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Middleton v. Ercole

December 3, 2007


The opinion of the court was delivered by: John Gleeson, United States District Judge


Dana Middleton, currently incarcerated in Green Haven Correctional Facility, petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, seeking relief from his conviction in New York State Supreme Court on charges of robbery in the first degree and criminal possession of a weapon in the second degree. Middleton, appearing pro se, claims (1) that the trial court deprived him of a trial by an impartial jury and of due process of law when it learned that one juror was behaving in a manner suggestive of misconduct and of a lack of qualification to serve and did not declare a mistrial or examine the juror, (2) that his trial counsel provided ineffective assistance by failing to move to reopen the Wade hearing*fn1 at which Middleton challenged his identification by the victim when the victim's trial testimony contradicted his testimony at the Wade hearing, and (3) that his appellate counsel provided ineffective assistance by failing to claim that his trial counsel was ineffective for failing to move to reopen his Wade hearing. For the reasons stated below, the petition is denied.


A. The Crime and the Investigation

The government's evidence at trial established that at approximately 3:50 AM on September 3, 2001, at a street fair celebrating the pre-Caribbean Day festival "Jouvert" at the intersection of Church Avenue and East 57th Street in Brooklyn, Dana Middleton snatched a chain and medallion from Adrian Roberts through the window of Roberts's stopped car. Roberts exited the vehicle to confront Middleton and looked in Middleton's face for two or three seconds, after which Middleton fired a gunshot that struck Roberts's car. Three police officers in an unmarked patrol car, Lieutenant David Siev and Officers Andrew Johnson and Raymundo Navedo, observed this entire incident and exited their vehicle to give chase. Middleton appeared to point his gun at the officers, and Officer Johnson fired a shot in the direction of Middleton. Middleton fled on foot along East 57th Street and Linden Boulevard, pursued by Officers Johnson and Navedo on foot and Lieutenant Siev in a commandeered civilian car. Officer Johnson observed Middleton discard an object, and broke off the chase to retrieve what turned out to be a cellular phone. Lieutenant Siev arrested Middleton after confirming his identity with Navedo.

During the officers' pursuit of Middleton, Roberts drove around looking for Middleton and the officers who pursued him. He encountered several police officers, who informed him that someone had been arrested for his robbery and gave him directions to the 67th Precinct. Roberts drove to the precinct and immediately on entry saw Middleton standing at the main desk. Roberts and his friend Marley Edwards (who had also been in the car with Roberts during the robbery) identified Middleton as the robber.

Later on September 3, 2001, a resident of 920 Linden Boulevard called the police to report a discarded Glock 9-millimeter pistol outside his house. The police recovered the pistol and through ballistic examination determined that it had fired a shell casing recovered on East 57th Street and Church Avenue. B. The Wade Hearing and the Trial

Middleton was indicted for attempted murder in the second degree, robbery in the first degree, and criminal possession of a weapon in the second degree.*fn2 An identification hearing was conducted over several days in December of 2002 to determine whether Roberts's identification of Middleton at the precinct was impermissibly suggestive. The trial judge denied Middleton's motion, ruling that the identification was not police-arranged because the officers who directed Roberts to the precinct did not know that Roberts would see Middleton at the front desk immediately upon arriving at the precinct, and thus did not violate Middleton's rights. At the hearing, Roberts did not identify the officers who directed him to the precinct as having been involved in the chase of Middleton. At trial, however, Roberts claimed that he recognized one of the officers who directed him to the precinct to have been involved in chasing Middleton. Middleton's trial counsel did not move at that point to reopen his Wade hearing.

During its deliberations, the jury sent a note to the court which read as follows: We have a juror that is basing her judgment on her personal experience. She is insisting that she has heard testimony that does not exist. She insists two pictures of the defendant were shown.

She is not basing her decision on court testimony. The juror has shown her security badges and spoke of her hunting licenses. She is insisting that testimony has been given that does not exist. Can we please get an alternate juror?

Trial Tr. 814. The trial court stated, "Obviously, there is a juror that is having a problem. I don't want to get to the specifics of any problem that she is having . . . ." Id. at 814. The court proposed a response generally re-instructing the jurors on their duty to base their findings on the law and evidence, advising them that they could request testimony to be read back to them, and telling them that the alternate jurors had been discharged. Id. at 815-16.

Middleton's trial counsel objected to the proposed instruction, stating, "The only question on [the note] is: Can we get an alternate juror, and the answer to that is, no. My position at this point is that, clearly, there is a juror on this jury who is problematic, whoever it is cannot be fair and impartial. Based upon that, I ask for a mistrial at this point. That's my request." Id. at 816. The court stated that it would not declare a mistrial, saying, "I don't want to analyze this. We can all guess what might be going on, but I think this is a fair way to respond to the note. So I am going to do that," id. at 818, to which Middleton's trial counsel replied, "Please note my exception, for the record," id. The prosecutor did not ask for an inquiry into the juror's behavior. Id. at 816-18. The court gave essentially the instruction it had proposed, also repeating its earlier instruction that jurors should not consider any specialized knowledge they might have. Id. at 821-25. It also told the jury, "If one of you gets sick, we will have to wait for you to get better, but the 12 of you are going to have to continue in this case," and overruled Middleton's counsel's objection that this statement was coercive. Id. at 825.

The jury resumed deliberations and delivered another note to the court, which read as follows:

One juror is note [sic] following the definition of the law. We have a juror that insists that if a person possesses a loaded gun, then it means attempted murder. This is not the definition as stated by the court. The judge has laid out two times what qualifies for attempted murder, and we have one juror that feels 13 bullets in a gun equals attempted murder. Can you please explain this charge again.

Id. at 825-26. While the court was deciding how to respond to this second note, the jury sent a third note, reading:

Juror No. 2 wants to make a decision based on her notes alone, yet doesn't want to show us the read back. She stated that her notes are more accurate than what was read to us this morning, and says her decision was made based on her notes, which leads us to believe that this juror did not act in good faith in making a decision long before we started deliberating. She is paranoid, stating that evidence is being withheld. When we returned from hearing the clerk, [reading Roberts's testimony], she said that wasn't Roberts['s] testimony just the clerk reading it, so it's not accurate, again implying her notes are more accurate than the actual transcripts.

She claims she wants to see/hear evidence but refuses to write it down. So when we write it down for her, she comes back and refuses to deliberate on the evidence. She is using personal experience, discussing events that didn't occur, and people that were not there, including the victim's mother who wasn't even there.

Id. at 827-28. The court rejected Middleton's counsel's renewed request for a mistrial, and decided to ignore the third note as it did not contain a question. Id. at 828-29. The court re-instructed the jury on the elements of attempted murder and, over Middleton's counsel's objection, also asked them if they had reached a verdict on any counts. Id. at 829-33. Almost immediately the jury sent a note indicating that it had reached a verdict on some counts. Over Middleton's counsel's objection, the trial court took a partial verdict, with the jury finding Middleton guilty of robbery in the first degree and criminal possession of a weapon in the second degree. The court declared a mistrial on the attempted murder and attempted assault counts.

C. Appeal and Collateral Proceedings

Middleton, represented by new counsel, appealed his conviction. Middleton's appellate counsel argued that Middleton was deprived of a fair trial when the court denied Middleton's motion for a mistrial; did not conduct an inquiry into whether the juror in question was qualified to serve or committed misconduct; coercively suggested that deliberations could last a long time, invited the jury to reach a partial verdict, and then accepted the partial verdict; and failed to respond at all to the last jury note. The Appellate Division, Second Department, found that the acceptance of a partial verdict was proper, and claimed that Middleton's contention that the trial court should have conducted an inquiry into the problematic juror was "unpreserved for appellate review" based on Middleton's trial counsel's failure to ask the trial court for an inquiry. People v. Middleton, 795 N.Y.S.2d 649, 649 (2d Dep't 2005). The Appellate Division did not consider Middleton's trial counsel's motion for a mistrial -- which it characterized as based on "unspecified claims that the juror in question could not be fair and impartial" -- sufficient to preserve the issue. Id. The New York Court of Appeals denied Middleton's application for leave to appeal from the Appellate Division's decision. People v. Middleton, 5 N.Y.3d 808, 808 (2005).

Middleton then applied pro se for a writ of error coram nobis, claiming that his appellate counsel provided ineffective assistance by failing to argue that trial counsel provided ineffective assistance for failure to (1) move to reopen the Wade hearing, (2) request that the court conduct an inquiry into whether any jurors were unqualified to serve or were committing misconduct, and (3) request an adverse inference instruction regarding the prosecution's failure to disclose the 911 tape that led to the pistol being recovered. The Appellate Division denied Middleton's application, People v. Middleton, 822 N.Y.S.2d 459, 459 (2d Dep't 2006), and the Court of Appeals denied leave to appeal. This petition followed.


A. Standard of Review

1. Review of Procedurally Defaulted Claims

A state court's explicit reliance on a procedural bar preventing adjudication of the merits of a claim generally constitutes an independent and adequate state law ground for the state court's judgment precluding federal review. See Harris v. Reed, 489 U.S. 255, 260-62 (1989) (explaining rationale for habeas corpus procedural default rule); see also Coleman v. Thompson, 501 U.S. 722, 750 (1991) (noting a state's interest in "channeling the ...

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