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Simon v. Bradt

United States District Court, W.D. New York

April 28, 2014

STEPHEN SIMON, Petitioner,
MARK BRADT, Superintendent, Respondent.


HUGH B. SCOTT, Magistrate Judge.

Pro se petitioner has filed an application to this Court for habeas corpus relief pursuant to 28 U.S.C. § 2254 challenging his state court conviction. He asserts the following grounds in support of his Petition: actual innocence, ineffective assistance of trial and appellate counsel, judicial bias, other trial errors. The parties consented to proceed before the undersigned as Magistrate Judge (pursuant to 28 U.S.C. § 636(c)) on April 5, 2013 (Docket No. 9).

After granting respondent's motion (Docket No. 4) for extension of time to answer (Docket No. 5), respondent answered and filed his Memorandum on September 28, 2012 (Docket Nos. 6, 7). Petitioner, proceeding at this point pro se, filed his Traverse (Docket No. 8). Petitioner then filed a letter indicating that he had obtained counsel (Docket No. 10); as a result, a deadline was set for counsel to file formal notice of appearance (Docket No. 11), which petitioner's counsel did (Docket Nos. 12 (David Seeger's appearance), 13 (Leigh Anderson's appearance)). With the appearance of petitioner's counsel, petitioner was granted until November 5, 2013 (Docket No. 14), and then to March 5, 2014, to file supplemental papers. No additional papers were filed and the Petition thus was deemed submitted on the record before this Court.


Offense and State Court Proceedings

This proceeding arises from the shooting and murder of Ziad Nasser inside his delicatessen in 115 Englewood, Buffalo, New York, on August 29, 2006 (Docket No. 7, Resp't Memo. at 4, 8; Trial Tr. 667-70, 672, 679). A neighbor, Edward Brydalski, observed two men enter the delicatessen, with their faces obscured by doo rags (Trial Tr. 719-30). Brydalski started to dial 911 when he heard a popping sound inside the deli and then saw the two men run out of the store (id.; Docket No. 7, Resp't Memo. at 4-5). Brydalski then entered the deli and say Nasser lying on his stomach bleeding (Trial Tr. 730-32). Brydalski called the police and gave descriptions of the two men and the direction they left the deli (Trial Tr. 732-33).

Detectives learned that the two suspects for this shooting were nicknamed "Wes" and "Luck" (id. at 674). "Wes" was later identified as Wesley Kirkland (id.). On May 15, 2007, Kirkland had a meeting with his probation officer when he was arrested (id. at 674-75). Kirkland then made statements to the police implicating petitioner, "Luck" (id. at 671-77, 796-98; Docket No. 7, Resp't Memo. at 7). Kirkland entered a guilty plea on January 7, 2008, in a severed proceeding from petitioner's case. Kirkland implicated petitioner in the murder and attempted robbery.

Petitioner was arrested and questioned by the Buffalo Police Department. He initially denied the murder and robbery allegations. Then, he was shown Kirkland's statement and petitioner then said what happened, that he came to the 115 Englewood deli with Kirkland to rob it. Petitioner stated that Kirkland had the gun and petitioner heard the gun go off. (Docket No. 7, Res'pt Memo. at 8-9.)

Petitioner and Kirkland's genetic material were found on the shotgun used in this offense (id. at 9; Trial Tr. at 1146-47).

Petitioner testified (Trial Tr. at 1227-1328) that he was at his girlfriend's home on August 29, 2006, the day of the murder (id. at 1228-29). Kirkland then came to that house and said that he had a robbery he wanted to commit ("he had a lick that he wanted to go hit, " id. at 1229) but petitioner's girlfriend would not let petitioner go; Kirkland then left disappointed but he borrowed petitioner's car keys (id. at 1229-30). He testified that he left at nine or ten that night (id. at 1230). Petitioner saw his loaned car on the news discussing the homicide, although no suspects were identified in that story (id. at 1231). After petitioner's arrest on May 15, 2007, he told detective that he knew nothing about the homicide, but in fact petitioner knew that Kirkland and Kirkland's cousin took bikes and left the car in a field (id. at 1236). The police did not believe petitioner's denials and told him that they found his DNA on the firearm, that they recovered the shotgun, and had an informant, then showing petitioner Kirkland's statement (id. at 1237). Petitioner testified that Detective Lonergan told him that if he identified Kirkland as the shooter "we'll let you go home, " so to go "along with the program" petitioner told the detective that he was with Kirkland but that Kirkland shot the deli clerk (id. at 1237-38, 1275-76, 1278-79, 1295). Petitioner then discussed his statement to the police, pointing out false aspects of this statement (id. at 1244-53). Petitioner testified that, months later, Kirkland told him that he and Glenn went into the deli, but did not mention the shooting (id. at 1253). On cross-examination, petitioner denies telling about Kirkland and Glenn to the Grand Jury (id. at 1304).

Petitioner was convicted of second degree murder and attempted robbery in the first degree following a jury trial in Erie County Court. Petitioner was sentenced to 25 years to life.

Petitioner moved to vacate the judgment, pursuant to Criminal Procedure Law § 440.10, submitting an affidavit from Kirkland in which Kirkland recanted his testimony surrounding his plea and exonerating petitioner. Petitioner argues that this affidavit (and affidavits of others who heard Kirkland state that petitioner was not involved) was newly discovered evidence of his innocence. (See No. 1, Ex., Order of Erie County Court, Mar. 17, 2009, at 2-3.) The County Court rejected this new evidence on state law grounds (id. at 3).


Petitioner appealed his conviction, People v. Simon , 71 A.D.3d 1574, 897 N.Y.S.2d 578 (4th Dep't 2010), arguing that he received ineffective assistance of trial counsel, suffered from judicial bias, received a harsh and excessive sentence, that his confession was coerced, and that his Sixth Amendment confrontation rights were disregarded. He also challenged the weight and sufficiency of evidence against him and asserts newly discovered evidence and trial errors should have been found to upset his conviction. Petitioner was represented by appellate counsel and also filed papers pro se. The judgment of conviction was upheld, id. Leave to appeal to the New York Court of Appeals was denied, People v. "Luck", 2010 N.Y. LEXIS 3499 (June 18, 2010), reconsideration denied, 909 N.Y.S.2d 30 (Sept. 1, 2010) (Docket No. 1, Pet'r, Ex.).

Habeas Petition

Petitioner then filed this Petition on July 3, 2012 (Docket No. 1, Pet.). In this Petition, petitioner raises several constitutional claims. He asserts his actual innocence (id. ¶ 18). He argues that he received ineffective assistance of trial counsel (Kevin Spitler) for not calling exculpatory witnesses (in particular, Kirkland, and an Erie County Holding Center inmate, Dominique Wielbon, who would have testified that he heard from Kirkland that defendant did not participate in the crime) and for not objecting to prosecutorial misconduct to preserve the issue on appeal (id. ¶ 12(a)). Trial counsel did not interview Wielbon, arguing that, as a matter of trial strategy, the attorney refused to do this to preserve petitioner's Sixth Amendment Confrontation Clause argument regarding Kirkland's statement (id. ¶ 12(b)). Petitioner also argues that trial counsel failed to preserve issues for appellate review (id.). Petitioner concludes that the cumulative impact of these errors created prejudice to him (Docket No. 8, Pet'r Memo. of Law at second unnumbered page).

He objects to sentencing counsel (John Jordan) taking an adversarial stance to petitioner's ineffective assistance of trial counsel arguments (Docket No. 1, Pet. ¶ 12(c)). He also faults appellate counsel (Kevin Bauer) for failing to raise a Confrontation Clause issue, failing to argue petitioner's actual innocence, and failing to point out juror misconduct arguments on appeal (id. ¶ 13). Petitioner again contends judicial bias from statements made in severed codefendant's trial accusing petitioner of being the shooter (id. ¶ 14). He also argues that his sentence was the product of bias. Petitioner contends that exculpatory affidavits were misapplied and his confession was coerced (his statement was made with implied promise of no prosecution) (id. ¶ 15, Exs. A-E). He complains that his confession was coerced because it was implied promise of non-prosecution when he made his statement (id. ¶ 16). He points to various trial errors (evidence not being legally sufficient, a missing witness charge was not given) as well as instances of prosecutorial misconduct (such as improper cross-examination of alibi witness, making an inflammatory opening statement, and attempt to suppress exculpatory evidence). Petitioner also complains that photographs of the crime scene and the victim's gunshot wound were admitted into evidence despite lacking any probative value. Finally, petitioner contends that a jailhouse informant violated his right to counsel during an interrogation. (Id. ¶ 17.) Petitioner had to raise these issues in pro se papers to the Appellate Division, papers he characterized as from a novice (Docket No. 8, Pet'r Memo. at fourth unnumbered page). Petitioner seeks to prove his actual innocence through affidavits of Kirkland and others exonerating the petitioner (Docket No. 1, Pet. ¶ 15, Exs. A-E) and his efforts to seek genetic testing on the shell casings from the shotgun (id. ¶ 18). He later argues that the denial of this testing violates his due process rights (Docket No. 8, Pet'r Memo. at twelfth unnumbered page), see McKithin v. Brown , 626 F.3d 143 (2d Cir. 2010).

The Appellate Division, Fourth Department, held that petitioner failed to preserve for appellate review his prosecutorial misconduct (opening statement and improper cross-examination errors) and sufficiency of evidence contentions, Simon, supra , 71 A.D.3d at 1575, 897 N.Y.S.2d at 579. The court then held that the County Court did not abuse its discretion in denying petitioner's request for a missing witness charge because the two putative witnesses invoked (or probably would have invoked) their Fifth Amendment rights against self-incrimination, id., 71 A.D.3d at 1575 , 897 N.Y.S.2d at 579-80. The court upheld the introduction of the autopsy photograph and two photographs of the crime scene, id., 71 A.D.3d at 1575 , 897 N.Y.S.2d at 580. The court then found that petitioner received meaningful representation by trial counsel, id., 71 A.D.3d at 1576 , 897 N.Y.S.2d at 580, concluding that, while defense counsel for sentencing improperly assumed positions adverse to petitioner on two contentions, the County Court was not influenced by counsel in denying petitioner relief, id., 71 A.D.3d at 1576 , 897 N.Y.S.2d at 580. The court upheld the denial of petitioner's CPL 30.30(3) motion on newly discovered evidence.

Respondent filed an Answer with attached record from the state court proceedings (Docket Nos. 6, 7). There, respondent argues that petitioner received effective assistance of counsel at all stages of this prosecution, that no judicial bias was shown against petitioner here, the allegation of new proof of petitioner's actual innocence is not grounds for habeas relief, and his confession was not the product of coercion (Docket No. 7, Resp't Memo. at 10-12, 13, 14, 15, 16). Respondent contends that trial counsel was competent and diligent overall, hence the first prong of Strickland v. Washington was not met (id. at 12). As for appellate counsel, respondent argues that petitioner has not shown that but for the omitted arguments, the appeal would have been decided differently (id. at 13).

As for petitioner's contention of judicial bias, respondent argues that he failed to show that he was denied the right to be tried by an unbiased and impartial judge, see Ungar v. Sarafite , 376 U.S. 575, 584 (1964) (id. at 14). To respondent, petitioner's bare assertion of bias was insufficient (id.).

As for petitioner's claims of actual innocence and procedural errors arising from the newly discovered evidence of that innocence, respondent responds that this so-called new proof was not a ground for habeas relief absent an allegation of a constitutional violation (id. at 15), see Townsend v. Sain , 372 U.S. 293, 317 (1963); Herrara v. Collins , 506 U.S. 390, 400 (1993).

Respondent next argues that petitioner's argument that his statements were coerced lacked merit (id. at 16). Respondent argues that petitioner's trial was fair, despite the trial errors petitioner raises in this proceeding (id. at 17-19). Some of these objections (such as the prosecution's opening statement regarding the victim or improper prosecution cross-examination of an alibi witness) were not preserved for review (id. at 17-18, 19). As for failing to give the missing witness charge, respondent points out that one witness objected to, Moet Madison, had her testimony stricken from the record and the jury was instructed to disregard references to her (id. at 18; Trial Tr. at 1339 (charging conference), 1061-65 (Madison's testimony, outside the presence of the jury, asserting her Fifth Amendment privilege), 1481 (jury charge)). As to the other witness, Kirkland, the County Court noted that he sought to withdraw his plea when he was being sentenced (Docket No. 7, Resp't Memo. at 18; Trial Tr. at 1338-39, 1331-32, 1336-37). Respondent concludes that "neither, then, could Kirkland have been expected to provide favorable testimony" (Docket No. 7, Resp't Memo. at 18). During the charging conference, the prosecution argued that Kirkland would not testify favorably for the People, hence the missing witness charge was not appropriate (Trial Tr. at 1337-38) and the County Court held that Kirkland was not within the People's control and denied the charge (id. at 1338-39).

As for the informant, respondent argues that there was no evidence that Orlando Tate (the informer) was acting as an agent of law enforcement as to his questioning of petitioner be deemed interrogation (Docket No. 7, Resp't Memo. at 19). Respondent did not ...

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