United States District Court, E.D. New York
Petitioner is proceeding pro se.
Respondent is represented by Kathleen Rice, District Attorney of Nassau County, by Cristin N. Connell, Yael Levy, and Tammy J. Smiley, Assistant District Attorneys, Mineola, NY, and Andre K. Cizmarik, Special Assistant District Attorney, Edwards Wildman Palmer LLP, New York, NY, and Alison A. Reuter, Special Assistant District Attorney, Edwards Angell Palmer & Dodge LLP, Providence, RI.
MEMORANDUM AND ORDER
JOSEPH F. BIANCO, District Judge.
Rasheke Boyd (hereinafter "Boyd" or "petitioner") petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction in the Supreme Court, Nassau County, State of New York. On June 14, 2006, petitioner pleaded guilty to two counts of attempted murder in the second degree, N.Y. Penal Law § 125.5(1); four counts of robbery in the first degree, id. § 160.15(2); one count of attempted robbery in the first degree, id. § 160.5(2); two counts of assault in the first degree, id. § 120.10(1); and one count of assault in the second degree, id. § 120.05(2). Petitioner was sentenced to two determinate terms of twenty years, with five years of post-release supervision, with respect to the four counts of robbery in the first degree, the two counts of attempted murder in the second degree, and the two counts of assault in the first degree. He was sentenced to fifteen years' incarceration on the attempted robbery in the first degree count, and seven years on the assault in the second degree count, both with three years of post-release supervision. Petitioner was ordered to pay restitution in the amount of $12, 486.73, and orders of protection were issued for seven victims of the attempted murders, robberies, and assaults.
In the instant petition, petitioner challenges his conviction, claiming that his constitutional rights were violated because (1) the police did not have probable cause to stop his vehicle, and the trial court's failure to make such a determination resulted in a violation of his due process rights under the United States and New York Constitutions; (2) he received ineffective assistance of trial counsel; and (3) he received ineffective assistance of appellate counsel. For the reasons discussed below, the Court denies the petition for a writ of habeas corpus.
A. Factual Background
The Court has adduced the following facts from the petition and documents attached thereto, as well as from the state court's trial and appellate record.
At approximately 3:00 a.m. on May 14, 2005, petitioner and two men, wearing masks and wielding handguns, entered the Publick House Pub in Rockville Centre, New York, and ordered everyone to the floor. (H. 429, 451.) One of the assailants shot a patron as the patron fled, and then shot another patron as that patron was lying on the floor. (H. 429.) Before fleeing, the assailants had the bartender give them money from the cash register and demanded money and phones from patrons. (H. 429.) Officers called to the scene recovered spent bullets from a small caliber handgun and a mask around the corner from the Pub. (H. 458-60.)
Approximately four months later, shortly before midnight on August 23, 2005, officers were called to the scene of a violent robbery at the Corner Pub in West Hempstead, New York. (H. 685.) Officers later learned from witnesses and victims that three black men, including petitioner, entered the Corner Pub wearing masks or bandanas over their faces and carrying handguns. (H. 686.) Petitioner waved a silver handgun and demanded that everybody get on the floor. (H. 686.) He then jumped over the counter, leaned down to where the bartender was, and demanded the location of the bar's safe and phone. (H. 687.) Petitioner took the money from the safe and the portable phone off the headset, and then jumped back over the bar. (H. 687.) At the same time, the other two assailants, with a second handgun, demanded wallets and jewelry from the victims, Arthur Maloney, Joseph Cartolano, and David Bedell. (H. 686-87.)
The first victim, Cartolano, surrendered his wallet, and petitioner then beat him over the head and broke his finger. (H. 687.) The second victim, Maloney, a retired New York City Police Officer, witnessed the attack on Cartolano. (H. 688.) When the assailants demanded his wallet, Maloney feared for his life because his wallet contained his police identification, and Maloney refused to hand it over. (H. 688.) Instead, he grabbed one of the assailants, but then another assailant repeatedly pummeled Maloney with a sledgehammer. (H. 688.) Petitioner and his co-assailants fled the scene. (H. 15.)
On August 24, 2005, at approximately 1:25 a.m., four New York City Police Officers - Laren, Zepherin, Schettini, and Wagner - were patrolling the 77th precinct in Brooklyn, New York, in an unmarked police vehicle. (H. 14-15.) The officers were traveling southbound on Utica Avenue. (H. 59.) As their vehicle was stopped at a red light at the intersection of Utica Avenue and Prospect Street, they observed a black Toyota approaching from the opposite direction on Utica Avenue. (H. 21, 59.) The Toyota ran the red light at the Prospect Street intersection. (H. 15.)
Sergeant Zepherin, the driver of the police car, made a U-turn and pulled the Toyota over. (H. 22.) The stop was made approximately fifteen seconds after the officers observed the Toyota run through the red light. (H. 22.) The Toyota pulled over against the sidewalk, and the police car came to a stop a few feet behind it. (H. 23, 64.) There were street lights in the area, but the testifying officer could not recall whether the lights inside the Toyota were on. (H. 23.) Officer Laren used a flashlight to see better. (H. 93.)
Officers Laren and Wagner approached the vehicle. Officer Laren saw the individual in the front passenger seat place an "L shaped silver object into the seat cushion consistent with a firearm." (H. 15.) Laren saw the object through an angle of the rear window, as he was walking up alongside the driver's side. (H. 27.) He alerted his partner, Officer Wagner, to what he had seen, and then requested that the driver provide his driver's license. (H. 16)
After the driver failed to provide a driver's license, the passengers were taken out of the vehicle. (H. 16.) Officer Wagner then recovered a.32 caliber silver firearm from in between the front passenger seat cushions. (H. 19.) Officer Wagner also recovered Cartalano's wallet from underneath the rear seat cushion and a bloody mallet from the rear passenger side floor board. (H. 20, 46). At no time during the stop did any of the officers draw their guns, because they were not concerned for their safety. (H. 30, 48.)
The four men were arrested and taken to the precinct, along with their vehicle. (H. 48, 51.) Officers then searched the vehicle. (H. 51.) During the search, officers recovered a cordless phone, a duffle bag containing masks and bandanas, nunchakus, assorted jewelry, and clear duct tape. (H. 192-94, 709.) The police also uncovered a license plate, bats, and a plastic imitation gun from the trunk. (H. 724.) After the inventory search was completed, the Brooklyn Robbery Unit was contacted, and upon learning that Cartalano's wallet was found in the vehicle, the Robbery Unit contacted authorities in Nassau County. (H. 328, 330, 505.) The Nassau County Police concluded that the physical evidence and the arrestees were consistent with the modus operandi of the May 14th shooting, and they sent detectives to the Brooklyn precinct to investigate. (H. 328, 428, 505, 583-86.)
Two of the arrestees, Brown and Burvick, gave interviews and written confessions implicating all four arrestees in both robberies. (H. 383-84, 444-45, 532-35, 606, 863-64.) They identified petitioner as the assailant who shot the two victims during the Publick House robbery. (H. 557.) Detectives then met with petitioner, explained that they were investigating the robbery and shooting, and advised him of his Miranda rights. (H. 339-42.) Petitioner did not make a statement. (H. 320, 343.) However, based on the physical evidence recovered from the vehicle and the statements given by his fellow arrestees, petitioner was placed under arrest for the two robberies. (H. 346, 352, 357.)
The next day, when petitioner was being transferred to Nassau County, petitioner attempted to wiggle out of his handcuffs. (H. 638.) In addition, while petitioner was being transferred, a call came over the radio concerning a Black male with a gun in Uniondale. (H. 639.) Petitioner laughed and stated, "[H]ey, that sounds like me." (H. 639.) Finally, when petitioner arrived in Nassau County, the officers recovered a six to eight inch shank under the sole of petitioner's sneaker. (H. 640.)
Later that day, petitioner asked to speak with detectives and demanded to know what the case was about. (H. 322.) Detective Anthony DiCaprio explained the charges against him, including the robbery and attempted murder. (H. 322.) Petitioner then stated, "Yea mother fucker, two little robberies, " but then asked, "No one got killed right?" (H. 322-23, 360-62.) Finally, when the detective began to leave, petitioner blurted out that his brother was the "lookout" and that he did not do anything. (H. 323, 363-64.)
B. Procedural History
1. Trial Court Proceedings
a. Huntley/Mapp Suppression Hearing
Petitioner was charged in November 2005 under Nassau County Indictment No. 2495N/05. A suppression hearing was held from March 9 to March 29, 2006, to determine whether the weapon recovered from the vehicle, the contents of the bag located within the vehicle's trunk, and the statements petitioner made to the Nassau County police officers were admissible. At the hearing, petitioner's attorney first conceded that the traffic stop was lawful. (H. 1019.) However, he argued that the police did not have a basis to arrest petitioner after the traffic stop because a co-defendant, Shameke Boyd, was in sole possession and control of the loaded weapon that led to the four arrests. (H. 1019-20.)
At the close of the hearing, the court issued its findings and conclusions. (H. 1084-87.) It found that "[o]n August 24, 2005, at approximately 1:25 a.m., the defendants were pulled over for having proceeded through a red light in Brooklyn on Utica Avenue. That stop was lawful in all respects." ( Id. at 1084-85.) The court also determined that the search of the vehicle was lawful because a police officer observed what could have been a weapon being secretly positioned in the vehicle, and after all defendants were outside of the car, the officer determined that it was a loaded weapon. (H. 1085.) The further searches of the car also were valid. (H. 1085.) Thus, the court concluded that the arrests and the searches were made pursuant to probable cause, and, therefore, the evidence recovered from the vehicle was admissible for the People's case. (H. 1085.)
In addition, the court held that petitioner, Burvick, and Brown were properly given their Miranda warnings and validly waived the rights pursuant thereto. (H. 1085.) The court also found that certain statements made by petitioner were admissible because he received his Miranda warnings and validly waived the rights pursuant thereto. (H. 1086.) Lastly, the court held that the written statements made by Burvick and Brown were admissible because they voluntarily, knowingly, and freely gave those statements after receiving their Miranda rights. (H. 1086.)
b. The Plea Proceeding
Before trial and while the jury was being selected, petitioner withdrew his previously entered plea of not guilty and entered a plea of guilty on all charges. (P. 2.) He pleaded guilty to four counts of robbery in the first degree, one count of attempted murder in the second degree, one count of attempted murder in the first degree, two counts of assault in the first degree, one count of attempted robbery in the first degree, and one count of assault in the second degree. (P. 7-8.) In exchange, it was agreed that petitioner would be sentenced to no more than twenty years' imprisonment concurrently, with five years of post-release supervision. (P. 8.)
During the proceeding, petitioner admitted that he was in the Publick House Bar with the co-defendants on May 14, 2005, that he was carrying a loaded handgun, that he stole money and property from the bar and its patrons, and that when he shot his gun he intended to cause death or serious physical injury. (P. 10-14.) Petitioner also admitted that he was in the Corner Pub on August 24, 2005, that he stole the personal property of several patrons and the bartender by threatening them with a loaded handgun, and that he pistol-whipped one of the victims. (P. 14-19.) The court accepted the plea. (P. 19.)
Petitioner appeared before the Supreme Court, County of Nassau, for sentencing on June 14, 2006. Before the court issued its sentence, petitioner stated:
I feel that Mr. Braverman [petitioner's attorney] hasn't represented me correctly. The plea that I took a couple of weeks ago, I would like to take it back. He informed me that he wasn't going to win the case for me. That's the reason why I copped out that plea, and I do want to go forward to trial. (S. 2.)
This application was denied in all respects. (S. 2)
With respect to attempted robbery in the first degree, the court sentenced petitioner to a determinate term of incarceration of fifteen years. (S. 6.) With respect to assault in the second degree, the court sentenced petitioner to a determinate term of incarceration of seven years. (S. 6.) For all other crimes, the court sentenced petitioner to a determinate term of incarceration of twenty years, with five years of post-release supervision. (S. 6.) Each term was to run concurrently. (S. 7.) The ...