Whitehead v. Artus
| Decision Date | 08 September 2011 |
| Docket Number | 08-CV-4064 (SJF) |
| Parties | FABIAN WHITEHEAD, Petitioner, v. DALE ARTUS, Superintendent Clinton Correctional Facility, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
On January 30, 2006, pro se petitioner Fabian A. Whitehead ("Petitioner") was convicted of one (1) count of robbery in the first degree and two (2) counts of robbery in the second degree in the New York Supreme Court, Nassau County. He seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("petition"). For the reasons set forth below, the petition is denied.
On August 4,2004, Michael Moy was robbed by two (2) males in Massapequa, New York. Trial Transcript ("Tr.") at 176-91. According to Moy's testimony, each man was riding a "BMX style bicycle," id. at 185, and after the first person rode past him, the second person, later identified as Petitioner, approached Moy and pushed a gun against his ribcage. Id. at 179-85. Moy estimatedthe height of the second man to be between five feet, seven inches (5' 7") and six feet (6'). Id. at 186; 264-65. After Moy pushed him away, the second man drew the gun's slide and struck Moy with the gun, at which point both men took his belongings. Id. at 180-90. Moy reported the incident to responding Nassau County Police Department Detective Jeffrey Marshall ("Detective Marshall"). Id. at 331-33. Two (2) males matching Moy's description were found in the area on bicycles, but Moy was certain that they were not his attackers. Id. at 334-37.
On August 15, 2004, Detective Marshall responded to a domestic incident at Petitioner's home in Massapequa. Id. at 338-39. According to Petitioner's wife, Petitioner had struck her and displayed a small black gun. Hearing Transcript ("H.") at 9-10. Detective Marshall met with Petitioner's mother-in-law outside the house, and after telling him that Petitioner was not home, she "point[ed] out" a BMX style bicycle in the driveway and gave Detective Marshall permission to look for Petitioner inside the house. Tr. at 339-40. Detective Marshall observed Petitioner in the kitchen, asked Petitioner "where is the gun," and Petitioner responded "it's in the dog house." Id. at 340-42. Detective Marshall accompanied Petitioner to a dog house behind the residence where he recovered a loaded twenty-five caliber (.25) Colt pistol. Id. at 342-45. At the precinct, Petitioner admitted to ownership of the gun. Id. at 414,419-420. As Petitioner and the gun recovered matched the physical description of the attacker and gun used during the robbery of Moy, Petitioner became a suspect. Id. at 608-11.
On September 2, 2004, Detectives Robert Hillman ("Detective Hillman") and Stephen Kowalski ("Detective Kowalski") showed Moy two (2) photo arrays: in the first, Moy positively identified Petitioner's pistol as the gun that had been used during the robbery; in the second, Moy positively identified Petitioner as the second man who had displayed and struck him with the gun.Id. at 236-41, 574, 578-84. On November 3, 2004, Detective Hillman conducted a line-up identification procedure, at which Moy identified Petitioner as the second man in the robbery. Id. at 245-48, 477-81. Petitioner was charged with robbery in the first degree, criminal possession of a weapon in the fourth degree, and two (2) counts of robbery in the second degree.
At trial, Petitioner's motion to suppress the gun was denied. Nov. 22, 2005 Decision at 4. Moy positively identified Petitioner as the second person in the robbery, Tr. at 254, 287, 297-98, 318 320, and Detectives Marshall, Fitzgerald, and Kowalski, testified about the investigation and arrest of Petitioner.
On January 30, 2006, a jury convicted Petitioner of one (1) count of robbery in the first degree and two (2) counts of robbery in the second degree. Tr. at 727. On March 28, 2006, Petitioner was sentenced to (15) years of incarceration. Petitioner appealed his conviction to the Supreme Court of the State of New York, Appellate Division, Second Judicial Department ("Appellate Division") on six (6) grounds: (1) guilt was not proven beyond a reasonable doubt; (2) he did not receive a fair trial; (3) the jury selection statute, New York Criminal Procedure Law ("N.Y.C.P.L.") § 270.10 violates due process; (4) his sentencing was based on speculation; (5) appellant received ineffective assistance of trial counsel; and (6) there were no exigent circumstances to justify seizure of the gun without a search warrant. Petitioner's Appellate Brief at 11-32. On December 11, 2007, the Appellate Division affirmed the conviction holding that: (1) defendant's motion to suppress the handgun was properly denied because defendant consented to the warrantlesssearch by his words and conduct; (2) the evidence was legally sufficient to establish defendant's guilt beyond a reasonable doubt; (3) the verdict was not against the weight of the evidence; (4) defendant was not deprived of the effective assistance of counsel; (5) defendant's claim that N.Y.C.P.L. § 270.10 was unconstitutional was unpreserved for appellate review and petitioner had not notified the Attorney General of his challenge to state law; (6) the factors relied upon by the sentencing judge were appropriate, and (7) that Petitioner's remaining claims were meritless. People v. Whitehead, 46 A.D.3d 715, 848 N.Y.S.2d 657, 2007 N.Y. Slip Op. 09811 (N. Y. App. Div. 2007). Petitioner sought leave to appeal to the New York Court of Appeals, which was denied on February 25,2008. People v. Whitehead, 10 N.Y.3d 772, 883 N.E.2d 1269, 854 N.Y.S.2d 334 (Table) (N.Y. 2008).
On September 29, 2008, Petitioner filed a petition for a writ of habeas corpus on six (6) grounds: (1) his guilt was not proven beyond a reasonable doubt; (2) he had not received a fair trial; (3) N.Y.C.P.L. § 270.10 violates due process; (4) his sentencing was based on speculation and other improper factors; (5) he had received ineffective assistance of trial counsel; and (6) there were no exigent circumstances to justify seizure of the gun without a search warrant.
The Antiterrorism and Effective Death Penalty Act ("AEDPA"), codified at 28 U.S.C. § 2254, governs petitions of incarcerated state court defendants seeking federal habeas corpus relief.
AEDPA requires that, prior to bringing a petition for habeas corpus relief in federal court, a petitioner "must exhaust the remedies available in state court or demonstrate that 'there is an absence of available State corrective process [or that] circumstances exist that render such process ineffective to protect the rights of the [prisoner].'" Fama v. Commisioner of Correctional Services, 235 F.3d 804, 808 (2d Cir. 2000) (citing 28 U.S.C. § 2254(b)(1)). In order to fulfill the exhaustion requirement, a petitioner must "fairly present" to the highest state court "both the factual and legal premises of the claims he asserts in federal court." Baldwin v. Reese, 541 U.S. 27, 32, 124 S. Ct. 1347,158 L. Ed. 2d 64 (2004); see also Ramirez v. Attorney General for the State of New York. 280 F.3d 87, 96 (2d Cir. 2001) (); Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011). Petitioner's claims have been presented to the Appellate Division and the Court of Appeals of New York, and therefore the state court remedies for these claims have been properly exhausted.
An unreasonable application of established federal law occurs "if the state court arrives at a conclusion opposite to that reached by Court on a question of law or if the state court decides a case differently than Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362,412-13,120 S. Ct. 1495,164 L. Ed. 2d (2000); 28 U.S.C. § 2254(d)(1). Alternatively, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from Court's decisions but unreasonably applies that principle to the facts of [a] prisoner's case." Williams, 529 U.S. at 413; 28 U.S.C. § 2254(d)(1). Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001). A determination of the factual issues made by a state court "shall be presumed to be correct" and the petitioner "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
When the state court decision rests on independent and adequate state procedural grounds, a federal habeas court need not engage in even this limited degree of review even if the claim is also denied alternatively on its merits. See Beard v. Kindler, --- U.S. ---, 130 S. Ct. 612, 614,175 L. Ed. 2d 417 (2009); Coleman v. Thompson, 501 U.S. 722, 750, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991); Green v. Travis, 414 F.3d 288, 294 (2d Cir. 2005) (...
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