United States District Court, E.D. New York
MEMORANDUM & ORDER
NICHOLAS G. GARAUFIS, District Judge.
Shawn Joseph brings this pro se Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254, attacking his state convictions of one count offirst-degree assault, one count of second-degree criminal weapon possession, and two counts of second-degree robbery. He asserts two claims: (1) that his sentence to consecutive time was illegal because his crimes constituted a single act; and (2) that the verdict was against the weight of the evidence. For the reasons set forth below, Joseph's Petition is DENIED.
On September 4, 2006, at approximately 2:00 a.m., Terrance Williams, Justin Davis, and Durell Grant, went to a party on East 55th Street between Farragut and Foster Avenues. (Def. App. Br. at 5.) Bryan Blondeville also attended this party. (Id.) There were between 100 and 300 people at the party, many of whom Williams, Grant, and Davis had never seen before. (Id.)
At approximately 5:00 a.m., as the party ended, a dark-skinned black man with cornrows and a light-skinned black man approached Grant, Williams, and Davis. Id. at 7.) The dark-skinned man complimented Grant on his dancing and then moved closer to Williams and asked if he had a problem. (Id. at 8.) Grant then stepped between Williams and the dark-skinned individual and told them to calm down. (Id. The dark-skinned man refused to let Williams, Grant, and Davis leave unless "they gave up their property." (Id.) Then the light-skinned individual revealed a gun in his waistband, while the dark-skinned individual placed his hand inside his jacket pocket as if he had a gun. (Id. Grant took off his earrings and tossed them at the dark-skinned man. (Id.) Grant claims that at that point he stopped a police car on East 55th Street and told the officer that he had been robbed at gun point, but the police officer drove off. (Id. Williams gave the light-skinned man his ring and three dollars. (Id.) The light-skinned man returned the money. (Id.)
After leaving the party, Williams, Grant, and Davis reconnected with Blondeville. (Id. at 9.) The four men then saw the two robbers and chased them down the street. (Id.) Davis, Grant, and Williams claimed they could see the robbers' faces, but Blondeville stated that he could not. (Id.) The four men lost sight of the robbers, who had turned the comer, and when they came back into view, the dark-skinned man fired a few shots in the air before firing at them. (Id. at 10.) The light-skinned man also fired shots. (Id. Blondeville chased after the robbers, and after he could not catch them, he returned and found that Davis had been shot in the neck. (Id. at 11.) The bullet severed his spinal cord, causing him permanent paraplegia from the waist down. (Id.)
Williams described the dark-skinned robber's hair as in braids or cornrows. (Id. at 12.) At approximately 5:00 p.m. that day, September 4, Detective Aremengol Viera arrested Joseph in front of his home, wearing different clothing than that described by Williams and Grant. (Id. at 12.) Neither one stated that the dark-skinned robber had a goatee or mustache (id.), but the arrest photograph indicates the Joseph had a mustache and goatee. (Res. App. Br. (Dkt. 10-2 Ex.C) at 13-14.) Detective Viera conducted lineups at 2:00 p.m. the following day, September 5, which were viewed by Grant and Williams, separately. (Id. Both men identified Joseph in the lineup. (Id. Viera testified that he put blue hats over the hair of the individuals in the lineup because they had different hairstyles. (Trial Tr. (Dkt.10-1) at 227-28, 244-45.) Williams did not recall that the people in the lineup had anything on their heads. (Id. at 50.) Grant recalled other individuals in the lineup also had cornrows, indicating that they were not wearing hats. (Id. at 137, 145.) Photographs of the lineup show that all the participants in the lineup had mustaches or goatees. (Id. at 259, 263)
B. Trial Court Proceedings
Joseph was charged in New York Supreme Court, Kings County, with numerous counts of robbery in the first, second, and third degree; several counts of attempted robbery in the first, second and third degree; two counts of grand larceny; two counts of petit larceny; one count of attempted grand larceny; one count of attempted petit larceny; two counts of assault in the first, second, and third degree; two counts of criminal possession of a weapon in the second third and fourth degree. (Res. App. Br. at 2.)
Joseph's trial began on October 4, 2007. (Trial Tr. at 1.) Joseph was identified by Williams, Grant, and Davis at trial. (Def. App. Br. at 13.) However, Davis admitted that Joseph was the only dark-skinned young black man with cornrows sitting at the defense table. (Id. at 14.)
Joseph, the People, and the Court agreed to submit the following charges to the jury for consideration: two counts of second-degree robbery, two counts of third-degree robbery, one count of first-degree assault, one count of second-degree criminal possession of a weapon, and one count of third-degree criminal possession of a weapon. (Trial Tr. at 564-76.)
Joseph was convicted of one count of first-degree assault, one count of second-degree criminal possession of a weapon, and two counts of second-degree robbery. (Id. at 633-37.)
On November 13, 2007, at his sentencing, Joseph orally moved to set aside the verdict on the ground that identification was not proven beyond a reasonable doubt. (Nov. 13, 2007, Sentencing Tr. (Dkt.10-1) at 4.) The trial court denied Joseph's motion, stating that the "Court believes there was ample evidence to support this. Of course it was an identification case, and of course that can always be raised on appeal." (Id. at 5.)
The court sentenced Joseph to concurrent terms often years imprisonment on the second-degree robbery counts and the second-degree criminal weapon possession count, and to a consecutive term of fifteen years imprisonment on the first-degree assault count for an aggregated term of twenty-five years of imprisonment. (Id. at 11.) The court imposed five years of post-release supervision on each count. (Id.
C. Direct Appeal
Joseph appealed his conviction to the Appellate Division of New York State Supreme Court, Second Department. (Def. App. Br. at 2.) Joseph raised two claims on appeal: (1) that the verdict was against the weight of the evidence and that the People failed to prove beyond a reasonable doubt that the appellant was one of the robbers (id. at 19-23); and (2) that the sentence imposed by the trial court was harsh and excessive (id. at 24-27).
On June 1, 2010, the Appellate Division unanimously rejected Joseph's claims and affirmed the convictions. People v. Joseph, 74 A.D.3d 840 (2d Dep't 2010). The court held that Joseph failed to preserve his challenge to legal sufficiency of identification evidence, which was made in Joseph's motion to set aside the verdict. Id . ("Raising a contention for the first time in such a motion does not preserve it for appellate review."). In addition, the court stated that viewing the evidence in the light most favorable to the prosecution, "there was legally sufficient evidence of the defendant's identification as one of the perpetrators." Id. at 840-41. Furthermore, the court's independent review found that the verdict of guilt was not against the weight of the evidence. Id. at 841; see N.Y. Crim. Proc. Law§ 470.15(5). On the second claim, the court found that the sentence was not excessive and that Joseph's claim that his sentence improperly punished him for exercising his right to a trial was without merit. Joseph, 74 A.D.3d at 841.
Joseph sought leave to appeal to the New York Court of Appeals, which was denied on September 20, 2010. People v. Joseph, 15 N.Y.3d 853 (2010).
D. Petition for Writ of Habeas Corpus
On December 13, 2011, Joseph submitted the instant petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. (Pet. for Writ of Habeas Corpus ("Pet.") (Dkt.1).) Joseph asserts two claims: (1) that the sentence was harsh and excessive because his crimes constituted a single act and therefore should run concurrently, not consecutively; and (2) that the verdict was against the weight of the evidence. (Id. at 4-6.) Assistant District Attorney Rhea A. Grob submitted an affidavit in opposition to the Petition. (Res. App. Br.)
II. HABEAS CORPUS STANDARDS
Pursuant to 28 U.S.C. § 2254(a), a district court is empowered to "entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." A person in custody pursuant to a judgment of a state court must generally meet three requirements to obtain habeas relief: (1) exhaustion of state court remedies; (2) lack of a procedural bar; and (3) satisfaction of the deferential standard of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996).
"An application for a writ of habeas corpus on behalf of a person in custody pursuant to a judgment of a State court shall not be granted unless it appears that... the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1). "The exhaustion requirement is not satisfied unless the federal claim has been fairly presented to the state courts, " meaning that the petitioner "informed the state court of both the factual and the legal premises of the ...