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Freeman v. Brown

United States District Court, S.D. New York

July 14, 2014

RODNEY FREEMAN, Petitioner,
v.
DAWSON BROWN, Respondent.

OPINION & ORDER

KATHERINE B. FORREST, District Judge.

On October 19, 2009, petitioner Rodney Freeman ("petitioner" or "Freeman") filed a petition for a writ of habeas corpus against Dawson Brown in the Western District of New York. (ECF No. 1.) On March 2, 2010, the petition was transferred to this district. (ECF No. 4.) On April 20, 2011, petitioner filed an amended petition. (ECF No. 29.)

For the reasons set forth below, the Court hereby DENIES petitioner's request for habeas relief.

I. FACTUAL BACKGROUND

a. The Underlying State Prosecutions

At approximately 1:30 a.m. on December 5, 2000, petitioner and three accomplices attempted to rob a parking garage attached to a residential building located at 351-353 East 83rd Street in Manhattan, New York. (Memorandum of Law in Opposition to Petition for a Writ of Habeas Corpus ("7/2/10 Opp'n") at 4, ECF No. 40, Feb. 21, 2014.[1]) Petitioner previously worked at the garage and was familiar with its security measures. (Id.) The plan was for one of petitioner's accomplices to convince the garage attendant to open the security gate; the others would drive in behind her and steal the proceeds kept there. (Id.)

As it happened, petitioner's accomplice persuaded the attendant to open the gate, but the attendant quickly closed it before petitioner could drive inside. (Id.) Petitioner then approached the garage entrance and told the attendant that he knew one of the attendant's co-workers at the garage, at which point the attendant opened the gate. (Id.)

Once inside, petitioner got out of his car and attempted to rob the attendant. (Id.) When the attendant resisted, petitioner signaled for his other two accomplices to provide support. (Id.) One of petitioner's accomplices broke a bottle over the attendant's head; the attendant continued to resist, and the other accomplice punched him. (Id.)

The attendant escaped into the attached residential building, where he collapsed and was later found by the police unconscious and bleeding.[2] (Id. at 5.) Early in the morning of December 6, 2000, petitioner's accomplices were arrested. (Id.) Petitioner escaped and remained at large until he was arrested for an unrelated incident on February 16, 2001. (Id.)

On June 21, 2001, by New York County Indictment Number 3701/01, petitioner and two of his accomplices were each charged with one count of Burglary in the First Degree (Penal Law § 140.30(2)), one count of Attempted Robbery in the First Degree (Penal Law §§ 110/160.15(3)), two counts of Attempted Robbery in the Second Degree (Penal Law §§ 110/160.10(1) & (2)(a)), one count of Gang Assault in the Second Degree (Penal Law § 120.06), and one count of Assault in the Second Degree (Penal Law § 120.05(2)). (Id.)

On January 9, 2002, petitioner pled guilty to Burglary in the First Degree and Attempted Robbery in the Second Degree (hereinafter, "the underlying crimes"). (Id.; Plea Tr. 21-32, ECF No. 42, Apr. 13, 2012.[3]) The court allowed petitioner to remain free on bail pending sentencing. (Plea Tr. 30.)

On February 25, 2002, petitioner failed to appear for sentencing; the court issued a bench warrant. (7/2/10 Opp'n at 6.) Petitioner remained a fugitive until he was arrested in Maryland - where he had moved - after an apparent domestic dispute. (Sentence I Tr. 6, ECF No. 42, Apr. 13, 2012.[4])

On November 15, 2004, petitioner was involuntarily returned to New York state court. (Memorandum of Law in Opposition to Petitioner for a Writ of Habeas Corpus ("8/18/11 Opp'n") at 3, ECF No. 71, Feb. 21, 2014.)

On January 4, 2005, petitioner was sentenced for the underlying crimes. (7/2/10 Opp'n at 8.) At sentencing, the judge began by stating that petitioner had originally been promised two concurrent prison terms of five years. (Id.) The State recommended that petitioner be sentenced to eight years, however, on the basis, inter alia, that he had jumped bail in violation of his plea agreement. (Id.) The trial court imposed a sentence of five-and-one-half years' imprisonment for the first-degree burglary count and four years imprisonment for the attempted second-degree degree robbery count. (Id. at 8.) The sentences were imposed concurrently and were to be followed by five years of post-release supervision. (Id.)

On March 16, 2005, petitioner's sentence of imprisonment began. (Id.)

Almost exactly two years later, on March 20, 2007, by New York County Indictment Number 1256/2007, petitioner was charged with Bail Jumping in the First Degree, based on his failure to appear for sentencing for the underlying crimes. (8/18/11 Opp'n at 2.)

On October 12, 2007, petitioner proceeded to trial on the bail jumping charge. (Id.) On October 15, 2007, a jury found him guilty. (Jury Verdict Tr. 169-71, ECF No. 76, Feb. 21, 2014.[5]) On October 31, 2007, the court sentenced petitioner to a term of one-and-two-thirds to five years in prison, to run consecutively with the sentences imposed for the underlying crimes. (Sentence II at Tr. 9, ECF No. 76, Feb. 21, 2014.)[6]

b. Petitioner's Post-Judgment Challenges to the Underlying Crimes

i. Direct Appeal

In February 2007 - the exact date is unclear - petitioner, represented by counsel, filed his appeal brief. (7/2/10 Opp'n at 8; Declaration in Opposition to Petition for a Writ of Habeas Corpus ("Gill 7/2/10 Decl."), Ex. A, ECF Nos. 78-79, Feb. 21, 2014.) He argued that he did not waive his right to appeal and that his sentence was excessive. The State filed a brief in opposition later that month. (Gill 7/2/10 Decl., Ex. B.)

On May 1, 2007, the First Department affirmed petitioner's conviction and denied petitioner's request to file a pro se supplemental brief. ( Id., Ex. C.)

By letter dated May 10, 2007, counsel for petitioner sought permission to appeal the First Department's decision to the New York Court of Appeals, and, by letter dated June 4, 2007, counsel for petitioner supplemented the original application for leave. (Id.) Counsel explained that his client sought leave to appeal "any and all issues decided by the Appellate Division, " but specifically addressed the First Department's refusal to accept petitioner's pro se supplemental briefs in the letter. (Id.) On July 26, 2007, the New York Court of Appeals denied the request to appeal. ( Id., Ex. E.)

ii. First Motion to Vacate Judgment

By motion filed December 29, 2006, petitioner, representing himself pro se, moved pursuant to New York Criminal Procedure Law § 440.10 to vacate the judgment on the grounds that he had not entered his plea voluntarily and that he had received ineffective assistance of counsel, insofar as his attorney had failed to inform him that the attempted robbery charge would be included in the plea. ( Id., Ex. F.) Petitioner further argued that his attorney had instructed him that he needed to answer in the affirmative to all of the trial judge's questions in order to avoid a 25 year prison sentence. (Id.)

The State opposed petitioner's motion (id., Ex. G[7]), and on April 6, 2007, petitioner filed his reply. ( Id., Ex. H.) On April 24, 2007, the motion was denied in a one-sentence order: "It is clear from the minutes that [defendant] pled and understood he was pleading to [two] counts." ( Id., Ex. I.) Petitioner subsequently sought a certificate of leave to appeal;[8] on October 9, 2007, the First Department denied that application. ( Id., Ex. J.)

iii. Second Motion to Vacate Judgment

By motion dated February 5, 2008, petitioner again moved the trial court to vacate the judgment pursuant to § 440.10, arguing: (1) counsel provided ineffective assistance by coercing petitioner to plead guilty; (2) petitioner's plea was not knowing and voluntary; (3) the attempted robbery plea must be vacated because it was not part of the original plea agreement; and (4) the prosecutor engaged in misconduct. ( Id., Ex. K.) The State filed an opposition dated May 6, 2008, arguing that petitioner's motion should be summarily denied. ( Id., Ex. L.) On June 2, 2008, the trial court denied petitioner's motion. ( Id., Ex. J.)

Petitioner filed leave to appeal, [9] and on August 19, 2008, the First Department denied petitioner's request. ( Id., Ex. N.)[10]

iv. Coram Nobis Petition

By papers dated October 16, 2008, petitioner moved in the First Department for a writ of error coram nobis.[11] ( Id., Ex. O.)[12] Petitioner claimed that his appellate counsel was ineffective for not arguing that the indictment was jurisdictionally defective and that the evidence was insufficient to convict petitioner of the underlying crimes. (Id.) Specifically, petitioner contended that his appellate counsel failed to address the following issues: (1) petitioner was licensed to be on the premises and thus the facts did not establish burglary; (2) petitioner lacked the requisite intent to commit the crimes; (3) petitioner's entry into the parking garage was not unlawful because the garage was open to the public; and (4) the parking garage was not a dwelling, negating one of the elements of first-degree burglary. (Id.) In connection with this motion, petitioner attached a series of documents intended to provide a factual basis for his allegations. (Id.)

On November 7, 2008, the State filed its opposition ( Id., Ex. P), and on November 24, 2008, petitioner filed a reply and a notice of motion for leave to amend (which appears to have been received on December 5, 2008). (Id.) On December 30, 2008, the First Department denied the motion. ( Id., Ex. Q.) Petitioner did not file an application for leave to appeal that denial to the New York Court of Appeals. (7/2/10 Opp'n at 10; see also 9/6/11 Opp'n at 3-5.)

v. Third Motion to Vacate Judgment

By papers dated January 13, 2009, petitioner filed a third motion to vacate judgment pursuant to § 440.10. (Gill 7/2/10 Decl., Ex. R.) Petitioner claimed that his attorney coerced him into pleading guilty to the burglary count and failed to raise certain potentially valid defenses on his behalf. (Id.) On May 15, 2009, the state court denied the motion. ( Id., Ex. Q.) The court held that petitioner could have raised his arguments on his prior motions and rejected petitioner's claims on the merits as well. ( Id., Ex. R.) Petitioner sought a certificate of leave to appeal the denial of the motion; on August 18, 2009, the Appellate Division denied his renewed application. ( Id., Ex. S.) Petitioner moved to reargue that denial, but on October 2, 2009, the trial court denied that request. ( Id., Ex. R.)

c. Petitioner's Post-Judgment Challenges to the Bail Jumping Conviction

i. Direct Appeal

On or about September 29, 2008, petitioner appealed his conviction for bail jumping to the First Department. (Gill 8/19/11 Decl., Ex. A.) In his appellate brief, prepared with the assistance of counsel, petitioner argued that he was improperly denied his right to be present at trial and that the verdict was against the weight of evidence. (Id.) Petitioner filed a supplemental brief, prepared pro se, arguing that his due process rights were violated as a result of the pre-indictment delay and that he was the victim of vindictive prosecution. ( Id., Ex. B.) In April 2010, [13] the State filed its opposition. ( Id., Ex. C.) By submission dated May 1, 2010, petitioner replied pro se. ( Id., Ex. D.)

On June 15, 2010, the First Department affirmed petitioner's conviction, finding that petitioner failed to preserve his claim that he was denied his right to be present in the courtroom, and that in any event, his claim failed on the merits. ( Id., Ex. E.) The First Department further held that the verdict was not against the weight of evidence and that "[t]he jury properly rejected defendant's meritless excuse for failing to appear for sentencing on his burglary conviction." (Id.) The First Department also noted that it considered and rejected petitioner's pro se claims, but that defendant's related challenge to the court's jury charge was unpreserved and therefore the court would not consider it. (Id.)

On July 16, 2010, petitioner's counsel sought leave to appeal to the Court of Appeals of New York. ( Id., Ex. F.) By supplemental brief dated August 12, 2010, petitioner put forth a pro se application in support of his request for leave to appeal. ( Id., Ex. G.) Petitioner sought leave to appeal due to various issues regarding preindictment delay. (Id.) By letter dated August 25, 2010, the State filed a letter in opposition to petitioner's motion for leave to appeal. ( Id., Ex. H.)

On December 23, 2010, the New York Court of Appeals summarily denied petitioner's application for leave to appeal. ( Id., Ex. I.)

ii. Motion to Vacate Judgment

By pro se motion dated December 11, 2010, petitioner sought to vacate the judgment, arguing that his counsel had provided him ineffective assistance in failing to seek dismissal on the grounds of pre-indictment delay and vindictive prosecution. ( Id., Ex. J.) On February 16, 2011, the State filed an opposition to the motion. ( Id., Ex. K.)

By decision dated March 1, 2011, the Supreme Court of the State of New York denied the motion as both procedurally barred and meritless. ( Id., Ex. L.) In a motion dated March 13, 2011, petitioner, again representing himself pro se, requested re-argument on his motion to vacate judgment. ( Id., Ex. M.) The Supreme Court of the State of New York denied that motion. ( Id., Ex N.) By letter dated April 6, 2011, petitioner applied for leave to appeal in the First Department. ( Id., Ex. 0.) With a decision dated May 18, 2011 and entered June 7, 2011, the First Department denied petitioner's application. ( Id., Ex. P.)

II. PROCEDURAL HISTORY OF THIS PETITION

On October 19, 2009, petitioner commenced the present action by filing a petition for writ of habeas corpus in the Western District of New York. (ECF No. 1.) On October 27, 2009, the Honorable Charles J. Siragusa transferred the petition to the Southern District of New York as a more convenient forum. (ECF No. 3.) The matter was assigned to the Honorable Laura Taylor Swain, who referred it to Magistrate Judge Ronald L. Ellis for further proceedings. (ECF No. 5.) On July 2, 2010, the State filed its opposition to the petition, and on October 15, 2010, the habeas petition became fully briefed. (ECF Nos. 11, 12, 15)[14]

On April 20, 2011, petitioner filed an amended petition. (ECF No. 29.) On August 19, 2011, the State filed papers in opposition (ECF Nos. 35-37), and on September 6, 2011, petitioner filed a reply. (ECF No. 39.)

On November 16, 2011, the matter was transferred to the undersigned, but the referral to Judge Ellis remained in place. (ECF No. 40.)

By letter dated October 20, 2012, petitioner stated: "I will be released from prison onto parole supervision on October 30, 2012." (ECF No. 50.) Petitioner requested that his petition be amended to include an additional respondent: Andrea Evans, the Chairwoman of the New York State Division of Parole.[15] On November 8, 2012, the Court received petitioner's updated address. (ECF No. 51.)

On May 2, 2013, Judge Ellis issued a Report and Recommendation recommending that the Amended Petition be denied. (ECF No. 52.) On June 6, 2013, petitioner filed a ...


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