Rolling v. Fischer, 05 Civ. 7063(GWG).
| Decision Date | 02 May 2006 |
| Docket Number | No. 05 Civ. 7063(GWG).,05 Civ. 7063(GWG). |
| Citation | 433 F.Supp.2d 336 |
| Parties | Johnny ROLLING, Petitioner v. Brian FISCHER, Respondent. |
| Court | U.S. District Court — Southern District of New York |
Johnny Rolling, Ossining, NY, Pro se.
Johnny Rolling, proceeding pro se, brings this petition for a writ of habeas corpus challenging his April 13, 2000, conviction in the New York State Supreme Court, New York County, for three counts of Robbery in the First Degree (New York Penal Law ("N.Y.P.L.") § 160.15(3)), one count of Robbery in the Second Degree (N.Y.P.L. § 160.10(2)(a)), seven counts of Robbery in the Third Degree (N.Y.P.L. § 160.05), one count of Attempted Robbery in the Second Degree (N.Y.P.L. § 110/160.10(2)(a)), and one count of Attempted Robbery in the Third Degree (N.Y.P.L. § 110/160.05). Rolling was sentenced to an aggregate prison term of 50 years to life, which was modified on appeal to 25 years to life. The parties have consented to the disposition of this case by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons stated below, the petition is denied.
On April 13, 2000, Rolling was convicted, following a jury trial, of robbing or attempting to rob nine different Manhattan nail salons on ten separate occasions between February 4 and April 9, 1998. See T. 1413-16.1 The testimony at trial established that the incidents shared several characteristics, including: (1) the method used by the perpetrator: specifically, entering the salon and indicating he was interested in a manicure, then demanding money from an employee (K.S. Kim: T. 162-64; Jung: T. 186-88; H.W. Kim: T. 260-63; Haa: T. 383-91; Y.R. Choe: T. 426-30; S.K. Kim: T. 458-62; Li: T. 551-54; I.S. Kim: T. 584-89; J.H. Kim: T. 642-46; Henderson: T. 675-78; Kang: T. 976-77); (2) the time of day at which they occurred: between 2:00 and 5:00 p.m.; and (3) the location of the salons: in all cases but one, on the second floor of a building (M.H. Choe: T. 39-42; Lee: T. 95-96; K.S. Kim: T. 161-62; Yoo: T. 212-13; H.W. Kim: T. 257-60; Y.R. Choe: T. 426-27; Li: T. 548-51; I.S. Kim: T. 582-83; J.H. Kim: T. 641-42; Henderson: T. 674-75). In all but three of the incidents, at least one witness identified Rolling at trial as the perpetrator. (M.H. Choe: T. 46; Lee: T. 99-100; Ham: T. 146; S.K. Kim: T. 168; Yoo: T. 222; H.W. Kim: T. 264-65; Haa: T. 394-95; Y.R. Choe: T. 431-32; Raber: T. 627; Johnson: T. 734; Vukaj: T. 1148).
On April 20, 1998, at 4:00 p.m., police officers arrested Rolling at his girlfriend's apartment and brought him to the police station, where he participated in several lineups viewed by witnesses to the salon robberies. (Lanigan: T. 307-12, 313-37). At around 10:00 p.m., Rolling was read his Miranda rights, declined to contact a lawyer, and admitted to committing several of the robberies in order to get drug money. (Lanigan: T. 338-42). He then rode past several of the salons with the officers, making inculpatory statements along the way. (Lanigan: T. 346-64). At around 2:00 a.m. on April 21, Rolling complained of stomach pains, and the police took him to the hospital. (Lanigan: T. 364-65). A doctor determined that Rolling was suffering from heroin withdrawal and gave him 10 milligrams of methadone. (Chiang: T. 909-15). Rolling was subsequently returned to the station house, where he participated in more lineups between 10:30 and 11:00 a.m. In the afternoon, the police asked him to make a videotaped statement, which he refused to do. He was then arraigned. (Lanigan: T. 376-77; Delaney: T. 1187-88).
During the course of the trial, Rolling's parole officer, Tanya Hubbard, testified about the type of clothing Rolling usually wore, and about her contact with police on April 20, 1998 — the day of Rolling's arrest. (Hubbard: T. 869-901).
Rolling presented no evidence in his defense.
The jury convicted Rolling of three counts of Robbery in the First Degree, one count of Robbery in the Second Degree, seven counts of Robbery in the Third Degree, one count of Attempted Robbery in the Second Degree, and one count of Attempted Robbery in the Third Degree. (T. 1413-16). On June 13, 2000, he was sentenced as a persistent violent felony offender to an aggregate term of 50 years to life. (S.23-25).
On October 28, 2002, while his direct appeal was pending, Rolling filed a pro se motion to vacate his conviction pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10. See Notice of Motion to Vacate the Judgment, dated Oct. 2002 . The trial court denied this motion on February 26, 2003, on the ground that the motion raised the identical claims that had been raised on his appeal. See Opinion of Hon. Michael J. Obus, dated Feb. 26, 2003 (reproduced as Ex. D to Opp. Decl.), at 2-3 (citing C.P.L. § 440.10(2)(b)). On June 16, 2003, the Appellate Division granted Rolling leave to appeal this ruling and consolidated it with his direct appeal of the conviction. See Certificate Granting Leave, dated June 16, 2003 (reproduced as Ex. E to Opp. Decl.).
In his direct appeal, Rolling argued through counsel that: (1) he was deprived of due process when the trial court denied his motion to sever the indictment; (2) he was deprived of due process and a fair trial when his parole officer was allowed to identify herself as such during her testimony; (3) his trial counsel was ineffective for failing to object to the parole officer's testimony; and (4) his sentence was harsh and excessive. See Brief for Defendant-Appellant, dated Oct. 2002 (reproduced as Ex. F to Opp. Decl.) ("App.Br."). The Appellate Division affirmed his conviction on January 27, 2004. People v. Rolling, 3 A.D.3d 436, 770 N.Y.S.2d 719 (1st Dep't 2004). The court held that the charges against Rolling were properly joined under C.P.L. §§ 200.20(2)(b) and (c), that Rolling received effective assistance of counsel, that the 440.10 motion was properly denied, and that Rolling's remaining contentions with respect to his parole officer's testimony were unpreserved for review. Id. at 436-47, 770 N.Y.S.2d 719. The court did, however, find that the sentence of 50 years to life was excessive, and directed that all sentences run concurrently rather than consecutively, resulting in a new term of 25 years to life. Id. at 437, 770 N.Y.S.2d 719.
On April 2, 2004, the New York Court of Appeals denied Rolling's application for leave to appeal. People v. Rolling, 2 N.Y.3d 765, 778 N.Y.S.2d 783, 811 N.E.2d 45 (2004).
On September 7, 2004, Rolling filed a petition for a writ of error coram nobis, arguing that his appellate counsel was ineffective for failing to raise the following claims: (1) that trial counsel was ineffective for failing to object to the parole officer's testimony; (2) that Rolling's confession should have been suppressed as the fruit of an illegal arrest; (3) that Rolling was denied a fair trial because of a delay in his arraignment; and (4) that the lineup procedure was suggestive and violated his right to a fair trial. See Memorandum in Support of Motion for a Writ of Error Coram Nobis, dated Aug. 28, 2004 (reproduced as Ex. K to Opp. Decl.) ("Coram Nobis Pet."). The Appellate Division denied this petition without opinion on March 17,. 2005, see Ruling, dated Mar. 17, 2005 (reproduced as Ex. M to Opp. Decl.), and the Court of Appeals denied Rolling's request for leave to appeal, see Certificate Denying Leave, dated July 7, 2005 (reproduced as Ex. O to Opp. Decl.).
Rolling timely submitted the instant petition on July 12, 2005. See Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, filed Aug. 9, 2005 (Docket # 1) ("Petition"). He raises the following grounds for relief: (1) the trial court deprived him of due process by denying his motion to sever the charges in his indictment, see Petition at 5-72; (2) the trial court deprived him of due process by allowing his parole officer to testify and thus make the jury aware of his prior criminal record, see id. at 7-8; (3) the trial court failed to give the jury a limiting instruction about the parole officer's testimony, see id. at 10-12; (4) his trial counsel was ineffective for: failing to object to the parole officer's testimony, failing to request a limiting instruction regarding that testimony, failing to challenge his conviction as the fruit of an illegal arrest, failing to challenge his delayed arraignment, and failing to challenge the police station lineups as improperly suggestive, see id. at 9-13; and (5) his appellate counsel was ineffective for failing to raise the ineffectiveness of his trial counsel based on these failings, see id. at 9-14.
On November 2, 2005, Respondent filed reply papers. See Memorandum of Law in Opposition to Petition for a Writ of Habeas Corpus, filed Nov. 2, 2005 (Docket # 6) ("Resp.Mem."); Opp. Decl. In addition to arguing the merits of Rolling's claims, Respondent contends that Rolling failed to exhaust the claims that his trial counsel was ineffective for failing to seek suppression of his statements to police as the fruit of an illegal arrest and for failing to argue that his arraignment was unnecessarily delayed. See Resp. Mem. at 10.
Rolling submitted additional papers on December 1, 2005. See Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. 2254, dated Dec. 1, 2005 ("Pet.Reply"). Rolling does not title this submission as a reply. Rather, it appears to be an amended version of his petition, restating and expanding on the same claims. It raises no new grounds, and it does not respond directly to Respondent's papers.
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