The opinion of the court was delivered by: Christian F. Hummel U.S. Magistrate Judge
REPORT-RECOMMENDATION AND ORDER*fn1
Petitioner pro se Delamar Brown ("Brown") is currently an inmate in the custody of the New York State Department of Correctional and Community Supervision ("DOCCS") at the Green Haven Correctional Facility ("Green Haven"). On November 5, 2006, after a jury trial in the Oneida County Court, Brown was convicted of two counts of murder in the second degree. People v. Brown, 67 A.D.3d 1369, 1369 (4th Dep't 2009). Brown was sentenced to, and is presently serving, two consecutive prison terms of twenty-five years to life. Pet. (Dkt. No. 1) ¶ 3. Brown now seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction and sentence. Pet. ¶ 12. For the reasons that follow, it is recommended that the petition be denied.
On September 11, 2006, a jury trial commenced at the Oneida County Courthouse, which resulted in the presently challenged conviction and sentence.*fn2 Tr. #1 (Dkt. No. 19) at 1.*fn3 Prior to trial, defense counsel filed an omnibus motion, making a number of demands, including: (1) a demand for discovery; (2) suppression of identification, statement, physical and prior crimes evidence; (3) inspection of the grand jury minutes; and (4) the appointment of an investigator and other experts. Dkt. No. 18-6 at 2--3. This motion led to a Sandoval and Ventimiglia hearing on the admissibility of Brown's convictions, uncharged crimes, and prior bad acts, and a Wade hearing to determine the suppression of identification testimony.*fn4 Dkt. Nos. 18-1 at 9, 18-7 at 2--3, 6.
A. The Prosecution's Case
Among others, the prosecution called Troy Evers ("Evers"), Gregory Wainwright ("Wainwright"), Wainwright's cousin Joann Garcia ("Garcia"), Wainwright's girlfriend Juanita Hill ("Hill"), and Wainwright's sister Tonay Stewart ("Stewart"), as witnesses against Brown.*fn5
Tr. #1 at 222, 405--06; Tr. #2 (Dkt. No. 20) at 274--75. In August 2004, Brown went with Evers to Utica to help Evers and Wainwright sell drugs. Tr. #1 at 345--476. Brown stayed at Evers's house, where the drugs were sold. Id. at 267--68. At that time, Garcia was living in an apartment on West Street with Hill and others. Tr. # 2 at 110--11, 121, 165, 361--62, 370. Evers had attempted to romantically link Garcia to Brown; however, neither Garcia nor Brown confirmed interest in each other. Tr. #1 at 379.
In the afternoon of August 15, 2004, Evers called Garcia and asked her to cook dinner for him. Tr. #1 at 347; Tr. #2 at 112. Garcia agreed, on the condition that Evers paid for the groceries. Tr. #2 at 112. Brown used Evers's car to drive Garcia to the store. Tr. #1 at 347--48; Tr. #2 at 112. Later that evening, Garcia called Evers to tell him that the food was ready. Tr. #2 at 114. Brown and Wainwright arrived to pick up the food but returned to Evers's house to retrieve plates for their food. Tr. #1 at 349--50; Tr. #2 at 115. Maurice West was at Garcia's apartment and called Ricky Powell ("Powell") to come over. Tr. #2 at 116--17. When Brown and Wainwright returned with plates, Ricky Powell and Brian West, who was Maurice West's brother, followed them into the apartment. Id. at 117.
Garcia gave the food to Powell, Maurice West, and Brian West first and then served Brown and Wainwright, which angered Brown. Tr. #3 at 83. Brown and Powell "sized" up each other. Tr. #2 at 363. Wainwright then took the plates made for Brown, Evers, and himself and placed the plates in the back of the car. Id. at 118, 271.
Brown left Wainwright at Garcia's apartment and drove to Evers's house. Tr. #1 at 350. Brown searched through his possessions and walked back to Garcia's apartment. Id. at 351. When Evers, who had followed Brown by car, arrived in front of Garcia's apartment, Wainwright came out of Garcia's apartment and told Brown that Powell and Brian West did not want any problems and Evers told Brown to "leave it alone." Id. at 351--52. Hill was outside, stuck her head in the window of Evers's car and called Brown a "crazy motherfucker." Tr. #2 at 364. Brown replied, "no, I'm not crazy, because if I had my ratchet on me, he'd be dead, I'd have blew his brains all over the kitchen." Id. at 364. During this time in Garcia's apartment, upon Powell's request, Garcia gave Powell the unloaded handgun that she had been holding for him and Powell put it in his pocket. Id. at 135--37.
Powell, Brian West, and Brown then confronted each other outside the apartment building. Tr. #1 at 352--53. Powell asked Brian West for the keys to his car, at which time Brown drew a handgun from his waistband and shot Brian West in the face. Id. at 367--68; Tr. #2 at 272--73. Brown shot Powell in the back. Tr. #1 at 353. Brown then shot Powell and Brian West several more times when they were down on the ground. Id. at 354. Evers watched all this transpire while he was in his car. Id. at 352, 354, 367--68. Evers and Brown drove away in Evers's car. Id. at 377. Shortly thereafter, Maurice West went outside, saw his brother on the ground, tore off his plaid shirt, and ran away along West Street. Tr. #2 at 125.
Wainwright fled to an apartment he shared with Stewart. Tr. #2 at 274--75. Evers, Wainwright, and Brown reconvened at the apartment of Niya Gaston, who was Evers's girlfriend. Tr. #1 at 355. Later that night, Stewart picked up Evers, Wainwright, and Brown near Gaston's apartment. Id. at 357; Tr. #2 at 276. Wainwright told Stewart about the double homicide. Tr. #2 at 277. Stewart asked Wainwright if he was the shooter, to which Brown interjected and said Wainwright was not involved for it was he who shot Powell and Brian West. Id. After this confession, Stewart ordered Brown to get out of her car. Id. at 278. Brown took Evers's car and drove to New York City. Tr. #1 at 356--57. The next day, Wainwright saw his probation officer and told him that he had witnessed a double homicide. Tr. #2 at 289.
One unloaded handgun was recovered in connection with the double homicide, which was found on the hospital grounds where the paramedics unloaded Powell from the ambulance. Tr. #2 at 99--102. Five expended cartridge cases were recovered at the crime scene, all were consistent with having been fired from a single gun. Id. at 113--14.
The defense called Maurice West, Gaston, Investigator Steven Hauck, a Utica resident named Jason Cruz, and Brown as witnesses. Tr. #1 at 223. The events leading up to the incident on August 15, 2004 were largely undisputed by the defense. Brown initially went to Utica to visit Veline Hicks, a friend who was incarcerated at Mid-State Correctional Facility. Tr. #3 at 88, 90. Brown wanted to return to New York City after a couple of days in Utica but Evers said he had to report to his parole officer first. Id. at 91. In the meantime, Brown helped Evers sell drugs. Id. Brown confirmed that nothing remotely romantic occurred between himself and Garcia and Evers's primary purpose in Utica was to sell drugs. Id. at 92--93, 95.
During the evening of August 15, 2004, when Brown and Wainwright returned to Garcia's apartment with their plates, Brown received a phone call on a cell phone borrowed from Evers asking for Evers. Tr. #3 at 98--100. Brown told the caller that he would have to return the call because Evers was not around. Id. at 100. Brown drove back to Evers's house and found Evers speaking on the phone. Id. Brown and Evers returned to Garcia's apartment and saw Wainwright walking out with plates in his hands. Id. at 101. Powell and Brian West followed Wainwright. Id. at 102. Wainwright exchanged words with Powell and Brian West, dropped the plates, pulled out a gun, and fired the gun.*fn6 Id. Wainwright got into the car and Evers drove off with Brown and Wainwright. Id. at 103.
Down the street, before the shots were fired, Powell, Brian West, and Cruz were outside Cruz's house running footraces against each other. Tr. #3 at 4--5. Cruz's cousin Mario Mateo and Cruz's friend Maurice Vines were also present. Id. at 7. Powell received a phone call, threw his keys at Brian West, walked down the street, and Brian West followed Powell by car. Id. at 6. Cruz started to walk into his house when he heard gunshots. Id. at 7. Cruz looked pass his driveway and saw two bodies on the streets, then asked Vines to call 911 while he ran down the block to where the two bodies were located. Id. at 8--9. Cruz saw Brian West who was not breathing. Id. at 9. Cruz saw that Powell was still breathing, bended down, and tried to help him but Powell said to not touch him. Id. at 10--11. Mateo saw Cruz kneeling down next to Powell. Id. at 53.
Cruz asked Powell, approximately three times, for the person who shot him. Tr. #3 at 10. Powell asked Cruz to call Powell's girlfriend and gave Cruz the first three digits of the phone number. Id. at 11. As for the shooter, Powell first said, "you know who it was." Id. Powell then said "Ester" or "Astro." Id. However, Cruz was unsure as to what Powell actually said because there was blood gushing out of Powell's mouth. Id. Cruz did not know a person by the name of Ester, Astro, or Castro. Id. at 12. After the exchange between Cruz and Powell, a police officer grabbed Cruz and told Cruz to stay in the middle of the street. Id. Cruz was then subsequently taken to the police precinct where his statement was taken. Id. at 16.
The trial court gave the following sua sponte instruction during the prosecution's direct case,
As far as any witness is concerned, when they are asked about prior convictions they may have, that is not done to embarrass or humiliate the witness. Those prior convictions are brought out to show you the prior convictions. And if you think that those convictions are important in making a determination of the witness's credibility, you can use those prior convictions for that purpose and that purpose only. If you don't think that those prior convictions are important in making a determination of the witness's credibility, then you should disregard all of that testimony.
Tr. #1 at 382--83. At a later time, in the jury's absence, the trial court admonished trial counsel for walking behind the District Attorney's table and restricted such movement accordingly. Tr. #2 at 177. For Wainwright's cross-examination, the trial court precluded testimony concerning Wainwright's prior drug dealing activities and working off the books because the evidence was deemed collateral.*fn7 Id. at 313, 323.
D. Verdict and Sentencing
On September 21, 2006, a jury found Brown guilty of two counts of murder in the second degree. People v. Brown, 67 A.D.3d 1369, 1369 (4th Dep't 2009); Tr. #3 at 340--42. On November 6, 2006, Brown was sentenced to consecutive terms of twenty-five years to life imprisonment. Tr. #3 at 395.
On direct appeal and represented by counsel, Brown raised six claims: (1) the cumulative effect of prosecutorial misconduct and trial court errors denied Brown a fair trial;*fn8 (2) the evidence against Brown was legally insufficient and the verdict was against the weight of the evidence;*fn9 (3) defense counsel's failure to object to the prosecution's summation statements and move to dismiss the indictment or set aside the verdict constituted ineffective assistance; (4) the Sandoval and Ventimiglia rulings improperly admitted evidence of Brown's prior bad acts; (5) the trial court improperly denied Brown expert funds; and (6) the sentence imposed was unduly harsh. Dkt. No. 18-1 at 3--4.
On November 13, 2009, the Appellate Division, Fourth Department, unanimously affirmed the conviction. Brown, 67 A.D.3d at 1369. First, the Appellate Division held that Brown failed to preserve the prosecutorial misconduct claim for appellate review, id. (citing People v. Bankston, 63 A.D.3d 1616, 1616 (4th Dep't 2009); People v. Haynes, 35 A.D.3d 1212, 1213 (4th Dep't 2006), lv. denied, 8 N.Y.3d 946 (2007)), "and, in any event, it [was] without merit." Id. The Appellate Division explained that "[t]he prosecutor properly attempted to impeach a defense witness whose testimony differed from his testimony as a prosecution witness in [Brown's] earlier trial, which resulted in a hung jury." Id. Further, "[t]he prosecutor's comments on summation were fair response[s] to defense counsel's summation." Id. (citing People v. Halm, 81 N.Y.2d 819, 821 (1993); People v. Seeler, 63 A.D.3d 1595, 1596 (4th Dep't 2009)). Second, the Appellate Court held that Brown failed to preserve for review the trial court errors claim, id. (citing N.Y. CRIM. PROC. LAW § 470.05(2)),*fn10 and declined to invoke its discretionary review, id. (citing N.Y. CRIM. PROC. LAW § 470.15(6)(a)).*fn11 Third, because Brown failed to move for dismissal, the sufficiency of the evidence claim was unpreserved, id. (citing People v. Gray, 86 N.Y.2d 10, 19 (1995), and in any event, it lacked merit, id. (citing People v. Bleakley, 69 N.Y.2d 490, 495 (1987)). The panel opined that the prosecution witnesses' testimonies were "not manifestly untrue, physically impossible, contrary to experience, or self-contradictory." Id. (citing inter alia, People v. Harris, 56 A.D.3d 1267, 1268 (4th Dep't. 2008), lv. denied, 11 N.Y.3d 925 (2009)) (internal quotation marks omitted). As for the weight of the evidence claim, the Appellate Division concluded that the verdict was not against the weight of the evidence. Id. (citing Bleakley, 69 N.Y.2d at 495). "The credibility of the witnesses was an issue for the jury to determine" and the Appellate Division found "no basis for disturbing that determination." Id. (citing People v. Massey, 61 A.D.3d 1433, 1433 (4th Dep't), lv. denied, 13 N.Y.3d 746 (2009); People v. Scott, 60 A.D.3d 1396, 1397 (4th Dep't), lv. denied, 12 N.Y.3d 821 (2009)).
Fourth, Brown's ineffective assistance of counsel claim based on trial counsel's failure to object to the prosecutor's summation comments and to move for an order of dismissal were denied because both assertions were without merit, id. (citing People v. Caban, 5 N.Y.3d 143, 155 (2005); People v. Francis, 63 A.D.3d 1644, 1644 (4th Dep't 2009)), and Brown was held to have received meaningful representation, id. (citing People v. Baldi, 54 N.Y.2d 137, 147 (1981)). Fifth, Brown failed to preserve his claim concerning the Ventimiglia ruling, id. (citing People v. McClain, 250 A.D.2d 871, 872 (3d Dep't), lv. denied, 92 N.Y.2d 901) (1998)), and the court declined to exercise discretionary review, id. (citing N.Y. CRIM. PROC. LAW § 470.15(6)(a)). Sixth, the Appellate Division found that Brown failed to show that fees were necessary for securing expert services. Id. (citing inter alia, People v. Koberstein, 262 A.D.2d 1032, 1033 (4th Dep't), lv. denied, 94 N.Y.2d 798 (1999); People v. Drumgoole, 234 A.D.2d 888, 889--90 (4th Dep't 1996), lv. denied, 89 N.Y.2d 1011 (1997); N.Y. COUNTY LAW § 722-c). Lastly, the sentence was not unduly harsh or severe. Id.
Brown sought leave to appeal to the Court of Appeals and raised the same claims as those before the Appellate Division. Dkt. No. 18-4. On May 17, 2010, the New York Court of Appeals denied leave to appeal. People v. Brown, 14 N.Y.3d 886, 886 (2010); Dkt. No. 18-5 at 2. Brown did not file any state collateral motions.
F. Petition Before This Court
On May 6, 2011, Brown filed a habeas corpus petition raising seven claims. The first claim involves prosecutorial misconduct. Pet. at 10--19. Brown alleged that the prosecutor attempted to improperly impeach Cruz with Cruz's prior testimony at Brown's second trial as the prosecution's witness. Id. at 12--15. Further, during summation, the prosecutor made several prejudicial comments, including: (1) Cruz was not credible; (2) if Cruz was found credible, then the police planted the evidence; (3) if the jury found Evers, Wainwright, Stewart, or Hill credible, then Brown was guilty; (4) the prosecution's witnesses were credible; and (5) he was prohibited from putting a person on the witness stand whom he believed was lying. Id. at 15--17.
Second, Brown claims that the trial court made several errors. Pet. at 10. Brown contended that the trial court acted improperly in giving sua sponte jury instructions concerning prior convictions that unfairly benefitted the prosecution, restricting the cross-examination of Wainwright, restricting defense counsel's movements in the courtroom, and facilitating the prosecution's case by giving a preview of the prosecution witnesses' testimonies. Id. at 20--25. Brown argued that the court should have given the same prior convictions jury charge when he was cross-examined about possessing an identification card bearing someone else's name. Id. at 23. Brown also argued that the cumulative effect of prosecutorial misconduct and trial court errors deprived him of a fair trial. Id. at 19, 26.
Third, Brown claims that he received ineffective assistance of trial counsel when defense counsel failed to object to the previously discussed trial court errors and the Ventimiglia ruling. Pet. at 29.
Fourth, the evidence was legally insufficient to establish Brown's guilt beyond a reasonable doubt. Pet. ¶ 12(D). Brown contended that: (1) the testimonies of Evers, Wainwright, Hill, and Stewart were manifestly untrue and contradictory; (2) the murder weapon was never recovered; (3) proof of motive cannot substitute for legally sufficient proof of the elements of the crimes; (4) Evers, Wainwright, Hill, and Stewart testified against him in exchange for the dismissal of perjury charges; (5) the prosecution improperly attempted to impeach Cruz, who was a prior prosecution witness; and (6) Cruz's testimony with respect to Powell uttering "Astro" or "Castro" was sufficient proof to create reasonable doubt. Id. at 31--33, 42.
Fifth, Brown argued that the trial court improperly refused his request for funds to secure experts. Pet. at 43.
Sixth, Brown argued that the Ventimiglia ruling, which made admissible the evidence that Brown possessed an identification card bearing someone else's name, weapons, and sold drugs, was erroneous. Pet. at 47; Dkt. No. 18-1 at 65--66. The testimony should have been excluded because his case did not involve a drug sale and it only tended to show Brown's criminal propensity. Id. at 48--49.
Seventh, Brown argued that he received ineffective assistance of appellate counsel because appellate counsel failed to raise an ineffective assistance of trial counsel claim based on the trial counsel's failure to object to trial court errors, the Ventigmlia ruling, and the admission of Brown's prior bad acts into trial evidence. Pet. at 52.
For the trial court errors and Ventimiglia ruling claims, Brown alleged that any cause or prejudice for procedural default was due to ineffective assistance of trial ...