Parrish v. Lee
| Decision Date | 18 November 2015 |
| Docket Number | Case No. 10-CV-8708 (KMK) |
| Parties | REGINALD B. PARRISH, Petitioner, v. WILLIAM LEE, Superintendent, Green Haven Correctional Facility, Respondent. |
| Court | U.S. District Court — Southern District of New York |
Appearances:
Reginald B. Parrish
Stormville, NY
Pro se Petitioner
John James Sergi, Esq.
Westchester County District Attorney's Office
White Plains, NY
Pro se Petitioner Reginald B. Parrish ("Petitioner") filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his conviction in state court. Magistrate Judge George A. Yanthis issued a Report and Recommendation ("R&R"), recommending that the Court dismiss the Petition. Petitioner and Respondent timely filed objections to the R&R. For the reasons stated herein, the Court adopts the R&R to the extent it is consistent with this Order and dismisses the Petition.
On December 22, 2004, sixteen-year-old Robert Roderick, Jr. was abducted by four men, who took him to the Yonkers waterfront, and slit his throat. (See Mem. of Law ("Resp.'s Mem.") 2 (Dkt. No. 19); Resp.'s Mem. Ex. 3 (Aff. in Opp'n) 2 (Dkt. No. 34).)1 Roderick ultimately survived the attack. (See Resp.'s Mem. Ex. 3 (Aff. in Opp'n) 2-4.)
Yonkers Police Department Detective Victor Mendez was assigned to investigate the assault. (Resp.'s Mem. Ex. 7 (Decision & Order) 1.) On January 25, 2005, Detective Mendez went to a private residence where he spoke to a woman who told him that Petitioner was not home. (Id. at 2.) On the same day, Detective Mendez went to 170 or 172 South Broadway, Yonkers, NY, "based upon information he had been given that [Petitioner's] girlfriend . . . lived at this address," but he "did not find anyone there by that name." (Id. at 2-3.) Detective Mendez returned to the first residence on January 28, 2005 and February 12, 2005, but did not find Petitioner. (See id. at 3.)
On April 20, 2005, a felony complaint was filed against Petitioner, (id.), and on April 27, 2005, Police Officer Mark Carozza received an arrest warrant for Petitioner, (see id. at 5, 7). Officer Carozza logged the information about Petitioner into the Yonkers Police Department's computer system, which is linked to nationwide and statewide law enforcement databases. (Id.) On May 11, 2005, June 7, 2005, and June 22, 2005, the Yonkers Police Department's warrantsquad returned to 4 Waring Row, Petitioner's last known address, but there was no answer. (Id. at 8.) On October 4, 2005, the warrant squad returned to the location and spoke with a woman identified as Petitioner's mother, who said that she was unaware of her son's whereabouts. (Id.) Members of the warrant squad returned to 4 Waring Row on January 11, 2006, and again spoke with the woman who stated she did not know her son's whereabouts but would call them when she had such information. (Id.) On April 24, 2006, Petitioner was placed on the Yonkers Police Department's "Most Wanted" website. (Id.) On June 29, 2006, the warrant squad received information that Petitioner had been arrested in Jacksonville, Florida, and finally was extradited to Westchester County on July 12, 2006. (Id.) Petitioner was arraigned on July 13, 2006. (Resp.'s Mem. Ex. 3 (Suppl. Aff. in Opp'n) 2-3.)
On September 6, 2006, Petitioner was charged, under Grand Jury Indictment No. 05-0485, with one count of attempted murder in the second degree, one count of gang assault in the first degree, four counts of assault in the first degree, four counts of criminal possession of a weapon in the third degree, and four counts of criminal possession of a weapon in the fourth degree. (See Resp.'s Mem. Ex. 1 (Indictment); Resp.'s Mem. Ex. 3 (Aff. in Opp'n) 5.) Petitioner was arraigned on the Indictment on September 14, 2006. (Resp.'s Mem. Ex. 3 (Aff. in Opp'n) 5.)
On May 3, 2007, Petitioner was convicted by a jury of attempted murder in the second degree, gang assault in the first degree, and two counts of assault in the first degree. People v. Parrish, 898 N.Y.S.2d 551, 552 (App. Div. 2010). He was sentenced as a second felony offender to concurrent determinate terms of imprisonment of 22 years for attempted murder, 20 years on each of the remaining charges, to be followed by a term of five years of supervised release. (See Resp.'s Mem. Ex. 9 (Decision & Order) 1.)
Before trial, Petitioner sought relief from the trial court, including dismissal of the Indictment for a violation to his right to a speedy trial. (See Resp.'s Mem. Ex. 2 (Motion), at 2 ().) The trial court conducted a five-day hearing on that motion, as well as the other pending pre-trial matters, after which the judge concluded that dismissal was not warranted. (See Resp.'s Ex. 4 (Decision & Order), at 3 (); Tr. of Hearings Before Trial (Indictment No. 485-2005) (Feb. 8, 2007, Feb. 9, 2007, Feb. 15, 2007, Feb. 27, 2007, Feb. 28, 2007); Resp.'s Mem. Ex. 7 (Decision & Order), at 1, 20-21 ().) During trial, Petitioner also objected to the portion of the jury charge dealing with consciousness of guilt. (Resp.'s Mem. Ex. 10 (Pet'r's Appellate Brief), at 17; Trial Tr. at 614-20 (Indictment No. 485/05).)
Petitioner appealed his conviction to the Appellate Division, Second Department on the following grounds: (1) "the evidence was legally insufficient to support [P]etitioner's conviction and the verdict was against the weight of the evidence;" (2) "[P]etitioner was denied a fair trial because the trial court erroneously instructed the jury with regard to avoidance of arrest (flight) and consciousness of guilt;" and (3) "the trial court erroneously denied [P]etitioner's speedy trialmotion to dismiss the indictment." (R&R 3 (Dkt. No. 23); see also Resp.'s Mem. Ex. 10 (Pet'r's Appellate Brief).) Petitioner's conviction was affirmed on the merits on March 2, 2010. See People v. Parrish, 898 N.Y.S.2d 551, 552 (App. Div. 2010).
On March 30, 2010, Petitioner sought leave to appeal to the New York Court of Appeals. (See Resp.'s Mem. Ex. 13, at 1.) This leave application will be discussed in detail below. The New York Court of Appeals denied Petitioner's application for leave to appeal on May 26, 2010. See People v. Parrish, 929 N.E.2d 1014 (N.Y. 2010).
On November 18, 2010, Petitioner filed the instant Petition. (Dkt. No. 1.) Thereafter, Petitioner filed a petition for writ of error coram nobis in state court and, on his request, Judge Yanthis stayed the habeas Petition until the state court decided the coram nobis petition. (Dkt. No. 13.) Petitioner's petition for writ of error coram nobis was denied by the Appellate Division on April 5, 2011. See People v. Parrish, 919 N.Y.S.2d 896 (App. Div. 2011). Petitioner sought leave to appeal by letter dated April 29, 2011, and, on May 17, 2011, he was informed that his application was incomplete; Petitioner then sought to withdraw his application for leave to appeal, but was informed on September 1, 2011 that because his application had never been completed there was nothing to withdraw. (See Resp.'s Ex. 16 ().) On July 7, 2011, the stay of the habeas Petition was lifted. (Dkt. No. 34.) Respondent submitted his opposition to the Petition (Dkt. Nos. 17-19), and Petitioner submitted papers in support, (Dkt. No. 24). On August 20, 2013, Judge Yanthis issued the R&R recommending dismissal of the Petition, (Dkt. No. 23), to which both Petitioner and Respondent timely objected, (Dkt. Nos. 27-28).2 Finally,by letter dated October 1, 2015, Petitioner requested the Court's assistance in obtaining certain documents that Petitioner believed would help his case. (See Dkt. No. 35.)3
Petitioner raised three arguments in the instant Petition, which are the same as those set forth on direct appeal to the Appellate Division. In fact, the Petition's argument section is merely the table of contents from Petitioner's brief to the Appellate Division. (Compare Pet. at unnumbered 4 (Dkt. No. 1) with Resp.'s Mem. Ex. 10 (Pet'r's Appellate Brief).) Again, Petitioner's arguments are that (1) the evidence was legally insufficient to support Petitioner's conviction and the verdict was against the weight of the evidence, (2) Petitioner was denied a fair trial because the trial court erroneously instructed the jury with regard to avoidance of arrest and consciousness of guilt, and (3) the trial court erroneously denied his motion to dismiss the indictment on speedy trial grounds. (Pet. at unnumbered 4; R&R 4.)
Judge Yanthis recommended that the Court deny the Petition in its entirety. (R&R 14.) He recommended that the Court deny the first two claims—the insufficient evidence claim and the jury charge claim—as unexhausted but procedurally barred, (id. 5-7), and that the Court deny the third claim—the speedy trial claim—on the merits, (id. 9-14). With respect to the speedy trial claim, Judge Yanthis found that the length of the delay, the reason for the delay, and Petitioner's assertion of his right to a speedy trial weighed in favor of Petitioner; however, he held that because there was no prejudice, the state...
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