Williams v. Artus, 08 Civ. 11356 (JGK).

• Decision Date: 08 March 2010
• Docket Number: No. 08 Civ. 11356 (JGK).,08 Civ. 11356 (JGK).
• Citation: 691 F. Supp.2d 515
• Parties: Raheim WILLIAMS, Petitioner, v. Dale A. ARTUS and J.F. Bellnier, Respondents.
• Court: U.S. District Court — Southern District of New York

691 F. Supp.2d 515

Raheim WILLIAMS, Petitioner, v. Dale A. ARTUS and J.F. Bellnier, Respondents.

No. 08 Civ. 11356 (JGK).

United States District Court, S.D. New York.

March 8, 2010.

Raheim Williams, Romulus, NY, pro se.

OPINION AND ORDER

JOHN G. KOELTL, District Judge.

This is a petition for habeas corpus pursuant to 28 U.S.C. § 2254 brought by New York State prisoner Raheim Williams (the "petitioner"). After a jury trial, the petitioner was convicted of six counts of Robbery in the First Degree and sentenced as a second felony offender to six concurrent determinate prison terms of twenty years and five years of post-release supervision. The petitioner claims (1) the police conducted an investigatory lineup in violation of his Sixth Amendment right to counsel; (2) the trial court failed to provide the petitioner's defense counsel an opportunity to respond to jury notes in violation of the petitioner's right to a fair trial; (3) the trial court improperly failed to set aside the jury's verdict based on juror misconduct; (4) the prosecution failed to present legally sufficient evidence to support the petitioner's conviction for aiding and abetting robbery; (5) the police lacked probable cause for the petitioner's arrest; (6) the petitioner was denied an independent source hearing; (7) the petitioner was denied a hearing to determine whether a photographic array was unduly suggestive; (8) the petitioner's trial counsel failed to provide adequate and effective assistance of counsel in violation of his Sixth Amendment right; and (9) the petitioner's appellate counsel also failed to provide adequate and effective assistance of counsel.

I.

A.

The evidence at trial was sufficient to find the following facts.

On October 19, 2004 at approximately 2:50 a.m., Yusef Perkins, Demetrias Relaford, Duval Hobson, and Michael Sparks were sitting on a bench on the corner of 129th Street and Saint Nicholas Terrace in Manhattan when a black Volkswagen Jetta with Connecticut license plates double parked in front of the bench. (Trial Tr. 317-18, 322-23.) Two men exited the Jetta with guns drawn. The driver remained inside. The two gunmen approached the group sitting on the bench and robbed them. The gunmen then told the victims, "You have five seconds to run." (Trial Tr. 80.) As the four men ran, the gunmen fired approximately five shots, wounding Relaford in the torso and Hobson in the left leg. (Trial Tr. 57, 84, 96-97.) The gunmen then returned to the Jetta and drove off.

Police Officers Iraina Stone and Hertelou Pierre were on patrol in the area at the time of the robbery. The officers heard the gunshots and immediately drove toward the scene of the robbery. At the corner of Saint Nicholas Terrace and 127th St., Officer Stone observed a black Jetta with Connecticut plates approaching a stop sign. It was the only car traveling on the street. As the Jetta turned the corner, Officer Stone was able to get a clear look at the driver-a black male, approximately twenty or thirty years old, clean shaven, with a short haircut, and protruding eyes-who Officer Stone later identified as the petitioner. (Trial Tr. 189.) Officer Stone also took note of the Jetta's license plate number, RXJ-872. After the car had passed, Officers Stone and Hertelou received a radio transmission from Sergeant John Dilapi, who also responded to the gunshots. Sergeant Dilapi had a brief conversation with the injured victims near the scene of the incident, and the victims told him that the gunmen had come out of a black Jetta with Connecticut plates. (Trial Tr. 118-19.) Sergeant Dilapi then informed police to be on the alert for such a vehicle. Officers Stone and Pierre then tried unsuccessfully to locate the Jetta they had seen minutes earlier. (Trial Tr. 148-49.)

At the scene, Officer Jason Medina ran the license plate number Officer Stone had observed, RXJ-872, but received no results. Later that morning, another officer, Officer John Ford, informed Officer Medina that on Connecticut license plates, numbers precede letters. Officer Medina then ran license plate number 872-RXJ and found that it belonged to a black Volkswagen Jetta that was registered to the petitioner. (Trial Tr. 296-98.)

Based on this information, Detective Giselle Moyano assembled a photo array containing photographs of the petitioner and five other men. Detective Moyano then asked Officer Stone if any of the men in the photo array looked like the driver of the black Jetta. Officer Stone selected two photos, including the petitioner's. (Trial Tr. 244-46.)

After Officer Stone identified the petitioner in the photo array, Detective Alex Argiro discovered that the petitioner's black Jetta had recently received some parking tickets near the Astoria Housing Development in Queens. (See Trial Tr. 418.) Detective Argiro then searched the area around the Housing Development and, at approximately 11:30 p.m., located the petitioner's Jetta at the corner of 27th Avenue and 3rd Street. Video surveillance tapes revealed that the Jetta arrived there at approximately 4 a.m. (Trial Tr. 450.) When the petitioner returned to his car the next morning, Detective Argiro arrested him and took him to the precinct.

At the precinct, Detective Argiro conducted a lineup with the petitioner and five other individuals. (Trial Tr. 431-32.) Officer Stone again identified the petitioner as the driver of the black Jetta.

B.

On February 13, 2004, a New York County Grand Jury returned a twenty-eight count indictment against the petitioner. The indictment included sixteen counts of Robbery in the First Degree and twelve counts of Robbery in the Second Degree. The petitioner pleaded not guilty.

In a pre-trial hearing held on October 21-22, 2004, the petitioner moved to suppress the evidence that Officer Stone had identified him in the lineup. The petitioner argued that the lineup was conducted in violation of his right to counsel. The petitioner testified that he told Detective Argiro that he had an attorney, Brian Kaplan, who was representing him on an unrelated matter and that he wanted his attorney present for the lineup. (Hr'g Tr. 75.) The petitioner further testified that Detective Argiro told him, "We don't have to call your attorney." (Hr'g Tr. 75.) The petitioner offered as evidence a photocopy of one of Kaplan's business cards that the petitioner had with him at the time of the arrest, on which someone had written, "found in the perp's pocket." (See Hr'g Tr. 77-78; Br. for Resp't 10.) Detective Argiro, however, testified that the petitioner never requested an attorney's presence at the lineup. (Hr'g Tr. 44-45.) Detective George Fountoulakis, who was also present for the lineup, likewise testified that the petitioner did not request to have an attorney present. (Hr'g Tr. 67.)

The hearing court denied the petitioner's motion to suppress the identification evidence. (See Decision of the New York County Supreme Court Denying Petitioner's Motion to Suppress ("Motion to Suppress Decision") 5.) The court found the detectives' testimony credible and concluded that the detectives acted appropriately in conducting the lineup in the absence of counsel. (Motion to Suppress Decision 4.) The hearing court also concluded that there was probable cause for the petitioner's arrest and that the lineup procedures were reasonable and not unduly suggestive. (Motion to Suppress Decision 3-4.)

At trial, in addition to the facts described above, the prosecution presented evidence that the petitioner previously had lived in the area of the robbery and that he previously had quarreled with two of the robbery victims, Perkins and Hobson, including one incident where Perkins punched the petitioner in the face and pulled a knife on him and another incident where Hobson drove the petitioner's car without his permission. (Trial Tr. 9, 319-20.)

On May 25, 2005, the jury convicted the petitioner of six counts of Robbery in the First Degree. (Trial Tr. 682, 691-92.) Prior to sentencing, the petitioner moved to set aside his conviction pursuant to New York Criminal Procedure Law § 330.30, alleging juror misconduct. The petitioner claimed that, during the trial, the jury foreperson, Gina Peterson, discussed the trial with her friend, Shanelle Conde. During the conversation, Peterson learned that Conde was the petitioner's niece. The petitioner argued that Peterson's conduct affected his right to a fair trial because Peterson had improperly discussed the trial during its pendency and because, after learning that Conde was the petitioner's niece, Peterson failed to disclose to the court that she now had a personal connection to the petitioner. (Affirmation in Support of Mot. to Set Aside the Verdict ¶¶ 1-2.) The court denied the petitioner's motion, reasoning that Peterson's conversation with Conde, "although imprudent, was an innocuous private conversation that revealed no hidden bias or premature deliberation on the part of the juror." (Decision of the New York County Supreme Court Denying the Petitioner's Motion to Set Aside the Verdict 3.)

The petitioner then filed a direct appeal to the New York State Supreme Court, Appellate Division, First Department and also cited additional grounds for appeal in a pro se supplemental brief. The court unanimously affirmed the petitioner's conviction. See People v. Williams, 50 A.D.3d 472, 856 N.Y.S.2d 570, 570 (2008). The court rejected all of the petitioner's claims, including his claim that the trial court improperly denied his defense counsel the opportunity to respond to jury notes. See id. The petitioner's application for leave to appeal to the New York State Court of Appeals was denied on June 16, 2008. See People v. Williams, 10 N.Y.3d 940, 862 N.Y.S.2d 347, 892 N.E.2d 413 (2008). This petition for a writ of habeas corpus followed.

II.

A.

Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant habeas corpus relief to a state...