Washington v. Berbary
| Decision Date | 11 October 2011 |
| Docket Number | No. 09-CV-0805(MAT),09-CV-0805(MAT) |
| Parties | ELROY WASHINGTON, Petitioner, v. JAMES BERBARY, Superintendent, Respondent. |
| Court | U.S. District Court — Western District of New York |
Proceeding pro se, Elroy Washington ("Washington" or "Petitioner") has instituted the instant action pursuant to 28 U.S.C. § 2254 alleging that he is being held in state custody in violation of his federal constitutional rights. Petitioner's state custody arises from a judgment of conviction entered on November 3, 2005, following a jury trial in New York State County Court, Genesee County, convicting him of Criminal Possession of a Controlled Substance in the First Degree (New York Penal Law ("P.L.") § 220.21). Petitioner was sentenced to a determinate prison term of ten years, plus five years of post-release supervision and is currently incarcerated at Collins Correctional Facility pursuant to this judgment of conviction.
A. The Trial
At about 8:00 p.m. on June 16, 2004, Officer Matthew Baldwin ("Off. Baldwin"), of the Batavia City Police Department, heard a radio report that a nearby car was driving erratically down WestMain Street in Batavia. T.13, 29.1 Baldwin saw a car that matched the car description, but did not think it was moving erratically. T.14. Nevertheless, he followed it to an A-Plus convenience store and gas station, a block and a half away. T.15-16, 29. Baldwin approached and asked the driver, Orlando Torres ("Torres"), and the passenger, Petitioner, for identification. Neither could produce photograph identification, and Torres gave the officer his brother's name. T. 16, 18-20, 32.
As Off. Baldwin attempted to verify the mens' identification, Deputy Sheriff Brian Thompson ("Dep. Thompson") and his search dog arrived at the gas station. T.20, 54, 106, 110. Petitioner and Torres told the deputy that they had been driving to Torres' relative's home in Bergen. T.111-13. When the deputy asked which relative they were visiting, the men gave conflicting answers: Torres said that it was his uncle and Petitioner said that it was Torres' cousin. T.113. Petitioner told the deputy that he had known Torres for two or three years; Torres told him that he had known petitioner since they were "little kids". T.114. Dep. Thompson noticed that Petitioner appeared "very nervous". Id.
The deputy smelled alcohol in the car and on Torres' breath, and saw that Petitioner had a beer can in a bag between his legs. T.113, 130.
Although Petitioner told the deputy that the car belonged to a friend, the deputy saw a receipt lying in the car which borePetitioner's name; it was dated May 20, 2004 and reflected Petitioner's rental of a tuxedo for a June 19, 2004 event. T. 115-16. The deputy asked Petitioner why, if the car belonged to a friend, it contained paperwork bearing Petitioner's name, and Petitioner responded, in a "hushed" voice, that the car belonged to his girlfriend and was registered to her father. T.117-19.
In the meantime, because Off. Baldwin was unable to verify Torres' identification, the officers brought the men to the police station. As Dep. Thompson moved the car, which was blocking the gas pumps, he detected a "really strong[ ]" smell of marijuana inside the car. T.21-22, 120-21. Dep. Thompson and another deputy remained with the car while the officers questioned Petitioner and Torres at the precinct.
When Off. Baldwin returned to the car, Dep. Thompson allowed his search dog to walk around the car. T.22-23, 122. The dog jumped through the open driver's side window and started scratching and biting at the console. The dog behaved the same way near the rear quarter panel by the bumper. T.123.
These officers were joined by Detective Todd Crossett. ("Det. Crossett"). T.22, 23, 53, 54, 124. At that point, the officers learned that Torres had an open arrest warrant in Rochester. T.124. The officers searched the car and found marijuana under the cup-holder. T.124.
In the trunk, in the area where the search dog had given the signal he detected a controlled substance, they found a brown paper bag covered with packing tape. T.125. The package measured sixinches long by four or five inches wide, and weighed 13.2 ounces. T.25, 57, 128. The bag was partially covered with the trunk rug, and some dryer sheets and scented soap were lying nearby. T.25, 26, 54, 125. A field test on the packaged substance yielded positive results for the presence of cocaine. T.57, 65, 127. Forensic testing confirmed the substance was cocaine, and that the package weighed 365.35 grams, or 12.88 ounces. T.96-105.
Once at the police station, Det. Crossett interviewed Petitioner, who waived his Miranda rights and gave an unsigned statement. T.94. According to Petitioner, Torres went to his house in Rochester and asked Petitioner to drive him to his (Torres') cousin's home in Batavia. T.73. Torres, who owed Petitioner $200, said that he could repay Petitioner at the cousin's house.
Petitioner agreed, but made Torres drive because Petitioner's license was not valid. On the way to Batavia, they stopped for gas and Petitioner bought beer. T.73. They continued toward Batavia, and pulled into an A-Plus convenience store. T.73. That was when they were stopped by Off. Baldwin.
Petitioner told the detective that the car belonged to his girlfriend, and that she let him drive it all the time. T.74. When the detective told Petitioner that cocaine was found in the trunk, Petitioner responded that he did not know about it, and that it did not belong to him. T.75, 93.
Torres testified that as a result of the events of June 16, 2004, he pleaded guilty to second-degree drug possession. T.174,187. Torres had previously been convicted of third-degree drug selling in 1991, unauthorized use of a vehicle in 1993, and second degree criminal trespass in 1995. T.185, 187, 193. Torres, who did not read English well and testified through a Spanish interpreter, wrote a letter in English with the help of another inmate to Petitioner's trial attorney essentially confessing that it was his cocaine found in the car. T.175-77.
Torres testified that he had placed the cocaine in the car on June 16, 2004, and that Petitioner was not with him when he did so. T.179. Torres placed the drugs in a hole in the corner of the trunk. T.179. Torres claimed that on that night, he told either Off. Baldwin, Det. Crossett or Dep. Thompson that Petitioner had nothing to do with the cocaine. T.181.
In his own criminal proceeding, Torres admitted that he moved to withdraw his guilty plea on the basis that he did not know who put the cocaine in the car-contrary to his testimony at Petitioner's trial. T.186. However, he did subsequently withdraw that motion. T.186. Torres explained on cross-examination that he could not read or understand his own motion, as it was written in English. T.190-92. He claimed that an inmate had written the motion for him, and explained that he had copied this inmate's translation in his own handwriting. T.190, 193.
Torres testified that he did not recall telling a probation officer that two other people had placed the cocaine in the car. He claimed that he bought the cocaine "on the street" for $6,800 from someone named "Poppo", and that he planned to sell it. T.195-98.
According to Torres' trial testimony, on the night of June 16, 2004, Torres asked Petitioner for a ride to Bergen, New York, and Petitioner told Torres to drive because Petitioner's license had been suspended. T.198. Torres explained that he had been owed $400, and he was planning to re-pay Petitioner $200 that Torres himself owed Petitioner. T.198.
On September 22, 2005, the jury returned a verdict finding Petitioner guilty of the sole count charged in the indictment-first degree criminal possession of a controlled substance. T.290-92. On November 3, 2005, the trial court sentenced Petitioner to a determinate prison term of ten years, plus five years of post-release supervision. S.11.
Prior to perfecting his appeal, Petitioner filed a motion to vacate the judgment pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10, which was unsuccessful. Petitioner's conviction unanimously affirmed on direct appeal. People v. Washington, 50 A.D.3d 1539 (App. Div. 4th Dept.), lv. denied, 11 N.Y.3d 742 (N.Y. 2008).
In his pro se petition for a writ of habeas corpus filed on September 11, 2009, Petitioner asserts that he is entitled to relief because (1) the prosecutor inadequately instructed the grand jury as to the automobile presumption; (2) trial counsel rendered ineffective assistance during plea negotiations; (3) he was deprived of a "fair and complete hearing of" his Fourth Amendmentclaims; (4) the trial court and the prosecutor committed numerous errors; (5) the automobile presumption, as applied to Petitioner's case, was unconstitutional; (6) the evidence of guilt was legally insufficient; (7) his sentence violated the Eighth and Fourteenth Amendments; (8) the trial court's application of mandatory procedural bars to his C.P.L. § 440.10 claims was contrary to clearly established Supreme Court precedent; (9) he was deprived of due process and "fundamental fairness" by the trial court's failure to grant a hearing on his C.P.L. § 440.10 motion, and denial of the requested relief; and (10) petitioner was deprived of the effective assistance of counsel by counsel's "numerous failures" at trial.
The well-established standard for reviewing an ineffectiveness of counsel claim is set forth in Strickland v. Washington, 466 U.S. 668 (1984). Strickland requires a petitioner to satisfy a two-prong test by showing that (1) his counsel supplied deficient representation that "fell below an objective standard of reasonableness . . . under prevailing...
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