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Whitehead v. Haggett

United States District Court, E.D. New York

February 3, 2016

WILLIAM T. HAGGETT, Superintendent, Mt. McGregor Correctional Facility Respondent.


          ANN M. DONNELLY, District Judge.

         The petitioner seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On April 1, 2008, following a jury trial in Suffolk County, New York, the petitioner was convicted of one count of Scheme to Defraud in the First Degree, one count of Attempted Grand Larceny in the Second Degree, thirteen counts of Identity Theft in the First Degree, and two counts of Identity Theft in the Third Degree. (Dkt. No. 1 at 2.) The petitioner challenges his conviction under the Fifth, Sixth, and Fourteenth Amendments. (Id. at 1-2.) Specifically, he asserts that his trial lawyer was ineffective and that the court improperly admitted evidence of uncharged crimes and a witness's unsworn testimony. For the reasons that follow, the petition for a writ of habeas corpus is denied.


         I. Overview

         The petitioner's conviction arose out of a fraudulent loan scheme. The trial established that the petitioner exploited his former girlfriend, Valerie Rodriguez, who had access to personal identifying information through a computer credit check program at a Baron Honda car dealership, where she worked. The scheme involved creating fake email accounts and voicemail boxes using stolen identifying information, filling out fraudulent loan applications, and using these loans to obtain vehicles.

         II. Investigation

         On May 5, 2005, Maria Macarle received a telephone call from a loan representative about a recent application. (Dkt. 16, Ex. 20 at 56-57.) Because Ms. Macarle had not applied for a loan, she called the Suffolk County Police Department. (Dkt. 16, Ex. 12 at 80.) Detective Thomas Gabriele investigated and determined that someone took out a loan in Ms. Macarle's name to purchase a motorcycle at Kings Cycles in Brooklyn, New York. (Dkt. 16, Ex. 20 at 59:7-19.) The loan included a sales agreement in her name (Id. at 60:4-63:13) and a copy of a driver's license that had her name, but someone else's picture. (Id. at 61:10-12, 64:7-18.) The person in the photograph was later identified as Anita Bryant, the petitioner's friend. (Id. at 64:7-24; 73:22-74:12.)

         On June 7, 2005, Detective Gabriele learned that the petitioner had been arrested in Manhattan while riding the motorcycle purchased in Ms. Macarle's name. (Dkt. 16, Ex. 19 at 94:3-99:13; id. Ex. 21 at 16:14-17:4.) The same month, Detective Gabriele traced a phone number on the sales-purchase documents to Aerobeep and Voicemail Services, a business that provides customers with phone numbers and mail receiving services. (Dkt. 16, Ex. 20 at 74:16- 77:19; Dkt 16, Ex. 19 at 27:20-29:20.) He asked for a list of accounts associated with that number, and in July of 2005 he recorded voicemails associated with those accounts. (Dkt. 16, Ex. 20 at 74:21-79:7.) He discovered that the petitioner had an Aerobeep account and that several phone numbers used in fraudulent loan applications were opened under other Aerobeep accounts. (Id. at 30:10-52:25; Dkt. 16, Ex. 20 at 82:6-89:23.) For example, an account in the name of "John Wilson" purchased 10 numbers, including the one that was included on the motorcycle sales agreement under Maria Macarle's name. (Dkt. 16, Ex. 29 at 37:7-39:23; Dkt. 16, Ex. 20 at 63:11-18.)

         On August 5, 2005, Detective Gabriele sought and obtained search warrants from a Suffolk County judge for two residences in connection with the identity theft investigation. (Dkt. 16, Ex. 21, 65:20-69:25.) He seized two computer systems from one of the houses, and submitted them for forensic analysis. (Id. at 71:1-74:10.)

         The detective's investigation of telephone and bank records revealed that the personal identifying information of several Baron Honda customers was used to create fraudulent loan applications. (Dkt. 16, Ex. 20, at 86-89; Dkt. 16, Ex. 21 at 19-47, 89-100.)

         From January 23 through 25 of 2006, Detective Gabriele and other officers began surveilling the petitioner's home in Teaneck, New Jersey. (Dkt. 16, Ex. 30 at 38:10-44:25.) On January 25th, the officers saw the defendant drive his car into New York, where they arrested him. (Id. at 46:1-48:20.) The same day, Judge Toni Bean issued a search warrant for the petitioner's car, where officers found documents, clothing, and three cell phones. (Id. at 68-80.) The documents included a Con Edison bill, which Detective Gabriele testified was used "as address verification" for several false loan applications. (Dkt. 16, Ex. 31, at 32:10-33:24.)

         On January 27, 2006, Detective Gabriele contacted the Teaneck Police Department to obtain a search warrant for the petitioner's home in Teaneck, New Jersey. (Id. at 78:22-79:10.) A Teaneck detective, Michael Richter, obtained a search warrant from a municipal court judge, and Detective Gabriele joined officers from the Teaneck Police Department to execute the warrant. (Dkt. 1, Ex. 12 at 9; id, Ex. 14 at 8.) They seized a laptop computer, cell phones, and various documents. (Dkt. 1, Ex. 14 at 11.) On January 30, 2006, the Suffolk County Court issued a computer search warrant to search the laptop and three cell phones. (Dkt. 1, Ex. 34 at 1.)

         III. Pre-Trial Proceedings

         On February 3, 2006, the petitioner was charged in Suffolk County with one count of Attempted Identity Theft in the First Degree and one count of Attempted Grand Larceny in the Second Degree. (Dkt. 1, Ex. 35.) His attorney, Robert Macedonio, filed discovery motions seeking search warrants issued against the petitioner's property and "the affidavit(s) and returns thereof, " as well as property (or photographs of property) seized pursuant to those warrants. (Dkt. 1, Ex. 36 at 2; Dkt. 1, Ex. 37 at 10.) Assistant District Attorney (ADA) Douglas Byrne responded "the People [we]re in possession of three Cellular Phones and one vehicle." (Dkt. 1, Ex. 38 at 3.) He did not address the laptop or the warrants, and noted that all requests not addressed were beyond the scope of what the state discovery law required. (Id. (citing N.Y. Crim. Proc. Law § 240.20).[1] The petitioner claims that Mr. Macedonio told him "that there was no evidence in the case and that the indictment would not stand." (Affidavit of Lamar Whitehead, ("Pet. Aff.") Dkt. 1, Ex. 41 ¶ 3.)

         On April 25, 2006, the People filed a superseding indictment charging the petitioner with three counts of Attempted Identity Theft in the First Degree, one count of Attempted Grand Larceny in the Second Degree, two counts of Identity Theft in the First Degree, two counts of Grand Larceny in the Third Degree, and three counts of Unlawful Possession of Personal Identification Information in the Third Degree. (Dkt. 1, Ex. 39 at 1-2.)

         In March of 2006, the petitioner was indicted in New York County for criminal possession of a 2004 Land Rover-the car that was searched in connection with the Suffolk County case against him. (Dkt. 16 ¶ 9.)[2]

         On August 28, 2006, ADA Byrne supplemented his response to the petitioner's prior discovery motion, but still did not mention the warrants or seizures of other evidence. (Dkt. 1, Ex. 40 at 3.)

         In September of 2006, the petitioner discharged Mr. Macedonio and retained Ms. Camille Russell. (Pet. Aff. ¶ 5.) At that point, based on the ADA's response to defense counsel's discovery demands, Ms. Russell believed that the trial evidence would be limited to "a Manila envelope, a Geico insurance card, several pieces of mail, Mr. Whitehead's statement and a fingerprint analysis." (Affidavit of Camille Russell ("Russell Aff.") Dkt. 1, Ex. 42 ¶ 2.) On September 19, 2006, 'the Assistant District Attorney revealed that he intended to introduce tape recordings" as evidence and invited Ms. Russell to review all the physical evidence he intended to introduce. (Id. ¶ 6.)

         On September 20, 2006 Ms. Russell moved to preclude any evidence that the prosecution did not disclose in response to earlier discovery demands, as well as any evidence obtained in violation of the petitioner's constitutional rights. (Dkt. 1, Ex. 43 at ¶¶ 22-33.) In this motion, she challenged the validity of any search warrants issued in the case. Counsel claims that she did not have actual knowledge of any search warrants, but "made boilerplate arguments, " including assertions that the warrants were issued without probable cause and were executed beyond their scope. (Russell Aff. ¶ 8.) On September 27, 2006, Ms. Russell went to the assigned assistant district attorney's office to review the physical evidence in the case. (Id. ¶ 7.) She listened to tape recordings, viewed an identification card with the petitioner's photograph, and examined a chart that the Suffolk County Police Department prepared for the case. (Id.)

         In his response to counsel's omnibus motion, the ADA stated that "Ms. Russell was able to see all property seized from the defendant, .. .was able to listen to tapes of the defendant, " and that she saw "property seized pursuant to a New Jersey search warrant and the subsequent search of the defendant's vehicle." (Dkt. 1, Ex. 44 at 3.) According to the prosecutor, the only piece of evidence counsel did not see was "a laptop computer seized from a New Jersey search warrant;" the ADA represented that the computer would be "available to defense counsel" for review. (Id.) The ADA urged the court to deny the petitioner's motion to suppress, because the property recovered from him was seized pursuant to a valid search warrant and was made available to the petitioner's counsel. (Id. at 3-4.)[3]

         The court denied the petitioner's motion for a hearing to determine whether the search warrant was supported by probable cause, noting that such hearings are not "available for the asking by boilerplate allegations." (Dkt. 1, Ex. 45 at 4.) Ms. Russell did not renew her motions. According to the petitioner, he became aware of the New Jersey search warrant in October of 2006; he claims that Ms. Russell told him they "could not file any motion against the search warrant unless [they obtained] the affidavit for the search warrant." (Pet. Aff ¶ 6.)

         At some point, the assistant district attorney offered the petitioner the opportunity to plead guilty to a misdemeanor in exchange for a one-year sentence. (Russell Aff. ¶ 13.) The petitioner declined the offer and went to trial.

         In November of 2006, the petitioner discharged Ms. Russell and retained Ms. Camille Abate-an associate of Andrew Soleil, who represented the petitioner in his New York County trial a month earlier. (Dkt. 7 ¶ 9; see also Id. Ex. I.)[4] In January of 2007, the People filed a second superseding indictment charging the petitioner with 57 counts of identity theft. (Dkt. 1, Ex. 46.)[5] According to the petitioner, he told Ms. Abate that there was a search warrant but that he had not received the search warrant affidavits; she told him that "she would follow up on this." (Pet. Aff. ¶ 11.) The petitioner claims that Ms. Abate was running for political office and, as a result, was difficult to reach; he only spoke with her at court. (Id. ¶ 12.) On January 18, 2008, the District Attorney's office sent Ms. Abate the search warrant affidavits, which she did not challenge. (Id. ¶ 13; see also Affidavit of William Keahon ("Keahon Aff."), Dkt. 1, Ex. 48 ¶ 8.) The petitioner claims he was unaware of this disclosure.

         Pretrial hearings on the petitioner's motion to suppress statements and identification evidence began on November 7, 2007, before the Honorable James Hudson. Ms. Abate advised Judge Hudson that she was prepared to do the hearing, but that the petitioner intended to retain other counsel for the trial. (Dkt. 16, Ex. 1 at 2-3.) The petitioner requested an adjournment of both the hearing and the trial until he could get another lawyer. (Id. at 3-8.) Judge Hudson denied the motion to adjourn the hearing. (Id. at 8-11.) At the conclusion of the hearing, the judge reserved decision on the motion to suppress, and adjourned the case to January 15, 2008 for jury selection. On January 8, 2008, the petitioner still had not retained a new lawyer, and the court gave him until February 4, 2008.

         On that date, William Keahon appeared for the petitioner, and Ms. Abate was relieved.[6]The prosecutor moved to re-open the suppression hearing to present additional evidence, which the court granted. At the end of that hearing, Mr. Keahon asked if there had been any motions with respect to the search warrants, and noted that there was no indication that "any attorney... has done anything to contravene the search warrant that was issued." (Dkt. 16, Ex. 3 at 156:16-157:5.) Judge Hudson advised counsel that Ms. Russell had made a motion that was denied and gave counsel a copy of the decision. (Id. at 157: 6-19.)

         Mr. Keahon did not discover until after the trial that the search warrant affidavits were disclosed to Ms. Abate on January 18, 2008. (Keahon Aff. ¶ 8.) Mr. Keahon claims that if he had known about these disclosures, he "would have filed detailed motions to controvert the warrants" and "would have been able to effectively respond to the Court's ruling that [his] motion was untimely." (A£ ¶ 11.)

         IV. Trial Evidence

         The evidence at trial established that in 2004, the petitioner's girlfriend, Valerie Rodriguez, was on the sales team at a car dealership, Baron Honda. (Dkt. 16, Ex. 21, at 83:8-89:19.) She had access to a program called Dealer Track, which contained the personal information and credit histories of the dealership's customers. (Id. at 89:20-90:25.) The petitioner asked Ms. Rodriguez for her password to the program, as well as names of individuals with good credit scores. (Id. at 97:1-100:21.) Baron Honda customers whose identities were stolen and used in fraudulent loan applications, as well as other identity fraud victims, including Brenda Ridenour and Katherine Reid, also testified. (Dkt. 16, Ex. 19 at 73-76; Dkt. 16. Ex. 28 at 10-13.) Ridenour and Reid were not victims of the charged conduct; however, the documents seized from the petitioner's possession included their personal information, and Ms. Reid's name was used on one of the voicemail boxes. (Dkt. 16. Ex 28 at 6-7.)[7]

         Detective Gabriele testified about Ms. Macarle's initial call to the police and his subsequent investigation of the motorcycle incident and the identity fraud scheme. His testimony spanned several days: February 27 (Dkt. 16, Ex. 20 at 53), February 28 (Dkt. 16, Ex. 21 at 16), March 14 (Dkt. 16, Ex. 30 at 12), March 17 (Dkt. 16, Ex. 31 at 22, 73), March 18 (Dkt. 16, Ex. 32 at 27), March 20 (Dkt. 16, Ex. 34 at 54-55), and March 25, 2008 (Dkt. 16, Ex. 35 at 16-17). On one occasion when Detective Gabriele resumed the stand after a break, the clerk did not remind him that he was still under oath. (Dkt. 16, Ex. 30 at 12.) Defense counsel did not object. (Id.)

         The assistant district attorney presented loan applications, phone records, and other documents linking the petitioner to the identity thefts. (Dkt. 16, Ex. 21 at 19-47; Dkt. 16, Ex. 31 at 32-36.) The jury also saw the contents of the petitioner's laptop, which included the car dealership's credit check software, documents, cookies, Internet Protocol addresses, and internet files related to loan applications. (Dkt. 16, Ex. 36 at 15-20, 40-65.) Multiple witnesses identified the petitioner's voice as the voice on the fraudulent voicemails. (Dkt. 16, Ex. 21 at 110-120; Dkt. 16, Ex. 23 at 56-62; Dkt. 16, Ex. 26 at 113-27.)

         On April 1, 2008, the petitioner was convicted of one count of Scheme to Defraud in the First Degree, one count of Attempted Grand Larceny in the Second Degree, thirteen counts of Identity Theft in the First Degree, and two counts of Identity Theft in the Third Degree. He acquitted of seventeen of the thirty-four counts against him, and was sentenced to an indeterminate term of from ten to twenty years in prison.


         The petitioner appealed his conviction to the Appellate Division, Second Department on July 16, 2008. (Pet. App. Br., Dkt. 7, Ex. 3 at vii.) He raised two issues relevant to his federal habeas petition. First, he argued that the failure to swear in Detective Gabriele violated his right to due process. (Id. at 51.) Second, he challenged the admission of Ridenour and Reid's testimony as evidence of uncharged crimes. (Id. at 54.) The petitioner did not argue that he was denied effective assistance of counsel. (Id. at viii.)

         The petitioner moved, pursuant to Criminal Procedural Law § 440.10 (1) (g) and (h), to vacate his judgment in July of 2010. (Dkt. 7, Ex. 8 at 1-2.) He argued that the People's failure to provide a fingerprint identification report materially prejudiced his case because it could have been used to impeach the Suffolk County Police Department evidence specialist. (Id. at 9-10.) On October 6, 2010, the County Court denied the motion. (Dkt. 7, Ex. 10 at 1-2.)

         The Second Department affirmed the petitioner's conviction on May 17, 2011. (Dkt. 7, Ex. 6.)[8] The court rejected the petitioner's claim about the failure to re-swear the detective when he continued his testimony, since he failed to object. (Id. at 3.) The court also held that the trial court's decision to admit evidence of uncharged crimes was proper because it "show[ed] a common scheme or plan, or the absence of mistake or accident, and the probative value of the evidence outweighed any possible prejudice." (Id. at 2 (citations omitted).)[9]

         On June 15, 2011, the petitioner applied for leave to appeal to the New York Court of Appeals. (Dkt. 7, Ex. 7 at 1.) Among other claims, he reasserted his challenges to the admission of prior uncharged crimes, (Id. at 10), and the failure to re-administer the oath to Detective Gabriele when he resumed his testimony, (Id. at 14). The Court of Appeals denied the petitioner's application for leave to appeal on August 4, 2011. (Id. at 22.)

         On April 4, 2012, the petitioner made another 440.10 motion to vacate his conviction. For the first time, he claimed he was denied the effective assistance of counsel; he faulted Ms. Russell's advice during the plea process, as well as her and Ms. Abate's failure to challenge the search warrants in his case. (Dkt. 7, Ex. 11 at 21-35.) Judge Hudson rejected the motion, ruling that the petitioner's claim was precluded by his failure to raise it on direct appeal. (Dkt. 7, Ex. 13 at 2-3.)

         The petitioner sought leave to appeal the denial of the motion to vacate the judgment on September 24, 2012. (Dkt. 1, Ex. 11 at 1.) The Appellate Division, Second Department denied the application on December 4, 2012. (Dkt. 7, Ex. 13 at 4.) He filed this petition for a writ of habeas corpus on October 3, 2012.


         I. Le ...

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