McCall v. Capra

• Decision Date: 29 April 2015
• Docket Number: No. 12–CV–6144 WFK.,12–CV–6144 WFK.
• Citation: 102 F.Supp.3d 427
• Parties: Allah McCALL, Petitioner, v. Superintendent Michael CAPRA, Respondent.
• Court: U.S. District Court — Eastern District of New York

102 F.Supp.3d 427

Allah McCALL, Petitioner,

v.Superintendent Michael CAPRA, Respondent.

No. 12–CV–6144 WFK.

United States District Court, E.D. New York.

Signed April 29, 2015.

Filed April 30, 2015.

Allah McCall, Romulus, NY, pro se.

New York State Attorney Generals Office–Generic, New York State Attorney Generals Office, Queens County District Attorneys Office–Generic, Anastasia Spanakos–Orfan, John M. Castellano, Johnnette Traill, Kew Gardens, NY, for Respondent.

DECISION AND ORDER

WILLIAM F. KUNTZ, II, District Judge:

Before the Court is a petition for a writ of habeas corpuspursuant to 28 U.S.C. § 2254by pro sePetitioner Allah McCall (“Petitioner”). Petitioner seeks federal habeas relief based on six claims: (1) violation of his right to be free from unreasonable search and seizure; (2) a Batsonviolation; (3) violation of his right to present a defense at trial; (4) Violation of his right to confront witnesses against him; (5) violation of his due process rights by the prosecutor during summation; and (6) violation of his right to effective assistance of counsel. Dkt. 1 (“Petition”) at 5, 7, 10, 12, 14, 17; Dkt. 17 (“Supp.”). For the reasons discussed below, Petitioner's claims are meritless. Accordingly, the petition for the writ of habeas corpusis DENIED.

FACTUAL AND PROCEDURAL BACKGROUND

Arrest and Conviction

On January 3, 2007, Petitioner was arrested by New York City Police (“NYPD”) officers. Dkt. 14 (“Opp. to Petition”) at ¶ 4. The NYPD officers received an anonymous 911 call stating a black man wearing a black hat and a jacket with the words “CRIMSON” in red lettering had a gun on the corner of Gateway Avenue and Mott Avenue in Queens County.Id.While the NYPD officers were patrolling the area, they spotted Petitioner and Ricardo Gentiles (“Gentiles”) walking out of a building. Id.The NYPD officers stated Petitioner was wearing a black do-rag and a jacket with the words “CRIMSON” in red lettering on the back. Id.The NYPD officers also observed Petitioner adjust his waistband. Id.The NYPD officers thereafter arrested Petitioner and Gentiles and recovered a gun from Petitioner's waistband. Id.Petitioner was arrested and charged with Criminal Possession of a Weapon in the Second Degree in violation of N.Y. Penal Law § 265.03[1], Criminal Possession of a Weapon in the Third Degree in violation of N.Y. Penal Law § 265.02[1], Criminal Possession of Stolen Property in the Fourth Degree in violation of N.Y. Penal Law § 165.45[4], and Resisting Arrest in violation of N.Y. Penal Law § 205.30. Id.at ¶ 6.

Following extensive plea negotiations between Petitioner's trial counsel (“Defense Counsel”) and the assigned prosecutor, Petitioner was indicted in late August 2007 on four counts: (1) Criminal Possession of a Weapon in the Second Degree in violation of N.Y. Penal Law § 265.03[1][B], (2)Criminal Possession of a Weapon in the Second Degree in violation of N.Y. Penal Law § 265.03[3], (3)Criminal Possession of a Weapon in the Third Degree in violation of N.Y. Penal Law § 265.02[1], and (4)Resisting Arrest in violation of N.Y. Penal Law § 205.30. Id.at ¶ 18–13.

Petitioner then moved to suppress the gun as evidence. Id.at ¶¶ 14–15. On August 4, 2008, the Honorable Michael Aloise of Queen's County Supreme Court denied Petitioner's motion to suppress. Id.at ¶ 16. Justice Aloise found the officers were justified in searching Petitioner given Petitioner matched the description of the 911 call of a man with a gun and engaged in suspicious activity by adjusting his waistband. Id.

Petitioner then proceeded to trial. Id.at ¶ 17; see alsoDkt. 10 (“Tr. I”) at 100. On January 28, 2009, a twelve-person jury found him guilty of Criminal Possession of a Weapon in the Second and Third Degrees, but acquitted him of Resisting Arrest. Opp. to Petition at ¶ 17; see alsoPetition at 1; Dkt. 10–2 (“Tr. 1.2”) at 89, 172–75. On March 16, 2009, Petitioner was sentenced to concurrent periods of incarceration of fifteen years and three and a half to seven years on the two counts, respectively, plus five years post-release supervision. Petition at 1; Opp. to Petition at ¶ 17; Dkt. 10–3 (“Tr. 1.3”) at 15.

Direct Appeal

On February 23, 2010, Petitioner, through assigned counsel, appealed his conviction and sentence to the New York State Appellate Division, Second Department. People v. McCall,80 A.D.3d 626, 914 N.Y.S.2d 291, 292 (2d Dep't 2011); see alsoOpp. to Petition at ¶ 18; Dkt. 11 (“Tr. II”) at 1–72. Petitioner argued his conviction should be overturned because (1) there was no probable cause to search him at the time he was arrested, (2) the trial court erred in curtailing defense counsel's direct examination of two defense witnesses, (3) the trial court improperly admitted the tape of the 911 call into evidence, (4) he was denied his right to a fair trial when evidence from Gentile's arrest report was excluded, (5) jury venire was marred by racial discrimination (i.e.a Batsonviolation), and (6) numerous comments made by the prosecutor during summation were improper. McCall,914 N.Y.S.2d at 292–93; see alsoTr. II at 1–72. The Second Department rejected all of Petitioner's arguments, finding: (1) probable cause existed to search Petitioner, (2) the curtailment of defense counsel's questioning was not improper because the probative value of the witnesses' testimony was substantially outweighed by the danger it would unfairly prejudice the prosecution or mislead the jury, (3) the 911 tape was properly admitted under the present sense impression exception to the hearsay rule, (4) Petitioner was not deprived of a fair trial due to exclusion of Gentile's arrest report because Petitioner “had the opportunity to call the jury's attention to information it contained[,]” (5) Petitioner failed to make the prima facie showing of racial discrimination in jury selection, and (6) Petitioner failed to preserve for review his challenges to some of the prosecutor's summation because he failed to object at the summation, and the other comments made by the prosecutor were “either responsive to the arguments and issues raised by defense counsel, or fair comment on the evidence.” Id.

On January 27, 2011, Petitioner sought further review of his conviction from the New York Court of Appeals. Opp. to Petition at ¶ 21; Dkt. 11–1 (“Tr. II.1”) at 34– 39. Petitioner's application was denied on May 13, 2011, without an opinion. People v. McCall,16 N.Y.3d 897, 926 N.Y.S.2d 32, 949 N.E.2d 980 (N.Y.2011); see alsoTr. II.1 at 47.

Post–Conviction Motion

On October 3, 2011, Petitioner, proceeding pro se,moved before Justice Aloise to vacate his judgment of conviction and set aside his sentence pursuant to N.Y.Crim. Proc. Law §§ 440.10and 440. 20. Opp. to Petition at ¶ 22; Tr. II.1 at 48–79. Petitioner argued he received ineffective assistance of counsel because counsel: (1) failed to inform the prosecutor that Petitioner would accept the six-year plea deal; (2) failed to advise Petitioner to accept the plea offer; (3) failed to discuss Petitioner's maximum exposure; (4) failed to inform petitioner his sentence would include post-release supervision; and (5) failed to preserve the claim that a sentence with post-release supervision is unconstitutional. Opp. to Petition at ¶ 22; Tr. II.1 at 68–79. Petitioner also argued his sentence was illegal because it exceeded the statutory maximum permitted for Criminal Possession of a Weapon in the Second Degree. Opp. to Petition at ¶ 22; Tr. II.1 at 77–79.

On June 8, 2012, Petitioner's trial counsel filed an affirmation in which he stated: (1) he informed Petitioner numerous times during plea negotiations that the top charge meant Petitioner was facing a minimum of seven years and a maximum of fifteen years of incarceration; (2) he engaged in extensive plea negotiations with the prosecutor; (3) he explained to Petitioner that the six-year offer was a good offer especially given that, if convicted, Petitioner would likely be sentenced to fifteen years or close to it; (4) Petitioner indicated he would never take an offer above five-years and that neither Petitioner nor Petitioner's family indicated he would accept the six-year offer; (5) if Petitioner had indicated an interest in the six-year deal, Defense Counsel would have informed the prosecutor; and (6) he informed Petitioner that once he was indicted, there would be no more plea offers. Opp. to Petition at ¶ 23; Dkt. 11–2 (“Tr. II.2”) at 21–25.

On July 11, 2012, Justice Aloise denied Petitioner's motion on the merits. Opp. to Petition at ¶ 25; Tr. II.2 at 64–65. On the ineffective assistance of counsel claim, Justice Aloise found, because Petitioner's claim was supported solely by his own statements without any other evidence, there was no reasonable possibility that his allegations were true. Opp. to Petition at ¶ 25; Tr. II.2 at 64. Justice Aloise also rejected Petitioner's claim that his sentence was illegal. Opp. to Petition at ¶ 25; Tr. II.2 at 65.

On July 30, 2012, Petitioner, still proceeding pro se,moved the New York State Appellate Division, Second Department (“Second Department”) for leave to appeal the July 11, 2012 Decision. Opp. to Petition at ¶ 26; Tr. II.2 at 66–100. On September 27, 2012, the Second Department denied petitioner's motion for leave to appeal. Opp. to Petition at ¶ 26; Dkt. 11–4 (“Tr. II.4”) at 26.

Habeas CorpusPetition

On December 28, 2012, Petitioner filed a petition for a writ of habeas corpuswith this Court. Petition at 1. Petitioner alleges six bases for his petition for habeasrelief: (1) violation of his Fourth Amendment right to be free from unreasonable search and seizure; (2) a Batsonviolation; (3) violation of his right to present a defense at trial; (4) violation of his right to confront witnesses against him; (5) violation of his due process right by the prosecutor during summation; and (6) violation of his right to effective assistance of counsel. Id.at 5, 7, 10, 12, 14, 17; Supp. at 1, 3, 6, 10, 15, 19. Respondent Superintendent Michael Capra (“Respondent”),...