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Kenneth Hogan v. Robert E. Ercole

September 1, 2011

KENNETH HOGAN, PETITIONER,
v.
ROBERT E. ERCOLE, SUPERINTENDENT-GREEN HAVEN CORRECTIONAL FACILITY*FN1 , RESPONDENT.



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

MEMORANDUM & ORDER

Pending before this Court is Kenneth Hogan's pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner seeks relief from his 2002 conviction in New York State Supreme Court, Nassau County, for murder in the second degree under New York Penal Law ("N.Y.P.L.") § 125.23(3); two counts of robbery in the first degree under N.Y.P.L. § 160.15(1), (2); and criminal possession of a weapon in the second degree under N.Y.P.L. § 265.03. He was sentenced to concurrent terms of twenty-five years to life on the murder conviction, twenty-five years with five years post-release supervision for each robbery conviction, and fifteen years with five years post-release supervision for the weapon conviction.

Hogan's petition asserts ten grounds in support of his application: (1) the jury's verdict was against the weight of the evidence and the evidence presented against him was not legally sufficient to establish his guilt; (2) he was denied his Fifth Amendment right to due process and his Sixth Amendment right to a fair trial when the prosecutor elicited evidence of his "silence," failed to correct the testimony of a witness, and made improper remarks during summation; (3) the court erred in admitting a written statement by co-defendant Carl Badger, who was tried separately, because it violated the Confrontation Clause of the Sixth Amendment; (4) the court's jury charge on "flight" was erroneous and denied him his Sixth Amendment right to a fair trial; (5) his statements were illegally obtained or taken in violation of his state right to counsel; (6) the sentence should be reduced as excessive; (7) the prosecutor's opening statement departed from the indictment, denying petitioner due process guaranteed by the Fifth Amendment and a fair trial guaranteed by the Sixth Amendment; (8) defense counsel's ineffective assistance violated the Sixth Amendment, due to counsel's failure to investigate, locate, and present potential witnesses, his denial of petitioner's opportunity to testify on his own behalf, and his failure to present a defense requested by petitioner and request appropriate jury instructions; (9) entitlement to a new trial because he never received Miranda warnings at the time of his arrest, violating his Fifth Amendment right against self-incrimination and his Sixth Amendment right to effective assistance of counsel; and (10) Alternate Juror No. 1, who replaced Juror No. 3, should have been dismissed for cause, and the court's failure to do so denied defendant his right to due process guaranteed by the Fifth Amendment and his right to a fair trial guaranteed by the Sixth Amendment. (Pet. for Writ of Habeas Corpus ("Habeas Pet.") (Doc No. 1); Appellant's Br. at iiii, June 2003.) *fn2

For the reasons set forth below, the petition is DENIED in its entirety.

BACKGROUND

I.INDICTMENT

Indictment No. 2191/00 charged petitioner and his co-defendant, Carl Badger, with murder in the second degree, two counts of robbery in the first degree, and criminal possession of a weapon in the second degree. (Appellant's Br. at 2.) The indictment charged that petitioner and his co-defendant committed these crimes on April 28, 2000, in Nassau County. (Id.) As alleged, on or about April 29, 2000, petitioner and Badger shot their friend, Henry Hambrite, while he was seated in his car in front of the co-defendant's home, and took money from his person. (Id.) Petitioner and his co-defendant were arrested and tried separately. (Id.)

II.TRIAL*fn3

At trial, eyewitnesses testified that petitioner and his co-defendant were with Hambrite on the night of April 28, and that petitioner and his co-defendant saw Hambrite counting a large sum of money. (Resp't's Aff. & Mem. of Law (Doc. No. 7) at 2; Trial Tr. 435-38, 443-46, 449-50, 457, 482-502, 516, 519, 526-33, 535-39, 542-47, 552-57, 563-64, 1125-31.) Taryn Davis, a friend of Hambrite's who also knew Badger and petitioner, testified that she saw Hambrite at 1:40 a.m. in the driver's seat of his car, with Badger next to Hambrite and petitioner in the back seat. (Trial Tr. at 481-84.) Davis testified that she saw petitioner through the car's tinted side window but acknowledged on cross-examination that she saw a shadow, and it was dark. (Id. at 484, 535, 537, 542.) Davis testified that Hambrite, Badger, and petitioner were all wearing bubble jackets, although she had previously stated that only Hambrite and Badger were in bubble jackets and that petitioner wore a black hooded sweatshirt. (Id. at 490, 494.)

Police Officer Steven Horowitz testified that, on April 28, 2000, at about 2:15 a.m., he heard 4 to 5 gunshots approximately one-and-a-half blocks from his location. (Id. at 582-85.) He testified that when he arrived at the scene, the passenger door of the car was open, Hambrite was slumped over the steering wheel with his pants pockets inside out, the driver's side window was shattered, the passenger seat was pulled forward, and there were spent shell casings outside the passenger door. (Id. at 582-86, 588-90.) Officer Horowitz testified that he spoke to Badger at his front door within two minutes of hearing the shots and saw petitioner on the staircase within ten feet of Badger. (Id. at 590-91.) James O'Melia of the Nassau County Police Department Emergency Ambulance Bureau testified that when he arrived at the crime scene at 2:20 a.m., the deceased had no pulse and had an entry wound in his back. (Id. at 459-61.)

Detective Dennis Downes of the Nassau County Police, Crime Scene Search Section, testified that he used a gunshot residue kit to test the hands of both Badger and petitioner. (Id. at 369-72.) The prosecution presented forensic evidence that particles on the hands of both petitioner and Badger were consistent with gunshot residue. (Id. at 671-72, 684, 691-93, 696, 700-02, 707-08.) Detective Carl Bruno of the Scientific Investigation Bureau testified that gunshot residue can be on the hand of a shooter or somewhere near the shooter, that gunshot residue can get onto the hand of a person who handles a gun that has just been fired, and that particles can be distributed if the hands are rubbed. (Id. at 634-35, 637-38, 684-85.) Bruno testified that the chemicals on Badger's hands and on petitioner's hands were consistent with firing a weapon, but the particles may or may not have been from a firearm, and Badger could have transferred the particles to petitioner. (Id. at 691-92, 696, 711.)

Detective Robert Nemeth of the Nassau County Police Scientific Investigation Bureau testified that the four bullets removed from Hambrite's body were all fired from the same weapon, and that weapon was found in the wall of Badger's house. (Id. at 942-44, 995, 991-1000.) Doctor Gerard Catanese, a forensic pathologist, testified that four gunshot wounds to Hambrite's back in a right to left direction was the cause of death. (Id. at 469, 473, 480.)

The month following the murder, Detective William Brosnan of the Homicide Squad testified that Badger was arrested in Albany, where he and petitioner had traveled subsequent to Hambrite's murder. (Id. at 772.) Petitioner was not arrested at this point, but rather fled to Memphis, Tennessee, where he was arrested on September 14, 2000. (Id. at 772.) Brosnan testified that petitioner was read his rights and agreed to give an oral statement, during which petitioner stated that he knew the police had probable cause for his arrest and did not need a warrant, that he had fled Albany because he had drugs in his possession at the time, and that Badger was the one who shot Hambrite. (Id. at 772, 774, 776-78.)

Approximately four months after petitioner's arrest, the District Attorney's office received a letter purportedly written by Badger absolving petitioner of any guilt. The parties stipulated that petitioner's blood matched evidence obtained on the envelope. (Id. at 964.) Detective John Schaefer testified that petitioner's fingerprints were on the letter. (Id. at 979, 982.) Meghan Clement, a Director of Forensic Identity for LabCorp in North Carolina, testified that DNA on the glue flap of the envelope was consistent with petitioner's DNA profile. (Id. at 1104-22.)

III.CONVICTION AND SENTENCING

Petitioner was convicted of all counts following a jury trial on May 14, 2002. On June 19, 2002, petitioner was sentenced to a term of twenty-five years to life for murder in the second degree, twenty-five years with five years post-release supervision for each robbery in the first degree count, and fifteen years with five years post-release supervision for criminal possession of a weapon. All terms of imprisonment and post-release supervision were to run concurrently. (Appellant's Br. at 20.) Petitioner was also required to pay restitution by civil judgment in the amount of $2,893 on behalf of New York State Crime Victims Board, a $200 surcharge, and a $10 crime victims' assistance fee. (Sentencing Mins. at 9-11.)

IV.DIRECT APPEAL

Petitioner appealed his conviction to the Supreme Court of the State of New York, Appellate Division, Second Department ("Appellate Division"). He alleged that: (1) the jury's verdict was against the weight of the evidence and the evidence presented against him was not legally sufficient to establish his guilt; (2) he was denied his Fifth Amendment right to due process and his Sixth Amendment right to a fair trial when the prosecutor elicited evidence of his "silence," failed to correct the testimony of a witness, and made improper remarks during summation; (3) the court erred in admitting a written statement by co-defendant Badger, who was tried separately, because it violated the Confrontation Clause of the Sixth Amendment; (4) the court's jury charge on "flight" was erroneous and denied him his Sixth Amendment right to a fair trial; (5) his statements were illegally obtained or taken in violation of his state right to counsel; (6) the sentence should be reduced as excessive; (7) the prosecutor's opening statement departed from the indictment, denying petitioner due process guaranteed by the Fifth Amendment and a fair trial guaranteed by the Sixth Amendment; (8) defense counsel's ineffective assistance caused extreme prejudice in violation of the Sixth Amendment, due to counsel's failure to investigate, locate, and present potential witnesses, his denial of petitioner's opportunity to testify on his own behalf, and his failure to present a defense requested by petitioner and request appropriate jury instructions; (9) entitlement to a new trial because he never received Miranda warnings at the time of his arrest in contravention of the Fifth Amendment right against self-incrimination and Sixth Amendment right to effective assistance of counsel; and (10) the failure to dismiss Alternate Juror No. 1 for cause denied defendant his Fifth Amendment right to due process and his Sixth Amendment right to a fair trial. (Appellant's Br. at i-iii.)

On September 27, 2004, the Appellate Division affirmed petitioner's conviction. People v. Hogan, 781 N.Y.S.2d 915, 915 (App. Div. 2004). The Appellate Division held that the proof of petitioner's guilt was legally sufficient, the verdict was not against the weight of the evidence, and all of petitioner's remaining contentions were meritless. Id.

Subsequent to the Appellate Division's affirmation, petitioner sought leave to appeal. On December 23, 2004, the New York Court of Appeals denied leave to appeal. People v. Hogan, 4 N.Y.3d 744 (2004).

V.MOTION TO VACATE

Following the sentencing, petitioner moved the state court for an order vacating his judgment of conviction pursuant to New York Criminal Procedure Law ("N.Y.C.P.L.") § 440.10. (Habeas Pet. at 4.) In support of his motion, petitioner claimed that he was not advised of his constitutional rights when he was arrested and that the prosecutor improperly changed the theory of the case at trial from that which he had presented before the grand jury. Petitioner additionally alleged that his attorney was ineffective because he did not present certain witnesses and did not permit petitioner to testify at trial. (Id.) By order dated April 10, 2003, the state court denied petitioner's motion pursuant to N.Y.C.P.L § 440.10(2)(b), on the procedural ground that sufficient facts appeared on the record concerning the grounds raised to permit adequate review of the claims on direct appeal. (Resp't's Aff. & Mem. of Law (Doc. No. 7) at 2-3.)

In a motion dated August 25, 2005, petitioner again moved the state court for an order vacating his judgment of conviction pursuant to N.Y.C.P.L. § 440.10, on the ground that his attorney was ineffective because he failed to advise petitioner whether to accept or reject a plea bargain. By order dated December 9, 2005, the court denied petitioner's motion pursuant to N.Y.C.P.L. § 440.10(3)(c), on the procedural ground that petitioner was in a position to raise his claim in his previous motion to vacate judgment but failed to do so. (Id. at 3.)

Leave to appeal to the Appellate Division from the April 10, 2003 order of the state court was denied on July 8, 2003. (Habeas Pet. at 5.)

VI.POST-CONVICTION PROCEEDINGS

On December 8, 2005, petitioner filed this petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner raises the same ten claims that he raised on appeal. (See Habeas Pet.)

APPLICABLE LAW

I.STANDARD OF REVIEW UNDER 28 U.S.C. § 2254(d)(1)

In deciding a federal habeas corpus petition, the Court must apply the standard of review set forth by the Antiterrorism and Effective Death Penalty Act ("AEDPA"). AEDPA requires a rigorous standard of review with regard to petitions filed by state prisoners. See Williams v. Taylor, 529 U.S. 362, 402-03 (2000). Under AEDPA:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim --

(1) resulted in a decision that 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.

28 U.S.C. § 2254(d)(1)-(2). Though the "contrary to" and "unreasonable application" clauses of § 2254(d)(1) are analyzed independently, both limit the source of the "clearly established law" to the jurisprudence of the Supreme Court. Williams, 529 U.S. at 404--05, 412; see also Howard v. Walker, 406 F.3d 114, 122 (2d Cir. 2005) (quoting Kennaugh v. Miller, 289 F.3d 36, 42 (2d Cir. 2002)).

A state court "adjudicates a state prisoner's federal claim on the merits when it (1) disposes of the claim on the merits, and (2) reduces its disposition to judgment." Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001) (citation and internal quotation marks omitted). "When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim -- even if the state court does not explicitly refer to either the federal claim or to relevant federal case law." Id. This is because "federal courts recognize a conclusive presumption that, when presented with an express federal claim, a state court's decision rests principally upon an application of federal law even absent any express reference to federal authority." Reznikov v. David, No. 05 Civ. 1006, 2009 WL 424742, at *3 (E.D.N.Y. 2009) (citing Sellan, 261 F.3d at 314).

The Supreme Court has noted that a state court decision will be "contrary to" established Supreme Court precedent if "the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases" or if a state court "confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent." Williams, 529 U.S. at 405-06.

Further, the Supreme Court has held that, with respect to the "unreasonable application" clause, a federal court may grant a petitioner's writ of habeas corpus "if the state court identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case." Id. at 413. The state court's application, however, must be "objectively unreasonable," id. at 409-10, a "higher threshold" than "incorrect." Knowles v. Mirzayance, 129 S. Ct. 1411, 1420 (2009). Moreover, if a federal court "finds that the state court engaged in an unreasonable application of established law, resulting in constitutional error, it must next consider whether such error was harmless." Howard, 406 F.3d at 122 (citing Brecht v. Abrahamson, 507 U.S. 619, 629-30 (1993)).

AEDPA requires that federal courts treat state court adjudication with great deference. Brown v. Artuz, 283 F.3d 492, 500 (2d Cir. 2002). This deference is warranted "even if the state court decision does not explicitly refer to either the federal claim or to relevant federal case law." Stellan, 261 F.3d at 312. Moreover, this standard extends to factual determinations made by the state court: "a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1). The petitioner can only rebut this presumption of correctness with clear and convincing evidence. Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir. 2003).

The "unreasonable determination" inquiry under 2254(d)(2) has also been elucidated by the Supreme Court: "an unreasonable application of federal law is different from an incorrect application of federal law." Williams, 529 U.S. at 410 (emphasis in original). A state court's application of federal law must be "objectively unreasonable." Id. at 409. This is even more stringent a requirement than clear error, which can be distinguished from unreasonableness for the purposes of this inquiry. See Lockyer v. Andrade, 538 U.S. 63, 75 (2003). Indeed, the Second Circuit has required "some increment of incorrectness beyond error," Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000), noting that though "[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000) (citations and internal quotation marks omitted).

II.THE EXHAUSTION REQUIREMENT

Section 2254 codifies an exhaustion requirement, providing that a federal habeas court may not grant "[a]n application for a writ of habeas corpus . . . unless it appears that - (A) the applicant has exhausted the remedies available in the courts of the State . . . ." 28 U.S.C. § 2254(b)(1)(A); see also Rose v. Lundy, 455 U.S. 509, 515--16, 518 (1982) ("The exhaustion doctrine existed long before its codification [in 28 U.S.C. § 2254] by Congress in 1948" and is "designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings."). In the Second Circuit, courts must follow a two-step exhaustion analysis:

First, the petitioner must have fairly presented to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts . . . Second, having presented his federal constitutional claim to an appropriate state court, and having been denied relief, the petitioner must have utilized all ...


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