Robinson v. Smith

• Decision Date: 17 May 2011
• Docket Number: 09 Civ. 8222 (GBD) (AJP)
• Parties: MALIK ROBINSON, Petitioner, v. SUPERINTENDENT J. T. SMITH, Respondent.
• Court: U.S. District Court — Southern District of New York

MALIK ROBINSON, Petitioner,
v.
SUPERINTENDENT J. T. SMITH, Respondent.

09 Civ. 8222 (GBD) (AJP)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

May 17, 2011

REPORT AND RECOMMENDATION

ANDREW J. PECK, United States Magistrate Judge:

To the Honorable George B. Daniels, United States District Judge:

Pro se petitioner Malik Robinson seeks a writ of habeas corpus from his October 28, 2002 conviction in Supreme Court, New York County, for second degree murder, second degree attempted murder and first degree assault and sentences of twenty-five years to life imprisonment on the murder count to run consecutively with concurrent fifteen years sentences on the other counts. (Dkt. No. 1: Pet. ¶¶ 1-5.)

Robinson's habeas petition asserts that: (1) the trial court erred in denying his Batson claim after the prosecutor struck "an [A]fican [A]merican male prospective juror based on the pretextual reasons that he wanted [a] more [e]ducated [j]ury and was uncomfortable with the prospective juror[']s demeanor" (Pet. ¶ 12(A)); (2) the trial court deprived Robinson of a fair trial by including "[c]oercive language in its Allen charge" and "charging the jury to [c]onsider [a]n [u]nindicted [c]ase theory" (Pet. ¶ 12(B)); (3) the jury's verdict was repugnant because it convicted

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Robinson of "[a]ssault with a [d]eadly [w]eapon" but acquitted him of weapons possession (Pet. ¶ 12(C)); and (4) Robinson's sentence was excessive (Pet. ¶ 12(D)).

For the reasons set forth below, Robinson's habeas corpus petition should be DENIED.

FACTS

On the night of August 2, 2000, Malik Robinson shot Victor Rivera and Samuel Vazquez on a Manhattan street, killing Rivera and seriously injuring Vazquez. (Dkt. No. 11: State App'x Ex. A: Robinson 1st Dep't Br. at 10-16; State App'x Ex. B: State 1st Dep't Br. at 1-3.) Robinson was tried in September-October 2002 before Justice Rosalyn Richter and a jury. (Robinson 1st Dep't Br. at 7; State 1st Dep't Br. at 3.)

Voir Dire

Jury selection started on September 23, 2002, and seven jurors were picked within the first three rounds. (Dkt. No. 8: Voir Dire Transcript ("VD") 1, 226.) During the fourth round, prospective juror Robert Stuckey stated that he was unemployed and that his uncle stabbed someone in "self-defense" seven years ago but was convicted and went to jail. (VD 261, 270-71). While Stuckey expressed his feelings that his uncle was not treated fairly by the court system, he gave assurances that those feelings would not affect him as a juror. (VD 271-72.) Nevertheless, the prosecutor, A.D.A. David Drucker, used a peremptory challenge to remove Stuckey from the jury panel. (VD 302.) By the end of the fourth round ten jurors were selected. (VD 307; Dkt. No. 11: State App'x Ex. A: Robinson 1st Dep't Br. at 4; State App'x Ex. B: State 1st Dep't Br. at 23.)

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During the fifth round, prospective juror Vincent Mallard stated that he was single, worked as a stock clerk in a factory and lived with his mother who was a city clerk. (VD 312, 330.) In response to the prosecutor's follow-up questions, Mallard stated that the factory manufactured strainers and that he had been going to church lately. (VD 321.) Mallard assured defense counsel that he had no issues "serving as a juror in this particular type of case." (VD 330.) A.D.A. Drucker used a peremptory challenge to remove Mallard. (VD 337.)

After the prosecutor used a peremptory challenge to remove a prospective juror that defense counsel thought was African American,¹ defense counsel raised a Batson claim alleging that the prosecutor "has struck every male black juror eligible to be picked off the last four rounds." (VD 338-39.) Reviewing her notes, Justice Richter found that Stuckey and Mallard were the first two African-American males who were eligible for a peremptory challenge as all the others had been "excused for cause." (VD 339-40.) The prosecutor argued there was no Batson violation since there were three African American females on the jury and "there's no known category of black males." (VD 340-41.) Justice Richter rejected this argument, noting that Batson applied to peremptory challenges based on a combination of gender and race. (VD 341.)

Justice Richter found that defense counsel had made a prima facie showing of discrimination under Batson and asked the prosecutor if he wanted to "offer race neutral reasons" for the peremptory challenges to Stuckey and Mallard. (VD 341-42.) The prosecutor noted that

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Stuckey "mentioned his uncle he thought was wrongly convicted, not treated fairly by the court system. He was unemployed. He was about an inch away from a cause challenge, frankly." (VD 342.)

As to Mallard, the prosecutor stated:

Mr. Mallard was a blue collar worker. I noticed this jury, which [defense] counsel has taken a big part in, has no white collar jurors. I am looking for some white collar workers. Mr. Mallard did not fit that. That's what I am trying to get. Lived alone with his mother. I didn't get a good sense of his courtroom demeanor.

(VD 342-43.)² Defense counsel acknowledged that the prosecutor's basis for challenging Stuckey

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was race neutral, but argued that he "didn't hear anything that was sufficiently race neutral" regarding Mallard. (VD 343.)

Justice Richter rejected defense counsel's Batson challenge, ruling "these reasons are race neutral and are not a pretextual excuse for race discrimination." (VD 344.) Specifically, Justice Richter found that:

Having observed Mr. Mallard, he did seem to be having a little bit of trouble with the questions. I think the People's description of not getting a good read from him, he was a bit hesitant, a bit reticent. In a case like this, which may involve multiple counts, the People's wish to have some educational diversity is perfectly understandable, and the challenges stand.

(VD 344.)³

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The Trial

On September 25, 2002, Robinson proceeded to a jury trial before Justice Richter. (Dkt. Nos. 7 & 10: Trial Transcript ("Tr.") 1.)⁴

The Prosecution Case

Samuel Vazquez grew up in Spanish Harlem and had been friends with Victor Rivera since junior high school. (Dkt. No. 11: State App'x Ex. A: Robinson 1st Dep't Br. at 7.) Years later, they both moved to Massachusetts and sold drugs together. (Id.) While Rivera was incarcerated from 1994 to early 2000 for selling drugs, Vazquez continued selling drugs on his own and came to New York about every other weekend to visit his family. (Id.)

In late July 2000, Vazquez, Rivera and Jose "Miguel" Merced came to New York. (Robinson 1st Dep't Br. at 8.) On the afternoon of August 2, 2000, Vazquez and Rivera met in New York City and rode their motorcycles around the Bronx and Manhattan while Merced and another friend, Johnny Morales, followed them in a van. (Id.) That evening, the group stopped at 104th Street between Madison and Fifth Avenues at a park in the Carver Projects to talk to another friend. (Robinson 1st Dep't Br. at 9.) The group spent five to fifteen minutes at the park before driving to see Vazquez's girlfriend a few blocks away. (Id.) While at the park, Morales thought he saw Robinson behind a gate at the park entrance. (Id.) Vazquez and Robinson had gotten into a fistfight

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a year earlier after Vazquez heard that Robinson had been talking about him. (Robinson 1st Dep't Br. at 10.)

Around 9:00 or 10:00 p.m., Vazquez and Rivera parked their motorcycles at 104th Street and Lexington Avenue and waited for Merced and Morales who were slowed by a red light. (Robinson 1st Dep't Br. at 9-10.) As Vazquez talked to his friend Jose "Flo" Diaz, Vazquez heard gunshots and saw Robinson shooting at him from the middle of the street about thirty feet away. (Robinson 1st Dep't Br. at 8, 10.) Vazquez "put his hand on his stomach and felt blood." (Robinson 1st Dep't Br. at 10.) Robinson "looked over" at Rivera who was standing next to Vazquez and shot him once before running towards Park Avenue. (Id.) Vazquez and Rivera were not carrying guns. (Id.)

Vazquez fell, got back up and saw Rivera lying on the ground. (Robinson 1st Dep't Br. at 10-11.) Vazquez urged Rivera to get up, but Rivera complained that his stomach hurt. (Robinson 1st Dep't Br. at 11.) As Robinson continued shooting at him, Vazquez started "jogging" to Lexington Avenue and hailed a cab to Mt. Sinai Hospital. (Robinson 1st Dep't Br. at 11-12.) Vazquez did not call 911 or wait for Merced and Morales to arrive before leaving the scene. (Robinson 1st Dep't Br. at 11.)

Diaz, who had been shot in his left arm by Robinson, ran over to Rivera, grabbed him and told him to hang on. (Robinson 1st Dep't Br. at 11-13.) Rivera, however, told Diaz that he "was not going to make it." (Robinson 1st Dep't Br. at 12.) While Diaz was holding Rivera, Robinson walked up to Diaz, said "'Flo, just business'" and pulled the trigger, but the gun jammed. (Id.)

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After being stuck at a red light, Merced and Morales stopped to talk to Merced's old girlfriend and went to a store at 103d Street and Lexington Avenue to buy a soda. (Robinson 1st Dep't Br. at 12.) Morales heard gunshots, left the store and after turning the corner saw "[a] lot of people" running down Lexington Avenue from 104th Street. (Id.) When Morales reached 104th Street, he saw Rivera lying on the ground with Diaz next to him. (Robinson 1st Dep't Br. at 13.) Morales and Diaz talked to Rivera as he drifted in and out of consciousness. (Id.)

Police Officers Allen DeLeon and Sean Looney were a few blocks away "when they heard gunshots in the distance." (Robinson 1st Dep't Br. at 13.) Officers DeLeon and Looney arrived at the scene, "pushed through the crowd" and saw Rivera laying unconscious against a gate. (Id.) Officer Looney asked people in the crowd if they had seen anything, but no one responded. (Robinson 1st Dep't Br. at 14.) Officer DeLeon remained at the scene while Officer Looney rode in the ambulance taking Rivera to Metropolitan Hospital. (Id.) Rivera, who had been shot twice, died "of a combination of internal...