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GREY v. HENDERSON

September 5, 1991

MICHAEL GREY, PETITIONER,
v.
ROBERT J. HENDERSON, SUPERINTENDENT, AUBURN CORRECTIONAL FACILITY, AND ROBERT ABRAMS, ATTORNEY GENERAL, RESPONDENTS.



The opinion of the court was delivered by: Weinstein, District Judge:

MEMORANDUM AND ORDER

Petitioner appeals from a comprehensive and persuasive report of Magistrate Judge Orenstein recommending the denial of a writ of habeas corpus. The report is approved on the basis of the Magistrate Judge's opinion set out below.

Because the petition raises issues not fully resolved by the appellate courts on the rights of appellants vis a vis their appellate attorneys, a certificate of probable cause is granted. The petition is dismissed. Notify counsel and petitioner.

So ordered.

REPORT

ORENSTEIN, United States Magistrate Judge.

Petitioner seeks a writ of habeas corpus under 28 U.S.C. § 2254 (1982) claiming he was denied due process of law and effective assistance of appellate counsel. For the following reasons I recommend that Mr. Grey's petition for a writ of habeas corpus be dismissed:

Procedural History

Grey was convicted, after jury trial in Kings County Supreme Court of two counts of Murder in the Second Degree (felony murder), (N.Y. Penal Law § 125.25[3]) and one count of Criminal Possession of a Weapon in the Second Degree (N.Y. Penal Law § 265.03) and was sentenced to concurrent terms of imprisonment of twenty years to life on the two murder counts and five to fifteen years on the weapons count.

Petitioner appealed from the judgment of conviction. On appeal he contended: 1) that there was insufficient evidence to support the verdict; 2) that the trial court erred by not charging the jury on attempted robbery; 3) that the trial court should have charged the jury that mere presence at the scene of a crime is not evidence of guilt; 4) that the court abused its discretion in denying petitioner's request for a severance; and 5) that petitioner's sentence was excessive.

On August 6, 1984, the Appellate Division, Second Department, unanimously affirmed petitioner's judgment of conviction without opinion. People v. Gray, 104 A.D.2d 538, 480 N.Y.S.2d 67 (2nd Dept. 1984). Petitioner's application for leave to appeal to the New York Court of Appeals was denied on September 21, 1984. People v. Gray, 63 N.Y.2d 775, 481 N.Y.S.2d 1028, 470 N.E.2d 873 (1984) (Jasen, J.). The Appellate Division denied petitioner's pro se motion for reargument on March 11, 1985.

By motion dated May 9, 1986 and additional papers dated August 6, 1986, petitioner moved to vacate his judgment of conviction pursuant to N.Y.Crim.Proc.Law § 440.10. Petitioner asserted that his judgment of conviction should be vacated because he received ineffective assistance of appellate counsel. Specifically, petitioner contended that his appellate counsel was ineffective because 1) he did not raise certain issues requested by petitioner and 2) counsel's presentation of the issues that he did raise and argue was inadequate and did not include federal constitutional arguments.

On September 15, 1986, the Supreme Court, Kings County, denied petitioner's motion to vacate his judgment of conviction (Lawrence, J.). By order dated January 6, 1987, petitioner's application for leave to appeal to the Appellate Division, Second Department, from the denial of his motion to vacate his judgment of conviction was denied. (Weinstein, J.).

By pro se application dated May 27, 1987, petitioner brought a petition under 28 U.S.C. § 2254, for a writ of habeas corpus in the United States District Court, Eastern District of New York. Petitioner claimed: 1) that the evidence at trial was insufficient to support his conviction; 2) that he received ineffective assistance of appellate counsel because counsel filed a brief deficient in setting forth the facts, identifying the issues and arguing the law; and 3) that appellate counsel's assistance was also ineffective because counsel failed to raise any federal constitutional arguments, thereby barring petitioner from obtaining any relief on these grounds by federal writ of habeas corpus.

While his petition was still pending before the United States District Court, petitioner moved to withdraw his petition for a writ of habeas corpus without prejudice. Petitioner stated that his petition would be resubmitted after he had fully exhausted state remedies by challenging appellate counsel's effectiveness by way of a motion for a writ of error coram nobis. District Judge Mark A. Constantino dismissed the petition "so that petitioner, as per his request, may exhaust his state remedies." Motion to Withdraw Writ Without Prejudice, (Order filed, October 11, 1987).

Nevertheless, on October 21, 1987, the United States District Court, Eastern District dismissed, without prejudice, petitioner's application for a writ of habeas corpus. (Constantino, J.) The court held that petitioner had failed to exhaust his state remedies because he had not challenged his appellate counsel's effectiveness by moving for a writ of error coram nobis proceeding as required by People v. Bachert, 69 N.Y.2d 593, 516 N.Y.S.2d 623, 509 N.E.2d 318 (1987).

On December 10, 1987, petitioner moved in state court for a writ of error coram nobis on the ground that his appellate attorney's conduct constituted ineffective assistance of counsel and denied him due process of law. On October 27, 1988, the Appellate Division, Second Department, denied petitioner's petition for a writ of error coram nobis. The court held that petitioner's appellate counsel had satisfied clearly the constitutional standard of effective assistance of appellate counsel set forth in Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983).

By pro se application dated March 30, 1989, petitioner brings this petition pursuant to 28 U.S.C. § 2254, for a writ of habeas corpus in the United States District Court, Eastern District of New York. Petitioner alleges identical claims to those he asserted in his petition that was dismissed without prejudice on October 21, 1987. Specifically, petitioner claims: 1) that he received ineffective assistance of appellate counsel because counsel filed a brief deficient in setting forth the facts, identifying the issues and arguing the law; 2) that appellate counsel's assistance was also ineffective because counsel failed to raise any federal constitutional arguments, thereby barring petitioner from obtaining any relief on these grounds by federal writ of habeas corpus; and 3) that the evidence at trial was insufficient to support his conviction. Counsel was appointed to represent petitioner on his habeas corpus petition on June 16, 1989.

Statement of Facts

A. Underlying Crime

On the night of April 19, 1980, Michael Grey, Kenneth Moss, Lloyd Grey ("Lloyd"), Randolph Gatson, Kevin Harris and Allen Taylor, along with approximately two hundred others attended a party at the Shulman-Cohen Jewish War Veteran's Post (the "Post") in celebration of Harris' birthday. Working at the Post in the coat room that night were Morris Panzer, the caretaker of the Post, and his grandson. Panzer and his grandson were charging fifty cents per coat.

At approximately 3:00 a.m., the party ended. After the party ended, Grey, Moss, Lloyd, Gatson, Harris and Taylor each helped at different times to pack up various pieces of stereo equipment and carry them to a station wagon for eventual transport. The station wagon was positioned in front of the Post and parked so that the opened hatch of the wagon faced the front door of the Post. On one of the last loading trips to the station wagon, both Moss and Lloyd carried a large speaker out of the Post. The whole group lifted it up and attempted to secure it to the roof.

Gatson testified that while loading the speaker onto the car, he observed in the car's open hatch "a polished piece of wood sticking out of a paper plastic bag." (Tr. 152) About the time when Moss was carrying the speaker to the car, Moss told Lloyd that "he needed money" and "wanted to stick somebody up." (Tr.92) At which point, Lloyd responded that "it was not worth it." After this conversation, Lloyd and Taylor returned to the Post to remove more equipment. Gatson and Harris remained outside the Post. Grey was not present during this conversation.

It was during this time, that Harris overheard heard Moss say to Grey "[s]hould we do it?" (Tr.260) Grey did not respond. Both Moss and Grey were standing outside near the car when this conversation took place. (Tr.260)

Just after the speaker was placed on the roof, Grey asked Gatson, who was sitting in the car, if Panzer, the caretaker, had any contract with their names and addresses. (Tr.146, 206, 261) After which Grey walked to the back of the station wagon.

(Tr.148) Gatson then saw Moss walk to door of the Post and ask Grey, who was standing at the back of the station wagon, "[d]o you have it." (Tr.148, 150, 198) Harris then heard the sound of rumpled paper and saw Grey carrying a plastic bag with the barrel of a gun sticking out. (Tr.263)*fn1 Grey returned from the door of the Post with plastic balled up. (Tr.263)

After both Taylor and Lloyd got into the car, they heard two explosions. At the time of the explosion, Gatson, Taylor, Harris, and Lloyd Were seated in the car and Grey stood at the back of the car near the hatch. Moss then proceeded to leave the Post. Harris testified that when Moss left the Post he walked to the back of the station wagon where Grey was standing. (Tr.271)*fn2

The next morning, the bodies of Panzer and his grandson were found in the Post's bathroom. Both were pronounced dead as a result of gunshot wounds.

B. Appellate Representation

Grey was represented by the same retained counsel both at the trial and appellate level. This petition alleging ineffective assistance of counsel stems from Grey's dissatisfaction with the way counsel proceeded on appeal.*fn3 Grey states that after receiving a copy of his appellate brief, he wrote appellate counsel a letter dated April ...


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