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McCall v. Rivera

United States District Court, S.D. New York

June 4, 2013

NIGEL McCALL, Petitioner,
v.
ISAAC RIVERA, Superintendent, Coxsackie Correctional Facility, and ANDREW M. CUOMO, Attorney General of the State of New York, Respondents

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Nigel McCall, Petitioner, Pro se, Coxsackie, N.Y.

For Isaac Rivera, Respondent: John J. Sergi, Esq., Joseph M. Latino, Esq., Office of the District Attorney, White Plains, N.Y.

OPINION

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OPINION AND ORDER

KENNETH M. KARAS, UNITED STATES DISTRICT JUDGE.

Nigel McCall (" Petitioner" ), proceeding pro se, brings this petition for a writ of habeas corpus (" Petition" ) pursuant to 28 U.S.C. § 2254. He challenges his New York state conviction, by a jury verdict, on two counts of assault in the first degree, one count of criminal possession of a weapon in the third degree, and one count of false personation. Petitioner claims that: (i) his conviction was obtained through the use of a " coerced confession" ; (ii) his Equal Protection rights were violated by the prosecutor's use of peremptory challenges during voir dire; (iii) the convictions for first degree assault were not supported by the evidence; (iv) his trial counsel was ineffective; and (v) his sentence of concurrent terms of imprisonment, the longest of which is nineteen years, was harsh and excessive. The case was referred to the Honorable Mark D. Fox for review, pursuant to 28 U.S.C. § 636(b).[1] Magistrate Judge Fox issued a Report and Recommendation (" R & R" ), recommending that this Court deny the Petition in its entirety. For the reasons stated herein, the Court adopts the R & R and denies Petitioner's claims for habeas relief.

I. Background

The Court assumes the Parties' familiarity with the factual and procedural background of this case as it is thoroughly set forth in the R & R, but the Court summarizes

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the following facts most salient to Petitioner's objections.

On August 12, 2000, Petitioner entered the Dairyland Deli, located in Yonkers, New York, and slashed Maher Thalgy, a store employee, on the left side of the face with a blade or boxcutter. Mr. Thalgy drove to a nearby hospital, were he received treatment. After his arrest, Petitioner participated in several proffer sessions with the Westchester County District Attorney's Office during sessions often referred to as " Queen-for-a-Day" meetings. At these meetings, Petitioner told the District Attorney's Office that he slashed Mr. Thalgy in exchange for $500 from a person named " GQ." (R & R 4-5.) After Petitioner testified before the Grand Jury and gave statements contrary to the information provided at the proffer sessions, Petitioner was charged with perjury, but, as explained below, he was never tried on this charge.

Prior to trial, Petitioner moved in state court to suppress the incriminating statements he made during the proffer sessions, alleging that the statements violated his right to protect against self-incrimination and also violated the agreement Petitioner made with the Assistant District Attorney (" ADA" ). (Mem. of Law and Resp't's App. (" Resp't Mem." ) Ex. A, at A24-25.) At a Huntley hearing, ADA Robert Neary testified that he met with Petitioner and his then-attorney, Mr. Vincent DeMarte, on January 11, 2001 for a proffer session. (Dec. 3, 2001 Tr. 17-21.) ADA Neary testified that his understanding of a " Queen-for-a-Day" meeting is that a defendant can provide statements to law enforcement in an effort to cooperate, and that these statements cannot be used " directly" against the defendant in the prosecution's case-in-chief. ( Id . at 9.) According to ADA Neary, at the beginning of the January 11, 2001 meeting, he told Petitioner that his statements " would not be used against him," without also specifying that the statements could be used for impeachment purposes. ( Id . at 20-21.) ADA Neary also testified that he did not explicitly promise Petitioner that he could later perjure himself and avoid impeachment by statements made at the meeting. ( Id . at 26.) ADA Neary further testified that in accordance with his general practice, he did not use a written proffer agreement, and that neither Petitioner nor his attorney asked for further clarification regarding the boundaries of the meeting. ( Id . at 10-11, 20-21.) At the January 11th meeting, Petitioner made incriminating statements to ADA Neary, including stating that he had agreed to slash a victim in the face for $500. ( Id . at 21-24.)

In late February 2001, Petitioner agreed to attend a second " Queen-for-a-Day" meeting with the Westchester District Attorney's Office. At this time, ADA Timothy Ward was prosecuting Petitioner's case because ADA Neary had discovered a conflict and removed himself from the case. ADA Ward testified that his understanding of a " Queen-for-a-Day" meeting is also that the defendant's statements at the meeting cannot be used in the prosecution's case-in-chief, but if he later testifies differently than his statements, the statements can be used against him for impeachment. ( Id . at 48-49.) According to ADA Ward, at the beginning of the second proffer session, he told Petitioner that his statements would " not be used against [him] in any trial, any proceeding or any hearing," but explicitly warned Petitioner that if he did " testify differently as to what [he] told [ADA Ward] during th[e] conference, then whatever [he] told [ADA Ward] during th[e] conference w[ould] be used against [him]." ( Id . at 58.) ADA Ward also testified that he asked Petitioner if he understood, that Petitioner spoke briefly with his attorney and said that he understood,

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and that Mr. DeMarte did not appear surprised by the warning. ( Id . at 58-59.) ADA Ward further testified that after he gave this warning, Petitioner made incriminating statements, including that he agreed to slash a victim in the face in exchange for money. ( Id . at 60-63.) Petitioner also viewed a photo array and attempted to identify the person who allegedly asked him to slash Mr. Thalgy, but, according to ADA Ward, Petitioner did not select the correct person. ( Id . at 66.)

On March 22, 2001, Petitioner participated in a third " Queen-for-a-Day" session with ADA Ward. According to ADA Ward, at the beginning of this third meeting, he again warned Petitioner that although his statements could not be used against him, the statements would be used if he testified differently. ( Id . at 69.) ADA Ward testified that Petitioner stated that he understood the warning. ( Id . at 70.) After the warning, according to ADA Ward, Petitioner was again showed a photo array and again misidentified the person who paid Petitioner to slash Mr. Thalgy. ( Id . at 71.) ADA Ward further testified that because Petitioner was not identifying the correct person, despite claiming that he knew the suspect, ADA Ward told Petitioner that his cooperation was no longer useful to the prosecution, and again warned Petitioner that his statements at the meeting could be used against him for impeachment. ( Id . at 71-72.) ADA Ward also stated that he was aware, during the second and third proffer sessions, that ADA Neary had previously met with Petitioner for a " Queen-for-a-Day" meeting, but that he was not given any other information about the boundaries of that meeting. ( Id . at 85.)

Petitioner's then-attorney, Mr. Demarte, and Petitioner also testified at the Huntley hearing and provided a drastically different version of the events. Mr. Demarte testified that he had previously met with ADA Neary for proffer sessions with other clients and that ADA Neary had never previously told a defendant that his statements could not be used for impeachment. ( Id . at 169-70.) However, according to Mr. DeMarte, at the January 11, 2001 meeting, ADA Neary explicitly told Petitioner that anything he said during the meeting would be " confidential and not be used for any purpose at all." ( Id . at 155.) Mr. DeMarte testified that he was surprised by ADA Neary's statement, ( id . at 154-56), but that he did not seek clarification, ( id . at 180). Regarding the second proffer session with ADA Ward, Mr. DeMarte first stated that he could not recall ADA Ward giving any warning or boundaries at the beginning of the meeting. ( Id . at 162.) After the trial judge repeatedly asked Mr. DeMarte if this answer meant that he did not recall the warning but that it could have happened, Mr. DeMarte testified that he recalled that ADA Ward did not provide any warning. ( Id . at 162-63.) Mr. DeMarte also testified that ADA Ward did not provide any warnings or explain the boundaries of the meeting at the beginning of the third " Queen-for-a-Day" session. ( Id . at 166.) Mr. DeMarte testified that he purposefully did not discuss the ground rules with ADA Ward or inform him of ADA Neary's purported promise not to use Petitioner's statements for impeachment because the deal could not get " any better." ( Id . at 185-86.) Mr. DeMarte further testified that ADA Ward did state, at the end of the third meeting, that Petitioner's statements could be used for impeachment, ( id . at 166), but that Mr. DeMarte did not tell ADA Ward that this was not his understanding of the cooperation agreement, ( id . at 189).

Similarly, Petitioner testified that, at the first meeting, ADA Neary told him that nothing he said would be used against him " in any proceeding" and that Petitioner's

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statements would not be " divulged outside of [the District Attorney's] office." ( Id . at 203.) Petitioner also testified that ADA Ward did not provide any ground rules at the beginning of either the second or third proffer session. ( Id . at 204-06.) According to Petitioner, when ADA Ward finally did warn him about the potential use of his statements for impeachment at the end of the third meeting, Petitioner did not object to ADA Ward's statement because his attorney told him not to speak anymore. ( Id . at 222-24.)

After the Huntley hearing, Justice John M. Perone of the New York Supreme Court, Westchester County, found that at the first proffer session, ADA Neary told Plaintiff that his statements at the meeting " could not be used against him [in the prosecution's] case in chief," without warning him that his statements could be used to impeach him if he later provided inconsistent testimony. ( Id . at 51; Resp't Mem. Ex. D, at D2.) The trial court " gave full credence" to the testimony of the District Attorney's witnesses (Resp't's Mem. Ex. D, at D6), and found that ADA Ward " did give the two warnings before the February meeting" and gave the warnings three times during the second and third proffer sessions, ( id .; Dec. 4, 2001 Tr. 26.)[2] Justice Perone explained that he found that ADA Ward had explicitly warned Petitioner, at the beginning of the two proffer sessions, that his statements could be used for impeachment purposes. (Dec. 4, 2001 Tr. 26.) Justice Perone further ruled that " no force or intimidation was used by law enforcement," and that Petitioner's statements were " voluntarily made on the advice of counsel." (Resp't's Mem. Ex. D, at D5.) As a result, Justice Perone allowed the District Attorney's office to use Petitioner's statements for impeachment purposes regarding the assault charges. ( Id . at 6-7.)[3]

Petitioner did not testify at trial, and, as a result, none of Petitioner's proffer statements was used at trial. The jury convicted Petitioner of two counts of assault in the first degree, one count of criminal possession of a weapon in the third degree, and one count of false personation. On June 5, 2002, Justice Richard A. Molea of the New York Supreme Court, Westchester County, sentenced Petitioner to concurrent terms of imprisonment, the longest of which is a term of nineteen years.

On June 10, 2003, Petitioner appealed to the Appellate Division, Second Department, arguing that his statements should have been suppressed because they were obtained in violation of N.Y. Crim. Proc. Law § 60.45 and the Fifth Amendment. (Resp't Mem. Ex. E, at E33.)[4] Petitioner also argued that the trial court had violated his Sixth Amendment right by denying his three so-called Batson challenges regarding the ADA's use of peremptory challenges against African-Americans, and that the evidence did not support the convictions

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because, among other reasons, the evidence did not support a finding of serious physical injury required for first degree assault. (Resp't Mem. Ex. E, at E38-49.) On December 15, 2003, the Appellate Division affirmed Petitioner's conviction, finding that the trial court had " properly ruled that the defendant's statements . . . could be used for impeachment purposes" and that the record showed that Petitioner " was properly warned, prior to his testimony before the Grand Jury . . . that [the] statements could be used [] for impeachment purposes." People v. McCall, 2 A.D.3d 650, 769 N.Y.S.2d 566, 567 (App.Div. 2003). The Appellate Division also held that Petitioner's " remaining contentions [were] without merit." Id . On April 20, 2004, the New York State Court of Appeals denied Petitioner leave to appeal. People v. McCall, 2 N.Y.3d 763, 811 N.E.2d 44, 778 N.Y.S.2d 782 (N.Y. 2004). Petitioner did not pursue any state collateral attacks on his convictions.

On June 14, 2005, Petitioner filed the instant Petition, claiming that the state courts' rulings were contrary to or an unreasonable application of clearly established Supreme Court precedent because: (1) his convictions were obtained with the use of a " coerced confession" that violated N.Y. Crim. Proc. Law § 60.45; (2) the prosecutor's use of peremptory challenges violated Batson ; (3) his trial counsel was ineffective; (4) the weight of the evidence did not support his convictions for assault in the first degree; and (5) his sentence was harsh and excessive. After Respondent filed its opposition to the Petition arguing, among other things, that Petitioner had failed to exhaust his third and fifth grounds for habeas relief, Petitioner requested a stay in order to pursue state remedies. (Mem. Order of Magistrate Judge Mark D. Fox, dated May 9, 2006 (" Mem. Order" ), unnumbered page 1.) Magistrate Judge Fox denied Petitioner's request, noting that " Petitioner ha[d] failed to explain how the claims are meritorious in light of the law and ...


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