Whitehead v. Lamanna
| Decision Date | 19 May 2023 |
| Docket Number | 9:18-CV-1436 (LEK/TWD) |
| Parties | NORMAN WHITEHEAD, Petitioner, v. JAMIE LAMANNA, Respondent. |
| Court | U.S. District Court — Northern District of New York |
AMENDED MEMORANDUM-DECISION AND ORDER
Petitioner Norman Whitehead seeks federal habeas relief pursuant to 28 U.S.C. § 2254. Dkt. No. 1 (“Petition”); Dkt No. 1-1 (“Petition Memorandum”). Petitioner challenges his New York State convictions. He argues that he was denied effective assistance of appellate counsel during state court proceedings in violation of the Sixth Amendment. See generally Pet. Mem.
On March 12, 2019, Respondent Jamie LaManna filed a response to the Petition. Dkt. No. 5 (“Response”). After this Court granted Petitioner's request for more time to reply to Respondent, Dkt. No. 11, Petitioner submitted his reply on May 2, 2019, Dkt. No. 12 (“Reply”).
Now before the Court is a Report-Recommendation issued by the Honorable Therese Wiley Dancks, United States Magistrate Judge, recommending that the Petition be denied and dismissed, and no certificate of appealability be issued. Dkt. No. 13 (“Report-Recommendation”). Petitioner filed objections to the Report-Recommendation. Dkt. No. 20 (“Objections”).[1] Respondent has filed a response to the objections. Dkt. No. 23 (“Response to Objections”).
For the reasons that follow, the Court approves the Report-Recommendation in part and rejects the Report-Recommendation in part. The Court rejects the Report-Recommendation to the extent it recommends denying habeas relief for the following claim advanced by Petitioner: Petitioner's appellate counsel was constitutionally ineffective for failing to argue that Petitioner's trial counsel was constitutionally ineffective for not moving to dismiss the five facially defective counts (225, 226, 227, 228, and 229) in the indictment. Therefore, the Court grants habeas relief with respect to that Sixth Amendment claim. Accordingly, Petitioner's convictions stemming from those five counts are vacated and this action is remanded to the Albany County Court for proceedings consistent with this Memorandum-Decision and Order. The Report-Recommendation is otherwise approved and adopted.
The factual circumstances relevant to Petitioner's convictions for the possession, purchase, and sale of controlled substances, as well as for conspiracy, were detailed in the Report-Recommendation, familiarity with which is assumed. R. & R. at 2-3. Likewise, the factual allegations underlying Petitioner's request for habeas relief were detailed in the Report-Recommendation. See id.
Petitioner was one of more than 26 individuals named in a 278-count indictment concerning various drug-related crimes. Dkt. No. 6-2 at 6-125. Petitioner was initially charged with eleven of the counts. See id. These counts included (1) conspiracy in the second degree (Count 1); (2) criminal possession of a controlled substance in the second degree (Count 225); (3) criminal possession of a controlled substance in the third degree (Counts 226 and 229); (4) criminal sale of a controlled substance in the first degree (Count 227); (5) criminal possession of a controlled substance in the first degree (Count 228); (6) criminal sale of a controlled substance in the third degree (Counts 224, 232, 244, and 245); and (7) attempted criminal possession of a controlled substance in the third degree (Count 242). See id. Before trial, however, the prosecution dismissed Counts 224 and 242, leaving just nine counts remaining. Dkt. No. 6 at 370-72.
Following an Albany County Court jury trial on July 30, 2012, Petitioner was convicted of all nine counts and sentenced to an aggregate term of 29 years in prison. Dkt. No. 6-6 at 2223; Dkt. No. 7-10 at 8-10. Thereafter, Petitioner appealed to the Third Department and submitted his papers on November 20, 2014. Dkt. No. 6 at 11-69. Petitioner's appellate counsel raised several arguments that sought to overturn Petitioner's convictions. See id. However, the Third Department rejected every argument, except for Petitioner's arguments related to Counts 244 and 245. See People v. Whitehead, 130 A.D.3d 1142, 1143 (N.Y.App.Div. 2015). The Third Department found that Petitioner's “convictions on counts 244 and 245 [we]re not supported by the weight of the evidence,” and reversed Petitioner's convictions on those counts. After the Third Department's decision, only seven counts remained from the eleven counts Petitioner initially faced.
Petitioner subsequently sought review before the New York State Court of Appeals, which was granted. Dkt. No. 6-3 at 97. Petitioner argued that the remaining seven counts were unsupported by legally sufficient evidence, but the Court of Appeals disagreed. See People v. Whitehead, 29 N.Y.3d 956, 958 (N.Y. 2017). In a two-page order on March 28, 2017, the Court of Appeals rejected Petitioner's arguments concerning the sufficiency of the evidence, in addition to Petitioner's “remaining claims.” Id.
On May 24, 2018, Petitioner filed a writ of error coram nobis before the Third Department. Dkt. No. 6-5 at 235-68. Petitioner argued that his right to effective assistance of counsel was violated by his appellate counsel's failure to raise the following issues on appeal: (1) trial counsel's previous representation of a key prosecution witness which purportedly presented a conflict of interest; (2) the trial court's error in permitting the prosecution to amend Counts 227, 228, and 229 during trial; (3) the indictment being impermissibly amended under New York Law; and (4) trial counsel's ineffectiveness in failing to: (a) move to dismiss as facially defective Counts 225, 226, 227, 228, 229, and 244 of the indictment because the counts did not allege Petitioner's conduct had a particular effect in Albany County; (b) argue that the eavesdropping warrants were procedurally and substantively defective; and (c) move to dismiss Counts 225, 227, and 228 because the prosecution had failed to prove the aggregate weight of the illegal drugs. Dkt. No. 6-5 at 240-49, 472-90.
On September 7, 2018, the Third Department summarily denied the petition. Dkt. No. 6-6 at 24. And on November 15, 2018, the Court of Appeals denied Petitioner's request for leave to appeal. Dkt. No. 6-5 at 30.
Petitioner commenced suit in this Court on December 12, 2018, raising arguments concerning his alleged deprivation of effective assistance of appellate counsel. Dkt. No. 1. On February 8, 2022, the Magistrate Judge issued a Report-Recommendation, recommending that the Petition should be denied and no certificate of appealability be issued. See generally R. & R.
As discussed, the Magistrate Judge reviewed the Petition and the Response and recommended that the Petition should be denied and that no Certificate of Appealability be issued. See generally id.
First, the Magistrate Judge addressed Petitioner's claim regarding the eavesdropping warrant that enabled Petitioner's indictment. Id. at 12. Petitioner asserted that his appellate counsel was ineffective for failing to argue that Petitioner's trial counsel should have challenged the warrant's alleged deficiencies. Id. Specifically, Petitioner contended that the warrant was in violation of New York Criminal Procedure Law (“NYCPL”) § 700.65 because it (1) had terminated before it was amended, (2) exceeded the thirty-day duration permitted for warrants, and (3) relied on an “impermissible transfer of necessity and or probable cause.” Id. at 12-13. However, the Magistrate Judge rejected each argument because the “necessary factual predicate for each of Petitioner's arguments [was] unsupported by the record.” Id. at 13.
Second, the Magistrate Judge analyzed Petitioner's argument regarding the facial deficiencies in the indictment. Id. at 14. Petitioner argued that his appellate counsel was ineffective because appellate counsel failed to argue that trial counsel should have moved to dismiss six defective counts in the indictment. Id. Petitioner specifically posited that these counts were facially defective because they did not allege that Petitioner's offense took place in the county in which the crimes were charged. Id. The Magistrate Judge began by noting that despite Respondent's argument to the contrary, the indictment did not contain a preamble establishing the indictment's jurisdiction for the challenged counts. Id. at 18. The Magistrate Judge further found that Respondent's alleged theory of jurisdiction-the narrow and rarely used “particular effect jurisdiction”-was not properly pleaded anywhere in the indictment. Id. She thus concluded that the “indictment does not plead effect jurisdiction . . . under Counts 225 through 229.” Id. The Magistrate Judge thus agreed with Petitioner that “[t]hese facts should have been obvious to appellate counsel, who should have realized that this was a significant issue.” Id. (citation omitted). However, despite finding that the indictment failed to plead jurisdiction, she ultimately rejected Petitioner's arguments. The Magistrate Judge stated that although “the language” from Court of Appeals cases supports Petitioner's argument, “fairminded jurists could disagree on whether there is a reasonable probability that this argument would have succeeded before the Court of Appeals.” Id. at 19 (citation omitted). The Magistrate Judge thus found: “In the absence of any New York appellate decision granting relief on the theory that Petitioner advances, fairminded jurists could disagree on whether it was correct for New York's appellate courts to deny Petitioner's claim.” Id. at 20-21.
Third the Magistrate Judge turned to Petitioner's argument that “appellate counsel was...
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