Totesau v. Lee

• Decision Date: 25 May 2022
• Docket Number: 19-CV-6992 (PKC)
• Parties: TROY TOTESAU, Petitioner, v. WILLIAM LEE, Superintendent, Eastern New York Correctional Facility, Respondent.
• Court: U.S. District Court — Eastern District of New York

TROY TOTESAU, Petitioner,
v.
WILLIAM LEE, Superintendent, Eastern New York Correctional Facility, Respondent.

No. 19-CV-6992 (PKC)

United States District Court, E.D. New York

May 25, 2022

MEMORANDUM & ORDER

PAMELA K. CHEN, United States District Judge:

Petitioner Troy Totesau, proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, which the Court received on December 10, 2019. (Petition (“Pet.”), Dkt. 1, at ECF^[1] 1.) Petitioner challenges his multiple convictions following a jury trial in the Supreme Court of New York, Nassau County (the “Trial Court”) in connection with a homeinvasion robbery, as well as his total sentence of twenty-five years' imprisonment followed by five-years' post-release supervision. For the reasons set forth herein, the petition is denied.

BACKGROUND

I. Facts^[2]

A. The Shah Family Residence

In the summer of 2009, Syed Shah (the “Father”), a taxi driver, and his wife (the “Mother”), lived in a two-story house in South Floral Park, New York with their twelve-year-old son (the “Older Son”), eight-year-old daughter (the “Daughter”), and three-year-old son (the “Younger

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Son”). (R.^[3] at 299-301, 349-50, 369-70, 382-83, 388.) In the home, the family kept a briefcase containing their important possessions: passports and travel documents, credit cards, documents relating to property in their native Pakistan, jewelry, the Father's 20-year-old, expired driver's license (which he kept for sentimental reasons) and a DVD of the funeral of the Father's mother. (R. at 319-20, 398-99.) Because the Father did not believe in banks, the family also kept $75, 000 in cash in the briefcase-cash that the Father had earned and saved from 15 years of taxi fares, amounting to their entire life savings. (R. at 320, 395, 397.)

The family did not normally have guests or visitors to their home, but they did have male construction workers in and out of the house for a period of eight to twelve days shortly before August 2009, when sheet-rock and other construction work was being done at the house. (R. at 302, 363, 379, 383-84.) The Father's friend introduced him to Dexter Lucas, nicknamed “Big Guy” (R. at 384, 409), and the Father hired Lucas to perform the sheet-rock work (R. at 384-85, 406). The two arranged for a daily payment schedule: Lucas would purchase whatever supplies he needed during the day, and the Father would reimburse Lucas around 3:00 p.m. (R. at 384-87.) To get Lucas's money, the Father would go upstairs to his bedroom, take cash from the briefcase, walk back downstairs, and hand the cash to Lucas. (R. at 387-89.) The amounts varied each time, but could be as much as $200 or $1, 000 for a single day. (R. at 389.)

At one point during construction, the Father and Lucas had an argument during which the Father criticized Lucas's work, telling Lucas that the sheet rock on one of the walls was not straight. (R. at 363, 385.) The Daughter witnessed this argument. (R. at 364.) Although the Father was unhappy with the crooked sheet rock on the one wall, he decided to drop the issue. (R. at 385.)

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Lucas came by the family's residence only once more to speak with the Father about the issue. (R. at 363-64.)

Over the course of the project, each member of the Shah family met Lucas. The Mother stayed home during the day, so she was present during the construction and would occasionally cook lunch for Lucas. (R. at 385-86.) The three children met Lucas on the occasions when Lucas's crew did not finish their work before the children came home from school. (R. at 364, 379-80, 386.)

B. The Robbery

At approximately 12:05 p.m. on August 13, 2009, the Father was sleeping upstairs while the Mother and the three children were downstairs, when a “skinny, ” light-skinned black woman came to the Shahs' door with a black binder. (R. at 302-03, 334, 349-50, 358, 365, 371, 387.) The Mother answered the door, accompanied by her two sons. (R. at 334.) Behind the woman was a man whom the Mother did not recognize. (R. at 303-04, 335.) The man was a mediumskinned black man with no facial hair and a medium build. (R. at 336-37.) He was approximately 5'10” or 6'0” tall and was wearing black sweatpants and a black sweatshirt. (R. at 302-03, 33437, 339, 359-60, 365-68.) Another man, who was approximately 6'1” tall and wearing a black sweat jacket and black jeans, stood with his back turned towards the house near a four-door car, described variously as maroon, burgundy, “reddish, purple, ” “red or reddish, like, a little purple kind of, ” which was parked in the street outside the Shahs' home and which the Mother did not recognize. (R. at 303-04, 327, 357-58, 360, 367-68, 371-72, 374, 400.)

The woman said that she worked for the government and was conducting a survey about the house's occupants. (R. at 304, 371.) As she spoke with the Mother, the man at the door (the “First Gunman”) pulled out a black gun (similar to a police service weapon), struck the Mother in the head with it, and shoved her to the floor, while he and the woman (“Female Perpetrator”)

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forcibly entered the home. (R. at 304-05, 318, 335, 352, 372-73, 405.) The Mother screamed in terror, fearing for her and her children's lives. (R. at 339, 372.) As the First Gunman and the Female Perpetrator entered the residence, the second man who had been standing near the car (the “Second Gunman”) hurried toward the Shahs' home from the street and, now wearing a mask and green surgical gloves and armed with a black gun, ran into the home and up the stairs. (R. at 305, 318-19, 321, 340, 374, 391-92, 405.)

The First Gunman-who, though initially unmasked while standing at the front door, had also donned a black ski mask^[4] and green or blue-green surgical gloves-again struck the Mother with the gun on her shoulder, and instructed both the Mother and her two sons to lie down on the floor with their hands behind their back. (R. at 305-06, 318-19, 339-40, 351-52, 360, 366, 37273, 378.) From an adjacent room, the Daughter heard her Mother scream, prompting the Daughter to close the door to the room. (R. at 306, 350-51, 364, 366, 373.) The First Gunman kicked the door in, grabbed the Daughter, and dragged her by her t-shirt, ripping it in the process, to the living room with her mother and two brothers. (R. at 306-07, 340, 351, 353, 366, 373-74.) The First Gunman had his gun out the entire time. (R. at 306, 351.)

As the First Gunman and the Female Perpetrator-who, unlike the two male gunmen, wore neither a mask nor gloves-corralled the four family members downstairs, the Second Gunman entered the master bedroom upstairs. (R. at 319, 390, 404.) Once inside, the Second Gunman jumped on top of the Father, who was still asleep, and bound the Father's hands with duct tape.

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(R. at 390-91.) When the Father started asking about the well-being of his family and identity of his assailant, the Second Gunman duct-taped the Father's mouth shut and barked, “give me the fucking money.” (R. at 391.) When the Father tried to look around, the Second Gunman pointed the gun at the Father and ordered him, “Don't look at me, motherfucker. Don't look at me, ” and again demanded that the Father “give me the money. Give me the money.” (R. at 392-93.) Still atop the Father, the Second Gunman began striking the Father in the head, instructing the Father not to move and to turn over the money. (R. at 392-93.) The Father tried to escape, but could not free himself from under the weight of the Second Gunman. (R. at 392.)

Back downstairs, the Female Perpetrator instructed the four family members not to cry, scream, or call the police, and told them that they would remain unharmed if they complied. (R. at 307, 374-75.) Meanwhile, the First Gunman headed upstairs and left the four other family members with the Female Perpetrator. (R. at 307, 340, 374-75.) The First Gunman entered the master bedroom and threatened the Father that if he did not provide the intruders with the money, they would “bring his whole family up” to the master bedroom and “shoot the asshole.” (R. at 393.) The two gunmen pointed their weapons at the Father for emphasis. (R. at 393-94.)

After three or four minutes, the First Gunman headed back downstairs, pointed his gun at the four family members, who were now crying in fear, and ordered them upstairs to the master bedroom. (R. at 307-08, 340, 353, 366, 375, 394.) As the family members entered the master bedroom, the Second Gunman remained atop the Father-still bound at the hands and feet with duct tape and with duct tape over his mouth-and held him at gunpoint on his own bed. (R. at 308-09, 318, 354, 375.) A small piece of the Second Gunman's surgical glove came off as he tried to control the Father. (R. at 332.)

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The gunmen lined up the four family members in a corner next to the bed, where the Father could see them. (R. at 309, 353-54, 394.) The Female Perpetrator stood in the bedroom doorway. (R. at 355, 395-96, 404.) As the other family members looked on, the Second Gunman hit the Father with the gun in the Father's neck and head and yelled, “Where's the money?” and, “Give me the money; otherwise”-using the gun for emphasis-“that's it.” (R. at 309-10, 354-55, 37576, 394.) As he spoke, the Mother realized she recognized his voice and his body structure: the Second Gunman was Dexter Lucas-the same person who had performed the sheet rock work on their family home. (R. at 315-16.)

The Second Gunman pointed his gun at the Older Son and instructed the Father to “give me the money or else I'll shoot one of your kids.” (R. at 376.) As the gunmen threatened the family, the Father told the Mother to locate the briefcase from underneath some pillows and give it to the assailants, because “life is more important than money.” (R. at 310, 355, 394-95, 397.) At this point, the Second Gunman instructed the three children to sit on the mattress next to their Father, still being...