Morrison v. Brown, 11-CV-3366 (KAM)
| Decision Date | 18 January 2019 |
| Docket Number | 11-CV-3366 (KAM) |
| Parties | DWAYNE MORRISON, Petitioner, v. WILLIAM D. BROWN, Superintendent, Eastern Correctional Facility, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
Petitioner Dwayne Morrison ("petitioner"), proceeding pro se, brought the above-captioned petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Eastern District of New York, challenging his conviction for Murder in the Second Degree and Criminal Possession of a Weapon in the Fourth Degree in the Supreme Court of New York, Queens County (the "trial court"). (See Petition for Writ of Habeas Corpus ("Pet." or the "petition"), ECF No. 1, at 1; see also generally Affidavit and Memorandum of Law in Opposition to Petition ("Opp." or the "opposition"), ECF No. 21.) For the reasons set forth below, the petition is denied in its entirety.
On the evening of July 30, 2005, in Queens, New York, Miguel Angel Restituyo was stabbed, and subsequently died as a result of his injuries. (Opp. at 2; Jury Selection Tr., ECF No. 23, ECF p. 12, at 12:1-25.)1 In connection with Mr. Restituyo's death, petitioner was indicted on charges of Murder in the Second Degree and Criminal Possession of a Weapon in the Fourth Degree by a grand jury in Queens County, New York. (Id.)
Petitioner proceeded to trial by jury, and jury selection took place on May 9 and 10, 2007. (See generally Jury Selection Tr., ECF No. 23, ECF pp. 9-212 and ECF No. 23-1, ECF pp. 1-19.) At trial, the jury found petitioner guilty of Murder in the Second Degree, in violation of New York Penal Law section 125.25, and Criminal Possession of a Weapon in the Fourth Degree, in violation of New York Penal Law section 265.01. (Trial Tr., ECF No. 23-5, ECF pp. 71-75, at 968:3-972:7; see also Opp. at 2.) On July 10, 2007, the trial court sentenced petitioner to an indeterminate term of seventeen years' to life imprisonment with respect to the second degree murderconviction, and a concurrent one-year term with respect to the criminal possession of a weapon conviction. (Sentencing Tr., ECF No. 23-5, ECF pp. 82-101, at 18:16-19:2.)
Through appellate counsel, petitioner appealed his judgment of conviction to the New York Supreme Court, Appellate Division, Second Department (the "Appellate Division"). In his brief, dated May 28, 2008, petitioner raised numerous claims, set forth in seventeen "questions presented" for review. (See Petitioner's Direct Appeal Brief ("Pet. App. Br."), ECF No. 23-6, ECF pp. 1-48, at ii-iv.) As relevant here, petitioner's claims on appeal included claims that: (1) the prosecutor's remarks during his opening were improper, inflammatory, and the trial court committed reversible error in allowing them; (2) the prosecutor changed the theory of the indictment and bill of particulars, which prejudiced petitioner and prevented him from preparing for trial properly; (3) the prosecutor's opening unduly prejudiced petitioner by commenting on inadmissible and inflammatory evidence; (4) the introduction of a photograph of the victim smiling prejudiced the defendant; (5) the prosecutor's summation included commentary on inadmissible evidence, and allowing it constituted reversible error; (6) the prosecutor made personal attacks on defense counsel's credibility, requiring reversal; (7) the prosecutor shifted theburden of proof and made improper suggestions that tainted the jury despite the court's curative instructions; (8) the prosecutor presented an improper example in summation, which misled and/or mischaracterized the evidence and prejudiced petitioner; (9) the prosecutor's summation unfairly and improperly suggested that petitioner had prepared to attack the victim, and thereby denied petitioner a fair trial; (10) the prosecutor unfairly vouched for witnesses; (11) the prosecutor "planted improper seeds" during his opening and engaged in commentary outside of the evidence; (12) the prosecutor exceeded the bounds of fair commentary by suggesting that the petitioner sustained no injuries in the altercation that resulted in the victim's death; (13) the prosecutor made a biblical reference that denied petitioner a fair trial; (14) trial counsel was ineffective for failure "to implement a viable and real defense;" (15) petitioner's trial counsel failed to present any evidence on his behalf, thereby depriving petitioner of a fair trial; and (16) petitioner's counsel failed to object to the prosecutor's comments on inadmissible evidence on a material issue, thereby depriving petitioner of a fair trial. (See id.)
The People filed an opposition memorandum on August 4, 2008, in which they argued that none of petitioner's claims were valid. (See People's Direct Appeal Response, ECF No. 23-6, ECF pp. 49-104, at 1-4.) According to the People's brief, fifteenof the seventeen claims raised by petitioner, including all claims relating to the prosecution's opening and ten of the fifteen claims relating to the prosecution's closing, were not preserved for appellate review, and the remaining claims were meritless. (Id. at 1-4, 20-23.) Petitioner, again through counsel, filed a reply brief on August 11, 2008.
On February 10, 2009, a unanimous panel of the Appellate Division affirmed petitioner's conviction. See generally People v. Morrison, 873 N.Y.S.2d 159 (N.Y. App. Div. 2009). As relevant to petitioner's habeas corpus claims, the Appellate Division concluded that petitioner's Id. at 160 (citations omitted). The Appellate Division added that "[i]n any event, the challenged remarks either were fair comment on the evidence, permissible rhetorical comment, or responsive to defense counsel's summation." Id. (citations omitted).
On April 9, 2009, petitioner, again through counsel, sought leave to appeal the Appellate Division's decision to the Court of Appeals of New York. (See Letter Requesting Leave to Appeal, ECF No. 23-6, ECF pp. 130-31.)2 Petitioner also submitted a pro se letter in support of his application for leave to appeal. (See Letter to Court of Appeals, ECF No. 23-6, ECF pp. 132-34.) The People filed a letter opposing petitioner's application. (See Letter to Court of Appeals, ECF No. 23-6, ECF p. 135, and ECF No. 23-7, ECF pp. 1-2.) On June 5, 2009, the Court of Appeals denied petitioner's request for leave to appeal. People v. Morrison, 912 N.E.2d 1080 (N.Y. 2009).
On August 23, 2010, petitioner, proceeding pro se, filed a motion to vacate his judgment of conviction pursuant to section 440.10 of the New York Criminal Procedure Law ("section 440") in the Supreme Court of New York, Queens County. (See Section 440 Motion, ECF No. 23-7, ECF pp. 5-6.) In support of his section 440 motion, petitioner filed an affidavit and numerous exhibits, consisting primarily of transcripts of proceedings before the trial court. Petitioner's section 440 motion sought relief on numerous grounds and, as relevant here, raised previously unasserted claims that petitioner's rights under the confrontation clause of the Sixth Amendment to the United States Constitution and under People v. Antommarchi, 604 N.E.2d 95 (N.Y. 1992), had been violated. (See Section 440 Aff. at 7-9, 11-13.) Petitioner also raised ineffective assistance of counsel claims on different grounds than those he raised in his direct appeal. (Id. at 25-29.)
The People filed their opposition to the section 440 motion on September 24, 2010 (see Affidavit in Opposition to Section 440 Motion, ECF No. 23-7, ECF pp. 124-39), and petitioner filed an undated reply. (See Reply in Support of Section 440 Motion, ECF No. 23-7, ECF pp. 140-42.) On October 21, 2010, the New York Supreme Court, Queens County, denied petitioner's section 440 motion in an order (ECF No. 23-7, ECF p. 143) and accompanying memorandum opinion. (Memorandum Denying Section 440 Motion ("440 Denial"), ECF No. 23-7, ECF pp. 144-153.) The memorandum opinion concluded, in relevant part, that petitioner's confrontation clause and Antommarchi claims, and a portion of his ineffective assistance of counsel claim, were procedurally barred, as petitioner had not raised them ondirect appeal and had provided no justification for this failure. (440 Denial at 6-7.)
Petitioner subsequently sought, and on July 6, 2011, was denied, leave to appeal the denial of his section 440 motion to the Appellate Division. (See, e.g., Notice of Motion for Leave to Appeal, ECF No. 23-7, ECF p. 155; Order Denying Leave to Appeal, ECF No. 23-8, ECF p. 17.) The instant petition for relief pursuant to 28 U.S.C. § 2254 followed.
A writ of habeas corpus filed by an individual in state custody is governed by, inter alia, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Section 2254 of AEDPA provides that a district court shall issue a writ of habeas corpus for an individual in state custody "only on the ground that he is in custody in violation of the Constitution or law or treaties of the United States." 28 U.S.C. § 2254(a). Section 2244 provides that a one-year statute of limitations applies to "an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a ...
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