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Earl B. Garvin v. Dale Artist

April 25, 2012


The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge:




Earl B. Garvin ("Garvin") seeks habeas relief following his conviction on eight counts of Criminal Contempt in the First Degree, arguing that: (1) he was denied his Sixth and Fourteenth Amendment rights to a fair trial and to confront a witness when he was barred from the courtroom for part of the trial; (2) he was denied his Sixth Amendment right to call a witness on his behalf by being excluded from the courtroom; (3) he was denied effective assistance of counsel when his attorney failed to object to the admission of certain evidence and portions of the jury charge; and (4) his Sixth Amendment right to a jury trial was violated when he was sentenced pursuant to the New York persistent felony offender statute.

On December 8, 2011, Magistrate Judge Frank Maas issued a thorough and comprehensive, 34 page Report and Recommendation ("R&R"), recommending, after a complete review and rigorous analysis, that the Court deny Garvin's amended petition in its entirety. On February 24, 2012, Garvin filed objections to the R&R.

For the reasons that follow, the Court adopts Magistrate Judge Maas's Report and Recommendation. Garvin's petition is, therefore, DENIED.



I. Factual Background*fn1

In 1998, Garvin married Cheryl Leon, though the two did not begin living together until January 2002. In July 2002, Ms. Leon moved out, due to marital problems. Approximately one week later, Garvin was arrested on charges of possessing a loaded firearm and criminal contempt. Ms. Leon was identified as a potential witness in the case against Garvin, but she never testified because Garvin entered a guilty plea in exchange for a maximum sentence of ten years in jail. Justice Lewis Bart Stone conditioned Garvin's plea on compliance with an order of protection that was imposed for the benefit of certain person whom Garvin threatened, including Ms. Leon.

On July 3, 2003, Justice Stone sentenced Garvin to a fifteen-year term on the weapons charge and a concurrent two-to-four year term on the contempt charge. The sentence was longer than the term agreed to because Garvin had violated the protective order by calling Ms. Leon several times. Justice Stone then signed a permanent order of protection for the benefit of Ms. Leon, but Garvin refused to sign the order. Justice Stone cautioned Garvin that further contact with Ms. Leon might result in additional charges, to which Garvin replied: "Don't matter. I'm going to die in jail. They all going to die. Let the record reflect that Mr. Garvin threatened each and every one of them mother fuckers and that that bitch whole family be killed. Let the record reflect that your Honor . . . . [and turning to the Assistant District Attorney, Mr. Krutoy]: Fuck you too fagot. Mr. Krutoy remember me. I'm going to search for you until the day I die."

On July 8, 2003, Ms. Leon received a voicemail from Garvin threatening to kill her. In November 2003, Ms. Leon received additional messages from Garvin threatening to kill her two children and any future (yet unborn) grandchildren. While Garvin was not identified by name on these messages, both the contents of the messages and records from Riker's Island, where Garvin was detained, confirm that Garvin was the caller.

Garvin was thereafter tried for violating the order of protection. At trial, Garvin was present for voir dire and the first day of testimony. On the second day of trial, however, Garvin refused to leave his holding cell because, as his counsel relayed, Garvin wanted Ms. Leon's criminal record so that she could be recalled to the stand for further impeachment, and, as his counsel surmised, to further prepare to testify himself. Justice McLaughlin refused to delay the trial, and instructed the jury to disregard Garvin's absence as he had a right not to be present. The prosecution called the court reporter from Garvin's plea before Judge Stone to read her transcript of that proceeding; and the prosecutor then read the transcript of Garvin's sentencing proceeding in the prior case. The People then rested.

Court officers were sent to advise Garvin that the People had rested and to instruct him that if he wanted to testify, he had to come to court immediately. As the court officers were escorting Garvin to court, Garvin head-butted an officer and was returned to his cell. After learning of Garvin's actions, Justice McLaughlin concluded that Garvin had voluntarily waived his right to be present during the trial.

In his jury charge, Justice McLaughlin continually emphasized that it was the People's burden to prove that Garvin was guilty beyond a reasonable doubt. The charge also contained two instructions that Garvin challenges, and which other courts have criticized. The first of these instructions, referred to as the "two inferences" charge, was given as follows:

In a criminal case every accused is entitled to every factual inference in his favor reasonably drawn from the evidence. And where two inferences are drawn and both factual inferences are of equal strength and weight, one inference consistent with guilt and the other with innocence, any accused is entitled to a factual inference of innocence.

The second instruction relates to an election analogy:

Now, when you get into the jury room there may be differences of opinion among you. It's not unlikely that in this jury trail, like most jury trials, the people from whom the electorate and the jury pool come being the same.

You know that in an election, a close count of 50.1 beats 49.9 each time and you're stuck with the winner, who may be a [] loser and in some judicial elections for fourteen long years. Yet, that same pool that produces close elections has for over ...

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