Morrow v. Capra
| Decision Date | 31 March 2022 |
| Docket Number | 18-CV-5765 (AMD) (LB) |
| Parties | NEB MORROW, III, Petitioner, v. MICHAEL CAPRA, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
The pro se petitioner, currently incarcerated at Sing Sing Correctional Facility, petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petitioner was convicted after a jury trial of first-degree robbery, and sentenced to an indeterminate prison term of 21 years to life.[1] The petitioner represented himself at trial, but argues that the lawyers who represented him before trial and on his appeal were ineffective, and that the trial judge should have appointed different standby counsel. (ECF No. 1 at 5-38.) He also argues that he was deprived of his right to testify before the grand jury, and faults the trial court's decision not to dismiss the indictment on that basis. (Id. at 38-39.) In addition, the petitioner claims that the prosecutor concealed exculpatory evidence and that the trial prosecutors, police officers and his defense counsel conspired to convict him. (Id. at 40-48.) For the reasons that follow, the petition is denied.
FACTUAL BACKGROUND[2]
On October 13, 2009, the petitioner robbed a Brooklyn McDonald's at gunpoint. Employees followed him as he left the restaurant, and police officers arrested him shortly thereafter. The petitioner was charged with Robbery in the First Degree and related charges. (ECF No. 14 at 3.)
The petitioner represented himself at a jury trial before the Honorable Joel M. Goldberg. The jury convicted the petitioner of first-degree robbery, and he was sentenced as a persistent violent felony offender to an indeterminate prison term of 21 years to life. The Appellate Division affirmed the judgment of conviction, and the Court of Appeals denied the petitioner's application for leave to appeal. People v. Morrow, 143 A.D.3d 919 (2d Dep't 2016); People v. Morrow, 28 N.Y.3d 1148 (2017).
At his arraignment in November of 2009, the petitioner argued that he was deprived of his right to appear before the grand jury pursuant to New York Criminal Procedure Law (“C.P.L.”) § 190.50.[3] (ECF No. 1 at 6; ECF No. 14-5 at 36.) Specifically, he claimed that before his arraignment, his assigned counsel, Clinton Hughes, waived his right to testify before the grand jury, against his wishes. (Id.) The Honorable Patricia DiMango appointed David Jacobs to represent the petitioner; he adopted the petitioner's pro se motion, and moved to dismiss the indictment pursuant to C.P.L. § 190.50. (ECF No. 14-5 at 36-37.) The Honorable John P. Walsh denied that motion. (Aug. 19, 2010 P. Tr. 11-12.)[4] The petitioner claims that he did not learn about the motion, or that it was denied, until January 22, 2010. (ECF No. 1 at 7.)
In a January 27, 2010 letter addressed to Judge Walsh, the petitioner said that he wanted to represent himself, explaining that Mr. Jacobs did not contact him before filing the C.P.L. § 190.50 motion. (ECF No. 8 at 9.) He also said that he planned to “file a habeas corpus to challenge [Judge Walsh's] decision and order of January 22, 2010 as unconstitutional.” (Id. at 9.) On February 11, 2010, the petitioner filed a pro se habeas petition arguing that his right to testify before the grand jury was violated, and that he was denied the effective assistance of counsel. (ECF No. 8 at 13-24; ECF No. 1 at 8.) Judge Walsh denied the petition in March of 2010. (Nov. 15, 2010 P. Tr. 11-12.) The petitioner asserts that Judge Walsh denied the writ because the petitioner was in federal custody at the time. (Nov. 15, 2010 P. Tr. 5; see also ECF No. 1 at 10.)[5]
At a pretrial proceeding before Judge Goldberg on November 12, 2010, the petitioner resubmitted the habeas petition. (Nov. 12, 2010 P. Tr. 3-4.) He reasserted his claims about the grand jury, and claimed that both of his lawyers were ineffective: the first for waiving the petitioner's right to testify before the grand jury, and the second for filing a “boiler-plate, un-researched” motion to dismiss without consulting him. (ECF No. 8 at 31-53.) The petitioner asked the court to dismiss the indictment, and to permit him to testify before a new grand jury, which he explained would “place[] [him] in the same position that [he] was in before the constitutional violated occurred.” (Nov. 15, 2010 P. Tr. 6; see also ECF No. 8 at 51.)
Judge Goldberg denied the petition. (Nov. 15, 2010 P. Tr. 7; ECF No. 1 at 13.) Judge Walsh, a judge of coordinate jurisdiction, denied the petitioner's grand jury claim, and Judge Goldberg explained that he was “not really allowed to review the decision made by another judge.” (Nov. 15, 2010 P. Tr. 12-13.) Nevertheless, Judge Goldberg permitted the petitioner to “make a record, ” explaining, “If you are convicted, that's something that has to be raised on appeal.” (Id.) The petitioner responded that his lawyer raised the grand jury claim, and “[t]hat's what the writ is about.” (Nov. 15, 2010 P. Tr. 13.)
On August 19, 2010, the petitioner said he wanted to represent himself at trial. (Aug. 19, 2010 P. Tr. 2.) Judge Goldberg conducted an inquiry “so the record shows that it's a voluntary decision, ” and to ensure that the petitioner was “aware of the risks of self-representation, ” and “prepared to conduct [himself] properly.” (Aug. 19, 2010 P. Tr. 6-7.) In response to the court's questions, the petitioner confirmed that he could read, write, speak and understand English, that he had not been treated for mental illness, that he went to college for one semester, and that he had prior work experience. (Aug. 19, 2010 P. Tr. 7-8.) The petitioner also confirmed that he had enough time to consider whether he wanted to represent himself, and that his decision was voluntary. (Id.) Judge Goldberg noted that the petitioner had also represented himself in his federal trial, and described general differences between state and federal trials. (Aug. 19, 2010 P. Tr. 7, 8, 10.) The petitioner said that he understood the trial procedures and legal terms when he represented himself in federal court. (Aug. 19, 2010 P. Tr. 14.)
Judge Goldberg asked if the petitioner was seeking to represent himself because he was dissatisfied with his counsel or because he wanted to represent himself. (Aug. 19, 2010 P. Tr. 10.) The petitioner answered, “Both, actually, Your Honor.” (Id.) Observing that the record should not be made to appear that the petitioner was “being forced to represent [himself] because [he] didn't like [his] attorney, ” Judge Goldberg asked some additional questions, including about the lawyers in his federal case. (Aug. 19, 2010 P. Tr. 10-11.) Judge Goldberg advised the petitioner that “most defendants who represent themselves are not successful” (Aug. 19, 2010 P. Tr. 12), and warned him of the various risks associated with self-representation, which the petitioner said he understood. (Aug. 19, 2010 P. Tr. 12-15.) At that point, Judge Goldberg ruled that the petitioner could represent himself (Aug. 19, 2010 P. Tr. 15-16), and appointed Mr. Jacobs to serve as a “standby counsel, ” in the event that the petitioner needed assistance. (Aug. 19, 2010 P. Tr. 13.)
On September 22, 2010, the petitioner complained about Mr. Jacobs's earlier representation, and asked the court to appoint him a new standby counsel. (Sept. 22, 2010 P. Tr. 7, 10.) Judge Goldberg denied the request, explaining that the petitioner was representing himself, that “Mr. Jacobs is in the background, ” and that, in any event, “substitut[ing] someone else . . . at this point . . . might wind up delaying the trial.” (Sept. 22, 2010 P. Tr. 11.)
The petitioner also told Judge Goldberg that he had not “received any paperwork in this matter.”[6] (Aug. 19, 2010 P. Tr. 8-9.) Although Mr. Jacobs was “pretty sure” that he had given the petitioner a copy of the indictment and the “open file” discovery, which included the grand jury witness testimony (Aug. 19, 2010 P. Tr. 9), he said that he would give the petitioner another copy. (Id.)
The Assistant District Attorney (“ADA”), Hillary Schaeffer, represented that she had given the petitioner's defense counsel two sets of documents: the open file discovery on March 11, 2010, and additional material on July 19, 2010, including “a 911 disc” and “surveillance video from the event.” (Aug. 19, 2010 P. Tr. 16-17.) Mr. Jacobs repeated that he was “pretty sure” that the petitioner had these materials:
Jury selection began on November 15, 2010. Judge Goldberg gave standard introductory remarks to the prospective jurors, and outlined the expected schedule for the trial. (Nov. 15, 2010 P. Tr. 33-34.) He also addressed whether prospective jurors could be excused, and described the “hardships” that might qualify as excuses:
[I]t's an inconvenience for all of you to be here. But for some of you, it may be a hardship because you have a family obligation or a business commitment. I'm not talking about a hardship to your employer. I'm sure it is a...
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