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Rommel Lewis v. John Burge

July 17, 2012

ROMMEL LEWIS, PETITIONER,
v.
JOHN BURGE, RESPONDENT.



The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge

DECISION AND ORDER

I. Introduction

Rommel Lewis ("Lewis" or "Petitioner"), an inmate at Clinton Correctional Facility, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the constitutionality of two judgments of conviction entered against him on March 8, 2001, and October 15, 2001, in Monroe County Court of New York State. The charges stemmed from a fourteen-count indictment which was severed prior to trial.

The first conviction resulted from Lewis's guilty plea to counts five through fourteen of the indictment which involved incidents that occurred on March 20, May 13, May 22, and May 23, 2000: Assault in the Second Degree (N.Y. Penal Law ("P.L.") § 120.05(2)); Assault in the First Degree (P.L. § 120.10(1)); Assault in the First Degree (P.L. § 120.10(3)); Criminal Possession of a Weapon in the Second Degree (P.L. § 265.03(2)); Robbery in the First Degree (P.L. § 160.15(2)); Robbery in the First Degree (P.L. § 160.15(4)); Assault in the Second Degree (P.L. § 120.05(6)); Criminal Possession of a Weapon in the Second Degree (P.L. § 265.03(2)); Criminal Possession of Weapon in the Third Degree (P.L. § 265.02(4)); and Criminal Possession of a Weapon in the Fourth Degree (P.L. § 265.01(1)).

The second judgment of conviction was obtained after a jury trial on charges one through four of the indictment (Murder in the Second Degree (Felony Murder; two counts) (P.L. § 125.25(3)); Robbery (P.L. § 160.15(2)) in the First Degree and Attempted Robbery in the First Degree (P.L. §§ 110.00/160.15(2)), all of which stemmed from an incident on April 27, 2000.

II. Factual Background and Procedural History

A. State Court Proceedings

1. The Plea

When the parties appeared before Monroe County Court Judge Patricia Marks on January 22, 2001, there was a pending plea offer to four counts of the indictment (which included the murder counts) with a sentencing range of 25 or 40 years to life. After the prosecutor and the trial court explained the possible aggregate sentence, see H.3,*fn1 Lewis stated that he understood the plea offer, but wondered what his sentence would be if he just "cop[ped] out" to the robbery and assaults and took the murders to trial. H.4. The prosecutor indicated that any sentence less than 50 years for a plea to the robbery and assault charges would not be acceptable. Lewis indicated that he did not understand that. The following exchange occurred:

Court: He'll be recommending 50 years. Defendant: 50 years for the cop-out, too? Court: Right.

Defendant: Oh, man. No, I can't accept that plea. H.5. The matter was adjourned for trial.

Two days later, the parties appeared before County Court Judge Stephen Sirkin, who noted that if Lewis pleaded guilty to counts "5, 6, 9, 12, 13, and 14, that the [c]court is going to sentence without a promise is my understanding." P.2. Defense counsel agreed that this was correct. Lewis affirmed that he had discussed the case with his attorney, did not need additional time, and did not have any questions about the plea offer. P.3. After making the preliminary inquiries about Lewis's physical and mental state and ascertaining that Lewis was acting under his own volition, the judge noted that there were no sentence promises being made. When Lewis indicated that he did not understand, the judge explained that he could sentence Lewis in the range of five to ninety years. Lewis then indicated he understood, and the trial court proceeded to conduct a factual colloquy and enter Lewis's guilty plea.

For these convictions, Lewis received determinate sentences aggregating 70 years, plus five years of post-release supervision.

2. The Trial

What follows is a summary of the evidence set forth at trial. On April 27, 2000, at about midnight, Eric Jenkins ("Jenkins") and William Barnwell ("Barnwell") were robbed and shot to death in front of 113 Columbia Street in the City of Rochester. When Karen Bryant ("Karen"), who lived at that address, heard a gunshot and looked outside, she saw her cousin, Jenkins, and her friend, Barnwell, standing with their backs to a blue car that had been in the driveway. Their hands were up in the air, and two men brandishing guns were going through their pockets. Bryant recognized one of the assailants as Benjamin Switzer ("Switzer"), a former classmate of hers. The other man was wearing a hoody and she could only see that he was a dark-skinned black male and between 5'8"- and 5'10"-tall. See T.284-93.

Karen's brother, Ron Bryant ("Ron"), also heard gunshots. When he looked out the window, he saw the hold-up in progress and recognized Switzer as one of the robbers. Ron watched as Switzer held up his gun and began firing at Barnwell, who immediately fell to the ground. As Jenkins attempted to run, Switzer turned and shot him. See T.310-18. Ron recalled that the man in the hoody had started running away before either Barnwell or Jenkins was shot. T.327.

Another eye-witness, Damiano Smith ("Smith"), was at his home at 116 Columbria Street when he heard a shot. Looking in the direction from where the shot came, he saw a lighter-skinned man already pointing a gun at Barnwell and Jenkins, while the second man, wearing a hoody, was patting down the two victims. Smith saw a muzzle flash and heard a gunshot from the direction of where the first man was standing. The man in the hoody then ran off and, after briefly searching the victims' bodies, the shooter followed. T.332-40.

When Ron arrived at his cousin's side, Jenkins was still alive. He began to cry and then fell silent. By that time, the police had arrived. T.318-19. Ballistics testing revealed that the bullets recovered from the scene and from the bodies of the two victims had been fired from the same weapon. T.348-49.

About a month later, the police arrested Lewis in connection with the shooting. After waiving his Miranda rights, Lewis denied any involvement but stated that he knew that one of the victims was named Eric and that Switzer had already been arrested in connection with the shooting. T.371-84, 424-33. Lewis described Switzer as his "right-hand man". Id.

After a half-hour break in the questioning, the officers told Lewis that Switzer had implicated him as the shooter. Lewis was incredulous, stating, "No matter what, you shouldn't give a statement against your man, your partner, your friend." Even after being read part of Switzer's written statement, Lewis maintained that Switzer was lying. He claimed that Switzer had done the shooting, but was "too weak to do the time." Lewis then admitted that he was present at the shooting but refused to say anything further because he was "loyal" to Switzer and to talk would be engaging in "tit for tat". He declined to talk about the incident because it was "'fucked up' and that bothered him." See T.388-91, 436-38.

About two hours later, Lewis announced that he was willing to discuss the incident but would not sign a statement because it was a "homicide . . . [and] [t]hat shit's too serious." Lewis described the victims, whom he identified by name, as "weak", easy targets because they had been robbed in the past and still did not carry guns. Lewis felt such "small time robberies" were beneath him, but he went along with Switzer's suggestion to "rob them niggers" because "[r]ight or wrong, you still have to hold down your man." T.391-94, 439-42, 447.

Lewis described how Switzer approached Jenkins and Barnell in a friendly manner, "slapping up" or "high-fiving" them, to put them off their guard. Switzer then pulled out a .357 handgun and hit Jenkins "upside the head with it", causing it to discharge. When Switzer demanded their money, Jenkins emptied his pockets of keys, cash, and change, throwing it all on the ground. Because Barnell did not have any money, Lewis turned away to leave, and "that's when [Switzer] clapped them", meaning that Switzer shot the two men. Afterwards, Lewis divided up the spoils, giving $20 to Switzer and keeping the remaining $63 for himself. Lewis claimed that he did not have a weapon during the incident. See T.394-98, 443-48.*fn2

The defense did not present a direct case. Trial counsel argued that the police investigators had fabricated and coerced Lewis's confession. Counsel argued that it was preposterous to think that Lewis would have voluntarily acknowledged being present at the crime scene after denying it for several hours. Pointing to the absence of a written statement from Lewis, defense counsel urged the jury not to accept the police officers' testimony about what Lewis allegedly said to them. T.487-88.

The jury returned a verdict finding Lewis guilty of felony murder, robbery, and attempted robbery as charged in the indictment. T.549-53.*fn3 For the murder convictions, Lewis was sentenced to two consecutive indeterminate terms of 25 years to life; for the robbery conviction, a determinate term of 25 years; and for the attempted robbery conviction, a determinate term of 15 years.

The appeals of the two judgments of conviction were prosecuted separately. The Appellate Division, Fourth Department, of New York State Supreme Court, unanimously affirmed both judgments. People v. Lewis, 11 A.D.3d 954 (4th Dept. 2004) (appeal 1, from the guilty plea; also resolving the claims raised in appeal 2 from the jury verdict); People v. Lewis, 11 A.D.3d 9604 (4th Dept. 2004) (appeal 2; same memorandum as in appeal 1). The New York Court of Appeals denied leave to appeal in both cases.

B. The Federal Habeas Proceeding

This timely habeas petition followed. While the petition was pending, Petitioner sought and received a stay from Magistrate Judge Schroeder to exhaust claims regarding his resentencing in light of a change in the law pertaining the necessity for the trial judge to state on the record that a term of post-release supervision was part of a defendant's sentence.

Petitioner then sought to amend the petition to add three claims, and Respondent opposed the motion. The Court granted permission to include the first proposed claim. Although both parties conceded that the first proposed amended claim had already been raised in the original petition, the Court granted the request to amend so as to make clear that this contention would be adjudicated when the Court decided the petition. The Court denied with prejudice the request to include the second and third proposed claims, finding that the second claim was untimely and did not relate back to the original petition, and was factually and legally baseless; and that the third claim was not cognizable and, in any event, was ...


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