Tobias v. Portuondo

• Citation: 367 F.Supp.2d 384
• Decision Date: 26 August 2004
• Docket Number: No. 01-CV-6589.,01-CV-6589.
• Parties: Jeffrey TOBIAS, Petitioner, v. Superintendent PORTUONDO, Respondent.
• Court: U.S. District Court — Western District of New York

367 F.Supp.2d 384

Jeffrey TOBIAS, Petitioner, v. Superintendent PORTUONDO, Respondent.

No. 01-CV-6589.

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

August 26, 2004.

COPYRIGHT MATERIAL OMITTED

Jeffery Tobias, Romulus, NY, pro se.

Loretta S. Courtney, Monroe County District Attorney's Office, Rochester, NY, for Defendant.

DECISION AND ORDER

BIANCHINI, United States Magistrate Judge.

INTRODUCTION

Petitioner, Jeffrey Tobias ("Tobias"), filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Monroe County Court on one count of felony murder and one count of robbery. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(b).

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On New Year's Eve in 1992, Michael Weeks ("Weeks") was robbed and shot to death at the Motel 6 in Gates, New York.¹ That evening, Weeks had gone to visit his wife, Elaine Weeks ("Mrs.Weeks"), who was staying at the motel. While there, they encountered four men, including Tobias, who were part of a group with whom Weeks apparently had some sort of confrontation at a local store earlier in the day.

Mrs. Weeks testified that while she was showering, Tobias and his confederates entered the motel room and began roughing up her husband Michael Weeks. Michael Hill (described by Mrs. Weeks as dressed in denim) and Earl Williams (described by Mrs. Weeks as dressed in green) held Weeks against the wall at gunpoint and struck him in the face with a gun. Michael Hill and Earl Williams then took Weeks's money and jewelry. During the struggle, Dearco Hill (described by Mrs. Weeks as dressed in gold) stood nearby. Mrs. Weeks indicated that Tobias (described by Mrs. Weeks as dressed in a patchwork outfit) stood at the door, held it ajar, and wiped the door handle and door with a towel. After Weeks's was relieved of his money and jewelry, Dearco Hill left the room.

When Dearco Hill returned moments later, Mrs. Weeks noticed, for the first time, a bulge under his jacket. Dearco Hill approached Weeks and appeared to embrace him. At that moment, one or two gunshots were heard, and Weeks collapsed. Mrs. Weeks immediately fled from the room and ran down the stairs. As she reached a lower floor, she saw Tobias standing at the door. Mrs. Weeks related that he said to her, "Bitch, where do you think you're going?" and chased after her as she ran back in the direction of the room.

By chance, the police were responding on an unrelated call at the motel. As they pulled into the parking lot, they saw a grey Nissan pulling out of a parking space very quickly and Mrs. Weeks frantically motioning at the car from the motel lobby. Tobias was seen striding quickly away from the motel toward the grey Nissan, which he entered on the passenger side. The police gave chase and stopped the Nissan a short distance away. After spotting guns in the car on the passenger side, the police placed Tobias and the driver, Dearco Hill, under arrest. Both men were returned to the Motel 6 for show-ups, and Mrs. Weeks positively identified Tobias as the man holding the door during the crime and Dearco Hill as the shooter. At trial, Mrs. Weeks identified the defendants by their distinctive outfits.

Upon his arrest, Tobias was asked if he waived his Miranda rights. According to the police, Tobias replied, "Yeah, I didn't do it." Tobias later made oral and written statements to the police in which he admitted associating at the motel with the men who had attacked Weeks. He claimed, however, that although he approached the room to investigate the commotion, he never actually entered the room.

Tobias was tried separately from his co-defendants in New York State Supreme Court (Monroe County) (Egan, J.). The defense theory of the case was that Tobias had come to Rochester to attend a reggae concert and was staying with his girlfriend and some friends at the Motel 6. His friend, Lenora Odom ("Odom"), testified that Tobias was standing out in the hallway when the scuffle in the Weeks's room was taking place; he apparently had his hand on the doorknob about to go in, but his girlfriend told him not to get involved. According to Odom, Tobias never entered the Weeks's room. Tobias, aware that there was trouble, allegedly ran from the motel along with the perpetrators after Weeks was shot, and inadvertently hopped into the getaway car in his haste to get away from the commotion. Tobias did not testify in his behalf at trial.

The jury returned a verdict convicting Tobias of felony murder and first degree robbery. Tobias received an indeterminate sentence of 25 years to life on the murder conviction and a concurrent sentence of 8 1/3 to 25 years on the robbery conviction.

Through counsel, Tobias appealed his conviction to the Appellate Division, Fourth Department. Tobias filed a pro se supplemental brief expanding on his counsel's arguments in the appellate brief but raising no additional grounds for reversal. The Fourth Department unanimously affirmed his conviction on June 16, 2000. People v. Tobias, 273 A.D.2d 925, 711 N.Y.S.2d 652 (4th Dept.2000). Leave to appeal to the New York Court of Appeals was sought and denied with respect to all of the issues raised by Tobias and his appellate counsel. People v. Tobias, 95 N.Y.2d 908, 716 N.Y.S.2d 649, 739 N.E.2d 1154 (2000).

This federal habeas petition followed. The Court notes that respondent makes no claim that Tobias has failed to exhaust state remedies, and all of Tobias's present claims appear to be properly exhausted. See 28 U.S.C. § 2254(b); Bossett v. Walker, 41 F.3d 825, 828 (2d Cir.1994), cert. denied, 514 U.S. 1054, 115 S.Ct. 1436, 131 L.Ed.2d 316 (1995).

For the reasons set forth below, Tobias's § 2254 petition is denied.

DISCUSSION

I. Procedural Default

The Supreme Court has made clear that the "adequate and independent state ground doctrine applies on federal habeas [review]," such that "an adequate and independent finding of procedural default will bar federal habeas review of the federal claim, unless the habeas petitioner can show cause for the default and prejudice attributable thereto, or demonstrate that failure to consider the federal claim will result in a fundamental miscarriage of justice." Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) (citations & internal quotations omitted); see also, e.g., Schlup v. Delo, 513 U.S. 298, 314-16, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). "[I]n order to preclude federal review [under the adequate and independent state ground doctrine], the last state court to render judgment must `clearly and expressly state [ ] that its judgment rest[ed] on a state procedural bar.'" Jones v. Vacco, 126 F.3d 408, 415 (2d Cir.1997) (quoting Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir.1996), cert. denied, 520 U.S. 1108, 117 S.Ct. 1116, 137 L.Ed.2d 317 (1997)).

A. Brady claim

Tobias contends that the prosecutor violated his obligation to provide material, exculpatory evidence pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ("Brady"), by failing to timely disclose Mrs. Weeks's grand jury testimony in which she stated that she was pushed by her husband's assailants against the motel room window during the incident. Tobias argues that this constitutes Brady material because, in his statements to the police, he mentioned hearing something strike the window of the motel room so forcefully that it sounded as if someone was coming through the window. At the time he allegedly heard this, Tobias claims that he was standing outside the motel with his friend, Lenora Odom, loading up a car. Odom testified at trial that Tobias remarked to her about the loud noise as they were standing together outside. Thus, Tobias argues, Mrs. Weeks's testimony on this issue, in conjunction with his statement, placed him outside the motel at the time of the shooting and thereby created an alibi defense. The prosecutor did not turn over Mrs. Weeks's grand jury testimony to the defense at the time the defense made its omnibus discovery demands, but he did provide the material to the defense prior to the commencement of trial.

On direct appeal, the Fourth Department held that "the contention of defendant that he was deprived of Brady material has not been preserved for our review, (see, People v. Brahney, 239 A.D.2d 930, 659 N.Y.S.2d 593 [(4th Dept.)], lv. denied 91 N.Y.2d 869, 668 N.Y.S.2d 567, 691 N.E.2d 639 [(1997)]), and we decline to exercise our power to review it as a matter of discretion in the interest of justice." People v. Tobias, 273 A.D.2d at 926, 711 N.Y.S.2d 652 (some citations omitted). The Fourth Department did not consider the Brady claim on the merits, but rather expressly relied on a state procedural rule as the basis for not ruling on the claim.

Under New York state law, if a defendant becomes aware of a potential Brady violation prior to the verdict in his criminal trial, he must preserve the issue by registering an objection in the trial court or attempting to use the belatedly disclosed evidence in some way at trial. E.g., People v. Robinson, 249 A.D.2d 333, 670 N.Y.S.2d 880 (2d Dept.1998) (citing New York Criminal Procedure Law ("C.P.L.") § 470.05(2)). The Appellate Division did not explicitly cite C.P.L. § 470.05(2),² the so-called "contemporaneous objection" rule, but the case on which it relied, People v. Brahney, in turn relied upon other cases citing C.P.L. § 470.05(2) for this proposition. Thus, New York courts routinely and regularly use the contemporaneous objection rule as a basis for denying as unpreserved Brady claims of which defendants became aware prior to their verdicts at trial.

In the present case, there has been a procedural bar since the Appellate Division "explicitly invoke[d] a state procedural bar rule as a separate basis for decision," Harris v. Reed, 489 U.S. at 264, 109 S.Ct. 1038. The Second Circuit has held that the failure to...