United States District Court, W.D. New York
ROBERT A. LYNCH, Petitioner,
SUPERINTENDENT DOLCE, Respondent.
DECISION AND ORDER
MICHAEL A. TELESCA, District Judge.
Robert A. Lynch ("Lynch" or "Petitioner") has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the constitutionality of his detention in Respondent's custody. Lynch is incarcerated as the result of a conviction entered on September 8, 2005, in New York State County Court, Monroe County (Keenan, J.) following a jury verdict convicting him of one count of Robbery in the First Degree (N.Y. Penal Law § 160.15(3)); two counts of Robbery in the Second Degree (id., § 160.10(1), (2)(a)); and one count of Robbery in the Third Degree (id., § 160.05).
II. Factual Background and Procedural History
A. The Robbery
At about 6:45 p.m. on October 28, 2004, Rachel Tally-Verstraten ("Tally") drove to the Family Dollar Store located on North Clinton Avenue in the City of Rochester. Her two young daughters were in the backseat of the car. As Tally pulled into a space in the parking lot, she noticed that the four-door sedan next to her was occupied by two black males. Tally got out of her car and began to unbuckle her daughter's seatbelt. As she did so, she immediately felt someone, later identified by eyewitnesses as Petitioner, place one hand on the left-hand-side of her waist and shove something into the right-hand-side of her waist. Petitioner told Tally it was a robbery, that he had a gun, and that he would "shoot her in front of her kids" if she did not give him her purse. T.478-80. Tally asked Petitioner if he was kidding; he replied that he was not, and stated that he would hurt Tally and her children if she did not comply. When she insisted that she did not have anything of value, he asked what she had and where she had it. He then touched Tally's right front pocket and she shoved him away from her. At that point, she saw that Petitioner was approximately her height (she is five-feet, seven-inches tall) and was wearing a black hooded sweatshirt, dark pants, a few gold necklaces. T.480-81, 485.
Petitioner then grabbed Tally's purse; she initially held onto it but released it after Petitioner punched her in the face. T.481-82. The same four-door vehicle Tally had noticed earlier pulled forward. The driver, later identified as Rodney Brandon ("Brandon" or "co-defendant"), told Petitioner to get inside. Petitioner did so and Brandon drove out of the plaza and onto the parkway. Tally called 911 and reported the crime.
During the purse-snatching, Ediberto Diaz, Sr. ("Diaz Sr.") had been sitting in their parked van in the parking lot, about four to five feet away, with his twenty-year-old son, Ediberto Diaz, Jr. ("Diaz Jr."). They both saw Petitioner punch Tally, take her purse, and get into a black Dodge Stratus after the driver opened the passenger-side door for him. The Stratus then drove out of the parking lot and onto the parkway.
Diaz Sr. and Diaz Jr. continued on their way to a storage facility located on Lake Avenue. As Diaz Sr. turned his vehicle onto Lake Avenue from Route 104, a black Dodge Stratus swerved in front of them. Diaz Sr. and Diaz Jr. recognized the Stratus as the same car involved in the robbery at the Family Dollar. According to Diaz Jr., the Stratus was occupied by the same two men whom they had watched commit the robbery. T.306-07. As the Stratus was being driven down Lake Avenue, its occupants were throwing papers out of the car windows. When the Stratus pulled into the Hess gas station on Lake Avenue, Diaz Sr. called the police from a nearby mini-mart.
Rochester Police Department Officers Bob Hill and Matt Hill responded to the scene and quickly located the Dodge Stratus, parked and unoccupied, at the rear of the Hess station. Diaz Jr. yelled to the officers that the two individuals who were crossing Lake Avenue, one in a white hat (Petitioner) and the other in a grey sweatshirt (Brandon), had just done the "jacking at the Family Dollar[, ]" T.311, meaning that they "took the purse away from the lady." Id .; see also T.366, 626-30. As soon as the officers made eye contact with Petitioner and Brandon, they began running in a westbound direction. After a brief pursuit, Petitioner stopped, apparently because he had lost one of his shoes. Officer Matt Hill ordered him to the ground, handcuffed him and took him into custody. T.629. As the officers were transporting Lynch to the show-up, he spontaneously said, "I know I shouldn't have gotten into that car." T.632.
Petitioner was subsequently identified during a show-up identification procedure, conducted at 7:59 p.m., by both Diaz Sr. and his son as being "the guy who did the robbery at the Family Dollar". T.317, 376. After the show-up, he spontaneously stated, "I got to be a free suspect for somebody." T.632.
Tally told the police that she was "80 percent certain" that Petitioner was her assailant and that she had "no doubt" that the Dodge Stratus, which she viewed at the Hess gas station, was the same vehicle in which her assailant had fled the scene. T.490, 494. Tally also identified the purse, located on the floor of the front passenger side of the Stratus, as being the one Lynch had stolen from her.
Petitioner provided several statements to the police, initially denying involvement in the robbery and claiming that prior to his arrest, he had been at a friend's house on Ravine Avenue before heading to the Hess station on Lake Avenue. He told the police that he ran from them because someone told him the police were there and that he had to run. T.570. Petitioner later claimed that his friend "Jay" had picked him up on Ravine and had driven him to the Hess gas station. T.571-72. Petitioner also accused the police of "setting him up." T.575, 578. Petitioner ultimately gave a written statement in which he admitted to having "run up on" the victim and to having "bumped her in the mouth" before taking her purse. T.600. When asked if everything in his written statement was true, Petitioner replied, "[Y]es, it is, but I don't think signing it is going to help me." T.602.
When Brandon was taken into custody, a pat search revealed that he had an unloaded handgun in the waist of his pants and a magazine containing six bullets in the pocket of the jacket he was wearing. Testing revealed that the handgun and two of the rounds of ammunition were operable.
B. The Convictions
Indictment 0989/2004 charged both Brandon and Petitioner, individually and under a theory of accomplice liability, with two counts of first degree robbery and two counts of robbery in the second degree. Brandon was charged individually with criminal possession of a weapon in the second and third degree.
Brandon and Petitioner were tried jointly. Brandon was acquitted after their joint trial of the robbery charges, but he was convicted of one count of criminal possession of a weapon in the second degree and one count of criminal possession of a weapon in the third degree. His conviction was affirmed on direct appeal.
Petitioner was convicted of robbery in the first degree, two counts of second degree robbery and one count of third degree robbery. He was sentenced to an aggregate term of 12 years, plus 5 years of post-release supervision.
C. Post-Conviction Proceedings
Represented by new counsel, Petitioner appealed his conviction to the Appellate Division, Fourth Department, of New York State Supreme Court. On February 10, 2011, the Appellate Division unanimously affirmed the judgment of conviction, and on July 13, 2011, the New York Court of Appeals denied leave to appeal. People v. Lynch , 81 A.D.3d 1292 (4th Dept.), lv. denied, 17 N.Y.3d 807 (2011).
Petitioner then filed a pro se application for a writ of error coram nobis, asserting that appellate counsel provided ineffective assistance on a number of bases. The Appellate Division summarily denied the application. Petitioner then sought leave to appeal on one ground-that appellate counsel failed to argue that the trial court erroneously refused to charge "actual possession" in regards to the first-degree robbery count (P.L. § 160.15(3)). The New York Court of Appeals denied leave to appeal.
D. The Federal Habeas Petition
In his timely pro se habeas petition dated October 2, 2012, Lynch raises the following grounds for habeas relief: (1) appellate counsel was ineffective for failing to argue that the trial court improperly refused to charge "actual possession" as an element of first-degree robbery under P.L. § 160.15(3); (2) appellate counsel was ineffective for failing to argue that trial counsel was ineffective for failing to (a) object to the verdict as repugnant because Petitioner was acquitted of first-degree robbery under the theory that he was armed with a deadly weapon (P.L. § 160.15(2)), but convicted of first degree robbery under the theory that he used or threatened to use a dangerous instrument (P.L. § 160.15(3)); (b) assert that the prosecution failed to establish that Petitioner "actually possessed" a dangerous instrument at the time of the crime; (c) introduce the 911 tape into evidence; and (d) impeach Tally with the 911 tape; (3) trial counsel was ineffective for the individual and cumulative effects of his failure to (a) object to the verdict as repugnant and based on legally insufficient evidence; (b) introduce the 911 tape into evidence; and (c) impeach Tally with the 911 tape; and (4) the trial court improperly excluded the 911 tape.
Respondent answered the petition, arguing that Petitioner's ineffective assistance of trial counsel claims are unexhausted but procedurally defaulted because they were never raised in any statecourt forum and cannot be raised now. Respondent also argues that Petitioner's ineffective assistance of appellate counsel claims based on trial counsel's ineffectiveness were unexhausted because Petitioner did not seek leave to appeal the denial of coram nobis relief as to those claims. Respondent asserts that none of Petitioner's claims merit habeas relief. Petitioner filed a reply in ...