Wilson v. Lavalley
| Decision Date | 24 April 2015 |
| Docket Number | No. 6:14-cv-06135-MAT,6:14-cv-06135-MAT |
| Parties | NJERA A. WILSON, Petitioner, v. T. LAVALLEY, Superintendent Clinton Correctional Facility, ERIC T. SCHNEIDERMAN, Att. General of the State of New York, Respondents. |
| Court | U.S. District Court — Western District of New York |
Proceeding pro se, Njera A. Wilson ("Petitioner") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his November 23, 2010 conviction following a jury trial in Erie County Court (D'Amico, J.) of New York State on one count of Burglary in the Second Degree (N.Y. Penal Law ("P.L.") § 140.25(2).
On February 26, 2010, Petitioner and co-defendant Deyon T. Roberts ("Roberts") were charged in a two-count indictment with Burglary in the First Degree (P.L. § 140.30(3)) and Burglary in the Second Degree (P.L. § 140.25(2)). The charges stemmed from allegations that on the night of September 10, 2009, Petitioner and Roberts knowingly and unlawfully entered the dwelling of Jessie Lewis ("Lewis"), with the intent to commit a crime, and whileinside the dwelling, one of them threatened the immediate use of a dangerous instrument (a crow bar).
Beginning on August 24, 2010, Petitioner and Roberts were tried jointly before Erie County Court Judge Michael D'Amico and a jury. Lewis testified that on September 10, 2009, he was residing at an apartment complex at 608 Niagara Street in the City of Buffalo. Sometime in the morning, Lewis took his 8-week-old puppy to a nearby park for a walk, locking his apartment when he left. Upon returning home about 45 minutes later, he entered the vestibule and noticed someone coming out of his apartment holding a crowbar and a duffel bag. This man, whom Lewis later identified as Petitioner, seemed startled. Lewis then saw Roberts inside the apartment holding a pistol, which he aimed in Lewis' direction.
Lewis turned and ran down the street and, in his haste, left his dog behind. Using his cell phone, Lewis called 911. While on the phone with 911, Lewis saw Roberts run toward the backyard of 608 Niagara Street. When the police arrived, Lewis spoke with them and provided a description of Petitioner and Roberts.
One of the responding officers, Keith Devlin ("Devlin") checked the backyard of Lewis' apartment complex since Lewis had seen Roberts run in that direction. From an adjoining vacant lot, Devlin heard a rustling sound coming from the vicinity of a couple abandoned vehicles and some tall weeds. As he walked toward that area, Roberts jumped up in front of him. Roberts was sweaty,covered in burrs and vegetation, and breathing heavily. Devlin arrested Roberts.
Another responding officer, Donna Donovan ("Donovan"), was speaking to some potential witnesses near Lewis' apartment when she observed Petitioner walking down a driveway located two houses down, at 551 7th Street.1 Petitioner was sweaty and covered in leaves. Donovan stopped him and asked him some questions. Because his answers did not make sense to her, Donovan placed Petitioner in the back of her patrol car and returned to the driveway down which she had seen Petitioner walking. Next to some garbage cans, she saw a duffle bag which appeared to be moving. Donovan opened up the bag and discovered Petitioner's puppy and a bulletproof vest.
Donovan brought Petitioner back to 608 Niagara Street, where he was identified by Lewis in a show-up identification procedure. At that time, Lewis also identified Roberts. While Petitioner was still in the back of Donovan's patrol car, Lewis heard him shout to his (Lewis') step-sister, "Monique, it wasn't me, I didn't have a gun!" T.448.2
Several items found at Lewis' apartment-a pair of leather gloves, a black pry bar, and a screwdriver-were collected by the police. These items, along with a watch and a gun found in a nearbybasement window-well, were submitted for DNA testing. The test results indicated that the pry bar contained a mixture of DNA, and Petitioner could not be excluded as a source of one of the DNA profiles found on the pry bar. The forensic chemist who tested the samples testified that the odds of randomly selecting an unrelated individual from the United States population as a possible contributor was 1 in 1,070 individuals. The DNA profile on the right-hand leather glove matched Roberts' DNA. Roberts also could not be excluded as a contributor to the DNA found on the watch. The odds of randomly selecting an unrelated individual as a possible contributor was 1 in 22.9 million individuals.
Roberts testified that on the morning of September 10, 2009, he went to a local park to work out, after which he went to the Niagara Café for lunch. After trying to visit a friend, who was not home, he cut through a vacant lot to get to a gas station to buy some bottled water. A police officer appeared, forced him to the ground at gunpoint, and handcuffed him. Roberts said that, as was his habit, he had been wearing leather gloves during his workout to protect his hands and wedding ring. He did not know what happened to the gloves after his altercation with the police. He testified that he never had been inside Lewis' apartment.
Petitioner did not testify. The defense theory was that Lewis misidentified Petitioner as a suspect, and that Petitioner simply was in the wrong place at the wrong time when he was arrested.
On August 30, 2010, the jury returned a verdict acquitting Petitioner of the first degree burglary count but convicting him of the second degree burglary count.
On November 23, 2010, Petitioner was adjudicated as a second violent felony offender and was sentenced to a determinate term of 7 years on the second degree burglary conviction, to be followed by 5 years of post-release supervision.
On direct appeal, appellate counsel filed a brief, and Petitioner filed a pro se supplemental brief. The Appellate Division, Fourth Department, of New York State Supreme Court, unanimously affirmed the conviction. Leave to appeal and reconsideration were denied by the New York Court of Appeals. People v. Wilson, 104 A.D.3d 1231 (4th Dep't), lv. denied, 21 N.Y.3d 1011, reconsideration denied, 21 N.Y.3d 1078 (2013).
This timely habeas petition followed, in which Petitioner asserts the claims he raised in his pro se appellate brief. Respondent answered the petition and filed an opposition memorandum of law. Petitioner filed a reply. For the reasons discussed below, Petitioner's request for a writ of habeas corpus is denied.
Petitioner asserts, as he did on direct appeal in his pro se supplemental brief, that the prosecutor committed misconduct during closing argument. The Appellate Division found that "theprosecutor's comments during summation were 'either a fair response to defense counsel's summation or fair comment on the evidence[.]'" People v. Wilson, 104 A.D.3d at 1233 (quotation omitted); internal quotation marks omitted in original).
A claim of prosecutorial misconduct on habeas corpus is reviewed under "the narrow [standard] of due process, and not the broad exercise of supervisory power." Floyd v. Meachum, 907 F.2d 347, 353 (2d Cir. 1990) (citation omitted). The relevant question is whether "the prosecutorial remarks were so prejudicial that they rendered the trial in question fundamentally unfair." Garofolo v. Coomb, 804 F.2d 201, 206 (2d Cir. 1986). Generally, inappropriate prosecutorial comments, standing alone, are insufficient to reverse a conviction. United States v. Young, 470 U.S. 1, 11 (1985). Rather, the reviewing court must assess the impact of the improprieties on the fairness of the trial as a whole. Id.; see also Smith v. Phillips, 455 U.S. 209, 219 (1982) ().
Petitioner faults the prosecutor for vouching for the credibility of the State's witnesses during his summation. See Petitioner's Supplemental Appellate Brief ("Pet'r Supp. Br.") at 13 (). Although it is generally improper for the government to vouch for the credibility of its ownwitnesses, the Second Circuit has noted that a prosecutor may respond to a defense summation that "invited this response." Gonzalez v. Sullivan, 934 F.2d 419, 424 (2d Cir. 1991). In Gonzalez, the petitioner asserted that the prosecutor committed misconduct by arguing that a key prosecution witness "had no reason to lie." The Second Circuit did not find the remark improper since "the defense's summation invited this response by arguing that [the witness] had testified only to impress the other key prosecution witness." Id. In that context, where the defense urged a theory of fabrication by prosecution witnesses, the Second Circuit held that the "prosecutor's response [was] unlikely to have affected the jury's ability to judge the evidence fairly." Id. (citing Young, 470 U.S. at 12-13); other citations omitted). Here, similarly to Gonzalez, the prosecutor asked rhetorically, "Why would [Lewis, the complainant] lie?" T.717. Given that defense counsel's summation, fairly interpreted, could be read as inviting such a response,3 the Court cannot find that the prosecutor committed misconduct. See Gonzalez, 934 F.2d at 424; see also Morales v. Walsh, No. CV-05-2251(DGT), 2008 WL 2047632, at *7 () (citing Natal v. Bennett, 98 Civ. 1872(RWS), 1998 WL 841480, at *8 (S.D.N.Y. Dec. 3, 1998) (); other citation and citations to record omitted)).
With regard to the...
To continue reading
Request your trial