Morgan v. Superintendent

• Decision Date: 30 March 2000
• Docket Number: No. 97 Civ. 6672 (LAK).,97 Civ. 6672 (LAK).
• Citation: 88 F.Supp.2d 312
• Parties: Derrick MORGAN, Petitioner, v. SUPERINTENDENT, Shawangunk Correctional Facility, Respondent.
• Court: U.S. District Court — Southern District of New York

Page 312

88 F.Supp.2d 312

Derrick MORGAN, Petitioner, v. SUPERINTENDENT, Shawangunk Correctional Facility, Respondent.

No. 97 Civ. 6672 (LAK).

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

March 30, 2000.

Derrick Morgan, petitioner pro se.

David M. Cohn, Assistant District Attorney, Robert M. Morgenthau, District Attorney, New York City, for respondent.

MEMORANDUM OPINION

KAPLAN, District Judge.

Petitioner Derrick Morgan is before this Court on a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In a report and recommendation dated January 6, 2000 ("Report and Recommendation"), Magistrate Judge Michael H. Dolinger recommended that the Court deny Morgan's petition. Petitioner has filed objections to the Report and Recommendation, which the Court overrules. While the Court agrees with Judge Dolinger's recommendation and the bulk of his analysis, it writes separately to address the issues raised by petitioner and to clarify the appropriate standard, under New York law, for evaluating unsworn hearsay as the basis for probable cause to execute a warrantless arrest.

Background

Prior Proceedings

On June 12, 1990, judgment was entered in the Supreme Court of the State of New York, New York County, convicting petitioner, after a jury trial, of Murder in the Second Degree. Criminal Possession of a Weapon in the Second Degree, and Criminal Possession of a Weapon in the Third Degree. His conviction was affirmed by the Appellate Division, First Department, on December 16, 1993¹ and the New York Court of Appeals denied petitioner's application for leave to appeal on January 14, 1994.²

Petitioner filed his petition for habeas corpus relief on April 24, 1997.³ This Court dismissed the petition as untimely on January 7, 1998. On September 25, 1998 the Second Circuit vacated the dismissal and remanded to this Court for further proceedings in light of Ross v. Artuz,⁴ which held that prisoners whose convictions became final prior to the effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA)⁵ have a grace period of one year from that date, April 24, 1996, in which to file their habeas corpus petitions. In consequence, the petition is timely and the Court now considers it on its merits.

Petitioner's Arrest

Petitioner's conviction stems from the shooting death of Duval Young on July 4, 1989. At approximately midnight on that date Officers Keller and Kolosiej were on the corner of 125th Street and Lenox Avenue when a vehicle pulled over and one of its three occupants, a woman, claimed that they had just seen a black male wearing white shoot someone on 123rd Street between Lenox and Seventh Avenues.⁶ She identified petitioner as the shooter, pointing him out to the officers as he walked northbound across 124th Street on Lenox Avenue.⁷ The officers radioed a report of the suspect, who was identified as a "male black wearing all white," and began pursuit.⁸ Officers Bowden and Biondo heard the radioed message that shots had been fired and officers were in pursuit of a suspect with a gun on 124th Street.⁹ They responded by car and saw a black male dressed in white running west on 124th Street while being chased by Officer Keller. They joined pursuit and, after petitioner ignored their commands to stop, apprehended him by physical force on 125th Street and Seventh Avenue.¹⁰

After apprehending petitioner, Officers Bowden and Biondo handcuffed him, read him his Miranda warnings, and took him to the scene of a shooting at 123rd Street between Lenox and Seventh Avenues where the victim identified him as the shooter.¹¹

Discussion

In his original habeas petition, petitioner stated three grounds upon which he claimed he was being held unlawfully. He subsequently withdrew his claims of prosecutorial misconduct and an improper jury charge, leaving only a Sixth Amendment ineffective assistance of counsel argument for consideration.¹²

In order to demonstrate ineffective assistance of counsel, petitioner must show that "counsel's performance was so defective that `counsel was not functioning as the counsel'" guaranteed the defendant by the Sixth Amendment ... and that counsel's errors were `so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.' "¹³To satisfy the first prong petitioner is required to show that counsel's performance was `outside the wide range of professionally competent assistance.'"¹⁴ To satisfy the second, petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."¹⁵ This is a very demanding standard of proof. In this case petitioner must show that his counsel acted beyond the realm of professional competence and that, but for this incompetence, there is a reasonable probability that the outcome of petitioner's trial would have been different.

Petitioner criticizes his counsel's performance only at the pre-trial stages of the proceedings. Specifically, petitioner contends that the white shirt he was wearing the night of his arrest was critical to the government's case against him and that it should not have been allowed into evidence because it was seized pursuant to an illegal arrest.¹⁶ He alleges that his attorney's failure to make a timely and sufficient motion to suppress physical evidence unduly prejudiced his case.¹⁷

Following petitioner's indictment, his attorney submitted an omnibus motion requesting, among other things, a Mapp¹⁸ hearing to determine whether certain physical evidence seized from petitioner should be excluded.¹⁹ In support of this request the attorney submitted an affirmation containing allegations of fact that the trial judge found insufficient to justify either suppression or a hearing.²⁰ At the Wade-Huntley hearings held pursuant to the omnibus motion,²¹ petitioner's attorney told the court that he submitted insufficient information with regard to the Mapp hearing because he had not had time to speak with petitioner, his client, prior to submitting the motion and therefore did not know what had been taken from petitioner and what should be suppressed.²² The attorney acknowledged that he subsequently spoke with petitioner and could have amended his papers in a timely manner, but did not.²³ In fact, petitioner's attorney failed to notice that the court had denied his motion for a Mapp hearing and did not address the issue until the Wade-Huntley hearings immediately prior to trial.²⁴ The court denied his application for a Mapp hearing as untimely.²⁵

This Court assumes, without deciding, that the attorney's conduct with regard to this issue fell short of professional competence. Petitioner's claim fails nonetheless, however, because he is unable to satisfy the second prong of the ineffective assistance of counsel test. That is, he is unable to show a reasonable probability that, but for his attorney's oversights, the outcome of the trial would have been different. This requires, inter alia, a threshold finding that the motion to suppress, timely filed and sufficiently supported, would have been meritorious. Petitioner has not made such a showing.

Merits of the Suppression Motion

The success of the motion to suppress would have turned on whether petitioner was arrested legally which, in turn, would have depended on whether the police had probable cause to arrest him.

Probable, or Reasonable, Cause

The Court agrees with petitioner that he was under arrest as of the time Officers Bowden and Biondo handcuffed him, placed him in the police vehicle, and read him his Miranda rights.²⁶ Thus, although there are situations in which the police lawfully may detain a suspect and transport him to the scene of a crime for eyewitness identification without probable cause,²⁷ this was not such a situation. Probable cause must be assessed, therefore, as of the time Officers Bowden and Biondo apprehended petitioner and without consideration of the victim's positive identification following petitioner's arrest.

Under the Fourth Amendment, a warrantless arrest is constitutionally valid only if the arresting officers had probable cause to make the arrest at the time of the arrest.²⁸ Similarly, New York requires a police officer to have reasonable cause before making a warrantless arrest.²⁹ Reasonable cause, which has been held to have substantially the same meaning as probable cause under the Fourth Amendment,³⁰ is defined as follows:

"`Reasonable cause to believe that a person has committed an offense' exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it. Except as otherwise provided in this chapter, such apparently reliable evidence may include or consist of hearsay."³¹

The Court believes that Magistrate Judge Dolinger is correct when he states, in his Report and Recommendation, that the transcript of the pre-trial hearing contains sufficient testimonial evidence to conclude that the police had probable cause to arrest petitioner, following which they appropriately took his clothing into custody.³² This conclusion requires some elaboration, however, due to the nature of the evidence on which the police relied when arresting petitioner as well as the issues raised by petitioner in his objections to the Report and Recommendation.

1. Statements by a Civilian Informant

In this case, the officers who radioed the bulletin that led to petitioner's arrest relied on the statement and identification of a civilian informant. It is undeniable that the woman in the vehicle who initially identified petitioner was a previously unknown informant, and her statement was unsworn hearsay. As petitioner correctly points out in his objections to the Report and Recommendation, New York law...