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Lugo v. Lavalley

United States District Court, Second Circuit

December 26, 2013

MICHAEL LUGO, Petitioner,
v.
THOMAS LAVALLEY, Superintendent of Clinton Correctional Facility, and ATTORNEY GENERAL OF THE STATE OF NEW YORK, Respondents,

DECISION AND ORDER

MICHAEL A. TELESCA, District Judge.

I. Introduction

Represented by counsel, Michael Lugo ("Lugo" or "Petitioner"), filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging that he is being held in Respondent's custody in violation of his federal constitutional rights. Petitioner's state custody arises from a judgment of conviction entered on June 13, 2008, in New York State County Court, Monroe County, following a jury trial, convicting him of Burglary in the First Degree (New York Penal Law ("P.L.") §§ 20.00, 140.30(4)), and Criminal Possession of a Weapon in the Second Degree (P.L. § 265.03(3)), and sentencing him to two concurrent determinate terms of 11 years imprisonment followed by 5 years of post-release supervision.

II. Factual Background and Procedural History

A. Overview

Just after midnight on December 1, 2006, Petitioner and Michael D. Caldwell ("Caldwell") knocked on the front door of the two-floor apartment occupied by Kenneth Critten ("Critten") and his wife, Angela Spencer ("Spencer"), at 11 Lamberton Park in Rochester, New York. Critten answered the door, and Petitioner and Caldwell forced their way inside. While Petitioner pointed a loaded sawed-off shotgun at Critten's head, he and Caldwell robbed Critten of currency and jewelry. Spencer, having heard the robbery from upstairs, called 911 for assistance. When the police arrived, Petitioner and Caldwell attempted to flee but were arrested as they left the building.

A Monroe County grand jury charged Petitioner and Caldwell with two counts of Robbery in the First Degree (P.L. §§ 20.00, 160.15(4)) and one count of Burglary in the First Degree (P.L. §§ 20.00, 140.30(4)). Petitioner, but not Caldwell, was charged with Criminal Possession of a Weapon in the Second Degree (P.L. § 265.03(3)). Prior to trial, however, the prosecution withdrew the two robbery counts.

B. Jury Selection

Jury selection commenced on January 14, 2008, with Monroe County Court Judge Dennis S. Cohen presiding. Petitioner was represented by assigned counsel, Mark Young, Esq. After the venirepersons were sworn in, Juror Number 12, Michelle Dovan ("Juror Dovan"), stated that she had been a schoolteacher for 12 years, and now volunteered "in the City" at 22 schools, working in "literacy programs" and fundraisers. T.30-31, 58-59.[1] She initially assured the trial court that if she were selected, she would be "fair and impartial and render a verdict in accordance with the evidence and the law" as the court explained it. T.59-60. Later, however, Juror Dovan realized that she previously had had Petitioner as a student, and she informed a courtroom deputy of this fact.

When Juror Dovan was questioned outside the presence of the other jurors regarding her relationship with Petitioner, she stated that she was "sure" that he was in her second grade class. T.109-11. As Petitioner's sole habeas claim relates to trial counsel's performance in connection with the empanelment of Juror Donovan, the Court will set forth the relevant portions of the transcript in some detail below:

THE COURT: Do you have any good or bad experiences with him that you recollect?
[JUROR]: I can't remember anything specifically negative. I remember the mother more than the child, not in a necessarily positive manner.
THE COURT: Okay. Well, would you hold that against him? Would this keep you from being a fair and impartial juror on this thing because you have had him in class, that he's one of your students, that that would make a difference or not? Would that make a difference to you that one of your students is on trial?
[JUROR]: I don't know. It's tough. No. I mean honestly, the few times I looked at him it didn't even dawn on me.
THE COURT: Now that you know, would that keep you from being fair and impartial?
[JUROR]: I have some negative feelings.
[DEFENSE COUNSEL]: Toward mom?
[JUROR]: Yeah.
[DEFENSE COUNSEL]: But not towards [Petitioner]?
[JUROR]: He wasn't an angel. I mean -
[DEFENSE COUNSEL]: Who was in second grade?
[JUROR]: Exactly. I mean I taught in the City. When you talk about predisposed feelings towards -
[DEFENSE COUNSEL]: We're trying to get - I mean can you put that all aside and be fair and impartial here to listen to the evidence and decide based on the evidence, not your feelings?
THE COURT: This is really different than anything that may happen in school.
[JUROR]: I know. I don't know how honest you want me to be. I mean she wasn't supportive. She wasn't nice. He would get in some difficult situations. She didn't make it any easier. It ...

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