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Waters v. Martuscello

United States District Court, E.D. New York

March 27, 2014

KEITH WATERS, pro se, Petitioner,
v.
DANIEL MARTUSCELLO, Superintendent, Coxsackie Correctional Facility, Respondent.

MEMORANDUM AND ORDER

DORA L. IRIZARRY, District Judge.

Pro se Petitioner Keith Waters seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. ( See generally Petition ("Pet."), Dkt. Entry No. 1.) The Kings County District Attorney, as counsel for Respondent, opposes each claim alleged in the Petition. ( See generally Affidavit of Victor Barall in Opposition to Petition ("Barall Aff."), Dkt. Entry No. 17.) For the reasons set forth below, the Petition is dismissed in its entirety.

BACKGROUND

I. The Case against Petitioner

The evidence presented at trial indicates that, on the evening of September 15, 2005, Katherine Pritchard was walking home on Lexington Avenue in Brooklyn. (Transcript of Petitioner's 4/26/06 & 5/1/06 Jury Trial ("Tr.") 44-45; Dkt. Entry No. 19.) When she reached her home, located at 33 Lexington Avenue, a man she identified at trial as the Petitioner, suddenly approached her, pointed a knife at her, took her white purse, and absconded with it. (Tr. 45-49, 60-61.) At approximately the same time that evening, Pritchard's neighbor, Neal Wilkinson, was returning home. (Tr. 102-04.) Wilkinson testified that he saw a man, whom he identified as Petitioner, lunge at Pritchard and take her white purse. (Tr. 103-04.) Wilkinson ordered Petitioner to drop Pritchard's purse. (Tr. 105.) Petitioner ran away and Wilkinson chased him for several blocks. (Tr. 105-09.)

During this chase, Petitioner ran past a parked, unmarked car, occupied by Parole Officer Brian Mahoney and three fellow parole officers. (Tr. 109-10, 207-10.) They observed Petitioner running down the street carrying a white purse and a knife. (Tr. 206-09.) Moments later, Wilkinson approached the unmarked car and told the parole officers that he witnessed a robbery and was chasing the suspect. (Tr. 109-10, 209-10.) Officer Mahoney and his colleagues drove in the unmarked car towards Cambridge Place, which is the street that Wilkinson said Petitioner ran down. (Tr. 210-12.) Within a few minutes of speaking with Wilkinson, Officer Mahoney and his colleagues located Petitioner. (Tr. 212.) He was crouching by a tree, rummaging through a white purse, with a knife on the ground next to him. ( Id. ) A few minutes later, Wilkinson caught up with the unmarked car, and identified Petitioner as the robber and the white purse as the purse taken from Pritchard. (Tr. 110-14, 210-13, 230, 237.) Another eyewitness identified Petitioner at the scene of the arrest, but did not testify at trial.[1] Shortly thereafter, Police Officer Darien Quash arrived and processed Petitioner's arrest. (Tr. 172-78, 207, 212-13.)

Unlike Wilkinson, Pritchard did not go to the site of the arrest, 106 Cambridge Place, and did not participate in any identification procedures of the Petitioner. (Tr. 90, 93, 97, 191.)[2] Later that evening, she went to the police station to identify her purse. (Tr. 53-55.) After confirming it was hers, Officer Quash took a photograph of it and returned it to her. (Tr. 50-59, 179-80, 184-86, 205-06.)

Petitioner did not present any witnesses at trial.

The jury convicted Petitioner of Robbery in the First Degree (N.Y. Penal Law § 160.15[3]). (Tr. 316-22.) On May 16, 2006, the trial judge sentenced Petitioner to a determinate term of imprisonment of fifteen years, to be followed by five years of post-release supervision.

II. Post-Conviction Litigation

On May 26, 2006, Petitioner moved, pro se, under New York Criminal Procedure Law § 440.10, to vacate his conviction on the grounds that: (1) his trial counsel deliberately avoided filing Petitioner's pretrial pro se motion seeking reassignment of new trial counsel (or, alternatively, the right to represent himself); and (2) the trial court erred by failing to conduct an inquiry into whether his assigned counsel should have been replaced. ( See Petitioner's 5/26/06 Pro se 440.10 Motion ("First 440 Motion"), Dkt. Entry No. 17-2.) The trial court denied his motion, acknowledging that the motion seeking reassigned counsel should have been filed by his attorney before trial, but explaining that: (1) Petitioner's motion for reassignment of counsel did not contain any assertion whatsoever of the right to represent himself at trial; (2) Petitioner did not complain about counsel's trial performance; (3) trial counsel provided meaningful representation; (4) Petitioner was not entitled to successive counsel unless there was good cause for reassignment; (5) Petitioner's "boilerplate" motion did not establish good cause; and (5) the court would have denied the motion had it been filed before trial. ( See Decision & Order, People v. Waters , Indict. No. 6919/05 (Sup.Ct. Kings Co. Oct. 13. 2006); Dkt. Entry No. 17-2.) On January 18, 2007, the New York State Supreme Court, Appellate Division, Second Department ("Appellate Division") denied Petitioner's application for leave to appeal from the October 13, 2006 order denying the First 440 Motion. (Barall Aff. ¶ 11.)

On November 6, 2008, Petitioner moved, pro se, for the second time under New York Criminal Procedure Law § 440.10, to vacate his conviction. ( See generally Petitioner's 11/6/08 Motion to Vacate ("Second 440 Motion"), Dkt. Entry No. 17-1.) Petitioner asserted the same argument contained in his First 440 Motion, and added the argument that, because his trial counsel failed to inform the court of Petitioner's pro se motion for reassignment of counsel, Petitioner was deprived of his due process right of access to the courts. ( See id. ) On April 20, 2009, the trial court denied Petitioner's Second 440 Motion, concluding that it was procedurally barred under New York Criminal Procedure Law § 440.10(3)(b) and (3)(c) and also holding that the motion lacked merit. ( See Decision & Order, People v. Waters , Indict. No. 6919/05 (Sup.Ct. Kings Co. April 20, 2009); Dkt. Entry No. 17-3.) On June 18, 2009, the Appellate Division denied Petitioner leave to appeal. ( See Barall Aff. ¶ 14.)

On March 31, 2009, Petitioner moved, pro se, for the third time under New York Criminal Procedure Law § 440.10, to vacate his conviction. ( See generally Petitioner's 3/31/09 Motion to Vacate ("Third 440 Motion"), Dkt. Entry No. 17-2.) Petitioner argued that: (1) the prosecution failed to disclose exculpatory evidence and witness statements to defense counsel as required under New York Criminal Procedure Law § 240.45[1][a]; and (2) members of the New York City Police Department ("NYPD") falsified evidence. ( Id. at 81-88.) In particular, Petitioner asserted that: (1) the prosecution withheld information related to an alleged identification procedure by Katherine Pritchard at which she was unable to identify Petitioner as the robber; (2) the prosecution withheld NYPD memo book entries; (3) the prosecution withheld notes regarding a statement allegedly made by Pritchard; (4) the State withheld 911 tapes and "Sprint reports" regarding the alleged identification procedure involving Pritchard; and (5) members of the NYPD falsified evidence regarding identification procedures involving two eyewitnesses, Neal Wilkinson and Keith Downs. ( Id. ) On February 2, 2010, the trial court denied Petitioner's Third 440 Motion, concluding that Petitioner's allegations regarding the withholding of exculpatory evidence and the falsification of evidence were unfounded. ( See Decision & Order, People v. Waters , Indict. No. 6919/05 (Sup.Ct. Kings Co. Feb. 10, 2010); Dkt. Entry No. 17-3.) On April 2, 2010, the Appellate Division denied Petitioner's request for leave to appeal the denial of the Third 440 Motion. ( See Barall Aff. ¶ 18.)

In June 2010, Petitioner, through assigned counsel, filed his direct appeal challenging his conviction on the sole ground that the prosecutor's peremptory challenge to three African-American female prospective jurors based on their race and sex violated Batson v. Kentucky, 476 U.S. 79 (1986). ( See Petitioner's Direct Appeal ("Pet'r's App."), Dkt. Entry No 17-3.) On February 1, 2011, the Appellate Division affirmed Petitioner's conviction, concluding that the record supported the trial court's finding that the prosecutor's reasons for her challenges of the three prospective jurors at issue were non-pretextual. See People v. Waters, 81 A.D.3d 673 (2d Dep't 2011). On June 6, 2011, the New York State Court of Appeals denied leave to appeal the order of the Appellate Division affirming his conviction. ( See Barall Aff. ¶ 21.)

On November 24, 2010, amid filing his various 440 Motions, and before receiving a final decision on his direct appeal, Petitioner filed the instant Petition. Currently, Petitioner remains ...


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