Yang Hao Lu v. Lamanna
| Decision Date | 08 March 2023 |
| Docket Number | 03-CV-6084 (DC),18-CV-2297 (DC) |
| Parties | YANG HAO LU, a/k/a Yaeng Hao Lu, Petitioner, v. LAMANNA, Superintendent of Green Haven Correctional Facility, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
YANG HAO LU Petitioner Pro Se Green Haven Correctional Facility ERIC GONZALEZ, Esq. District Attorney of Kings County By: Daniel Berman, Esq. Assistant District Attorney Attorney for Respondent
In 1997, following a jury trial, petitioner Yang Hao Lu was convicted in the Supreme Court of the State of New York Kings County (Hall, /.), on three counts of kidnapping in the first degree. He was sentenced to three consecutive prison terms of twenty-five years to life. On June 12, 2000, his conviction was affirmed by the Appellate Division, Second Department. People v. Yang Hao Lu, 710 N.Y.S.2d 544 (2d Dep't 2000). Appellate counsel informed Lu that she would seek leave to appeal his convictions to the New York Court of Appeals, but she failed to do so. Some two years later cormsei filed a motion for an extension of time to seek leave to appeal to the Court of Appeals; the motion was denied as untimely on October 15, 2002.
Lu thereafter filed two petitions in this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The first petition, in case No. 03-cv-6084, raised three claims relating to the proceedings at trial; the petition was denied on the merits in 2004. The second petition, No. 18-cv-2297 is still pending, and following proceedings in the Second Circuit, it has been amended so that it asserts only one claim: an ineffective assistance of counsel claim based on appellate counsel's failure to seek leave to appeal to the Court of Appeals.
For the reasons set forth below, the petition in 18-cv-2297, as amended, is DENIED.
The evidence at trial established the following:
On July 25,1995, at around 3:00am, Lu and three other men armed with guns and knives forced their way into an apartment in Sunset Park, Brooklyn. After the men forced the six occupants to kneel, Lu proceeded to blindfold them, tied their hands, and covered their mouths with duct tape. Lu and his cohorts stole various items, including cash, a television, and a VCR, and kidnapped a man and a pregnant woman. 03-CV-6084 Dkt 32-3 at 5-7, 9.[1]
The two hostages were held for ransom for fourteen days, during which time they were handcuffed together in a closet. The female hostage was stabbed, raped, and sodomized on three occasions by two of the kidnappers, including Lu. Id. at 7-10. On August 7,1995, the police rescued the victims from an apartment on Avenue Y in Brooklyn. Id. at 10-11. A search revealed two loaded handguns as well as handcuffs and numerous items of stolen property. Id. at 11.
Lu was indicted in Kings County for conspiracy in the second degree, kidnapping, rape, robbery, sodomy, sexual abuse, burglary, unlawful imprisonment, criminal possession of a weapon, and criminal facilitation. 18-cv-2297 Dkt. 32 at 2. In 1997, Lu was convicted after a jury trial of three counts of kidnapping in the first degree. Id. He was sentenced to three consecutive indeterminate terms of 25 years to life. Id.
On direct appeal to the Appellate Division, Second Department, Lu argued that (1) the indictment did not conform to the trial testimony, (2) the trial court incorrectly marshalled the evidence, (3) the prosecutor committed misconduct during trial and summation, and (4) his sentence was improper. 03-6084 Dkt. 32-1 at 3.
On June 12, 2000, the Appellate Division unanimously affirmed Lu's convictions. Yang Hao Lu, 710 N.Y.S.2d at 544. The court held that the claims regarding prosecutorial misconduct were unpreserved and without merit. Id. It found no error in the trial court's decision to allow the prosecution to ask some leading questions, in light of Lu's language difficulties. The court further held that the sentence was permissible, and it rejected the remaining challenges as either unpreserved or without merit. Id.
Lu's appellate counsel, Elizabeth S. Ostrow, notified him via letter dated July 20, 2000, that she would seek leave to appeal to the New York Court of Appeals. 03-CV-6084 Dkt. 32-3 at 32. Ostrow failed to do so. More than two years later, on September 3, 2002, Lu wrote to the New York Court of Appeals to inquire about the status of his appeal and was informed on September 10, 2002, that the application for leave to appeal had never been filed. Id. at 34, 36.
On September 17, 2002, Ostrow filed a motion pursuant to C.P.L. § 460.20 requesting an extension to move for leave to appeal. Id. at 38. In her affirmation in support of the motion, Ostrow cited Lu's language difficulties as the sole reason for her failure to file the leave application. Id. at 44 (). The Court of Appeals denied the motion as untimely on October 15, 2002. Id. at 46. Ostrow was later disciplined by the First Judicial Department's Disciplinary Committee and Lu was so notified via letter dated July 6, 2004. 18-cv-2297 Dkt. 1 at 1617.
On November 26, 2003, proceeding pro se, Lu filed his first habeas petition (No. 03-CV-6084), raising three claims: (1) denial of a fair trial, (2) prosecutorial misconduct, and (3) ineffective assistance of trial counsel. 03-cv-6084 Dkt. 1 at 5. The petition did not raise an ineffective assistance of counsel claim based on appellate counsel's failure to file a timely application for leave to appeal to the New York Court of Appeals. See id. The petition was denied by this Court on October 19, 2004 (Gleeson, /.), 03-CV-6084 Dkt. 18; see also 03-cv-6084 Dkt. 20 (judgment), and Lu's application for a certificate of appealability was denied by the Second Circuit on August 26, 2005, 03-cv-6084 Dkt. 24.
Lu filed his second petition on April 9, 2018. 18-cv-2297 Dkt. 1. In addition to raising the same claims advanced on direct appeal, he also alleged ineffective assistance of appellate counsel. Id. at 4. This Court (Hall, /.) transferred this petition to the Second Circuit for consideration as a motion for leave to file a successive 28 U.S.C. § 2254 petition. 18-cv-2297 Dkt. 8. On May 6, 2019, the Second Circuit denied leave. First, it concluded that leave was unnecessary for Lu to raise an ineffective assistance of appellate counsel claim (for failing to timely seek leave to appeal to the New York Court of Appeals) as this was not a successive claim. Second, it denied leave as to the remainder of Lu's proposed petition because the requirements of 28 U.S.C. § 2244(b) had not been satisfied. The Second Circuit transferred the failure to appeal claim back to this Court "for its consideration in the first instance." 18-cv-2297 Dkt. 9. The Second Circuit's May 6, 2019 order and its May 28, 2019 mandate were filed under both docket numbers in this Court.
On remand, the case was stayed pending Lu's application in state court for a writ of error coram nobis based on the ineffective assistance of appellate counsel claim. 18-cv-2297 Docket Sheet at 4 (minute order). On September 29, 2021, the Appellate Division denied the application, concluding that Lu "has failed to establish that he was denied the effective assistance of appellate counsel." People v. Yang Hao Lu, 151 N.Y.S.3d 904 (2d Dep't 2021) (). The Court of Appeals denied Lu's application for leave to appeal. People v. Yang Hao Lu, 180 N.E.3d 502 (N.Y. 2021) (Rivera, /.).
Thereafter, Lu was granted leave to amend his habeas petition in 18-cv-2297 to include - and only to include - an ineffective assistance of counsel claim based on appellate counsel's failure to timely seek leave to appeal his conviction to the New York Court of Appeals. 18-cv-2297 Docket Sheet at 6-7. Lu filed an amended petition on October 28, 2022. 18-cv-2297 Dkt. 28. The case was reassigned to the undersigned on January 19, 2023. 18-cv-2297 Docket Sheet at 8. The District Attorney's office filed its response to the amended petition on January 24, 2023. 18-cv-2297 Dkt. 32.
In light of the above, the only claim presently before the Court is Lu's ineffective assistance of appellate counsel claim based on his attorney's failure to timely seek leave to appeal to the New York Court of Appeals, a claim raised in his second petition (No. 18-cv-2297).
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), provides in relevant part that:
28 U.S.C. § 2244(d)(1)(D). This statute of limitations period applies to second or successive habeas petitions. See Watson v. Artuz, 283 F.Supp.3d 217, 231 (S.D.N.Y. 2018) ().
A federal court may not grant a habeas petition on a claim that was adjudicated on the merits in state court unless that adjudication:
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