Nevins v. Giambruno

• Decision Date: 29 January 2009
• Docket Number: No. 07-CV-00161(VEB).,07-CV-00161(VEB).
• Citation: 596 F.Supp.2d 728
• Parties: Nathan NEVINS, Petitioner, v. Michael GIAMBRUNO, Respondent.
• Court: U.S. District Court — Western District of New York

596 F.Supp.2d 728

Nathan NEVINS, Petitioner, v. Michael GIAMBRUNO, Respondent.

No. 07-CV-00161(VEB).

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

January 29, 2009.

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Nathan Nevins, Sonyea, NY, pro se.

Donna A. Milling, Buffalo, NY, for Respondent.

DECISION AND ORDER

VICTOR E. BIANCHINI, United States Magistrate Judge.

I. Introduction

Pro se petitioner Nathan Nevins ("Nevins" or "petitioner") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the basis that his 2004 state-court conviction for drug-related offenses was unconstitutionally obtained. (Docket No. 1). Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to disposition of this matter by a magistrate judge.

II. Factual Background and Procedural History

The conviction here at issue was entered on January 28, 2004, in Erie County Court (DiTullio, J.). By Erie County Indictment No. 2002-1314-001, Nevins was charged with two counts of Criminal Possession of a Controlled Substance in the Third Degree (N.Y. Penal Law § 220.16(1), (12)), Resisting Arrest (N.Y. Penal Law § 205.30), Criminal Mischief in the Fourth Degree (N.Y. Penal Law § 145.00(3)), Vehicle and Traffic Law § 1129(c)(3) and Vehicle and Traffic Law § 1172(a).

Specifically, the indictment alleged that Nevins "on or about the 22nd day of May, 2002 ... knowingly and unlawfully possessed cocaine ... with an aggregate weight of one-half (½) ounce or more." Buffalo Police Officers Jerry Guilian and José Colon were on patrol on the afternoon of May 22, 2002, when their attention was drawn to a grey, four-door Pontiac on Howard and Emslie Streets. Nevins was in the driver's seat. According to the officers, he was not wearing a seat belt. When Nevins pulled in front of the police car on Emslie and turned left on Oneida, Guilian activated his siren and attempted to pull his vehicle over. At that point, petitioner pulled over momentarily. The officers were half-way to the Pontiac when Nevins "sped away." T.306.¹

As the officers followed Nevins' car down Oneida Street, Guilian saw Nevins throw a "plastic bag with a whitish yellow clay like substance" out of the driver's side window of his car. T.306-07. The bag "hit the asphalt, bounced on to the grass and landed next to a utility pole." T.309. The Pontiac driven by Nevins was about 30 feet in front of Guilian at the time he observed the bag fly out the window, and nothing was obstructing his view. T.308. Guilian said that all the way down Oneida Street, petitioner continued to throw drugs out the window. T.309. When he got to Oneida and Smith, petitioner ran stop sign, turning left onto Smith and left again onto Howard. T.310.

During the chase, Guilian kept petitioner's car in sight. T.311. At the intersection of Broadway and Herman, other police cars joined the pursuit. Officer John Simonian positioned his car to the left of petitioner's car while two other police cars placed themselves in front of and behind the Pontiac. T.475. One car was able to block Nevins' path. T.313. Nevins attempted a U-turn, struck a police car, and skidded into Simonian's parked car, which sustained damage to the right front bumper cover, the right marker light, and the front fender, in the amount of $570. T.500, 502.

As Guilian approached Nevins' car he noted that Nevins was the sole occupant. T.318, 364. After Nevins was arrested, a search of the vehicle yielded $675 in cash. Guilian then returned to Oneida Street where he had seen petitioner throwing bags out the window. Near the utility pole, Guilian found a sandwich baggie containing five, individually packaged "eight balls" of cocaine. T.330.

An off-duty New York State Trooper, Clyde Bohanna, happened to be in the driveway of his home on 64 Oneida Street on May 22nd and observed the police chasing Nevins. As Bohanna was taking packages out his car, his attention was drawn to Oneida and Emslie, where a police car with its overhead lights on had pulled over a vehicle. T.371-72. Bohanna then heard the screech of tires as both cars came down Oneida towards him. T.372. Bohanna saw a hand reach out of the driver's side window of the car under pursuit. An item was thrown from the car; it bounced on the ground in front of his house and landed by the curb in front of his neighbor's house at 70 Oneida. T.373, 375. Bohanna saw both cars then go through the stop sign at Smith and Oneida. T.374, 377.

Bohanna described the item discarded by the driver of the Pontiac as a "yellow/brown colored solid substance," wrapped in plastic Saran wrap. T.373, 375. One of the packages had opened upon striking the ground and had broken into several smaller pieces. The remaining two packages were intact. T.373. Buffalo Police Officers David Cieply and Robert Sheridan recovered several "small white rocks" near the curb. T.402-03, 417. Forensic chemical analysis revealed that the substance was cocaine base and that the combined weight of the three packages was 26.498 grams (0.934 ounces). T.524-26.

The defense presented three witnesses. JoAnne Lott was on her porch at 238 Emslie Street on May 22nd when Nevins drove past her house, waving as he went by. T.553, 555, 557. Belinda Jones, petitioner's cousin, lived next door to Lott and was sitting with Lott on the porch. T.561, 555. Lott testified that she "thought" she saw someone in the rear driver's side seat of Nevins' car. T.557, 580. Seconds later, Lott said, a police car drove by. It did not have its siren or lights activated, and it did not appear to be chasing Nevins' car. T.557. Lott did not observe Nevins throw anything from his car. T.579.

Defense witness Annie Smith was walking down Smith Street on May 22nd when she heard the "screech" of a car coming down Oneida. T.588. Smith said that the car was not going fast, however. She did see it go through the stop sign at Oneida and Smith and turn left onto Smith. Smith saw a man jump out of the car and run through a nearby field. T.588. Smith did not observe any police cars in the area where she saw the man jump out of the car. T.590.

Angela Smith, a friend of petitioner's since childhood, was on her porch at 11 Oneida when petitioner drove by on May 22nd. Angela said that Nevins had a passenger in the backseat of his car. Angela recognized the passenger but refused to reveal his name. T.633. Angela did not see anything being thrown from Nevins' car. Nor did she see Nevins' car make any stops between Howard and Oneida. T.663, 674. Although she observed a police car about half a block behind Nevins' car, it did not have its siren or lights on. T.659-60.

Stanley Roberts, petitioner's mechanic, was a "good friend" of petitioner's. He had last serviced Nevins' car in February or March 2002, at which time he discovered that the door lock on the front passenger-side door was frozen, preventing the door from being opened. T.679-83.

Alberta Hooker, who did not know Nevins, was on her front porch at 68 Herman when she saw a car drive by. T.685-86. About half a block away, Hooker saw a police car with its lights and siren activated, but she did not think it was chasing petitioner. T.687. Hooker went inside her house and when she came back out, she saw that the police had surrounded petitioner's car and that he was standing outside the car. T.687.

Anthony Moore, who knew petitioner from the neighborhood, testified for the defense that he had been walking up Emslie on May 22nd and had "flagged" petitioner down. Nevins pulled over and Moore got into the backseat behind Nevins because he knew that the front passenger's-side door was broken. T.609-10. As Nevins turned left from Emslie onto Oneida, Moore observed a police car behind them. T.611. Then, at Lord at Bond streets, Moore threw some drugs out of the driver's-side window and jumped out of the car as Nevins turned onto Smith. T.611. Moore did not come forward earlier because he believed that "nothing would come of it and he wanted to see what would happen." T.612. Moore recalled that he agreed to give a statement because the drugs were his and he threw them out the car window. T.612. Moore acknowledged that he knew he could be criminally charged based on the testimony he provided at Nevins' trial. T.612.

On cross-examination, Moore testified that when he had gotten into Nevins' car, he (Moore) had three "eight balls" of crack cocaine in various sizes in a baggie which was not fastened or tied. T.614, 619-20. When he turned his head to look through the rear window of Nevins' car, and first saw the police car, it did not have its lights or siren on. T.627, 632. Moore jumped out of Nevins' car when it stopped at Smith and Oneida. According to Moore, the police did not pull petitioner over. T.628, 631-33.

In charging the jury under the first count of the indictment, the trial court stated, "Possess means to have physical possession or otherwise to exercise dominion and control over tangible property." T.794. Defense counsel did not object to this aspect of the charge. T.809. On the second day of deliberations, the jury sent the court a note (Court Exhibit 7), requesting "clarification of the fact that possession consists of knowingly having contraband in a vehicle, or does it necessarily have to be on the person owned [sic] by the driver." T.830. The trial judge consulted with both attorneys, and it was agreed that the judge would ask the jury if their question was either (1) "How can a person possess contraband generally, whether that being on the person or constructively?" or (2) "Is a person responsible for possession of another that happens to be in the car?" T.830. The trial judge then advised counsel that if the jury answered in the affirmative to question one, she would read them the constructive possession charge. T.831. Defense counsel objected, arguing that Nevins had not been indicted on a constructive possession theory, and that he had never been afforded notice that he...