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ISSAC v. GREINER

September 29, 2004.

DARREL ISSAC, Petitioner,
v.
CHARLES GREINER, Superintendent of Green Haven Correctional Facility, Respondent.



The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge

REPORT and RECOMMENDATION

TO THE HONORABLE P. KEVIN CASTEL, UNITED STATES DISTRICT JUDGE.

I. INTRODUCTION

  Before the Court is Darrell Issac's ("Issac" or "petitioner") petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. Issac alleges that his confinement by the state of New York is unlawful because: 1) the trial court violated his right to equal protection of the law by denying the petitioner's trial counsel an opportunity to place in the trial record information that would support the petitioner's contention that the prosecutor misused a peremptory strike in order to bar a black veniremember from serving as an alternate juror; and 2) the assistance rendered to the petitioner by his trial counsel was ineffective, since counsel did not permit the petitioner to testify on his own behalf, as the petitioner wanted to do, and did not inform the petitioner that he could testify against the advice of counsel. The respondent opposes the petitioner's application for habeas corpus relief on the ground that the petitioner's claims are without merit.

  II. BACKGROUND

  On the evening of September 29, 1995, Tomeko Gordon ("Gordon") and William Coleman ("Coleman") were approached by three to five men as Gordon and Coleman stood on a subway platform at 145th Street and Broadway, in Manhattan. One the men, identified by Coleman as Issac, displayed what appeared to Coleman to be a pistol. He pressed the object into Coleman's abdomen and demanded cocaine and money. At the same time, others in the group stole a handbag and jewelry from Gordon, and took money and identification material from Coleman. According to Coleman and Gordon, one of the petitioner's accomplices encouraged the petitioner to shoot Coleman because Coleman did not have cocaine or what the accomplice deemed an adequate amount of money. Following the incident, Gordon followed the petitioner as he exited the subway station on to the street. Once outside the subway station, Gordon encountered Police Officer Jerome Arico ("Officer Arico") and informed him that she had been robbed and that the petitioner had a gun. Gordon identified the petitioner to Officer Arico.

  Officer Arico chased the petitioner, who dove underneath a car. According to Officer Arico, the petitioner secreted a white jacket he had been wearing near the car's engine. Officer Arico seized the petitioner and removed him from underneath the car. However, the petitioner freed himself and ran. Thereafter, Police Officer Walter Doyle ("Officer Doyle") apprehended the petitioner. Officer Doyle maintained that the petitioner attempted to strike him several times and urged a crowd that was at the scene to "[g]et the gun. Get the stuff." After his arrest had been effected, the petitioner was identified by Gordon and Coleman as the robber who had displayed a pistol. Officers Arico and Doyle searched the petitioner and the vicinity of the car under which he had attempted to hide. However, the officers did not recover the pistol.

  A New York County grand jury returned an indictment against Issac charging him with two counts of robbery in the first degree (N.Y. Penal Law § 160.15[4]), for taking property from Gordon and Coleman with what appeared to be a firearm; two counts of robbery in the second degree (N.Y. Penal Law § 160.10[1]), for taking property from Gordon and Coleman while aided by another person; and one count of resisting arrest (N.Y. Penal Law § 205.30), for attempting to prevent his arrest by Officer Doyle.

  Issac proceeded to trial in New York State Supreme Court, New York County. After the parties had selected twelve jurors, they began the process of selecting alternate jurors. During the first round of voir dire used to select the alternate jurors, the prosecution struck, peremptorily, veniremember Dudley Williams ("Williams").*fn1 Issac's trial counsel objected to the strike, claiming that it was motivated by Williams' race. The following colloquy took place:
MS. KAVOWRAS [Issac's trial counsel]: I object to the peremptory on Mr. Williams. I believe that [the prosecutor] had a racial basis for doing that.
THE COURT: And what is the basis of that?
MS. KAVOWRAS: Because I did not — I am trying to understand He tried to challenge on cause, and his reason was that —
THE COURT: Counsel, you also offered many cause challenges which the Court has not agreed with. He is exercising his rights as far as challenging a juror that he believes to be for cause. The fact I disagree with him does not make that a racially-based challenge. There are other black jurors impaneled here. I see no basis for that. The fact that Mr. Williams is black does not make a challenge to him racially based.
MS. KAVOWRAS: The fact that he is black doesn't make it a racial bias challenge. There I agree. But I also believe in this particular case based on —
THE COURT: Let's just say that I don't agree with you. You made your record, and I don't rule that that is so.
MS. KAVOWRAS: May I make my record?
THE COURT: No. I think you adequately protected your record. As far as I'm concerned there is no basis for that. There are black jurors on the jury, and I think there is adequate cause for the People to raise the challenge. I simply disagree that it was a cause challenge, and I am not going to impanel someone over his objection when he has a peremptory.
(Tr. 231-33).*fn2

  Williams was excused, and a remaining veniremember was selected to serve as an alternate juror. On October 7, 1996, the jury found Issac guilty on all charges. Thereafter, on November 4, 1996, the petitioner was sentenced to 12½ to 25 years imprisonment for each of the first degree robbery convictions, 7½ years to 15 years imprisonment for each of the second degree robbery convictions, and one year imprisonment for the resisting arrest conviction. The trial court directed that all terms of imprisonment run concurrently.

  The petitioner appealed from the judgment of conviction to the New York State Supreme Court, Appellate Division, First Department. He alleged, among other things, that he was denied his right to equal protection of the law based on the trial court's handling of the objection that his trial counsel made to the prosecution's peremptory strike of Williams. The Appellate Division affirmed the judgment of conviction unanimously. See People v. Issac, 265 A.D.2d 190, 696 N.Y.S.2d 142 (App. Div. 1st Dep't 1999).

  On March 29, 1999, the petitioner moved to vacate his conviction, pursuant to New York Criminal Procedure Law § 440.10 ("§ 440.10"). Issac brought that motion on the ground that he was denied his constitutional right to effective assistance of counsel because his trial counsel refused to allow him to testify on his own behalf. The trial court denied that motion on June 10, 1999. The petitioner renewed his § 440.10 motion on July 27, 1999. On November 5, 1999, the renewed motion was also denied. On October 15, 1999, Issac sought leave to appeal the judgment of conviction to the New York Court of Appeals. That request was denied on February 4, 2000. See People v. Issac, 94 N.Y.2d 904, 707 N.Y.S.2d 388 (2000).

  On May 3, 2000, the petitioner moved for a third time to vacate his conviction, pursuant to § 440.10. The motion was denied on July 19, 2000. On August 29, 2000, the petitioner renewed his third § 440.10 motion. On October 4, 2000, the trial court denied the renewed motion. Issac sought leave to appeal from that decision to the Appellate Division. On December 14, 2000, the Appellate ...


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