Taylor v. Kirkpatrick

• Decision Date: 09 August 2018
• Docket Number: 17-cv-2954 (ERK)
• Parties: DEVON TAYLOR, Petitioner, v. SUPERINTENDANT M. KIRKPATRICK, Respondent.
• Court: U.S. District Court — Eastern District of New York

DEVON TAYLOR, Petitioner, v. SUPERINTENDANT M. KIRKPATRICK, Respondent.

17-cv-2954 (ERK)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

August 9, 2018

NOT FOR PUBLICATION

MEMORANDUM & ORDER

Korman, J.:

In the early hours of October 1, 2009, Officer Veerana Ramayya found Petitioner Devon Taylor riding a bike on a sidewalk in Brooklyn. A chase ensued, and at a certain point, Officer Ramayya apparently saw Taylor toss a gun into a sewer. After a jury trial, Taylor was convicted of criminal possession of a weapon in the second degree under N.Y. Penal Law § 265.03(1)(b), for which he was sentenced to sixteen years to life. The Appellate Division affirmed his conviction, see People v. Taylor, 19 N.Y.S.3d 433 (Mem) (2d Dep't 2015), and the Court of Appeals denied leave to appeal, see People v. Taylor, 26 N.Y.3d 1150 (2016).

Taylor now petitions for a writ of habeas corpus under 28 U.S.C. § 2254, asserting four grounds for relief: (1) that the state failed to prove its case beyond a reasonable doubt; (2) that the verdict was against the weight of the evidence; (3) that the prosecutor committed "flagrant misconduct" during summation; and (4) that his trial counsel was ineffective.

DISCUSSION

I observe initially that Taylor's ineffective-assistance claim is partially unexhausted. Although the Appellate Division did not discuss it, Taylor did argue in his brief there, albeit rather fleetingly, that his trial counsel was ineffective for failing to object to prosecutorial misconduct during summation. See Dkt. No. 6-3 at 39. However, in his habeas petition, Taylor has broadened the scope of his ineffective-assistance claim, arguing that his trial counsel was also ineffective for failing to object to supposedly contradictory testimony by one of the prosecution's key witnesses. Thus, Taylor's ineffective-assistance claim with respect to his lawyer's failure to object to contradictory testimony is unexhausted.

Recognizing this problem, Taylor has moved for a stay and abeyance so he can bring his unexhausted claim in state court via a § 440.10 motion. See Dkt. No. 10. In Rhines v. Weber, 544 U.S. 269 (2005), the Supreme Court explained that "it likely would be an abuse of discretion for a district court to deny a stay and to dismiss a mixed petition if the petitioner had good cause for his failure to exhaust, his unexhausted claims are potentially meritorious, and there is no indication that the petitioner engaged in intentionally dilatory litigation tactics." Id. at 278. But Rhines also cautioned that "stay and abeyance should be available only in limited circumstances," adding that "the district court would abuse its discretion if it were to grant [the petitioner] a stay when his unexhausted claims are plainly meritless." Id. at 277. Because I find that all of Taylor's grounds for federal relief—both the exhausted and unexhausted—are plainly meritless, I deny his motion for a stay and abeyance, and I dismiss his petition in its entirety. See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State."); Wesley-Rosa v. Kaplan, 274 F. Supp. 3d 126, 128 (E.D.N.Y. 2017) (explaining that a district court has discretion, when facing a "mixed petition," to "deny the entire petition on the merits" (internal quotation omitted)).

I. The prosecution did not fail to prove its case beyond a reasonable doubt.

Taylor first argues that the prosecution failed to prove its case beyond a reasonable doubt. The Appellate Division rejected this argument both for a procedural reason—the argument wasunpreserved for appellate review—and on the merits. See Taylor, 19 N.Y.S.3d at 433. Because the Appellate Division's procedural ruling, based on N.Y. C.P.L.R. 470.05(2), is an independent and adequate state ground for its decision, Taylor is procedurally barred from raising his sufficiency-of-the-evidence challenge on habeas. See Whitley v. Ercole, 642 F.3d 278, 286-87 (2d Cir. 2011). That the Appellate Division also ruled, alternatively, on the merits does not matter. See Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990) (citing Harris v. Reed, 489 U.S. 255, 264 n.10 (1989)). And while Taylor's procedural default can be excused if he "can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice," Coleman v. Thompson, 501 U.S. 722, 750 (1991), he has not done so here.

Regardless, Taylor's argument fails on the merits. The Supreme Court has made clear that, on federal habeas review, a sufficiency-of-the-evidence claim is "subject to two layers of judicial deference." Coleman v. Johnson, 566 U.S. 650, 651 (2012) (per curiam). First, "viewing the evidence in the light most favorable to the prosecution," Jackson v. Virginia, 443 U.S. 307, 319 (1979), "[a] reviewing court may set aside the jury's verdict on the ground of insufficiency of the evidence only if no rational trier of fact could have agreed with the jury," Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam). And second, "a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court. The federal court instead may do so only if the state court decision was 'objectively unreasonable.'" Id. (quoting Renico v. Lett, 559 U.S. 766, 773 (2010)).

Here, the prosecution presented at least three crucial pieces of evidence to support the conclusion that Taylor possessed a loaded gun with the intent to use it unlawfully against anotherperson: (1) the eyewitness testimony of Officer Ramayya; (2) Taylor's admissions to a detective; and (3) a recorded phone call that Taylor made while at Rikers.

A. Officer Ramayya's eyewitness testimony.

At trial, Officer Ramayya testified that on October 1, 2009, around 1:35 a.m., he was riding in an unmarked police car with Officer Rahim Morris when he saw two people riding their bikes on the sidewalk. Trial Tr. 24:24-25:13, 27:2-6 (Dkt. No. 6-1). Those two men were Taylor and Leroy Hatcher. Id. at 28:3-7. The officers approached, and as soon as Officer Ramayya stepped out of the car, Taylor dropped his bike and ran. Id. at 29:13-30:11. Officer Ramayya took off in pursuit (Officer Morris went in the opposite direction after Hatcher, id. at 127:5-6), and, at a certain point, Officer Ramayya saw Taylor remove a gun "from his waistband area and throw it in the sewer," id. at 31:11-12. Eventually Officer Ramayya caught up to Taylor and arrested him. Id. at 31:22-32:3. Another officer on scene called the Department of Environmental Protection to scoop out the contents of the sewer, and, indeed, a black and silver gun was found. Id. at 34:15-22, 35:7-21. Officer Ramayya testified that it was the same gun that Taylor had thrown into the sewer. Id. at 35:24-36:1. And subsequent testimony from Detective Stella Ardizzone, from the Police Department's Forensic Investigation Division, established that the gun was loaded and operable. See id. at 222:12-223:20.

B. The admissions to Detective Bartek.

The afternoon after Taylor was arrested, Detective John Bartek spoke with him. Id. at 328:15-330:4. According to his trial testimony, Detective Bartek gave Taylor "a Miranda warning sheet," and Taylor, after reading and initialing each individual warning, signed the bottom of the sheet. Id. at 332:16-21. After asking Taylor whether he understood the Miranda warnings, id. at 336:20-23, Detective Bartek began talking to Taylor, who eventually admitted to carrying a "burner" on the night of his arrest because of "major problems from people in the pastliving in the Roosevelt Houses," id. at 339:10-16. Detective Bartek testified that, based on his professional experience, he understood "burner" to mean a firearm. Id. at 339:17-22. Detective Bartek then asked him "where he got it," and Taylor hesitated. Id. at 339:25-340:2. Deciding to give Taylor a break from the interrogation, Detective Bartek offered him a cigarette and water, and then stepped out of the room. Id. at 340:2-6. But before stepping out, he told Taylor "that any information that he had on this crime or any other crimes that he may know about would benefit him in the long run." Id. at 342:12-16. Taylor eventually wrote a statement, in which he "apologiz[ed] for everything [he] put the officers through" on October 1, 2009. Id. at 353:12-14. He continued by saying, among other things:

There's a lot of things that go on in my area that causes for some people to have to keep themselves safe. My girlfriend also just had a miscarriage that made [me] realize how easy it is for my life to end and that stuff scares me. So, still living in the same area I have to be cautious in what I do so I can keep my life. I would rather be in jail then [sic] dead because a few people in the world don't like me for their own reason. I'm scared to die and I don't want to be statistics neither.

Id. at 353:14-22.

Detective Bartek, though, was not satisfied, and he told Taylor that "he need[ed] to make another statement to claim responsibility for his actions." Id. at 354:20-21. So Taylor wrote out another statement, saying:

I want to say first that I had the gun that was thrown into the sewer. I also had weed on my possession. A guy I had a problem with got shot in 2002 that felt I had something to do with it. I didn't shoot the guy. Now is for the some [sic] reason and all that's been happening around my neighborhood, shootings, robberies, murders, et cetera. I don't know when I may could've [sic] been on the bad end of any of those crimes, but I didn't want to take any chances with my life. I had no intention on doing any crimes. . . . I totally apologize for having the gun, but with my life on the line nobody will protect yourself like you will.

Id. at...