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Antwan Gathers v. People of the State of New York

January 10, 2012


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


Antwan Gathers, who is currently incarcerated at Green Haven Correctional Facility, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On January 16, 2007, Gathers pleaded guilty to a charge of manslaughter in the first degree and, on February 27, 2007, he was sentenced to a 23-year term of imprisonment by the Supreme Court of the State of New York, Queens County. Gathers seeks habeas relief on the grounds that he was denied his constitutional rights to a speedy trial, to the effective assistance of counsel, and to testify and present evidence to the grand jury. He also claims that his conviction was tainted by prosecutorial misconduct, and that there were defects in the felony complaint against him. Oral argument, at which Gathers appeared via videoconference, occurred on October 17, 2011. For the reasons stated below, the petition is denied.


A. The Offense Conduct and Initial Investigation

During his plea allocution, Gathers admitted that he shot and killed Ramon Adames during a robbery of a deli in Queens on February 20, 2002. Jan. 16, 2007 Tr. 34--36.*fn1

The police originally arrested someone else for the crime based on an eyewitness's identification. However, Gathers's fingerprints were recovered from a pack of cigarettes left at the deli and the police began to suspect his involvement.

At the time of the offense, Gathers was on parole due to a prior conviction. On February 28, 2002, eight days after the killing of Adames, Gathers was arrested on a charge that he had violated the terms of his parole. Sept. 11, 2006 Tr. 79--80. The alleged parole violations were unrelated to the murder of Adames. During a search of Gathers's home, the police found a gun, which the government later contended was the weapon used to shoot Adames. Sept. 7, 2006 Tr. 55.

B. The Period From Arrest to Indictment

On March 1, 2002, while he was incarcerated on the parole violation, detectives spoke to Gathers about the murder of Adames. Gathers initially denied having been to the deli on the date of the offense. Apr. 25, 2005 Tr. 17. After the police confronted him with the fact that his fingerprints had been found on cigarettes left at the deli, Gathers admitted he had been to the deli on that date, but denied his involvement with the robbery or shooting. Id. at 19--20, 34-- 35. The following day, Gathers was charged in a felony complaint with various offenses, including the murder of Adames.

Gathers remained incarcerated for the next 14 months. He does not dispute that for approximately 12--13 of these months (the precise amount is unclear) he was incarcerated due to the parole violation rather than the pendency of the murder charge. Approximately one to two months after his detention in connection with the parole violation ended, Gathers sought and obtained his release on bail pursuant to N.Y. Crim. Proc. Law § 180.80.

On May 3, 2004, Gathers was arrested for an unrelated offense in Nassau County. He pleaded guilty to that offense, was sentenced to a one-year term of incarceration, and was released on December 28, 2004.

The indictment charging Gathers with the murder of Adames was not returned until October 7, 2004, when he was still incarcerated in Nassau County. The government asserts that it was conducting its investigation and engaging in plea negotiations with Gathers throughout the pre-indictment period. It further asserts that it was attempting to locate a witness to testify before the grand jury. Tirino Aff., Apr. 27, 2005, at 4 ("When we were finally able to obtain an additional witness who was previously unavailable to us, we presented the case immediately to the grand jury.").

Gathers initially intended to testify before the grand jury, as is his right under New York law. See N.Y. Crim. Proc. Law § 190.50(5)(a). His testimony was scheduled for October 6, 2004. However, his attorney at the time informed the government that Gathers did not wish to testify. Zuckerman Aff., Feb. 18, 2005 ¶¶ 3--4. The grand jury voted the indictment the following day, and the indictment was filed on October 21, 2004, approximately 31 months after Gathers was first charged by complaint.

Gathers had apparently been dissatisfied with his first attorney for some time. As early as October 10, 2002, he had submitted a written complaint regarding his first attorney's performance and requested reassignment of counsel. Among other things, Gathers complained that his attorney had "take[n] adjournments and postpones [the] Grand Jury hearing." Letter to Presiding Judge, Oct. 10, 2002 ¶ 6. Shortly after Gathers's arraignment in November 2004, he was assigned a new attorney.

C. The Period From Indictment to Sentencing

In a pro se motion dated November 26, 2004, Gathers sought dismissal of the indictment on the grounds that he had been deprived of his right to testify before the grand jury and his right to a speedy trial. In a second pro se motion dated April 13, 2005, Gathers moved to dismiss the indictment on speedy trial grounds.*fn2 The state trial court rejected Gathers's claim that he had been denied his right to testify before the grand jury by order dated March 2, 2005, and denied the motion to dismiss the indictment on speedy trial grounds by order dated May 10, 2005.

Gathers also sought to suppress certain evidence. In December 2004, Gathers's second attorney filed an omnibus motion seeking, among other things, suppression of Gathers's statements to police on March 1, 2002. The trial court conducted a Huntley hearing*fn3 in connection with that motion on April 25, 2005. Gathers also sought to suppress the gun found during the search of his home on February 28, 2002, when he was arrested for violation of his parole. To address the legality of the search, the trial court held a Mapp hearing,*fn4 which took place over several days in September 2006. In decisions dated June 22, 2005, and November 6, 2006, respectively, the trial court denied Gathers's motions to suppress his statements and the gun.

In the meantime, Gathers had again sought reassignment of counsel. In May 2005, shortly after the Huntley hearing, Gathers was assigned his third attorney. That attorney remained Gathers's counsel through his plea and sentencing.

On January 16, 2007, the trial court was set to begin jury selection for Gathers's trial. The government advised the court that it was willing to enter into a plea bargain in which Gathers would plead guilty to manslaughter in the first degree and receive a sentence of 23 years' imprisonment. Gathers told the court he was considering taking the plea. He said, "I understand you just said that if I am not guilty I should not plead to it. I kind of agree with that theory. However, I know just because I am not guilty does not necessarily mean that I will get acquitted." Jan. 16, 2007 Tr. 5 (paragraph break removed). The court told Gathers he could either accept the plea offer or go to trial that day. Id. at 6.

Gathers, after consulting with counsel, initially decided to accept the plea offer. Id. at 7. He then wavered and stated he wanted to go to trial. Id. at 10--11. Later that day, Gathers changed his mind again and decided to plead guilty. See id. at 31. Gathers stated that he was pleading guilty freely and voluntarily and that he had discussed his plea with his attorney. Id. at 33. He said he understood that by pleading guilty, he would be waiving his right to a jury trial, his right to confront the witnesses against him and his right to testify in his own defense. See id. at 33--34. He then admitted shooting and killing Adames during a robbery. Id. at 34--36.

Gathers executed a written waiver of his right to appeal his conviction in open court, after having stated that he had discussed that waiver with his lawyer and understood what it meant to waive his right to appeal. Id. at 38--39. The prosecution recommended a 23-year term of imprisonment. On February 27, 2007, the court imposed that sentence. The court ordered that his sentence for the manslaughter conviction run consecutively to any undischarged sentences based on unrelated offenses. Feb. 27, 2007 Tr. 7.

Before imposing sentence, the court asked Gathers if he stood by his guilty plea and Gathers stated that he did. Id. 2--3. Gathers reiterated that no one had pressured him or threatened him to plead guilty. Id. at 3.

D. The Direct Appeal

Gathers appealed his conviction to the Appellate Division of the Supreme Court of the State of New York, Second Department. The sole claim asserted in Gathers's appellate brief was that the trial court had erred in denying his motion to dismiss the indictment on speedy trial grounds without conducting a hearing.*fn5

On August 25, 2009, the Appellate Division affirmed the trial court's judgment. People v. Gathers, 883 N.Y.S.2d 913 (App. Div. 2009). The Appellate Division held that Gathers's right to a speedy trial was not violated because "[t]he People established that the ongoing investigation provided a reasonable excuse for the 2 1/2-year delay between the commission of the crimes and the indictment of the defendant." Id. at 913. It also held that it was proper to deny the motion without a hearing "since there was a fully-developed record as to the reasons for the delay." Id.

Gathers moved for leave to appeal to the New York Court of Appeals. A Judge of the Court of Appeals denied leave on November 10, 2009. People v. Gathers, 920 N.E.2d 99 (2009) (Ciparick, J.).

E. The State Collateral Attack

Gathers filed a pro se motion dated February 8, 2011, in state court seeking to vacate his conviction pursuant to N.Y. Crim. Proc. Law § 440.10.*fn6 He submitted an amended motion, dated April 28, 2011. In his amended motion, Gathers challenged his conviction on the following grounds: (1) the felony complaint against him was defective due to a lack of proper verification and a supporting deposition; (2) his first attorney provided ineffective assistance of counsel by waiving Gathers's presence at court appearances, failing to investigate the case and withdrawing Gathers's invocation of his right to testify before the grand jury; (3) his second attorney provided ineffective assistance by failing to request a Wade hearing,*fn7 failing to investigate the case, and submitting flawed motions; and (4) he was subjected to prosecutorial misconduct in the form of the prosecutor's purportedly false statements that the weapon found in Gathers's home was the weapon used in the Adames shooting.

Gathers's § 440.10 motion was denied on October 19, 2011. The court held that all of Gathers's claims were subject to a mandatory procedural bar because they were based on the trial-court record but not raised in Gathers's direct appeal of his conviction. See Memorandum and Order at 1, People v. Gathers, No. 2365-04 (N.Y. Sup. Ct. Oct. 19, 2011) (citing N.Y. Crim. Proc. Law § 440.10(2)(c)). It rejected the claim regarding the insufficiency of the felony complaint on the additional ground that "said felony complaint was superceded by the above-captioned indictment." Id. The court also held, inter alia, that "[b]y specifically excluding his third attorney from his claim of ineffective assistance of counsel, defendant waived his claim as to the two prior attorneys." Id.

F. The Proceedings in This Court

Gathers filed the instant petition for habeas relief on April 4, 2011. He initially advanced seven grounds for relief: (1) the violation of his right to a speedy trial; (2) ineffective assistance of his first attorney; (3) the denial of his right to testify before the grand jury; (4) ineffective assistance of his second attorney; (5) the withholding of exculpatory evidence from the grand jury; (6) prosecutorial misconduct; and (7) defects in the felony complaint against him.*fn8 Pet. ¶ 13 (D.E. # 1).

During oral argument and in subsequent filings, Gathers has added to his claims. In his petition he argued that only his first two attorneys provided ineffective assistance, but he asserted at oral argument that his ...

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