United States District Court, N.D. New York
DERRICK FULTON, Auburn, New York, Plaintiff pro se.
LISA E. FLEISCHMANN, AAG, PAUL M. TARR, AAG, OFFICE OF THE NEW YORK STATE ATTORNEY GENERAL New York, New York, Attorneys for Defendant.
MEMORANDUM-DECISION AND ORDER
MAE A. D'AGOSTINO, District Judge.
Derrick Fulton, ("Petitioner"), currently incarcerated in Five Points Correctional Facility in Romulus, New York, Dkt. No. 16-1 at 19, brings this action as a pro se litigant seeking a writ of habeas corpus, pursuant to 28 U.S.C § 2254. Dkt. No. 7. Petitioner claims that he was denied his right to a fair trial, the state court imposition of consecutive sentences was unconstitutional, and he received ineffective assistance of counsel. Presently pending are Petitioner's objections, to the Report-Recommendation issued by Magistrate Judge Andrew T. Baxter, recommending that the Court deny the petition. Dkt. No. 19. Respondent has not submitted to the court any filings in opposition of Petitioner's objections.
A. State Court Procedural History
Petitioner was convicted on August 8, 2008, after a jury trial in the Oneida County Court. Petitioner was convicted of two counts of Burglary in the First Degree; one count of Robbery in the First Degree; and two counts of Robbery in the Second Degree. Upon conviction, Petitioner was sentenced to twenty years imprisonment with five years of post-release supervision on each of the two Burglary counts and fifteen years to life imprisonment with five years of post-release supervision on each of the two counts of Robbery in the Second Degree, to be served concurrently. For the single count of Robbery in the First Degree, Petitioner was sentenced to twenty years imprisonment with five years of post-release supervision, to be served consecutively to the other prison terms. Petitioner's conviction was affirmed by the Appellate Division, Fourth Department on April 30, 2008, and the New York Court of Appeals denied leave to appeal on December 14, 2010. People v. Fulton, 72 A.D.3d 1609, 899 N.Y.S.2d 705 (4th Dep't), aff'd, 15 N.Y.3d 952 , 917 N.Y.S.2d 112 (2010).
On October 5, 2011, Petitioner filed a motion to vacate his conviction in Supreme Court, Oneida County pursuant N.Y. Crim. Proc. Law § 440.10. Dkt. No. 16-6 at 2. On December 20, 2011, Acting Supreme Court Justice Barry M. Donalty denied Petitioner's motion to vacate, and on March 19, 2012, the Appellate Division, Fourth Department denied leave to appeal Justice Donalty's decision. (Dkt. Nos. 16-9, 16-11). Petitioner filed his original petition for habeas corpus in this Court on April 23, 2012.
On May 17, 2012, this Court ordered Petitioner to file an amended petition, and Petitioner filed the amended pleading on May 25, 2012. Dkt. No. 5 at 4-5; Dkt. No. 7 at 1. Pursuant to 28 U.S.C. § 636(b) and Local Rule N.D.N.Y. 72.3(c), this Court referred this matter to Magistrate Judge Andrew T. Baxter. Petitioner had raised the following claims for review: (1) he was denied his right to a fair trial due to the court's Sandoval ruling; (2) the imposition of consecutive sentences was "unconstitutional;" and (3) trial counsel was ineffective by failing to properly discuss a plea proposal with Petitioner. Dkt. No. 9 at 2.
On December 26, 2007, Petitioner and his girlfriend, Natasha Pearson ("Pearson"), were home packing and preparing to move into a new apartment. Dkt. No. 16-14 at 136. Two of Petitioner's friends came to the apartment and had an "intense" discussion with Petitioner. Id. at 137-38. One of the visitors gave Petitioner a gun, but told Petitioner that they did not want to "be involved, " because they knew the individual who lived in the apartment "they were supposed to be going to." Id. at 138-39.
After the visitors left, Petitioner commented to Pearson that the visitors were "cowards, " but that "he didn't need them anyway." Id. at 140. Petitioner and Pearson then left the apartment and walked to a store, to get more boxes for packing. Id. at 140-44. Petitioner was wearing a black baseball cap, a red and white Philadelphia Phillies baseball jacket, and a handkerchief, decorated with dollar signs, around his neck. Id. at 147-50. While they were outside the store, Petitioner and Pearson met Aaron Ballard ("Ballard"), who was related to Petitioner's sister. Id. at 68, 144-45. Petitioner asked Ballard if he knew where he could purchase some marijuana, and Ballard testified that he told Petitioner "no, not right now at this time" but instead invited Petitioner and Pearson back to his nearby apartment, where they all smoked marijuana. Id. at 73-74, 155-57.
Although Ballard was unclear in his testimony, Pearson testified that while they were in Ballard's apartment, Ballard told Petitioner that he bought his supply of marijuana from a man across the street. Id. at 147, 153. Pearson also testified that Petitioner inquired of Ballard exactly where he purchased the marijuana, how many people lived there, and who would be answering the door, and that Ballard provided the information requested. Id. at 153. After Ballard and Petitioner finished smoking the marijuana, Petitioner and Pearson left Ballard's apartment and entered the building across the street. Id. at 147, 152. They went to the apartment of Derrick Craft ("Craft"), who lived on the second floor with his girlfriend, Christine Suppa ("Suppa") and her five children. Dkt. No. 16-13 at 152; Dkt. No. 16-14 at 177-80. Pearson testified that she had seen Craft before because, although she had never been to his apartment, she purchased marijuana from him on the street in the past. Dkt. No. 16-14 at 150-52.
Petitioner was wearing a bandana covering most of his face, but Pearson's face was exposed. Id. at 165-66. Petitioner knocked on the door, and when Craft opened the door, Petitioner pointed the gun at him. Dkt. No. 16-13 at 181-83; see also Dkt. No. 16-14 at 156-57. Petitioner forced his way into the apartment and began striking Craft with the gun, while asking him "where's it at." Dkt. No. 16-13 at 187; Dkt. No. 16-14 at 157. Pearson entered the apartment behind Petitioner and stood at the door of a bedroom/living room, where Suppa was screaming. Dkt. No. 16-14 at 159, 162. Petitioner continued to strike Craft with the gun, forcing him farther into the apartment. Dkt. No. 16-13 at 190-91. One of the blows knocked open the cylinder of the gun, causing the bullets to fall out. Dkt. No. 16-13 at 190-93. Petitioner continued to ask Craft "where's it at, " until Craft pointed to a leather coat, containing $200.00 and some small bags of marijuana in the pocket. Id. at 193-94. Petitioner took the coat, and fled with Pearson down a flight of stairs toward the street. Id. at 196-200. By the time Petitioner and Pearson left the apartment, Petitioner's face was no longer covered by the bandana. Dkt. No. 16-14 at 168-69. Meanwhile, a neighbor, Alicia Levitt ("Levitt"), had been getting ready to take a shower, when she heard children screaming and thumping sounds coming from Craft's apartment. Id. at 94, 98-100. When the noise got louder, she decided that she would go across the hall and investigate. Id. at 99. When she opened her front door, she saw Petitioner and Pearson leaving the apartment, both with their faces uncovered. Id. at 100-02. Craft identified Petitioner at trial. Id. at 197.
Petitioner was wearing a red and white jacket and was carrying a brown jacket, which Levitt recognized as belonging to Craft. Id. at 101-04. Petitioner and Pearson returned to their own apartment, where Pearson continued packing. Id. at 170. Pearson testified that, while fleeing from Craft's apartment, Petitioner did have the brown jacket, that she did not see him go through the pockets during their flight, and at some point during their flight and arriving at their apartment Petitioner no longer possessed the jacket. Id. However, Pearson did testify that Petitioner showed her a sandwich bag filled with marijuana representing it as the contents of the brown jacket. Id. at 168-70. Thereafter, Petitioner separated the marijuana into smaller bags. Id. at 170-71.
Utica police officers arrived at Craft's apartment soon after the incident and recovered.38 caliber bullets from the floor. Id. at 51, 57. Petitioner was arrested three weeks after the incident. At Petitioner's preliminary hearing, Craft and Levitt recognized Pearson in the courtroom and identified her as Petitioner's accomplice. Dkt. No. 16-13 at 206-07; Dkt. No. 16-14 at 110-13. Pearson was arrested the same day. Dkt. No. 16-13 at 7; Dkt. No. 16-14 at 174. After Pearson was arrested, she agreed to testify against Petitioner as a condition of her plea agreement. Dkt. No. 16-14 at 174.
Prior to trial, Petitioner was offered a plea, Dkt. No. 16-13 at 3, which he ultimately rejected, after two adjournments. Dkt. No. 16-9 at 4. The court then held both a Sandoval hearing and a Wade hearing. Dkt. No. 16-13 at 5, 47. Both hearings were resolved against Petitioner. Id. at 25; 53-54; Dkt. No. 16-9 at 4. In particular, after the Sandoval hearing, the court found that if Petitioner took the stand to testify, the prosecution could inquire into: (1) the underlying facts of Petitioner's 1992 youthful offender adjudication; (2) his 1999 conviction of criminal possession of a weapon in the third degree-which the Assistant District Attorney stated "satisfied various other charges in the indictment, including possession of a controlled substance in the seventh degree, and also, reckless endangerment"-and the facts underlying it; and (3) his conviction in 2002 in Monroe County, for possession of a controlled substance with the intent to sell. Id. at 53-54. The court found that these charges reflected Petitioner's willingness to place his own interests above those of society. Id. at 53. However, the court precluded any inquiry into Petitioner's 1998 misdemeanor drug conviction. Id. at 53-54.
Petitioner opted not to testify at trial. The trial lasted three days, and the witnesses against Petitioner included Craft, Dkt. No. 16-13 at 176-81; Suppa, id. at 309-46; Dkt. No. 16-14 at 1-17; Pearson, Dkt. No. 16-14 at 129-208; Levitt, id. at 91-129; Shannon Cabrera, one of Suppa's children, id. at 17-33; Ballard, id. at 65-91; Shawn Ruddy, Patrolman for the Utica Police Department, id. at 33-50; and Stanley Fernalld, also a Patrolman for the Utica Police Department, id. at 50-65. The prosecutor also introduced Petitioner's own Grand Jury testimony against him through the Grand Jury Court Reporter, Cynthia Belmonte. Dkt. No. 16-13 at 281-305.
C. Direct Appeal
Petitioner filed his direct appeal through counsel, raising the following issues: (1) the trial court's Sandoval ruling constituted an abuse of discretion; (2) the imposition of consecutive sentences was improper; and (3) Petitioner's sentences were unduly harsh and excessive and should be reduced. Dkt. No. 16-1 at 6. The prosecutor filed a memorandum of law in opposition to Petitioner's appeal. Dkt. No. 16-2 at 2. On April 30, 2010, the Appellate Division, Fourth Department denied Petitioner's appeal, finding that he failed to preserve his Sandoval claim, and that the sentencing claims had no merit. Dkt. No. 16-3 at 2; People v. Fulton, 72 A.D.3d 1609, 899 N.Y.S.2d 705 (4th Dep't 2010). The New York Court of Appeals denied leave to Appeal on December 14, 2010. Dkt. No. 16-5 at 2; People v. Fulton, 15 N.Y.3d 957 (2010).
D. Section 440.10 Motion to Vacate
On October 11, 2011, the Oneida County Court received Petitioner's pro se motion to vacate his conviction, pursuant to N.Y. Crim. Proc. Law § 440.10. Dkt. No. 16-6 at 2. In his motion, Petitioner raised the following claims: (1) Petitioner was not afforded effective assistance of counsel during "plea negotiations" because his attorney did not guide him and encourage him to plead guilty in the face of overwhelming proof and a favorable plea bargain; (2) the Oneida County Department of Corrections interfered with Petitioner's ability to consult with counsel because Petitioner was forced to meet with his attorney in a public holding area; and (3) trial counsel was ineffective when he failed to properly object to the court's Sandoval ruling. Dkt. No. 16-6 at 7-9.
On December 20, 2011, Judge Donalty denied Petitioner's section 440.10 motion to vacate, pursuant to N.Y. Crim. Proc. Law § 440.10(2)(c), finding that Petitioner forfeited his ineffective counsel claim because the errors were record-based, and he should have raised the claims on direct appeal. Dkt. No. 16-9 at 3. In the alternative, Judge Donalty addressed the merits of Petitioner's claims and found that he received constitutionally effective assistance of trial counsel in all respects. Id. at 3-6. On March ...