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John Mcdonald, Pro Se v. Robert Ercole

March 8, 2010

JOHN MCDONALD, PRO SE, PETITIONER,
v.
ROBERT ERCOLE, SUPERINTENDENT, GREEN HAVEN CORRECTIONAL FACILITY, RESPONDENT.



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

Pro se petitioner John McDonald is currently serving an indeterminate prison sentence of sixteen years to life following his conviction in New York State Supreme Court, Queens County, for burglary in the second degree. Petitioner seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He contends that he was denied due process of law and a fair trial because of jury misconduct and that the state court‟s decision denying his request to set aside the verdict was contrary to and involved an unreasonable application of established federal law, as determined by the Supreme Court of the United States. For the reasons set forth below, the petition is denied.

I. Summary of Facts

A. Background

Phyllis Glenn‟s residence in Far Rockaway, Queens was robbed at some time between 11:00 p.m. on August 5, 2003 and 8:45 a.m. the next morning. (Tr. 447-50; Pet. ¶ 9.) The perpetrator stole $300 in bills and a "small, dingy, crumpled, irregularly-shaped, purple-striped, plastic zip-lock bag containing change" from Ms. Glenn‟s purse. (Affidavit and Memorandum of Law in Opposition to Petition for a Writ of Habeas Corpus ("Resp‟t Aff. In Opp‟n") ¶ 3; Tr. 448-50.) Shortly before 8:00 a.m. on the same morning, Shifi Bloom found a man standing inside the foyer of her residence, also in Far Rockaway. (Tr. 332-39; Pet. ¶ 6-7.) Ms. Bloom told the man she was going to call the cops, and he left the house. (Tr. 338-39; Pet. ¶ 7.) Ms. Bloom called the police and, when they arrived at the scene, she gave them a description of the man, which Asher Schoor, the Bloom‟s next-door neighbor, overheard. (Tr. 340-42, 612-13; Pet. ¶ 8.) While out driving, Mr. Schoor saw a man that matched the description and notified Ms. Bloom. (Tr. 614-15; Pet. ¶ 8.) Thereafter, Ms. Bloom and the responding police officer drove to the area, and Ms. Bloom identified petitioner as the man she had seen standing in her foyer. (Tr. 342-45, 488; Pet. ¶ 8.) The officer found petitioner carrying the same bag of coins that had been stolen from Ms. Glenn earlier that morning. (Tr. 450-51, 490-92; Pet. ¶ 9.) Petitioner was charged with two counts of burglary in the second degree, one relating to the Glenn incident and one relating to the Bloom incident (N.Y. Penal Law § 140.25[2]). Petitioner was also charged with criminal possession of stolen property in the fifth degree, relating to the Bloom incident (N.Y. Penal Law § 165.40), and criminal trespass in the second degree, and petit larceny, both relating to the Glenn incident (N.Y. Penal Law § 140.15; N.Y. Penal Law § 155.25).

B. Procedural History

At trial, the jury found petitioner guilty of one count of burglary in the second degree, relating to the Bloom incident, and acquitted petitioner of all other counts. (Tr. 752; Pet. ¶ 17.) On July 26, 2004, pursuant to section 330.30(2) of the New York Criminal Procedure Law, petitioner moved for a court order setting aside the jury‟s verdict and granting petitioner a new trial, on the ground that jurors had engaged in premature deliberations. (Pet. ¶ 19.) Petitioner submitted an affidavit from his wife, Ruthe McDonald, who stated she overheard three jurors and an alternate juror engaged in a conversation while approaching the courthouse on the same morning the jury delivered its verdict. (Id.) Ms. McDonald stated that the alternate juror stated, ""there was a possibility of the bag being found while leaving the first house,‟" and two of the jurors replied "that they needed to see what everyone else believed." (Id.) Ms. McDonald also stated she heard one of the jurors say ""that they [the jurors] should be finished before lunch; that it shouldn‟t take them long, as long as they did not deadlock,‟" while inside the courthouse. (Id.)

Additionally, petitioner filed supplemental motion papers, including an affidavit by John

L. Brown, a private investigator. (Pet. ¶ 21.) Mr. Brown stated in his affidavit that he interviewed juror Janak Datt, who informed him that, during the trial, and prior to deliberations, another female juror ""was constantly talking about the case to everyone.‟" (Id.) Mr. Brown also stated that alternate juror Rosemarie Kelly told him that, during the trial, another female juror approached her and said, ""[W]hat is petitioner doing out at that hour, he should be working, he‟s guilty.‟" (Id.) Ms. Kelly added that another female juror had referred to the same juror who had approached her, and stated that the juror ""never stops talking about the case.‟" (Id.) The state opposed petitioner‟s motion, arguing that the juror‟s statements before deliberations were vague and failed to show that petitioner suffered any prejudice. (Id. ¶ 22.)

On October 7, 2004, the court found that the alleged comment concerning the plastic bag was "non-prejudicial" and "merely academic," while the comment concerning the length of time it might take the jury to reach a verdict was "innocuous" and not prejudicial. People v. McDonald, No 1638/03, slip op. at 3 (N.Y. Sup. Ct. Queens Co. Oct. 7, 2004). However, the court ordered a hearing on the alleged juror statements made regarding petitioner‟s guilt. Id. At the January 13, 2005 hearing, only juror Rosemarie Kelly testified. Ms. Kelly stated that when the female juror told her that petitioner was guilty, she responded, ""How can you say that? You don‟t know that.‟" (Resp‟t Aff. In Opp‟n ¶ 14.) Additionally, Ms. Kelly stated that she told the juror that she could not make snap judgments concerning the case. (Id.) Ms. Kelly stated that her verdict was not affected by the juror‟s statement. (Id.)

The court denied petitioner‟s motion on February 8, 2005, crediting Ms. Kelly‟s testimony. People v. McDonald, No 1638/03, slip op. at 4 (N.Y. Sup. Ct. Queens Co. Feb. 5, 2005). The court found that the juror‟s misconduct did not affect Ms. Kelly‟s verdict. Id. The court also noted that, despite the unknown juror‟s comment asserting petitioner‟s guilt, the juror had reached a different conclusion after deliberations, as petitioner was acquitted of all counts relating to the Glenn incident. Id. The court determined that the juror had not formed a profound opinion regarding petitioner‟s guilt, and that her statements were better described as "‟non-extensive terse asides.‟" Id. The court then sentenced petitioner, as a persistent violent felony offender, to a prison term of sixteen years to life. (Pet. ¶ 27.)

Petitioner appealed his conviction on October 10, 2005, contending that "the court erred when it refused to set aside the verdict upon the post-verdict disclosure that a juror, in mid-trial, had discussed the evidence with another juror and declared that petitioner was guilty." (Id. ¶ 28.) The New York Supreme Court, Appellate Division, Second Department ("Appellate Division") affirmed petitioner‟s conviction on May 29, 2007, holding that the state court‟s determination was entitled to great deference and was also supported by the record. People v. McDonald, 40 A.D.3d 1125 (2d Dep‟t 2007). The Appellate Division noted that "there was no evidence presented suggesting that [the] comments were made to any other jurors" besides Ms. Kelly, and that petitioner failed to satisfy his burden because he never identified the juror who made the offending comments. Id. Finally, the court noted that "the fact that the jury acquitted the defendant of three counts in the indictment indicated that the unidentified juror had not predetermined the defendant‟s guilt." Id. Petitioner sought leave to appeal the Appellate Division‟s decision to the New York State Court of Appeals, but this application was denied on August 21, 2007. People v. McDonald, 9 N.Y.3d 878 (2d Dep‟t 2007).

Petitioner timely moved this court for a writ of habeas corpus, contending that the state court‟s determination that he was not prejudiced by the juror‟s comments was contrary to and involved an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States. (Id. ¶ 32.)

II. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") narrowed the scope of federal habeas review of state convictions when the state courts have adjudicated a petitioner‟s federal claims on the merits. Under the AEDPA standard, which governs the review of petitions challenging state convictions entered after 1996, federal ...


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