Wright v. U. PO, Parole Officer
| Decision Date | 02 July 2021 |
| Docket Number | 10-CV-5127 (MKB) |
| Parties | KIRKLAND WRIGHT, Petitioner, v. U. PO, Parole Officer, New York Department of Corrections and Community Supervision, and ANTHONY ANNUCCI, Acting Commissioner, New York Department of Corrections and Community Supervision, [1] Respondents. |
| Court | U.S. District Court — Eastern District of New York |
Petitioner Kirkland Wright, proceeding pro se, filed the above-captioned petition for a writ of habeas corpus pursuant to 28 U.S.C § 2254, which this Court received on November 3, 2010 alleging that he was being held in state custody in violation of his federal constitutional rights. (Pet., Docket Entry No 1.) Petitioner's claims arise from multiple judgments of conviction following a jury trial in the Supreme Court of New York, Kings County (the “Trial Court”), for committing two counts of attempted robbery in the first degree, one count of attempted robbery in the second degree one count of criminal possession of a weapon in the second degree, and one count of criminal possession of a weapon in the third degree. (Id. ¶ 5.) Petitioner appealed his conviction to the New York Supreme Court Appellate Division, Second Department (the “Appellate Division”), which affirmed the conviction. People v. Wright, 878 N.Y.S.2d 788, 788 (App.Div. 2009). The New York Court of Appeals denied leave to appeal. People v. Wright, 13 N.Y.3d 751 (2009) (unpublished table decision). Petitioner also filed a motion under Article 440.10 of the New York Criminal Procedure Law, which the Trial Court denied (the “440 Motion”). (Aff. of Glenn Green, ¶¶ 9, 13, Docket Entry No. 6.) The Appellate Division denied leave to appeal. (Id. ¶ 14.) While his petition was pending in this Court, the Appellate Division denied a separate petition for a writ of error coram nobis. People v. Wright, 923 N.Y.S.2d 852, 853 (App.Div. 2011). The New York Court of Appeals denied Petitioner's motion for leave to appeal. People v. Wright, 17 N.Y.3d 823 (2011) (unpublished table decision).
Petitioner's initial and amended petitions in this action indicate an intent to raise all of the claims Petitioner raised in state court, as well as claims based on Connick v. Thompson, 563 U.S. 51 (2011), and Cash v. Maxwell, 565 U.S. 1138 (2012). (Pet. ¶¶ 16-17; Am. Pet. ¶¶ 5-16, Docket Entry No. 15; Pet'r Supp. Br. 1, Docket Entry No. 17.) In the amended petition that the Court received on September 12, 2011, Petitioner raised an additional claim, arguing that prosecutors failed to inform him of a variation in the plea agreement offered to his accomplice, who testified against Petitioner at trial. (Am. Pet. ¶¶ 5-16.)
For the reasons discussed below, the Court denies Petitioner habeas corpus relief on all claims.
Petitioner Petitioner was charged with two counts of attempted robbery in the first degree, one count of attempted robbery in the second degree, one count of criminal possession of a weapon in the second degree, and one count of criminal possession of a weapon in the third degree. (Tr. 1250, 1258-59, 1261.)[2]
The trial record reflects that Petitioner and his socially close but genealogically distant family member Errol Vannoy[3] conducted a botched armed robbery of a Friendly's restaurant in the fall of 2005. Eyewitnesses could not directly identify the perpetrators because they wore masks over their faces, but the men fled the scene in haste, discarding various items - including clothing, their guns, and their masks - in the surrounding area. In addition, Petitioner's SUV was found down the street from the scene. Although Petitioner escaped, officers captured Vannoy minutes after the robbery. Vannoy testified at Petitioner's trial pursuant to a plea agreement. At trial, Petitioner presented alibi testimony, but other evidence - including eyewitness testimony, DNA evidence, telephone records, documents recovered from the discarded items, and material (including cellular telephones belonging to both Petitioner and Vannoy) recovered from Petitioner's SUV - linked Petitioner to the robbery and corroborated Vannoy's testimony.
At 12:58 AM on November 13, 2005, two armed, black men wearing masks and gloves entered a Friendly's restaurant and began physically pushing people around at gunpoint. (Tr. 48-54, 59-60, 78-82, 108-09, 123-25, 129-32.) Eyewitnesses estimated the shorter male[4] to be 5'5” or between 5'4” and 5'6” and estimated the taller male[5] to be 6'1” or 6'2” tall; one eyewitness said the shorter male was “significantly” shorter and the taller male “significantly” taller than the eyewitness' own height of 5'11”. (Tr. 52, 58-59, 79, 124-25, 135-36.) The taller male “had a big - big hair cut, big hairdo”[6] and carried what appeared to be a black semiautomatic firearm. (Tr. 109-10, 124-25, 139.) The shorter male had a silver- or metallic-colored revolver with etching or scratches on the side. (Tr. 52, 64, 73, 79, 86.) The armed men ordered one employee into an office, where she pressed a panic alarm. (Tr. 51, 59-60, 80-81, 124.) This action angered one of the masked men, who became suspicious that she had alerted authorities. (Tr. 52, 80-82, 132.)
One employee had managed to escape the restaurant during the robbery and call 911 from outside. (Tr. 109-11.) The employee yelled to her boyfriend - who was waiting nearby to pick up the employee following her shift - to get in his vehicle because the restaurant was being robbed. (Tr. 111, 144-45.) At that point, the two armed men - fearful that police could be en route - began to flee the restaurant, and the boyfriend got in his car to track them down. (Tr. 52, 82, 111, 132, 145.) He observed the two men pass through a hole in a fence behind the restaurant but was unable to find the men when he drove to the other side of the fence. (Tr. 145.) After the men escaped, employees made a second call to police. (Tr. 82.)
A few minutes after 1:00 AM, a police canine unit arrived at the restaurant and learned from another officer who was at the restaurant that the perpetrators may have passed through a hole in the fence behind the restaurant. (Tr. 156-58.) The canine unit tracked a scent through the hole to a red 2003 Ford Expedition registered to Petitioner[7] and parked behind the restaurant facing against traffic.[8] (Tr. 160-62, 258-59, 277-78.) Police impounded the SUV and later conducted a search of the vehicle that revealed one of Vannoy's and two of Petitioner's cellular telephones, [9] Vannoy's wallet, [10] Vannoy's keys, [11] a glove, and a receipt containing Petitioner's name. (Tr. 278, 333-34, 341-43, 346.)
After tracking to the red 2003 Ford Expedition, the canine unit continued its tracking to a nearby wooded area. (Tr. 160-62.) There, the dog located and police evidence technicians recovered a pullover cap, two right-hand brown gardening gloves, and a Smith & Wesson model 643 revolver with live rounds in five of the six chambers, [12] all of which were found stuffed inside a Carhartt-branded ski mask. (Tr. 162, 216-18, 224, 233, 659.) At trial, Vannoy identified several of these items as the items Petitioner used on the night of the robbery while an eyewitness to the robbery identified the revolver as the firearm used by the shorter male in the robbery, and DNA testing of the ski mask revealed that it contained Petitioner's DNA. (Tr. 86- 88, 220, 225, 404-07, 611-13, 620-22.)
Upon discovering the evidence, the canine handling officer “heard crashing through the woods” and “pickets snap on a fence.” (Tr. 162.) The canine continued to track to a backyard, where the handler found broken pickets. (Tr. 163.) The presence of multiple police officers interfered with the canine's tracking, which ended in a back yard with a pool. (Tr. 163.)
At 1:25 AM, a second canine unit also responded to the area following the first unit's report that they were in foot pursuit of the robbery perpetrators. (Tr. 178-79.) Within minutes, this second unit heard a fellow officer shouting that he had just seen the perpetrator. (Tr. 181.) The unit's dog located Vannoy in some nearby bushes. (Tr. 182.) After officers arrested Vannoy, the second canine unit attempted to track the other perpetrator. (Tr. 182.)
The dog picked up a scent and led officers to two abandoned jackets - one RathCo-brand jacket and one Sean John-brand jacket - which officers recovered as evidence. (Tr. 183- 88, 218-19.) From inside the RathCo jacket, police recovered a pair of Nike golfing gloves, and from one of the exterior pockets, they recovered a Serius-branded ski mask. (Tr. 219, 229.) At trial, Vannoy identified several of these items as those he used on the night of the robbery, and later DNA testing of the ski mask was consistent with Vannoy's DNA and did not match Petitioner. (Tr. 407-08, 613-14.). Inside the Sean John jacket, police observed a dry, red stain on the front/chest portion of the interior lining, and they recovered personal papers and cards from the interior right-side breast pocket. (Tr. 219, 245-46.) Forensic testing revealed that the stain on the jacket was human blood that matched Petitioner's DNA profile. (Tr. 609-11, 620- 22.) Among the personal papers was a sales receipt listing Petitioner's name in a section labeled “contact details.” (Tr. 236.)
Prosecutors called Vannoy to testify against Petitioner. (Tr. 351, 369-72.) Vannoy testified to his lengthy criminal history, including multiple prior robbery convictions and the attempted robbery at Friendly's at issue in Petitioner's trial. (Tr. 355-56, 369-72.) In addition, Vannoy testified concerning the plea agreement he reached with prosecutors.
Vannoy...
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