Walker v. Poole

Citation547 F.Supp.2d 238
Decision Date22 April 2008
Docket NumberNo. 03-CV-6088(VEB).,03-CV-6088(VEB).
PartiesFrederick WALKER, Petitioner, v. Thomas POOLE, Respondent.
CourtU.S. District Court — Western District of New York

Donald M. Thompson, Rochester, NY, for Petitioner.

Howard R. Relin, Monroe County District Attorney, Stephen X. O'Brien, Culley, Marks, Tanenbaum & Pezzulo, Rochester, NY, for Respondent.

DECISION AND ORDER

VICTOR E. BIANCHINI, United States Magistrate Judge.

INTRODUCTION

Petitioner Frederick Walker ("Walker") filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his 2000 conviction following a jury trial in Monroe County Court on charges of first degree robbery and related offenses. See Petition (Dkt. # 1). This Court subsequently granted petitioner's motion, filed by retained counsel, to stay the instant habeas corpus proceeding so that petitioner could return to state court to exhaust two claims of ineffective assistance of appellate counsel. See Order (Dkt. # 39). Because I found that these two claims sufficiently "related back" to the original habeas claims for purposes of Rule 15(c), I directed that Walker be permitted to file an amended petition asserting these two claims, once he had completed the exhaustion proceedings. Respondent was given thirty (30) days from the date that Walker served his amended petition to file an answer in opposition to the amended petition, should he choose to do so.

Walker returned to state court and commenced an action seeking a writ of error coram nobis from the Appellate Division of New York State Supreme Court, arguing that his appellate counsel failed to provide effective assistance on his direct appeal. This application was unsuccessful, as was his application for leave to appeal to the New York Court of Appeals. After completing the exhaustion process, Walker, through retained counsel, returned to federal court on May 4, 2007, filing a document captioned as "Amended Petition." (Dkt. # 41). This document is not technically an Amended Petition. Rather, it consists of the attorney's affidavit setting forth the chronology of the exhaustion proceedings (Dkt. # 41), with the following attachments: Walker's original Petition (Dkt. # 41-2); Walker's coram nobis application to the Appellate Division (Dkt.# 41-3); the Appellate Division's order denying the coram nobis application (Dkt. #41-4); and Walker's letter seeking leave to the New York Court of Appeals (Dkt. # 41-5). Based on Walker's attorney's representations, Walker intended to proceed with the claims presented in the attached original Petition (Dkt. # 41-2) and those raised in his most recent coram nobis application (Dkt. # 41-3).

Walker, acting pro se, subsequently filed two memoranda of law (Dkt. ## 44 & 45). The first memorandum of law set forth an argument that the trial court erred in failing to sever the counts of the indictment that related to separate criminal incidents. See Petitioner's Supplemental Memorandum of Law (Dkt. # 44). It appears that Walker raised a variant of this claim in his original Petition (Dkt. # 1), in the memorandum of law attached to that document; he asserted that appellate counsel was ineffective in failing to argue that the trial court erroneously denied the severance motion. Respondent addressed that claim of ineffective assistance of appellate counsel in its Answer to the original Petition. Based on this Court's directives in its Order granting the stay, Walker's attempt to raise a yet another new claim in his supplemental memorandum of law (Dkt. # 44) is improper. Accordingly, the allegations in that document will only be considered to the extent they are relevant to decide his claim of ineffective assistance of appellate counsel, premised on the failure to argue that the denial of severance was erroneous.

Walker then filed another pro se brief, captioned "Memorandum of Law Supplemental Brief (Dkt. # 45), in which he provided further argument regarding his claim (raised as Ground One of the original Petition) that the second show-up procedure violated his due process rights. He does not appear to raise any new claims in this pleading.

Respondent has neither submitted any papers in opposition to Walker's Amended Petition, nor has he requested an extension of the thirty-day period in which to do so.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The conviction here at issue stems from Walker's alleged involvement, along with codefendant Joseph Lee ("Lee"), in the robbery of and assault of the store owner at Wadi's Delicatessen in the City of Rochester, and the attempted robbery of Henner's Liquor Store, also located in Rochester. Both incidents took place on the night of February 1, 1999. Walker was indicted by a Monroe County grand jury on two counts of first degree robbery, two counts of first degree assault, two counts of fourth degree grand larceny, two counts of attempted second degree robbery, and one count of attempted petit larceny.

The victim of the first robbery had to be taken to the hospital as a result of the injuries suffered during the robbery. He identified Walker in a show-up identification performed at the hospital. Three witnesses to the attempted robbery at Henner's Liquor Store, identified Walker in a show-up identification conducted outside the store later that night, about ten minutes after the first show-up procedure. After a hearing, the trial court denied Walker's motion to suppress the identifications, finding that neither show-up procedure was unduly suggestive.

At Walker's joint trial with co-defendant Lee in Monroe County Court (Sirkin, J.), the prosecutor first called Sarkis, the store owner of Wadi's Delicatessen, who testified that he was alone at about 7:45 p.m. when Lee entered the store. Soon thereafter, Walker entered the store. Brandishing a stick, Walker began demanding money from Sarkis. Sarkis informed the two men that they could take the money in the cash register. When Sarkis attempted to grab for his shotgun, Walker struck him with the stick. According to Sarkis, both Walker and Lee began kicking him and striking him with the stick. The two men eventually left the store, taking with them Sarkis' shotgun but no money. See T.219-34.1 Sarkis triggered the store alarm, and the police arrived fifteen minutes later. See T.234-35, 261. They transported Sarkis to St. Mary's Hospital to receive medical treatment for his injuries.

About one-half hour following the incident at Wadi's Delicatessen, two black males, later identified as Walker and Lee, entered Henner's Liquor Store, also located on Chili Avenue. See T.266-69, 280, 300-04, 323. Employees Patricia Martin ("Martin") and Anna Kendrick ("Kendricks") testified that they believed that the two were together because they were talking to each other. Although Walker was wearing a red scarf, which partially covered his face, a portion of his face was still visible. See T.268-69, 271, 303-04, 323, 334.

Frances Brown ("Brown"), a customer at Henner's, recognized Lee as a family friend; Lee struck up a conversation with her. T.268-70, 332. Martin and Kendricks recalled that Walker remained quiet while Lee was talking to Brown. See, e.g., T.332-33.

A few minutes later, Martin related, Walker "suddenly ... just pointed a shotgun in [her] face and he said don't move." T.270. When she looked at the gun, she "thought it was a toy because it was — it was so shiny" and "looked plastic." Id. Martin testified, "I threw my hand up. Don't even play even play with me like that and proceeded to walk away." Id. Then, however, Walker "started to point the gun at the customers" and "said don't nobody move." Id. At that point, Martin slipped into the back of the store and went into the office where she called the police. See T.270, 287, 335. Kendricks described the weapon held by Walker as "a shotgun, very shiny" and stated that she "really thought it was a joke" but realized it was not when Walker "told everyone[,] nobody move." T.305. According to Kendricks, waved the shotgun in the air "[t]oward the customers that were near the front of the counter." T.306. Kendricks said that Walker "just kept telling everybody[,] don't move. It was like, you think I'm jokin' with you. I'm not. Don't nobody move, I said." T.306. See also T.288-89, 305, 307, 315-16, 323-24, 360. The witnesses recalled that Lee paid no attention and continued to talk to Brown while Walker was waving the gun around. T.329-330, 335-36, 346-47.

By the time Martin returned to the main store area after getting off the phone with 911, Walker had left. T.272, 283, 337. Kendricks testified that although she had starting walking with Martin to the backroom, she ended up returning to the front of the store for some reason. Walker was still "standing there waving the gun saying, don't nobody move, don't nobody move...." T.307. Kendricks related, Walker "then turns around and he says, you know, if I really wanted to rob this place, I had a perfect opportunity." Id. Walker then "turned around and walked out the door." T.307; see also T.327, 337. Kendricks admitted that Walker never demanded any money from the cash register or tried to take any of the liquor. T.324.

At about 8:27 p.m. Officer William Jeroy ("Jeroy") of the Rochester Police Department heard a radio broadcast concerning an attempted robbery at Henner's Liquor Store. The perpetrator was described as a black male wearing red clothing. Jeroy and his partner soon observed Walker, who matched the description of the suspect, walking in the vicinity of Henner's. T.372-81, 394. When Jeroy approached petitioner, he saw that petitioner was wearing red pants and carrying a long gun. Walker was taken into custody without incident. See id.

Walker first was transported to St. Mary's Hospital where Sarkis had been admitted for treatment for his injuries that included a broken arm. However, he did not receive any pain medication before the show-up was conducted. See T.465-69, 261. Sarkis was taken...

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