Sergeant Raul Rodriguez (”Rodriguez”) accompanied him to the hospital. (Id. at 1055). Gonzalez was paralyzed from the waist down as a result of the fall. (Id. at 765).
Around 12:30 a.m., Detective Denise Walters (“Walters”) arrived at Gonzalez's apartment. (Id. at 1050). Sergeant Rodriguez told Walters to contact Morales and Steadman. (Id. at 1057). Walters was unable to reach Morales but spoke to Steadman at approximately 1:00 a.m. on Gonzalez's cell phone. (Id.). She also retrieved Gonzalez's jewelry for safekeeping from Morales' padlocked closet. (Id. at 1059). The padlock was still intact upon her arrival. (Id. at 1061).
Steadman was interviewed by police on October 11 and November 29, 2007, at which time she inculpated Petitioner in the crimes. (Id. at 1066-67). On November 30, 2007, Gonzalez identified Petitioner as his assailant from a photo array during an interview with police conducted at the nursing home where he was recovering. (Hearing Tr.[3] at 47-52). On January 9, 2008, Petitioner was taken into custody in his parole office in Brooklyn, New York and transported to the New Rochelle Police Department (“NRPD”) headquarters. (Id. at 62-63). Petitioner gave an oral statement to Detective Walters after she informed him that Steadman had linked him to the incident. (Id. at 63-70; Trial Tr. at 1079).
Petitioner told Detective Walters that on the day of the crimes, he went to New Rochelle to buy marijuana from Steadman's friend. (Trial Tr. at 1079, 1081; Hearing Tr. at 68). Petitioner alleged that he was driven to Steadman's home in Yonkers, New York by a friend named “Shereda, ” and that they picked up another friend named “Knowledge” on the way. (Trial Tr. at 1079-81, 1088; Hearing Tr. at 68-69). Petitioner, Shereda and Knowledge followed Steadman to an apartment building in New Rochelle. (Trial Tr. at 1086). Steadman entered the building and went to the third-floor to retrieve the marijuana, while Petitioner, Knowledge and Shereda waited outside. (Id.). Petitioner told Detective Walters that because Steadman was “taking so long, ” he and Knowledge went to the third-floor of the building to look for her, where they observed her running out of an apartment. (Id.). Petitioner claimed that he never entered an individual apartment and was not armed. (Hearing Tr. at 70). He further alleged that he did not know Gonzalez, but that he had “seen[n] a picture of [him] in Ms. Steadman's house.” (Id.). Petitioner was taken into custody on January 9, 2008, shortly after making the statement. (Trial Tr. at 1088).
In May 2008, Kendall Miller (“Miller”), known as “Swin, ” was serving his final week of a six-month jail sentence in Valhalla, New York. (Id. at 905-06). While in jail, Petitioner approached Miller, a native of New Rochelle, and asked him if he knew Gonzalez. (Id. at 90910). Miller told Petitioner that he knew Gonzalez well and that he heard “somebody robbed him and he's hurt, he's paralyzed, doing real bad.” (Id. at 910). Petitioner proclaimed that he was in jail for Gonzalez's assault and that he was innocent and being set up by Steadman. (Id. at 911, 917-18). Petitioner offered Miller $2, 000.00 to get in touch with Gonzalez upon his release. (Id. at 915). Miller accepted Petitioner's offer. (Id. at 918).
Petitioner asked Miller to find Gonzalez a place to stay and asked Miller whether Gonzalez would move to Brooklyn and/or stay in a hotel before trial in exchange for exculpating him. (Id. at 948-49). Thereafter, Miller and Petitioner's friend, Kyrie Baum (“Baum”), known as “Chop, ” went to the nursing home where Gonzalez was recovering to relay Petitioner's offers. (Id. at 927-28). Baum was driven to the nursing home by Petitioner's ex-wife, Gina. (Id. at 927). When they arrived, Miller introduced Baum and told Gonzalez that Baum's friend had been wrongfully accused of his assault. (Id. at 931). Miller and Baum brought Gonzalez food and asked if he would accept money or clothing in exchange for “begin[ning] the process of exonerating [Petitioner].” (Id. at 793, 931, 935). Baum also offered to arrange accommodations for Gonzalez when he left the nursing home. (Id. at 791). Miller and Baum visited the nursing home a second time a few weeks later and - over the course of a month and a half - called Gonzalez roughly sixty times to offer him lodging, medication, clothing and various sums of money to clear Petitioner's name. (Id. at 791, 795). On another occasion, Miller showed Gonzalez an array of photographs, two of which depicted Petitioner wearing “[n]othing but a bathing suit, ” and asked if Gonzalez was able to identify his assailant. (Id. at 941, 952-53).
Furthermore Dwayne Kirkland (“Kirkland”), a private...
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