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Dozier v. McGinnis

March 26, 2008

NERON DOZIER, PRO SE, PETITIONER,
v.
MICHAEL MCGINNIS, SUPERINTENDENT SOUTHPORT CORRECTIONAL FACILITY RESPONDENT.



The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge

MEMORANDUM AND ORDER

On May 23, 2001, Neron Dozier ("petitioner") was convicted in New York State Supreme Court, Queens County, of second degree murder, first degree reckless endangerment, and criminal possession of a weapon in the second and third degrees. He was sentenced to serve concurrent terms of twenty-five years to life for the murder, three-and-a-half to seven years for reckless endangerment, ten years for possession of a weapon in the second degree, and five years for possession of a weapon in the third degree. The Appellate Division, Second Department, affirmed petitioner's conviction on May 27, 2003,People v. Dozier, 305 A.D.2d 696 (2d Dep't 2003), and the New York Court of Appeals denied petitioner leave to appeal on July 22, 2003, People v. Dozier, 100 N.Y.2d 580 (2003). Successive petitions for writs of error coram nobis were rejected by the Appellate Division in 2004 and 2006, and the New York Court of Appeals denied leave to appeal in both instances, People v. Dozier, 11 A.D.3d 554 (2d Dep't 2004), leave to appeal denied, 5 N.Y.3d 827 (2005); People v. Dozier, 28 A.D.3d 789 (2d Dep't 2006), leave to appeal denied, 7 N.Y.3d 812 (2006). Petitioner did not seek a writ of certiorari from the United States Supreme Court.

Petitioner brings the instant petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his conviction on the grounds that (1) the state's evidence was insufficient to convict him because the trial witnesses were unreliable; (2) he received ineffective appellate representation when counsel failed to argue on appeal that petitioner was wrongly excluded from side-bar conferences during voire dire, that the prosecution failed to prove the victim's death, and that the judge's identification charge to the jury was unconstitutional; (3) he was denied the right to a fair trial because the witnesses' in-court identifications were tainted by suggestive pre-trial identifications; and (4) he received ineffective appellate representation when counsel failed to secure the written decision from a pretrial Wade hearing. Respondent opposes the petition on the grounds that petitioner's sufficiency and due process claims are barred by adequate and independent state law grounds, that the state court decisions rejecting petitioner's ineffective assistance of counsel claims were not contrary to, or unreasonable applications of, clearly establish Supreme Court law, and that petitioner's final ineffective assistance of counsel claim lacks merit. For the reasons set forth below, the petition is denied in its entirety.

I. Background

A. The Shooting of Derrick Gilmore

At approximately 10:00 a.m. on May 13, 2000, Derrick Gilmore was murdered while sitting in the driver's seat of his red sports-utility vehicle ("SUV"), stopped at a traffic light, at the intersection of 38th Street and 21st Avenue in Queens. (Tr. 293-94.)*fn1 Luis Figueroa was sitting in the front passenger seat of Gilmore's vehicle when he heard four or five loud popping noises and the sound of shattered glass. (Id. at 293-94, 343.) Realizing they were being shot at, Gilmore fell on Figueroa, and both men ducked down in the vehicle to avoid being hit. (Id. at 295.) After the gunfire abated, Gilmore started to drive away and Figueroa looked out the passenger window and observed petitioner, standing in front of a green SUV, looking back at him. (Id. at 295-96.) Figueroa knew petitioner well; they were incarcerated together in 1993 and 1995, and after Figueroa moved to Queens in 1998, the two socialized together daily. (Id. at 285-87.) Attempting to turn a corner, Gilmore lost consciousness and crashed his vehicle into a parked van. (Id. at 298.) Figueroa, noticing petitioner's truck in pursuit, attempted to drive Gilmore's vehicle in reverse but the vehicle stalled. (Id.) Figueroa then observed petitioner pass "right in front of [him]" in the green SUV and speed away. (Id. at 299.) Realizing that Gilmore was badly injured and that the vehicle was immobilized, Figueroa attempted to aid Gilmore and screamed for someone to call an ambulance. (Id. at 300.)

Ronald Griffin, a retired police officer, was standing across the street at an automotive repair shop when he witnessed the shooting. (Id. at 439-40.) Griffin testified that after stepping outside of the repair shop to smoke a cigarette, he heard four to five gunshots and observed petitioner, approximately twenty-five feet away, armed with a handgun and standing on the rear driver's side of a red vehicle that was stopped at an intersection. (Id. at 440-42, 448.) After petitioner fired his weapon, Griffin observed him stare briefly in the direction of an Amoco gas station, jog towards a nearby green SUV, enter it, drive past where Griffin was standing, and speed away around the corner. (Id. at 445-47, 471-72.) Griffin testified that he saw petitioner's face through the driver's side window as petitioner drove past him. (Id. at 447-48.)

Lycia Livingston also witnessed the shooting. Livingston was standing outside her vehicle at an Amoco gas station, waiting for her ex-husband to pay for gas, when she saw petitioner exit a "turquoise van," approach a red SUV stopped two cars in front of him, take out a weapon, and stand behind the red SUV on the driver's side. (Id. at 559-63, 590-94.) She then heard three to four shots. (Id. at 562.) According to Livingston, petitioner then noticed her looking at him and pointed his finger at her, simulating a gun. (Id. at 563-64.) Petitioner then walked back to his vehicle, entered it and drove away, following the red SUV. (Id. at 565.) Livingston stated at trial that she was standing approximately twenty feet away from where the shooting occurred. (Id. at 570.) After petitioner drove away, Livingston finished purchasing gas, went to eat breakfast with her family, and returned to the crime scene to give information to the police. (Id. at 566-67.)

B. The Crime Scene

Once the green SUV had driven away, Griffin called 911 to report the incident, retrieved yellow "caution" tape from the trunk of his car, and began cordoning off the area where the shooting occurred. (Id. at 449-50.) When the police arrived, Griffin showed the officers his retired police shield and offered to keep the crime scene secure while the officers looked after Gilmore and Figueroa. (Id. at 451.) Griffin also informed the police he could identify the shooter, and gave the police a description. (Id. at 451-52.) When Livingston returned to the crime scene, she also spoke with the police about what she had witnessed. (Id. at 601.) When the responding officers reached Figueroa, he stated that the shooter was a black male, but he did not indicate that he knew petitioner's name because he "was scared" and his "friend was shot." (Id. at 353.)

Police Officer Nicholas Leo testified that, upon arriving at the scene and seeing an unconscious Gilmore and a frantic Figueroa, he called an ambulance, which took Gilmore to the hospital. (Id. at 376.) After Figueroa learned that Gilmore was pronounced dead, Figueroa told police that petitioner was the shooter. (Id. at 355-56.) The medical examiner who performed the autopsy on the shooting victim recovered from the crime scene, then identified only by case number "00Q2129," testified that the victim's death was caused from "gunshot wounds to the torso and left upper extremity with perforations of the spleen, of the stomach, of the heart, of the lung and of major blood vessels." (Id. at 400, 408.) On May 14, 2000, Officer Leo visited the morgue and identified the body in case number 00Q2129 as that of Derrick Gilmore, the victim taken from the crime scene the previous day. (Id. at 378, 400.)

C. Petitioner's Identification and Arrest

On May 13, 2000, the police conducted two in-house photo arrays at their precinct.

(Wade Hrg. 6-7.)*fn2 The police displayed petitioner's photograph-procured from their internal computer records-along with the photographs of six other individuals. (Id. at 7, 21.) The two photo arrays were viewed by Figueroa and Griffin, both of whom identified petitioner as the shooter. (Id. at 7-9.) On May 18, 2000, at approximately 4:00 p.m., Livingston was entering a convenience store on the corner of 40th Avenue and 10th Street in Queens when she observed petitioner standing outside and talking with several other individuals. (Tr. 572.) As Livingston left the store, petitioner, seeming to recognize Livingston, pointed at her. (Id. at 573.) Livingston left the store, returned to her apartment, and then called the police from to report seeing petitioner. (Id. at 574-76.) Sometime later that afternoon, Livingston met with the police at the precinct and identified petitioner as the shooter after being shown a photo array.*fn3 (Id. at 576-77; Wade Hrg. 9.)

On June 19, 2000, petitioner surrendered to the police at his attorney's office and was taken into custody. (Id. at 492-495.) At the precinct, petitioner was processed and placed in a lineup of six people. (Id. at 495-501.) Both Griffin and Livingston viewed the lineup and identified petitioner as the shooter. (Id. at 453-54, 496-501, 578-79.) Later that day, Figueroa, who was unable to come to the station when Griffin and Livingston viewed the line-up, was shown a Polaroid photograph of petitioner and identified him as the shooter. (Wade Hrg. 16; see Tr. 285-88.) Because the police knew that Figueroa was acquainted with petitioner prior to the shooting, the police determined that he could identify petitioner via a photo confirmation. (Wade Hrg. 16-17; see Tr. 285-88.)

D. Trial Court Proceedings

On August 17, 2000, petitioner was indicted for second degree murder, attempted murder in the second degree, first degree reckless endangerment, and second and third degree criminal possession of a weapon. (Queens County Indictment Number 2495/00.) Thereafter, petitioner moved to suppress evidence of the photo and line-up identifications at trial, and a Wade hearing before Justice Robert J. Hanophy was held on February 22, 2001. (See Wade Hrg. 1-23.) In a written decision dated April 11, 2001, the court found that the identification evidence was admissible because the prosecution had sufficiently demonstrated that the police used reasonable identification procedures, which were not unduly suggestive. People v. Dozier, Ind. No. 933/00 (N.Y. Sup. Court, Queens Co., Apr. 11, 2001). The court did, however, order a Rodriguez hearing to determine whether Figueroa and petitioner knew each other so well that no amount of suggestiveness could have tainted the single Polaroid identification procedure conducted on June 19, 2000. Id. At the Rodriguez hearing, the court determined that Figueroa and petitioner were well enough acquainted to allow the Polaroid identification into evidence. (Tr. 285-88.)

Before the jury was impaneled for petitioner's trial, defense counsel gave the court a signed Antommarchi waiver, indicating that petitioner waived his right to be present at side bar conferences during voire dire.*fn4 (Id. at 19-20.) Petitioner stated on the record that he understood the waiver's contents, and that his lawyer had explained the waiver to him. (Id.)

During the course of the trial, the jury heard testimony from a number of witnesses. Figueroa testified about petitioner's involvement in the events surrounding the shooting, and Griffin and Livingston each testified that they witnessed petitioner shoot Derrick Gilmore. (Id. at 294-99, 442, 561-62.) In response to questions regarding his criminal history, Figueroa acknowledged that he had at least thirteen prior convictions, and he admitted to testifying in hopes of receiving a favorable recommendation on drug charges pending against him at the time of trial, but he stated that no deal had been offered in exchange for his testimony. (Id. at 326-38.) When Livingston was questioned about her background, she admitted to having several decades-old convictions for prostitution, to having ...


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