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DIXON v. MILLER

July 14, 1999

LAWRENCE DIXON, PETITIONER,
v.
THOMAS J. MILLER, ACTING SUPERINTENDENT OF EASTERN CORRECTIONAL FACILITY, RESPONDENT.



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

    MEMORANDUM AND ORDER

Petitioner Lawrence Dixon seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Dixon was convicted in 1982 after a jury trial in absentia in New York State Supreme Court, Kings County, of Criminal Possession of a Controlled Substance in the First Degree (N.Y. Penal Law § 220.21[1]) and Criminal Possession of a Weapon in the Third Degree (N.Y. Penal Law § 265.02[4]). He was sentenced to concurrent sentences of fifteen years to life and one to three years, and was released on parole in July 1998 after having served the minimum fifteen year portion of his sentence.

The petition for habeas corpus relief was filed pro se on January 30, 1997. This court appointed counsel and, following denial of respondent's motion to dismiss the petition as untimely, petitioner now asserts three claims: (1) the evidence against him was legally insufficient to support a conviction; (2) petitioner's trial counsel failed to renew a suppression motion on the basis of a new controlling decision of the State's highest court regarding evidence seized from a closed container without a warrant, and petitioner was consequently denied a favorable suppression ruling on the most serious charge against him; and (3) it was unconstitutional for the state court to try petitioner in absentia where no controlling public interest demanded it and the case already had been pending approximately five years.

Background

In November 1977, Lawrence Dixon was a 35 year-old owner of a small grocery store and "barbecue pit" a few blocks away from a social club on Reid Avenue in Brooklyn. Beginning on November 14, 1977, the police repeatedly targeted the Reid Avenue social club as part of a heroin "buy operation." On November 30, 1977, petitioner allegedly sold four glassine envelopes of heroin to an individual who then sold the heroin to an undercover officer. Although the police recorded the transaction via a surveillance audio tape, they did not arrest petitioner immediately at the social club in order to protect the identity of a confidential informant.

The police subsequently arrested petitioner on December 8, 1977, when petitioner was observed driving an automobile to the vicinity of Sumner Avenue and Madison Street. There, as petitioner stepped out of the vehicle, police officers approached petitioner and arrested him for the November 30th transaction. A passenger in the vehicle, Michelle Johnson, was also arrested, after the police observed her moving away from what was discovered to be a partially covered gun on the front seat of the car. Petitioner, Ms. Johnson, and the vehicle were brought to the 79th Precinct, where the police conducted a routine inventory search of the car. An officer discovered a brown paper bag underneath the driver's seat containing thirty-seven glassine envelopes of a white powder that, upon testing, proved to be two and five-eighths ounces of heroin. Defendant was charged with Criminal Possession of a Controlled Substance in the First Degree (more than two ounces of heroin) (N.Y. Penal Law § 220.21[1])*fn1 for the drugs found in the car, and Criminal Possession of a Weapon in the Third Degree (N.Y. Penal Law § 265.02[4]) for the gun found in the car at the time of petitioner's arrest. Petitioner was further charged with Criminal Sale of a Controlled Substance in the Second Degree (N.Y. Penal Law § 220.41[1]), Criminal Possession of a Controlled Substance in the Third Degree (N.Y. Penal Law § 220.16[1]), Criminal Possession of a Controlled Substance in the Fifth Degree (N Y Penal Law § 220.09[1]), and Conspiracy in the First Degree (N Y Penal Law § 105.15), in connection with the November 30, 1977 transaction.

Two years later, beginning in October 1979, a pretrial suppression hearing was held to determine whether there was probable cause for petitioner's December 8, 1977 arrest, and whether the search of the car qualified as a routine inventory search. The court denied the motion to suppress on the grounds that the evidence connected with the November 30, 1977 narcotics transaction provided probable cause for the arrest, and that the paper bag containing the heroin was lawfully seized both as part of a valid inventory search of an impounded car and seized from the defendant's "grabbable area" at the time of his arrest.

In March 1982,*fn2 petitioner's case was transferred to a different trial judge. On March 4, 1982, after deciding pretrial motions and scheduling a trial date later that month, the court denied the prosecution's motion to remand petitioner. However, the court warned petitioner as follows:

  Well, I'll tell the defendant I'm going to keep him
    out, but for any reason he doesn't come back, when
    they find him — we'll continue the trial in your
    absence and when they find you, instead of giving
    you what you might have gotten if you stayed here,
    I'll think in terms of 25 to life if they ever —
    when they bring you in. So you have every reason to
    show up.
  Defendant Dixon: Well, I haven't yet disappeared in
    all the years I've been here.
  The Court: Then I suspect you'll come back, but you
    have every reason to come back because for any
    reason if you skip and I continue the trial without
    you, and when they find you and they always do, I
    wouldn't bat an eye of giving you 25 years to life
    for doing that. So you have every reason, both of
    you, to come here. I'm sure you will. Okay?

Tr. of Pretrial Motions at 79.

On March 17, 1982, following plea negotiations, petitioner agreed to plead guilty on March 22, 1982 to felony charges in exchange for an indeterminate sentence of imprisonment of six years to life. Petitioner did not, however, appear in court on March 22, and the case was adjourned to March 23, 1982. When petitioner failed to appear the next day as well, the prosecution moved to try defendant in absentia. The court conducted a hearing to determine whether petitioner was voluntarily absent and heard the testimony of an investigator with the district attorney's office regarding his efforts to locate petitioner. The investigator stated that he had checked with various city agencies including the city morgues, the medical examiner's office, various hospitals throughout New York City, and the City Department of Corrections, all to no avail. The court issued a bench warrant for petitioner and granted the prosecution's motion to try petitioner in absentia.

Following a jury trial, petitioner was convicted on April 8, 1982 of Criminal Possession of a Controlled Substance in the First Degree and Criminal Possession of a Weapon in the Third Degree in connection with the December 8, 1977 events. On June 23, 1982, petitioner was sentenced, also in absentia, to concurrent terms of imprisonment of fifteen years to life for ...


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