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Johnson v. Conway

October 6, 2010


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


On June 24, 2008, pro se Petitioner Joseph Johnson ("Petitioner") timely filed the instant action in the Southern District of New York, seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (See Docket Entry No. 3 ("Pet.") at 1.) Petitioner makes two claims for habeas relief: (1) that he was "denied [his] due process right to a fair trial by the prosecutor's violation of [the trial court's] Sandoval ruling," (Pet. 10) and (2) that the prosecutor made an "unfair summation," also, presumably, in violation of his due process rights. (See Pet. 12). The action was transferred to this court on August 6, 2008. Counsel for Respondent, the Kings County District Attorney, responded to the petition on November 12, 2008, opposing both of Petitioner's claims for relief. (See generally Docket Entry No. 5 ("Resp.").) After Petitioner failed to timely file a reply, the court provided him additional time in which to do so, in light of his pro se status. As Petitioner did not reply by the new deadline, and has not replied as of the date of this Order, the court deems the petition to be fully briefed and ripe for decision. For the reasons set forth below, the petition is denied in its entirety.


According to her testimony, Larysa Bosenko was met by her husband, Oleh Bosenko, at a subway station in the Sheepshead Bay neighborhood of Brooklyn, New York, upon her return from work at approximately 1:15 AM on October 30, 2002. (Tr. 201.) As they walked together, Mrs. Bosenko saw a man and woman approaching them from behind, each armed with a handgun. (Tr. 204--06.) They began running at the Bosenkos, screaming that they wanted Mrs. Bosenko's bag. (Tr. 205.) Mr. Bosenko shielded his wife from the assailants with his body, and as they attempted to get around him, he struck at the male assailant. (Tr. 208.) Two shots were fired and both struck Mr. Bosenko, who clutched at his wife, causing both of them to fall to the ground. (Tr. 208--11.) The assailants then wrestled away Mrs. Bosenko's bag and ran off with it. An NYPD officer arrived at the scene and accompanied Mr. Bosenko to Coney Island Hospital, where he died within ten minutes of his arrival from gunshot wounds to the chest and thigh. (Tr. 190--91; 320.)

Among the items in Mrs. Bosenko's stolen bag was a MetroCard. (Tr. 202.) Two weeks after the shooting, the police arrested a man named Raheem Coakley, who was in possession of this MetroCard. (Tr. 296--97.) Coakley told the police that Petitioner had given it to him. (Tr. 297.) Petitioner was arrested shortly thereafter and placed in custody. (Tr. 247--48.) According to police testimony, Petitioner was read his Miranda rights, which he waived orally and in writing. (Tr. 250--56.) After Petitioner had been in custody for several hours and following questioning by several detectives, one of the detectives informed Petitioner that Mr. Coakley had told them about the MetroCard, and also informed Petitioner that an eyewitness could identify him as one of the shooters. (Tr. 256--58; 288--89.)

Petitioner, who appeared alert and sober to the police, then gave a statement; since he did not want to write it out, a detective did so for him, and Petitioner signed it. (Tr. 258--60.) According to this statement, Petitioner and a woman named Naquasia followed a couple from the subway station, and approached them from behind with their guns out. (Tr. 261--62.) After an altercation with the man, two shots were fired, and Petitioner, not knowing the man was shot, took the purse and ran away with Naquasia. (Tr. 261--62.) Petitioner also made a second, videotaped statement, which was in substance the same as the first one. (Tr. 266--67.)

Following the videotaped statement, the police placed Petitioner in a lineup. (Tr. 271-- 72.) Mrs. Bosenko identified Petitioner as the male assailant. (Tr. 217--18.) A week later, Mrs. Bosenko saw a lineup composed of women, and identified Naquasia Pollard as the female assailant. (Tr. 218--19.)

Ms. Pollard pled guilty to robbery in the first degree and received a promise of eighteen years' imprisonment in exchange for her testimony against Petitioner. (Tr. 377.) At Petitioner's trial in the New York State Supreme Court, Kings County, she claimed that, on the night in question, she and Petitioner decided to "rob somebody," and followed a couple from the Sheepshead Bay train station. (Tr. 365--66.) Ms. Pollard largely corroborated Mrs. Bosenko's testimony of the events leading up to the shots. (See Tr. 368--70.) She also testified that both shots were fired as Petitioner and Mr. Bosenko fought for Petitioner's handgun. (Tr. 370--71.) After the shots, Petitioner grabbed Mrs. Bosenko's bag as she lay over her husband's fallen body; Petitioner hit Mrs. Bosenko with the butt of his handgun until she let go, and the two assailants ran off. (Tr. 372--73.)

Petitioner took the stand in his own defense, and contested much of the prosecution witness' testimony. (See generally Tr. 420--64.) He denied committing the charged crimes, claiming he was high at the time of his arrest, the written statement was not his, and he had been coerced into making the videotaped statement. (Tr. 420, 423, 426, 428--32.)

Petitioner was convicted on April 16, 2004 of murder in the second degree and criminal possession of a weapon in the second degree under N.Y. PENAL LAW §§ 125.25(3) and 265.03(2), respectively. He was sentenced to concurrent prison terms of twenty-five years to life for the murder charge and sixteen years to life for the weapon possession charge. (Sentencing Tr. 13.)

Petitioner made a timely direct appeal to the New York State Supreme Court, Appellate Division, Second Department ("Appellate Division"), claiming that he was denied his due process right to a fair trial by the prosecutor's violation of the trial court's Sandoval ruling, and unfair summation.*fn1 The Appellate Division affirmed the conviction on November 8, 2006, holding that these two claims-which are the same as those raised in the instant petition-were unpreserved for appellate review. People v. Johnson, 34 A.D.3d 496 (2d Dep't 2006). The Appellate Division further held that the improper summation claim was meritless, although it provided no reasoning. See id. Petitioner then sought leave to appeal from the New York State Court of Appeals on the new ground that he had received ineffective assistance of counsel at trial because of his lawyer's failure to object either to the Sandoval violation or to the improper summation.*fn2 The Court of Appeals denied leave to appeal on March 28, 2007. People v. Johnson, 8 N.Y.3d 923 (2007). Petitioner did not file a Petition for a writ of certiorari to the United States Supreme Court.


A. Standard of Review*fn3

"Federal habeas review is barred if the constitutional claim was denied by a state court on a state procedural ground that is both 'independent of the merits of the federal claim and an adequate basis for the court's decision.'" Brown v. Ercole, 353 F. App'x 518, 519 (2d Cir. 2009) (quoting Harris v. Reed, 489 U.S. 255, 260 (1989)). This is so even if the state court also rejected the merits of the claim in an alternative holding. Harris, 489 U.S. at 264 n.10. "A habeas petitioner may bypass the independent and adequate state ground bar by demonstrating a constitutional violation that resulted in a fundamental miscarriage of justice, i.e., that he is actually innocent of the crime for which he has been convicted." Dunman v. Travis, 313 F.3d 724, 730 (2d Cir. 2002) (citing Schulp v. Delo, 513 U.S. 298, 321 (1995); Murray v. Carrier, 477 U.S. 478, 496 (1986)). "'[A]ctual innocence means factual innocence, not mere legal insufficiency.'" Id. (quoting Bousley v. United States, 523 U.S. 614, 623 (1998)). The "adequate and independent" state ground bar may also be bypassed by a showing of good cause for the procedural default and resulting prejudice. See Jimenez v. Walker, 458 F.3d 130, 138 (2d Cir. 2006) (citations omitted).

When a state court has adjudicated a petitioner's federal claim on the merits, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") restricts the scope of federal habeas review of state ...

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