Miller v. Phillip

• Decision Date: 01 September 2011
• Docket Number: No. 10 Civ. 7120.,10 Civ. 7120.
• Parties: Richard MILLER, Petitioner, v. William E. PHILLIP, Superintendent, Greenhaven Correctional Facility, Respondent.
• Court: U.S. District Court — Southern District of New York

813 F.Supp.2d 470

Richard MILLER, Petitioner,

v.William E. PHILLIP, Superintendent, Greenhaven Correctional Facility, Respondent.

No. 10 Civ. 7120.

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

Sept. 1, 2011.

Center for Appellate Litigation, by: Robert S. Dean, Esq., Barbara Zolot, Esq., New York, NY, for Petitioner.

New York County District Attorney's Office, by: Patrice J. Curran, Esq., New York, NY, for Respondent.

OPINION

SWEET, District Judge.

Petitioner Richard Miller (“Miller” or the “Petitioner,”) has petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, which has been opposed by respondent William E. Phillip, Superintendent (the “Respondent” or the “State”). Based on the conclusions set forth below, the court finds that Miller's counsel was not ineffective, and the petition is denied.

Prior Proceedings

By New York County Indictment Number 1969/00, filed on March 24, 2000, Petitioner was charged with first-degree murder (in the course of a robbery), two counts of second-degree murder (intentional and felony murder), first-degree robbery (armed), attempted first-degree robbery (armed), and second and third-degree weapons possession. The charges arose in connection with an incident in the late morning of March 8, 2000. At that time, Lakisha Ridley (“Ridley”) accompanied Mark Pressley (“Pressley”) to 154th Street in Manhattan to buy drugs. After Pressley completed his purchase in a nearby building, the couple returned to Pressley's parked car. As Pressley entered the car, a man later identified as the Petitioner, approached, put a gun to Pressley's neck, and demanded that he turn over the drugs and his jewelry. The man also reached behind Pressley, pointed the gun at Ridley, and told her to give him the “fucking drugs” or he would “blow her head off.” After Pressley handed Petitioner his ring, bracelet, and necklace, Pressley was shot in the neck and the man fled. Ridley left the car, called for help, and convinced a passerby to call 911. A short time later, the police and an ambulance arrived. Pressley was taken to the hospital but died soon after. On March 12, 2000, after a police investigation, Petitioner was arrested at the 30th Precinct. Ridley identified Petitioner in a lineup as the man who had shot Pressley. Petitioner denied that he had shot Pressley and claimed that he had been home at the time of the shooting.

Petitioner moved to suppress his statements and the lineup identification. On November 27, 2000, a combined Huntley/Wage hearing was held before Justice Edward McLaughlin and a jury.

During the trial, including during the final charge, Justice McLaughlin instructed the jury that the elements of the crime with which Petitioner had been charged had to be proved beyond a reasonable doubt. During the final charge, in the course of explaining the jury's role as fact-finder, the court also advised the jury that “where two factual inferences may be drawn of equal weight,” one “consistent with guilt,” and one “consistent with innocence,” the Petitioner was “entitled to the factual inference of innocence” (“the two-inference instruction”).

During deliberations, the jury sent out a note evincing confusion about the relationship between the reasonable doubt standard and the standard used to weigh inferences from facts. The court repeated the two-inference instruction as part of a supplemental charge. In response to the same jury note, the court explained that, in contrast to the reasonable doubt standard which applied to the elements of the crime, for “a fact to exist,” the standard of proof was “50.1, more likely than not” (“the fact-finding preponderance instruction”). Lastly, in the course of advising the jurors on how to reach a unanimous verdict during the final charge, the court pointed out that in civilian, as opposed to military life, the “two most important things are voting and jury service,” and that in terms of voting, “50.1 beats 49.9 every time.”

On February 14, 2001, Petitioner was convicted as charged. On April 20, 2001, Petitioner was sentenced to an aggregate term of from 32 1/2 years to life.

In papers dated May 3, 2002, Petitioner filed a pro se motion pursuant to New York Criminal Procedure Law (“CPL”) Section 440.10 asking that the trial court set aside the judgment against him, or in the alternative grant him a hearing. Petitioner argued that his lawyer had been ineffective for failing to both “investigate” one of the detectives who had worked on his case or obtain police reports generated by that detective that purportedly contained “exculpatory” information. After the trial court denied that motion, Petitioner filed an application pursuant to CPL 460.15 requesting that the Appellate Division, First Department (“the Appellate Division”), grant him leave to appeal that decision. On or about January 9, 2003, the Appellate Division granted that request.

On direct appeal in the Appellate Division, Petitioner raised nine separate claims, in which he complained, inter alia, that the fact-finding preponderance supplemental instruction was erroneous, and that his post-conviction motion had been improperly denied. On June 24, 2004, the Appellate Division unanimously affirmed the judgment of conviction. People v. Miller, 8 A.D.3d 176, 779 N.Y.S.2d 187 (N.Y.App.Div.2004), appeal granted 4 N.Y.3d 766, 792 N.Y.S.2d 9, 825 N.E.2d 141 (2005). The decision addressed several of the substantive issues that had been raised by Petitioner, but with regard to the remaining claims, including the complaint about the supplemental instruction, the Appellate Division found that “[Petitioner's] remaining contentions are unpreserved,” and declined to exercise its power to review them in the interest of justice. However, the court noted that if it were to review those claims, it “would reject” them. Further, the Appellate Division held that the trial court had properly denied Petitioner's post-judgment motion without a hearing because examination of the direct record revealed that Petitioner had received effective assistance from his trial counsel and that his assertions to the contrary were unsupported.

On July 14, 2004, Petitioner filed an application for leave to appeal the decision handed down by the Appellate Division to the New York Court of Appeals (“Court of Appeals”). On January 5, 2005, that application was granted. On appeal to the Court of Appeals, Petitioner advanced four claims. As pertinent here, Petitioner again argued that the trial court erred when it gave the above-described supplemental instruction. Petitioner also claimed that his conviction on two counts of second-degree murder should be dismissed as inclusory counts of his conviction for first-degree murder. The Court of Appeals modified the judgment only insofar as it accepted this latter claim and vacated the two second-degree murder counts as inclusory concurrent counts of first-degree murder. The Court of Appeals unanimously rejected the rest of Petitioner's claims. In so doing, the Court of Appeals found that Petitioner's complaint regarding the supplemental charge was unpreserved and that his remaining claims lacked merit. People v. Miller, 6 N.Y.3d 295, 301–303, 812 N.Y.S.2d 20, 845 N.E.2d 451 (N.Y.2006).

The New York Court of Appeals remanded the case so that the trial court could resentence Petitioner on the first-degree murder count. On April 7, 2006, Petitioner was resentenced to an aggregate prison term of 32 1/2 years to life. Petitioner appealed his newly-imposed sentence. In a decision dated March 6, 2007, the Appellate Division rejected Petitioner's claim and affirmed his conviction. People v. Miller, 38 A.D.3d 233, 2007 WL 656295 (N.Y.App.Div.2007). Petitioner sought leave to appeal the Appellate Division's finding to the New York Court of Appeals, but in an order dated June 5, 2007, that court denied Petitioner's application. People v. Miller, 9 N.Y.3d 848, 840 N.Y.S.2d 774, 872 N.E.2d 887 (2007).

Subsequently, in a second CPL 440.10 motion dated July 24, 2007, Petitioner again contended that his trial lawyer was ineffective. This time, Petitioner complained that his representation was deficient because his attorney failed to object to the fact-finding preponderance supplemental instruction that he had previously challenged on direct appeal, thus rendering that claim unpreserved for review. Petitioner also asserted that his trial attorney failed to object to the two-inference charge in the main charge and went so far as to affirmatively “solicit” it from the court in the supplemental charge. Finally, Petitioner requested that his conviction be reversed based on his claim that as a result of his attorney's omissions in this regard, as well as his failure to object to the election language, the trial court had provided the jurors with a series of instructions that when combined with the election language, lowered the burden of proof required to convict Petitioner to an “unconstitutional extent.”

In a decision dated March 3, 2008, Justice McLaughlin found that the representation provided by Petitioner's trial counsel had met constitutional requirements and denied Petitioner's second post-conviction motion. Petitioner filed a motion to appeal that decision to the Appellate Division, and on September 29, 2008, that application was granted.

On this second appeal to the Appellate Division, Petitioner renewed his arguments that the court's charges at issue were erroneous, and that trial counsel was ineffective because of his failure to object. The Appellate Division affirmed the trial court's denial of Petitioner's post-judgment motion. Petitioner applied for leave to appeal the Appellate Division's decision, but by an order dated September 28, 2009, the New York Court of Appeals denied that application. People v. Miller, 13 N.Y.3d 798, 887 N.Y.S.2d 547, 916 N.E.2d 442 (2009).

On September 16, 2010, Petitioner filed his petition for a writ of habeas corpus on the ground that his...