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Harris v. Smith

August 4, 2008

LAWRENCE D. HARRIS, PETITIONER,
v.
JOSEPH SMITH, SUPERINTENDENT, RESPONDENT.



The opinion of the court was delivered by: Lawrence E. Kahn U.S. District Judge

MEMORANDUM-DECISION AND ORDER

I. BACKGROUND

According to the testimony adduced at trial, between January 1996 and April 1996, Petitioner Lawrence Harris, as well as Anthony Wright, engaged in the sale of crack cocaine at the home of James Hill and his fiancee, Sharon Cannizzo, in the Town of Caroga, Fulton County. See Transcript of Trial of Lawrence Harris (7/3/97) ("Trial Tr.") at pp. 1022-31. In early 1996, Hill and Cannizzo, both of whom were admitted crack cocaine users, agreed to allow Harris and Wright to sell cocaine out of their house in exchange for drugs for their own personal use. Trial Tr. at pp. 849, 1024-29. Pursuant to their arrangement, Harris and Wright were to go to the Caroga Lake residence at least once per week in order to supply the crack cocaine. Trial Tr. at pp. 759-60, 1031-32.*fn1 Hill took money directly from the customers, went to a designated bedroom, turned the money over to Harris and Wright in exchange for the drugs, and returned to the customer with the drugs. Trial Tr. at pp. 743-48, 786-87, 1032-39. Cannizzo assisted the group by admitting customers into the house and also by both receiving and placing phone calls to Harris and Wright. Trial Tr. at pp. 789-91, 795-98. The record also established that Hill and Cannizzo contacted Harris and Wright through the use of a "beeper" if they were not in the house when a potential customer arrived. Trial Tr. at pp. 791-94, 798-803, 1041-47.*fn2

On March 9, 1996, Robert Warner informed a member of the Fulton County, New York Drug Task Force that drug sales were occurring at the Caroga Lake residence. Trial Tr. at pp. 410-14, 970-74. Warner thereafter agreed to act as a confidential informant for law enforcement agents, and subsequently participated in controlled purchases of cocaine from that house. Trial Tr. at pp. 412-414, 977. At trial, Warner testified that during the controlled purchases of narcotics, he entered the Caroga Lake residence and gave money to Hill. Trial Tr. at pp. 979-82. Hill then left the room and returned with the crack cocaine, which Warner in turn provided to the police. Trial Tr. at pp. 979-84.

Dan Thum testified that he went to the Caroga Lake residence between twenty and thirty times between January and April 1996 in order to purchase cocaine. Trial Tr. at p. 1155. During one purchase in January 1996, he observed an Isuzu Trooper, which Harris was subsequently found to be driving, see Trial Tr. at pp. 1230-33, in the driveway of the house and also observed two well-dressed African-American men in the living room watching television. Trial Tr. at pp. 1161-63. At trial, Thum specifically identified Harris as one of those men. See Trial Tr. at pp. 1163-65. Todd Heroth testified that he went to the Caroga Lake residence approximately twenty times between January and April 1996 to purchase cocaine, Trial Tr. at p. 1097, and that when he purchased cocaine from Hill on April 2, 1996, Harris was at the house. Trial Tr. at pp. 1102-03.

On April 3, 1996, Hill, Cannizzo, Harris and Wright were arrested at the Caroga Lake residence. Trial Tr. at pp. 811-15, 1022. A search of the home disclosed the presence of 5 1/2 ounces of cocaine, an electronic scale, razor blades, and plastic bags in the bedroom from which Harris and Wright apparently transacted their business. Trial Tr. at pp. 1283, 1321-22, 1494-95.

In the proceedings brought by the Fulton County District Attorney, Warner testified before the grand jury pursuant to a cooperation agreement into which he had entered wherein the prosecutor agreed to not bring felony charges against him for certain criminal conduct in which he had engaged in prior to the controlled buys. Trial Tr. at pp. 1013-15. Hill and Cannizzo also entered into cooperation agreements with the District Attorney and testified before the grand jury. Trial Tr. at pp. 811, 1072-73, 1089.

On July 24, 1996, a Fulton County grand jury returned a nine count indictment against Harris and Wright. In that accusatory instrument, the two were charged with three counts of criminal sale of a controlled substance in the third degree, three counts of criminal facilitation in the fourth degree, criminal possession of a controlled substance in the first degree, criminal facilitation in the second degree, and conspiracy in the second degree. E.g., Trial Tr. at p. 323. Wright subsequently moved for a severance of his trial from that of Harris, which the County Court denied. Trial Tr. at pp. 4-8, 51. Harris' jury trial on the charges commenced on June 27, 1997 in Fulton County Court with County Court Judge Angelo D. Lomanto presiding.

Several days into the trial, sworn juror C. Lamb requested to speak with Judge Lomanto Trial Tr. at p. 631. Judge Lomanto then questioned her, in camera, in the presence of both defense counsel and the District Attorney. Trial Tr. at p. 631. At that time, Lamb stated that before she was sworn as a juror, a woman with four children had sat next to her in the courtroom. Trial Tr. at pp. 631-32. The woman informed Lamb that she was in search of a place to stay, and Lamb responded by providing the woman with the names of some local hotels. Trial Tr. at pp. 632-33. In that list, Lamb included the name and phone number of a lodging facility where her husband was employed. Trial Tr. at p. 633. At the conference, Lamb informed the court that, after she was selected as a juror, she thought about her conversation with the woman about lodging, and ultimately came to the conclusion that her suggestion might not have been a good idea. Specifically, she advised the County Court:

[T]he only thought that came to me at that point was if they lost the case, would there be any thought of retaliation against me now that I've given her my phone number and address and name. But I just thought well I'll just have to live with that, there's nothing I can do.

Trial Tr. at p. 634. Later on during the trial, Lamb saw the woman in a hallway with Wright. Trial Tr. at pp. 634-35. The woman smiled at Lamb, and although Lamb felt awkward, she returned the smile and politely asked the woman whether she had found a place to say, to which she responded she had. Trial Tr. at pp. 634-35. Lamb informed the court that the "only impact" she felt as a result of the foregoing was to "have a little bit of concern." Trial Tr. at p. 636. She further declared that her interaction with the woman: wouldn't change the way I would vote or my impartiality at all. The only thing it could possibly do is make me feel a little more concerned for my safety in the future. But I don't think that's a valid thing to base decisions on.

Trial Tr. at p. 636.*fn3 Lamb further mentioned that she shared her concern regarding the incident with juror S. Benson in the presence of a male juror, whom she did not know by name. Trial Tr. at pp. 637-41.

William Lorman, Esq., Harris' counsel, as well as William Martuscello, Esq., defense counsel for Wright, questioned Lamb about the foregoing. Trial Tr. at pp. 639-50. In addition, Fulton County District Attorney Polly Hoye ("D.A. Hoye") examined Lamb. Trial Tr. at pp. 650-51. Neither Lorman nor Martuscello objected to conducting such hearing in the absence of the Defendants. Trial Tr. at pp. 630-82.

At the request of defense counsel, Judge Lomanto conducted further inquiry of several other jurors, including Benson, to determine whether Lamb's conduct regarding the foregoing had affected their ability to remain fair and impartial. Trial Tr. at pp. 653-54. Benson indicated that she did not have any concerns for her personal safety, and that her knowledge of Lamb's contact with the woman would not affect her own ability to be fair and impartial. Trial Tr. at p. 656. When the other jurors were asked by Judge Lomanto whether anyone had overheard a conversation between Lamb and Benson, no juror responded in the affirmative, and the Court was unable to determine which male juror, if any, had been present when Lamb initially informed Benson of the incident. Trial Tr. at pp. 671-682.

At some point following the above discussion with the jurors, Harris and Wright were brought into chambers. Trial Tr. at p. 682. The circumstances of the hearing were recounted in the presence of the two Defendants, after which counsel for the Defendants moved for a mistrial and the disqualification of jurors Lamb and Benson. Trial Tr. at pp. 682-89.*fn4 The trial court denied those applications and also refused a request to disqualify any of the jurors. Trial Tr. at pp. 690-91.

In their defense to the charges against them, Harris chose to testify in his own defense while Wright refrained from testifying. Trial Tr. at pp. 1547-1609. In his testimony, Harris declared that he only visited the Caroga Lake house on a few occasions, and made no statements that implicated either himself or Wright in the drug sales. Trial Tr. at pp. 1571, 1550-1608.

At the conclusion of the trial,*fn5 Harris and Wright were found guilty of all nine counts. Trial Tr. at pp. 1791-95.

On July 30, 1997, Harris was sentenced as a second felony offender to various terms of imprisonment, resulting in an aggregate sentence of sixty-two and a half years to life. See Transcript of Sentencing of Lawrence Harris (7/30/97) at pp. 15-18.

Harris and Wright consolidated the appeals of their convictions and sentences to the New York Supreme Court, Appellate Division, Third Department. On November 15, 2001, that court affirmed the convictions in all respects. People v. Harris, 288 A.D.2d 610 (3d Dep't 2001). However, in the interests of justice, the Appellate Division mandated that all sentences imposed on Harris run concurrently, reducing the minimum term of imprisonment to which Harris was subject to twenty-five years to life. Id. at 618-20. The New York Court of Appeals granted Harris' request for leave to appeal on January 22, 2002, People v. Harris, 97 N.Y.2d 705 (2002), and on November 21, 2002, the Court of Appeals affirmed the order of the Appellate Division in all respects. People v. Harris, 99 N.Y.2d 202 (2002).

In an application dated February 13, 2004, Harris moved to vacate his judgment of conviction pursuant to New York's Criminal Procedure Law ("CPL") § 440.10 ("CPL Motion"). That application was opposed by the District Attorney, and in a Decision and Order dated August 19, 2004, Fulton County Court Judge Felix J. Catena denied Harris' CPL Motion. See People v. Harris, No. 22-96 (Fulton Cty. Ct. Aug. 19, 2004) ("August, 2004 Order").

B. Proceedings in this Court

Harris commenced this action, pro se, on November 1, 2004 in the Northern District of New York. See Petition (Dkt. No. 1) ("Petition"). In his Petition, Harris asserts several grounds in support of his request for federal habeas intervention. Specifically, he argues that: (i) he received ineffective assistance of trial counsel because his court-appointed attorney labored under a conflict of interest; (ii) he was wrongfully excluded from the portion of his trial when the Court conducted a hearing into the potential tainting of juror Lamb; (iii) the County Court committed reversible error when it permitted Lamb to remain on the jury; (iv) comments made by two prosecution witnesses "poisoned the trial;" (v) the prosecutor and Harris' prior attorney intentionally withheld exculpatory evidence from Harris; and (vi) the prosecutor knowingly suborned perjurious testimony. This Court thereafter directed the Respondent to file a response to the Petition, Dkt. No. 5, and on July 29, 2005, the Office of the Attorney General for the State of New York, acting on Respondent's behalf, filed a response in opposition to Harris' pleading. See Dkt. No. 19. In opposing the Petition, Respondent argues that Harris' claims lack merit. Id. Harris thereafter submitted a traverse in further support of his application. See Dkt. No. 20 ("Traverse"). This Court has considered the above-referenced submissions, together with the state court records provided to the Court, in conjunction with its review of the Petition, which is currently before this Court for disposition.*fn6

II. Discussion

A. Standard of Review Applicable to Harris' Claims

The April 1996 enactment of the Antiterrorism and Effective Death Penalty Act ("AEDPA") brought about significant new limitations on the power of a federal court to grant habeas relief to a state prisoner under 28 U.S.C. § 2254. In discussing this deferential standard, the Second Circuit noted in Rodriguez v. Miller, 439 F.3d 68 (2d Cir. 2006) that: a federal court may award habeas corpus relief with respect to a claim adjudicated on the merits in state court only if the adjudication resulted in an outcome that: (1) was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States"; or (2) was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."

Rodriguez, 439 F.3d at 73 (quoting 28 U.S.C. § 2254(d)); see also DeBerry v. Portuondo, 403 F.3d 57, 66 (2d Cir. 2005); Miranda v. Bennett, 322 F.3d 171, 177-78 (2d Cir. 2003); Boyette v. LeFevre, 246 F.3d 76, 88 (2d Cir. 2001). In providing guidance concerning application of this test, the Second Circuit has noted that:

[A] state court's decision is "contrary to" clearly established federal law if it contradicts Supreme Court precedent on the application of a legal rule, or addresses a set of facts "materially indistinguishable" from a Supreme Court decision but nevertheless comes to a different conclusion than the Court did. [Williams v. Taylor, 529 U.S. 362,] at 405-06 [2000]; Loliscio v. Goord, 263 F.3d 178, 184 (2d Cir. 2001).... [A] state court's decision is an "unreasonable application of" clearly established federal law if the state court "identifies the correct governing legal ...


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