Morales v. Greiner, s. 02-CV-1160 (ERK), 02-CV-3270 (ERK).
| Citation | 273 F.Supp.2d 236 |
| Decision Date | 28 July 2003 |
| Docket Number | Nos. 02-CV-1160 (ERK), 02-CV-3270 (ERK).,s. 02-CV-1160 (ERK), 02-CV-3270 (ERK). |
| Parties | Raul MORALES, Petitioner, v. Charles GREINER, Respondent. Jamal McRae, Petitioner, v. Floyd Bennett, Superintendent, Elmira Correctional Facility, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
v.
Charles GREINER, Respondent.
Jamal McRae, Petitioner,
v.
Floyd Bennett, Superintendent, Elmira Correctional Facility, Respondent.
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Raul Morales, Stormville, NY, Pro se.
Victor Barall, Kings County District Attorney, Brooklyn, NY, for Respondent.
KORMAN, Chief District Judge,
Petitioner Raul Morales ("Morales") and petitioner Jamal McRae ("McRae") each seek a writ of habeas corpus primarily on the basis of ineffective assistance of counsel. I have consolidated these independent cases for the purpose of addressing an issue common to the claim of ineffective assistance of counsel under the Sixth Amendment. Specifically, the issue is whether a defendant who alleges that counsel was ineffective because he failed to raise an illegal search and seizure claim or make a Batson challenge can satisfy the requisite standard of prejudice necessary to succeed on an ineffective assistance of counsel claim.
A. Facts and Procedural History of Morales v. Greiner
On April 9, 1998, Sergeant Patrick O'Malley, a supervisor in the Brooklyn South Narcotics District, oversaw a "tactical meeting," the purpose of which was to assign roles and distribute equipment for a "buy and bust" operation to be carried out later in the day. Among the officers who attended the meeting were Undercover Officer 2787 ("UC 2787"), Undercover Officer 31700 ("UC 31700"), Detective Charles Gallogly, and Detective Vincent Kennedy. UC 2787 was assigned as the team's "ghost"; UC 31700 was assigned to purchase narcotics; and Detective Gallogly was designated as the arresting officer (Tr. 104-12; 139-45; 179-82; 197-200; 273-76).
At approximately 5:45 p.m., the members of Sergeant O'Malley's team, all wearing street clothes, were in the vicinity of 4811 Fifth Avenue. UC 2787 was stationed directly across the street, sitting in an unmarked car with tinted windows. The defendant Morales was in front of the building, and UC 2787 observed three individuals, one at a time, approach Morales, touch hands with him, enter the vestibule of the building with him, and quickly return outside. Through the grating in the building's front door, UC 2787 was able to see in each instance some sort of transaction taking place in the vestibule; but he did not actually see any narcotics exchange hands. UC 31700 approached Morales and attempted to make a purchase, but was rebuffed by Morales, who told him: "Get the fuck out of here" (Tr. 141-51; 183-86).
UC 2787 continued to observe the scene outside 4811 Fifth Avenue. Before long, he observed a fourth man, later identified as Reynaldo Ruiz, approach Morales. Like the previous three individuals, Ruiz entered the vestibule of the building with Morales, engaged in some sort of transaction and exited shortly thereafter. Unlike the other occasions, however, UC 2787 distinctly saw Ruiz holding a glassine envelope in his hand as he emerged from the vestibule — the type of envelope UC 2787 knew to be used in packaging narcotics. UC 2787 radioed this information to the other members of his field team and they proceeded to arrest Ruiz. In Ruiz's possession, the officers found a glassine envelope stamped "Superpower" (Tr. 114-15; 150-54; 201-10; 275-77). UC 2787 verified that the individual that his fellow officers had arrested was the person he saw engage in a transaction with Morales. He then returned to his post near 4811 Fifth Avenue (Tr. 153-54).
Approximately twenty to twenty-five minutes later, Morales emerged from 4811 Fifth Avenue. UC 2787 radioed his field team who proceeded to arrest Morales.
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UC 2787 then confirmed with the field team that the correct person had been taken. Morales was frisked at the scene and approximately $83 was recovered from him. Morales was taken to the 72nd precinct station house for processing, where he was subjected to a strip search. Eleven glassine envelopes stamped "Superpower" were recovered from his underwear. Additionally, Morales' belt was removed pursuant to police procedures. The belt had a secret compartment which, when opened, yielded twelve more glassine envelopes marked "Superpower" (Tr. 117-25; 155-58; 170; 210-31; 278-83). The contents of the glassine envelopes were tested for the presence of controlled substances. All of the envelopes — the one envelope recovered from Reynaldo Ruiz and the twenty-three envelopes recovered from Morales — contained heroin (Tr. 251-59; 261-71).
A suppression hearing was held regarding the evidence recovered from Morales following his arrest. Officer Gallogly testified at the hearing and the trial judge ruled that the officers had probable cause to arrest Morales, the search was legal and the heroin recovered from Morales was admissible. Following a jury trial, Morales was convicted of one count of Criminal Sale of a Controlled Substance in the Third Degree and two counts of Criminal Possession of a Controlled Substance in the Third Degree. He was sentenced to three concurrent terms of imprisonment of ten to twenty years. On appeal from the judgment of conviction Morales argued: a) that the trial court's charge concerning his decision not to testify deprived him of a fair trial; and b) that his sentence was harsh and excessive. On June 19, 2000, the Appellate Division affirmed Morales' judgment of conviction. People v. Morales, 273 A.D.2d 412, 711 N.Y.S.2d 727 (2d Dep't.2000). Leave to appeal to the Court of Appeals was denied. People v. Morales, 95 N.Y.2d 869, 715 N.Y.S.2d 223, 738 N.E.2d 371 (2000).
On May 22, 2001, Morales moved for a writ of error corram nobis on the ground that he had received ineffective assistance of appellate counsel. Specifically, Morales contended that his appellate counsel was ineffective for failing to raise a claim that the police lacked probable cause for his arrest. On October 29, 2001, the Appellate Division denied Morales' application for a writ of error corram nobis, finding that he had "failed to establish that he was denied the effective assistance of appellate counsel." People v. Morales, 287 A.D.2d 743, 732 N.Y.S.2d 184 (2d Dep't 2001). Morales subsequently filed this petition for a writ of habeas corpus, alleging the same ground of ineffective assistance of counsel that was rejected in his application for a writ of error coram nobis. He also appears to raise a freestanding claim that his arrest was not supported by probable cause.
B. Facts and Procedural History of McRae v. Bennett
On the evening of September 17, 1994, John Morales (no relation to petitioner Raul Morales), a driver for National Car Service, went to 160-08 75th Road in Flushing, Queens, to pick up a fare (Tr. 584). According to Mr. Morales, petitioner Jamal McRae and three other young men came out of the building and got into the taxi (Tr. 586-88). Morales described McRae, who sat down next to him in the front seat of the car, as 5'6" tall, with a thin build, wearing black pants and a black tee shirt and jacket. His hair was medium in length and "tightly curled" (Tr. 586). Morales also thought that petitioner may have been Jamaican based on his facial features, hair, and the cap he wore when he first got into the car, but not based on his accent (Tr. 587, 622, 623, 627, 632, 637-
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38). Two other black men and a white or Hispanic man sat in the back seat of the car (Tr. 589). Morales drove the passengers to Canal Street in Manhattan for an outdoor festival. Upon arrival, there were not many people there due to the rain, so, at the passengers' request, Morales drove them back to 76th Road and 166th Street in Queens (Tr. 590). When they arrived, the Hispanic man who sat behind Morales held a razor to the driver's neck. When Morales tried to grab it, the man pulled the razor back, cutting two of Morales' fingers on his left hand (Tr. 591).
Petitioner McRae then took out a silver revolver and told Morales to give them all of his money (Tr. 591, 596-97). Morales gave McRae his wallet but McRae cursed him and demanded more money. McRae then pulled a gold chain off of Morales' neck and threatened to kill him, but one of the accomplices told him not to, because the car service had their address and telephone number (Tr. 591-92). McRae proceeded to strike Morales on the right side of his head three times with the butt of his gun. Morales briefly lost consciousness, and when he came to he found the Hispanic man reaching over the front seat to turn off the car (Tr. 592-93). The other two men struck Morales a number of times, and then all four assailants made their getaway (Tr. 593-94).
Morales, who was disoriented and bleeding profusely from his hand and forehead, called his dispatcher and informed her of the incident. The dispatcher relayed his story to the police and two co-workers arrived at Morales's location shortly thereafter along with several bystanders from nearby apartment buildings (Tr. 594-95).
Police Officer Edwin Boone testified that he received a radio run about the robbery at about 12:29 a.m. (Tr. 648). He and his partner arrived at the scene a few minutes later and saw Morales sitting in front of his car with all the doors open. Morales was rocking back and forth and crying, and there was blood on his head, hands, and clothing (Id.). Morales told the officers what happened, though he had difficulty communicating his story as he spoke little English (Tr. 596, 583-84, 649). He gave Officer Boone McRae's address and described him as a black male, who was about 5'8" tall, with brown eyes and black hair (Tr. 650). According to Boone, Morales said that McRae was wearing all black clothing and sneakers and wore his hair in "dreds" (Tr. 653). Although Morales testified that he never told the police that McRae had a Jamaican accent, Officer Boone...
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