Zimmerman v. Burge

Decision Date25 June 2007
Docket NumberNo. 06 CV 1007(ARR)(LB).,06 CV 1007(ARR)(LB).
Citation492 F.Supp.2d 170
PartiesNicholas ZIMMERMAN, Petitioner, v. Superintendent John BURGE, Auburn Correctional Facility, Respondent.
CourtU.S. District Court — Eastern District of New York

Nicholas Zimmerman, Auburn, NY, Pro se Petitioner.

Lisa Ellen Fleischmann, New York State Office of the Attorney General, Criminal Division, New York City, for Respondent.


ROSS, District Judge.

Pro se petitioner Nicholas Zimmerman filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on February 16, 2006. In his petition, Mr. Zimmerman raises the following claims: (1) he was denied the effective assistance of trial counsel by (a) counsel's decision to forgo pre-trial motions and investigation of petitioner's alibi defense in order to proceed directly to trial and (b) counsel's failure to list certain alibi witnesses on the notice of alibi and to call other defense witnesses; (2) the trial court violated his right to compulsory process by prohibiting him from calling alibi witnesses; (3) the trial court erred by allowing improper bolstering of the complaining witness's identification; (4) the prosecution knowingly solicited perjured testimony; and (5) he was denied the effective assistance of appellate counsel by counsel's failure to effectively support a missing witness charge claim. For the reasons given below, the instant petition is denied.1

1. Pre-Trial Proceedings

Petitioner was indicted by a grand jury in the Supreme Court of the State of New York, Queens County, on October 15, 1998. He was charged with using a handgun to threaten a woman named Nikia Stubbs in the early morning hours of September 19, 1998. Petitioner failed to attend court appearances prior to his arraignment and a bench warrant was issued for his arrest. He was arrested three years later in Nassau County on unrelated charges and was returned to Queens County on November 21, 2001 for arraignment. At petitioner's arraignment, trial counsel waived all pretrial motions and requested to proceed directly to trial. (See Arraignment Tr. at 7.) Trial counsel disputed the prosecution's statement of readiness, stating "if they can't even tell us where the identification witness is, they certainly cannot be ready to proceed to trial." (Id. at 3.) Counsel also reported that Nikia Stubbs had informed petitioner that she was not going to press charges and that she had told individuals sent by counsel's office that she was not going to testify. (See id. at 4-5.)

On November 26, 2001, trial counsel filed a notice of alibi stating that Andre, Brian and Chris Dallyrymple would testify that petitioner was at JamRoc Club in Hempstead, New York at the time of the crime charged. (See Ex. B at A-10, A-19.) The trial court rejected the alibi notice, finding that the defense's prior declaration of trial readiness precluded its filing. (See id. at A-11, A-20.) On December 6, 2001, the prosecution agreed to accept the notice of alibi on the condition that the three alibi witnesses were made available for an interview prior to testifying. (See Trial Transcript ["Tr."] at 9.) Defense counsel's request for an adjournment of the trial until December 11, 2001 was granted. (Id. at 10.) On that date, defense counsel again requested an adjournment of the trial "in relation to" the alibi witnesses. (Id. at 18.) The trial court denied the request, finding that the defense had stipulated that the witnesses would be produced to the state prior to trial and had failed to so. (Id. at 18.) The trial court further stated that jury selection would take a couple of clays, but the witnesses would be precluded from testifying if they were not made available to the prosecution prior to opening arguments. (Id. at 18-19.)

2. Trial, Post-Trial Motions and Sentencing

At trial, Stubbs testified that she made an arrangement with petitioner, whom she knew as "Sean," and his girlfriend, Jatanya Belnavis, to rent her Jeep Grand Cherokee for a week. (See Tr. at 377-78.) Stubbs had been friends with Belnavis for more than ten years and had met petitioner twice previously. (Id.) A few days after Stubbs rented the car, her boyfriend, Wilson Barnes, persuaded her to retrieve the car so she could sell it. (Id. at 380-81.) Accordingly, she called Belnavis on September 18, 1998 and asked for the car to be returned. (Id. at 381.) Later that evening, when the car had not been returned, she called petitioner's cellular phone, and he told her that he was on his way. (Id. at 384.) When he did not arrive, she continued to call but failed to reach him. (Id. at 384-85.) At around 2:00 or 2:30 a.m. on the morning of September 19, 1998, Stubbs, along with Barnes and her friend Karisha Brathwaite, drove to petitioner's house to look for the car, and when they did not find it, drove to Belnavis' house. (See id. at 385-88.) Stubbs spoke with Belnavis briefly and asked her to call petitioner and tell him to return the car. (Id. at 390.) Stubbs, Brathwaite, and Barnes returned to the car, and Belnavis approached and chatted with them some time later. (Id. at 391-92.) Stubbs testified that she then heard petitioner say, "Jatanya move. Duck down." (Id. at 394.) She stated that petitioner and another man approached the car, petitioner put a semi-automatic gun to her head, and the two men pulled her out of the car. (See id. at 394-95, 398.) Stubbs further testified that petitioner told her to run for her life, but she just stood still, and he fired several shots into the air. (See id. at 404-06.) According to Stubbs, she then ran back toward the car she arrived in, and petitioner and two other men drove away in her Jeep. (See id. at 407.)

Brathwaite testified for the prosecution that she saw two men approach the car and one held a gun to Stubbs' head and ordered her out of the car. (See id. at 300-02.) She also testified that she heard Stubbs call out, "Sean[!]" when the man with the gun approached. (See id. at 300.) Barnes did not testify.

On December 17, 2001, subsequent to the close of the state's case, defense counsel attempted to call Theophulus Brown and Haron Wilson to testify. Trial counsel informed the court that the witnesses were going to testify that Mr. Zimmerman, using the stage name "Fuzz Pacino," entered into a contract to perform at the JamRoc Club at the time of the alleged incident. Trial counsel emphasized that the witnesses were "not going to testify that he was there that night" but only authenticate the contract for the performance. (Id. at 561.) The trial court precluded the testimony of Brown and Wilson, finding that "it is a method of seeking to get evidence relating to alibi in in an improper manner where the proper manner of presenting the alibi has not been obtained." (Id. at 569.) The defense called two witnesses to testify, neither of whom were alibi witnesses or eyewitnesses. The Dallyrymples, the individuals listed in the original notice of alibi, did not testify. After the close of all the evidence, defense counsel sought a missing witness charge in relation to Barnes, but the trial court denied the motion. (See id. at 587-88.)

The jury found petitioner guilty of criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree, and menacing in the second degree. (Tr. at 686.)

On January 14, 2002, defense counsel filed a motion to set aside the verdict pursuant to N.Y.Crim. Proc. Law 330.30 on the basis of insufficiency of the evidence. (See Resp't Ex. A at A-12 to 13.) Counsel attached copies of a performance contract and promotional flyer for a performance by "Puzz Pacino" at JamRoc Club at 2:00 a.m. on September 19, 1998, signed by Haron Wilson and Theophulus Brown. (See id. at A-14 to 16.) He also attached an unsworn letter by Heron Wilson, stating that he would have testified that he was with petitioner on September 19, 1998 from 1:00 a.m. to 4:30 a.m. and saw petitioner perform at JamRoc Club. (See id. at A-17.) Wilson further stated that defense counsel had attempted to contact him, but he had changed his telephone number so it took time to reach him. (Id.) At the sentencing hearing on January 17, 2002, petitioner moved pro se to set aside the verdict on grounds that he had insufficient time to locate alibi witnesses and did not agree with counsel's waiver of his pretrial motions. (Sentencing Tr. at 15-18, available at Dkt. No. 29.)

The trial court denied petitioner's post-trial motions. (Id. at 18, 20.) Petitioner was sentenced as a second felony offender to concurrent terms of fifteen years for criminal possession of a weapon in the second degree, seven years for criminal possession of a weapon in the third degree, and one year for menacing in the second degree. (Id. at 23.)

3. Direct and Collateral Appeals

Petitioner appealed his conviction to the Appellate Division, Second Department. Petitioner contended that (1) the trial court erred when it denied trial counsel's request for a missing witness charge concerning Barnes; (2) his trial counsel was ineffective for (a) failing to object to evidence of petitioner's criminal history and (b) failing to file pre-trial motions, to call the alibi witnesses listed in the notice of appeal, and to provide notice of two additional alibi witnesses; and (3) the trial court erred in allowing the state to elicit petitioner's prior criminal conviction. (See Resp't Ex. A.) By order dated October 14, 2003, the Appellate Division affirmed Mr. Zimmerman's conviction, finding that (1) the claim regarding the missing witness charge was unpreserved for appellate review and also meritless; (2) the ineffective assistance of counsel claim relating to potential alibi witnesses involved matters dehors the record and therefore was not properly presented on direct appeal; and (3) the record...

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