United States District Court, S.D. New York
Bilal Shateek, Bronx, New York, Petitioner (Pro Se).
John J. Carmody, Robert K. Sauer, Assistant District Attorneys, White Plains, New York, for Respondent.
OPINION AND ORDER
SHIRA A. SCHEINDLIN, District Judge.
Petitioner Shateek Bilal brings this pro se habeas corpus petition pursuant to section 2254 of Title 28 of the United States Code challenging his state court conviction following a jury trial in New York County Court, Westchester County. After being convicted of two counts each of the Criminal Sale of a Controlled Substance in or Near School Grounds,  the Criminal Sale of a Controlled Substance in the Third Degree,  the Criminal Possession of a Controlled Substance in the Third Degree,  and the Criminal Possession of a Controlled Substance in the Seventh Degree,  Bilal was sentenced to eight years of imprisonment to be followed by three years of supervision.
Bilal's Petition challenges his conviction on the following grounds: (1) the jury's verdict was against the weight of the evidence and/or not supported by sufficient evidence; (2) the trial court improperly permitted opinion hearsay evidence; (3) the trial court improperly precluded demonstrative evidence in the form of Bilal's tattoos, gold teeth, and a distinctive burn mark; (4) the prosecutor's remarks on summation denied him a fair trial; (5) the trial court improperly refused to conduct a retrospective competency hearing; (6) the People's failure to disclose certain discovery materials violated People v. Rosario;  (7) his trial counsel was ineffective for failure to move to suppress physical evidence (cocaine) on Fourth Amendment Grounds, failure to introduce photographs taken by a private investigator, failure to discredit the testimony of Officer Osorio, and failure to object to the prosecutor's comments during summation; (8) the trial court's rulings violated the Confrontation Clause; (9) he did not receive a fair trial because he was incompetent to stand trial; (10) he did not receive a fair trial because material evidence testimony was false and known to the prosecution to be false prior to the entry of the judgment; and (11) he was prejudiced as a result of an amendment of the bill of particulars during trial.
A. The Offending Conduct
From April 2005 to the end of October 2005, the Yonkers Police Narcotics Unit, under the supervision of Detective Sergeant Kevin Tighe, participated in Operation Impact, a multi-agency effort targeting high-crime areas, including Nodine Hill, a neighborhood beset by drug-related crimes. Three undercover officers, including Angela Osorio, were part of the team, and nine officers were assigned as backup. Officer Osorio participated in roughly eighty narcotics transactions during the six-month operation, making two to three undercover buys each day.
On July 12, 2005, at approximately 3:20 p.m., while in the vicinity of 169 Oak Street in Nodine Hill, Bilal and Officer Osorio had a conversation during which Bilal offered to sell her crack cocaine. This conversation was observed by a member of the backup team. "Officer Osorio was also in possession of a Kell transmitter which allowed the nine officers assigned as backup to hear her while she was out in the field." Officer Osorio then followed Bilal into an alley where he sold her a bag of crack cocaine for ten dollars. "As she proceeded to a prearranged meeting location, Officer Osorio continually repeated the description of petitioner for the benefit of a backup team: black male, bald head, white tank top, about 5'9" tall, in his mid-thirties." Minutes after the sale, in the same area where it had taken place, backup officer Detective Brian Menton took a digital picture of Bilal. Later that day, Officer Osorio viewed the digital picture and identified Bilal as the person from whom she had purchased crack cocaine.
The next day, July 13, 2005, at approximately 4:25 p.m., near 160 Willow Street in Nodine Hill, Bilal again sold Officer Osorio a bag of crack cocaine. After the sale, Bilal told the officer to call him "Slim, " handed her a piece of paper on which the name Slim and a telephone number were written, and told her to call him if she needed anything. "Officer Osorio then proceeded to the pre-arranged meeting location with her back-up team, again repeating out loud the description of petitioner through the Kell transmitter she was carrying - same male from yesterday, bald head, blue t-shirt." Detective Sargeant Tighe, who was positioned as a backup officer, then spotted Bilal walking southbound on Willow.
Later that same day, at approximately 10:00 p.m., two uniformed officers, who were also part of the backup team, arrested Bilal on an outstanding warrant out of Bronx County for a probation violation. Upon arrival at the precinct, police checked the backseat of the patrol car and recovered thirteen twists of crack cocaine from the location where Bilal was seated, which resulted in a separately filed criminal action in the Yonkers City Court. "This case was adjourned several times for various reasons (including primarily the filing of [the] Westchester County Indictment ), until October 31, 2006, when it was dismissed following the County Court's finding that defendant was incompetent." At Bilal's request, the details surrounding his arrest were not elicited at trial, so as to preclude mention of this other crime.
B. Procedural History
1. State Court Proceedings
Bilal was arraigned on December 8, 2005. Pre-trial Bilal moved to preclude identification testimony. The trial court denied the motion with respect to the in-person identification of Bilal made by Officer Osorio during the first drug sale and with respect to Officer Osorio's identification of Bilal from the photograph on that same day, holding that these identifications were confirmatory in nature. A hearing on whether the identification of Bilal from a photograph during the grand jury proceeding was confirmatory in nature was held on June 26, 2006, after which the court denied the motion to suppress.
The trial began with jury selection on June 27, 2006, and continued to July 12, 2006, when the jury returned its verdict. At trial, Officer Osorio identified Bilal as the man who sold her crack cocaine on July 12 and 13, 2005. Officer Osorio also identified Bilal as the seller by pointing him out in the Disputed Photograph taken by backup officer Detective Menton on July 12, 2005. Additional proof at trial consisted of the testimony of backup officers who corroborated Officer Osorio's identification of Bilal as the seller by placing him in the area of the drug sales on both days; the officers who brought the drugs to the laboratory for analysis; and the forensic chemist who determined that the two substances sold by Bilal contained cocaine.
Bilal advanced a misidentification defense. Bilal's younger sister, the only witness called by the defense, testified that Bilal had a tattoo of a girl's name on one arm, that he had a burn mark on his other arm, and that he had six gold teeth, which he had had for sixteen years. Bilal's counsel used this testimony to challenge the credibility and reliability of Officer Osorio's identification of Bilal as the seller, as Officer Osorio had not included any of these characteristics in her descriptions of Bilal.
Following his conviction, he was scheduled to be sentenced on September 7, 2006. However, in late August Bilal filed a peculiar pro se motion in which he claimed, among other things, to be the King of Uganda, and sought to be put to death for murder. After a psychiatric examination pursuant to CPL section 730, Bilal was found to be incompetent and was committed to the Mid-Hudson Forensic Psychiatric Center on October 26, 2006.
Less than a month later, on November 17, 2006, Bilal was declared competent by his treating doctors, who found that Bilal suffered no "[i]mpairment of understanding of the trial process and roles of participants" and no "[i]mpairment of [his] ability to establish [a] working relationship with an attorney." On December 29, 2006, Bilal filed another odd motion, seeking "tubal litigation." Another competency hearing was held, at the conclusion of which the trial court ordered another section 730 examination. Bilal was again found to be incompetent, and on March 27, 2007, the trial court ordered that he remain in state custody pending further observation and treatment. On April 27, 2007, Bilal's treating doctors found him to be competent and he was returned to the trial court for further proceedings. On May 29, 2007, the trial court confirmed that determination of fitness without objection from Bilal.
On June 18, 2007, Bilal, represented by counsel, filed a motion pursuant to CPL section 330.30 seeking to set aside the jury verdict on several grounds, including that Bilal was incompetent to stand trial; that the police testimony at trial was false and that the prosecutor knew that it was; and that trial counsel was ineffective for failing to investigate alibi witnesses and for not sufficiently impeaching the testimony of Detective Menton at trial. The State opposed the motion on the ground that the issues raised were outside the record, and thus not cognizable under section 330.30(1) as a matter of law. With respect to Bilal's claim of incompetence during his trial, the State also argued that Bilal's claim lacked merit from the standpoint of the observations of the trial prosecutor. The trial prosecutor noted that during pre-trial hearings and jury selection, Bilal appeared to consult with his trial counsel for the purpose of responding to factual assertions about his prior record and selecting a qualified jury; and, during the trial itself, the prosecutor observed that Bilal exhibited a rational demeanor and appearance at all times. The State further argued that Bilal's experienced trial counsel never sought a CPL section 730 examination before or during trial or otherwise noted on the record that petitioner might have a problem understanding the proceedings, and that Bilal's pro se motions for discovery and to represent himself reflected his competence shortly before the trial began. Finally, the State argued that the subsequent findings of Bilal's incompetence pending sentencing, but after trial, did not detract from, nor were they inconsistent with, a finding that he was competent at an earlier time in the proceedings. The trial court adopted the "People's arguments in their entirety" and denied petitioner's motion.
Defendant was sentenced on August 20, 2007. Before his direct appeal was perfected, Bilal moved pursuant to CPL section 440.10 to vacate his judgment of conviction on the exact grounds raised in his previous CPL section 330.30 motion. The trial court denied the motion because it raised the "exact issues" which were previously determined on the merits, was procedurally barred under CPL section 440.10, and the claims lacked merit.
Bilal's direct appeal was perfected in March 2009. He asserted that (1) the jury's verdict was against the weight of the evidence and not supported by sufficient evidence; (2) the introduction of "improper opinion (hearsay) evidence" required reversal; (3) the trial court improperly precluded demonstrative evidence; (4) "the prosecutor's summation required reversal, in the interest of justice;" and (5) the trial court improperly denied defendant a "retrospective competency hearing." Bilal also submitted a supplemental pro se brief in which he raised the following claims: (1) that he was prejudiced by the trial court's decision allowing the People to amend the bill of particulars to correct an error concerning the site of the first drug sale; (2) that the People failed to disclose a record of money used by Officer Osorio to purchase narcotics from him, and that this record constituted Rosario material; (3) that the People failed to disclose when the police first learned of petitioner's outstanding Bronx County arrest warrant; (4) that the People failed to provide him with the memory card from the digital camera used in this case; and (5) that his attorney was ineffective for failing to move to suppress physical evidence in the form of cocaine on Fourth Amendment grounds, failing to introduce into evidence photographs of Bilal taken by a private investigator and various police reports, and failing to object to certain comments made by the prosecutor during summation (the same remarks objected to in counsel's appellate brief); (6) that the prosecutor suborned perjury; (7) that he was not competent at the time of trial and that the trial court erred in not conducting a hearing to retroactively determine his competency at that earlier time (also raised in counsel's appellate brief); (8) that the counts of Criminal Possession of a Controlled Substance in the Third Degree should be dismissed; and (9) that his right to confrontation was violated by the trial court's in limine ruling precluding Bilal from eliciting from Officer Osorio the precise location on her body where the Kell transmitter was positioned. In addition, Bilal claimed that the counts of Criminal Possession of a Controlled Substance in the Seventh Degree must be dismissed, as included in the two counts of Criminal Possession of a Controlled Substance in the Third Degree pursuant to CPL section 300.40(3)(B), a point the State later conceded.
On December 14, 2010, the Appellate Division, Second Department, modified the judgment of conviction by vacating Bilal's convictions of Criminal Possession of a Controlled Substance in the Seventh Degree, vacating the sentences imposed on them, and dismissing those counts of the indictment. As so modified, the judgment was otherwise affirmed. On April 7, 2011, the New York Court of Appeals denied leave to Appeal. On August 25, 2011, the New York Court of Appeals denied reconsideration.
2. Habeas Proceedings
On May 25, 2011, Bilal filed the instant Petition, raising the eleven grounds described above. On December 1, 2011, he sought an extension of time to respond to the Opposition Memorandum, stressing that he sought "to obtain other documents and photos that adequately would disprove those submitted by the People;" Magistrate Judge Lisa Margaret Smith extended Bilal's time to reply to February 29, 2012. Bilal timely filed a reply.
On April 9, 2012, Judge Smith held a conference at which she deemed the Petition amended to include the claims set forth in Bilal's section 440.10 and 330.30 motions, and set a briefing scheduling in light of the amendment. On April 25, 2012, respondent filed a letter in response to the Amended Petition. On May 23, 2012, Bilal requested and received an extension of time to file a reply, indicating that he was "awaiting affidavits [and] photographs taken by a private investigator that will prove some of my claims[, ] to wit: Perjury." In November 2012, Bilal filed his reply ("Bilal Reply"), attaching an affidavit from a private investigator, additional photographs, and several medical reports.
III. LEGAL STANDARDS
A. Deferential Standard for Federal Habeas Review
This petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"). The AEDPA provides that a federal court may not grant a writ of habeas corpus to a prisoner in custody pursuant to the judgment of a state court with respect to any claim, unless the state court's adjudication on the merits of the claim: "(1) was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;" or (2) "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."
A state-court decision is contrary to clearly established federal law, as determined by the Supreme Court, in the following two instances:
First, a state-court decision is contrary to this Court's precedent if the state court arrives at a conclusion opposite to that reached by this Court on a question of law. Second, a state-court decision is also contrary to this Court's precedent if the state court confronts facts that are materially indistinguishable ...