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Charlton v. Perez

June 25, 2010


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


On April 23, 2007, Georgia Charlton (a.k.a. "Jennifer Graham") ("petitioner"), acting pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.*fn1 (Doc. No. 1, Charlton Pet. for Writ of Habeas Corpus ("Pet.").) Petitioner concurrently filed a motion to stay the proceedings pending resolution of a motion for collateral review filed with the New York Supreme Court pursuant to New York Criminal Procedure Law section 440 ("NYCPL § 440"). (Doc. No. 7, Mot. to Stay Pet. for Writ of Habeas Corpus.) On August 9, 2007, in response to the court's May 7, 2007 Order, Ada Perez and Andrew Cuomo ("respondents") filed their opposition to petitioner's habeas petition. (Doc. No. 14, Resp't Resp. to Order to Show Cause ("Resp't Resp.").) Respondents filed a supplemental submission on April 18, 2008, following the New York Supreme Court's denial by Order dated August 31, 2007 of petitioner's NYCPL § 440 motion (Doc. No. 45, Letter Supplemental Resp. to Habeas Pet. ("Resp't Supp. Resp.")), and the Appellate Division, Second Judicial Department's denial of petitioner's request for a certificate of leave to appeal on November 15, 2007. (Doc. No. 35, People v. Charlton, No. 2007-08841-01 (2d Dep't Nov. 15, 2007).) Petitioner responded to respondents' supplemental submissions on May 29, 2008. (Doc. No. 51, Pet'r Resp. to Resp't Letter to Pet. for Writ of Habeas Corpus ("Pet'r Resp.").) Having considered all of the submissions by petitioner and the government, the court denies petitioner's habeas petition, for the reasons stated below.


Petitioner's habeas petition seeks relief from her conviction, on March 5, 2004, in New York Supreme Court, Kings County, for assault in the first degree, New York Penal Law § 120.10(1), in connection with an incident on June 18, 2001, in which petitioner threw drain cleaner containing sulfuric acid on Mr. Tenlin Lyew ("Mr. Lyew"), causing Mr. Lyew to suffer third-degree burns to his face and body, and resulting in the loss of an eye. Immediately following the disfigurement of Mr. Lyew, petitioner, a former girlfriend of Mr. Lyew's who rode with him from Boston to Brooklyn on the night of the incident, boarded a plane to Jamaica using the alias "Jennifer Graham."

With the assistance of Mr. Lyew's brother, Earnest Lyew, police officers in Jamaica identified petitioner as she deplaned in Kingston, whereupon they arrested her. She was subsequently extradited to the United States but did not immediately face trial because of a determination, pursuant to NYCPL Article 730, that she was incompetent. A subsequent medical evaluation, dated August 21, 2003, however, concluded that: in terms of fitness to proceed, the longitudinal examination of [petitioner] within the 24-hour care setting of a forensic psychiatric hospitalization has revealed that [petitioner] indeed does have a factual and rational understanding of the proceedings against her, and can engage in cooperative working relationships with a reasonable degree of rational understanding if so motivated.

(Resp't Ex. N: Resp't Opp. to Def.'s NYCPL § 440 Mot., Ex. A.) On March 15, 2004, following petitioner's trial and subsequent conviction, petitioner was sentenced to seventeen years of imprisonment.

Petitioner appealed her conviction to the New York Appellate Division, Second Department, contending that: (1) she was deprived of a fair trial due to prosecutorial misconduct during summation; (2) she received ineffective assistance of counsel; (3) the Jamaican police lacked probable cause to arrest her; (4) the trial court's Huntley ruling*fn2 was erroneous; (5) the jury should have been given special instructions regarding an alleged interested witness; and (6) the court should have read back the entire trial testimony of Mr. Lyew. (Resp't Ex. N: Resp't Opp. to Def.'s NYCPL § 440 Mot.)

The Appellate Division affirmed petitioner's conviction on March 21, 2006, holding that petitioner's "contention that she was deprived of a fair trial because the prosecutor made improper comments during summation [was] unpreserved for appellate review" because her counsel "either failed to object to the comments, failed to object with specificity, or failed to request further curative instructions or a mistrial after an objection was sustained." People v. Charlton, 27 A.D.3d 658, 658, 812 N.Y.S.2d 595, 596 (2d Dep't 2006) (internal citations omitted). The Appellate Division nonetheless went on to state:

In any event, the allegedly improper comments were, for the most part, responsive to arguments and issues raised by the defense counsel, fair comment on the evidence, or related to matters which were fairly inferable from the evidence. To the extent that any remarks were improper, any error was mitigated by the court's charge to the jury, or does not warrant reversal.

Id. at 658-59, 812 N.Y.S.2d at 596 (internal citations omitted).

The Appellate Division further held that petitioner "was not deprived of the effective assistance of counsel" because petitioner had "failed to demonstrate the absence of strategic or other legitimate explanations for her counsel's alleged failures in representation," and that petitioner's remaining contentions were simply "without merit." Id. at 659, 812 N.Y.S.2d at 597. The Court of Appeals subsequently denied petitioner leave to appeal on June 20, 2006, People v. Charlton, 7 N.Y.3d 753, 853 N.E.2d 250, 819 N.Y.S.2d 879 (2006), and on August 17, 2006, denied petitioner's request for reconsideration, People v. Charlton, 7 N.Y.3d 811, 855 N.E.2d 802, 822 N.Y.S.2d 486 (2006).

On December 15, 2006, four months after the Court of Appeals denied petitioner's motion for reconsideration, petitioner filed a motion to vacate her conviction pursuant to NYCPL § 440. Petitioner's NYCPL § 440 motion raised the following issues: (1) the court erred in deciding petitioner's Huntley motion; (2) the trial jury was improperly charged on the law and the grand jury never received a justification charge; (3) the court excessively questioned witness Daris Ellis and her testimony required an interested witness charge; (4) the fingerprint analysis did not support the evidence; (5) Mr. Lyew's testimony did not establish the element of "serious physical injury"; (6) the court erroneously charged the jury; (7) the court erred in charging two counts of assault in the first degree and that a lesser included offense was never charged; (8) the court's instructions to the jury were improper and shifted the burden to petitioner; (9) petitioner was deprived of effective assistance of counsel because counsel failed to object when the court allowed a detective to refresh his recollection; (10) there was allegedly no pre-sentence investigation done in aid of sentencing; (11) petitioner's psychiatrists relied solely on information supplied by the People in determining her competence to stand trial and that she was not, in fact, competent to stand trial; (12) that portions of Daris Ellis's testimony regarding an alleged in-court identification of petitioner were erased by the court reporter; (13) that petitioner's statements were involuntary and thus should have been suppressed; (14) the testimony of a witness was unreliable because it was given in exchange for government benefits in the witness's own criminal matter; (15) the trial court erred in not having the entirety of Mr. Lyew's testimony read back at the jury's request; (16) the prosecutor's summation remarks were improper; (17) the indictment was defective because the Grand Jury was not properly charged; and (18) the court's finding of probable cause after conducting a Dunaway hearing*fn3 was incorrect. (Doc. No. 37, People v. Charlton, No. 5573-01 (N.Y. Sup. Ct. Aug. 31, 2007) ("NYCPL § 440 Mem. & Decision"); see also Doc. No. 14, Aff. of Rhea A. Grob, dated Aug. 9, 2007 ("Grob Aff.") ¶ 15; Resp't. Ex. M: Pet'r Mot. to Vacate, dated Dec. 15, 2006.)

The Supreme Court of New York, Kings County, denied petitioner's NYCPL § 440 motion by Memorandum and Order, dated August 31, 2007. (See generally NYCPL § 440 Mem & Decision.) The court began by stating that a number of the claims were "mandatorily barred from review" because they had been raised on direct appeal. Id. at 2 (citing NYCPL § 440.10(2)(a)). The majority of the remaining claims were "also procedurally barred because there was an 'unjustifiable failure to raise such ground or issue upon an appeal actually perfected.'" Id. (quoting NYCPL § 440.10(2)(a)(c)). Nevertheless, the court went on to state that petitioner's procedurally-barred claims lacked merit. Id. at 2-6.

Two of petitioner's claims were not procedurally barred, but were also deemed meritless. Id. at 6-7. First, with regard to the alleged request for an in-court identification of petitioner by Daris Ellis that was "erased" from the record, Justice D'Emic stated that "the witness clearly testified that she did not see the defendant's face" and Ms. Ellis was never asked to identify petitioner in court. Id. at 6. As such, the court dismissed petitioner's allegations that portions of the transcript were erased as "merely bald assertions." Id. at 6-7. Second, regarding petitioner's claim that she was incompetent to stand trial because she "didn't see or hear anyone speaking in pretrial, trial and sentencing proceedings," the court noted that petitioner's attorney never informed the court that he was unable to communicate with her. Id. at 7. Moreover, the court concluded that petitioner's moving papers indicated that she possessed an extensive memory of the trial proceedings. Id.

Because all of petitioner's NYCPL § 440 claims were either procedurally barred or lacking merit, the court denied petitioner's motion in its entirety. Id. By Order dated November 15, 2007, the Appellate Division, Second Department, denied petitioner's request for a certificate of leave to appeal. (Doc. No. 35, People v. Charlton, No. 2007-08841-01 (2d Dep't Nov. 15, 2007).)

Petitioner raises the following claims in her habeas petition: (1) prosecutorial misconduct during summation; (2) that petitioner's initial detention was improper and petitioner's statement was improperly introduced at trial; (3) failure to read back the complainant's entire testimony in response to a jury request; (4) petitioner's conviction was improperly obtained based on the testimony of Daris Ellis; (5) petitioner was denied the effective assistance of counsel; (6) failure to give a justification charge to the grand jury and the trial jury; (7) denial of due process because petitioner was incompetent to stand trial and because the court did not order a pre-sentence report; (8) an improper jury charge as to the elements of the crimes; and (9) excessive witness questioning by the trial court. (See generally Pet.; see also Doc. No. 14, Resp't Mem. of Law at 1-2; Grob Aff. ¶ 18.)

Respondents argue that claims (6), (8), and (9) are procedurally barred from habeas review because they are "claims that all appear on the face of the trial record [and]... could have been raised on direct appeal, but were not." (Resp't Mem. of Law at 3.) Thus, respondents contend, these claims are neither exhausted, nor judiciable in this habeas petition, because petitioner no longer has a forum in which to raise the claims. (Resp't Mem. of Law at 2-3 (citing NYCPL § 440.10(2)(c)).)

Respondents further note that the remaining claims in petitioner's habeas petition are exhausted because claims (1)-(5) are "on the record claims" that were raised and rejected in her first appeal, and because claim (7) is an "off-the-record" claim that was appropriately raised for the first time and rejected in her NYCPL § 440 motion, and a certificate for leave to appeal was subsequently denied. (Resp't Mem. of Law at 1-3; Resp't Supp. Resp. at 2.) Respondents contend, however, that these exhausted claims are meritless and/or precluded by the independent and adequate state law doctrine, discussed herein.


I. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996), established a deferential standard that federal courts must apply in reviewing state court decisions on habeas review. Under AEDPA, a federal court may grant habeas relief with respect to a federal claim adjudicated on the merits in state court only if the adjudication of the claim resulted in a decision that was either: (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or (2) "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). In addition, "a determination of a factual issue made by a State court shall be presumed to be correct," and the applicant for habeas relief has the "burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).

Furthermore, a habeas petition shall not be granted unless the petitioner "has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). Even if the exhaustion requirement is satisfied, federal habeas corpus review may be barred by the independent and adequate state law grounds doctrine, which provides that a federal court may "not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Coleman v. Thompson, 501 U.S. 722, 729 (1991). Because several of petitioner's claims are subject to denial based on a failure to satisfy ...

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