United States District Court, S.D. New York
REPORT AND RECOMMENDATION
C. FRANCIS IV UNITED STATES MAGISTRATE JUDGE.
Monroe, proceeding pro se, seeks a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Mr. Monroe is
currently serving a seven-year sentence for attempted robbery
in the second degree. For the reasons that follow, I
recommend that the petition be denied.
prosecution arose out of allegations that the petitioner and
another man attempted to rob Dr. Arvin Moldi in Manhattan in
the early morning hours of April 13, 2011. Dr. Moldi, a
dental surgeon, was visiting the United States from India
with his wife. (H. at 51-55; Tr. at 108-12).During their visit
to Manhattan, they stayed at a Days Inn Hotel on Broadway and
West 94th Street. (H. at 55; Tr. at 112). Mr. Monroe resided
at the Camden Hotel, a residential shelter on West 95th
Street. (H. at 8-9, 31; Tr. at 37-38).
Walton, who also resided at the Camden Hotel, observed the
crime. (H. at 6; Tr. at 35, 42). He had seen Mr. Monroe and
his accomplice earlier that evening when they had offered to
sell him fruit near the entrance of the Camden at about 10:00
or 11:00 p.m. (H. at 13-14; Tr. at 42). Mr. Walton recognized
Mr. Monroe from the Camden and from other housing facilities
where Mr. Walton had previously resided. (H. at 7-8, 30-31;
Tr. at 38-39). Mr. Walton and Mr. Monroe both lived at the
Camden during the two weeks preceding the attempted robbery.
(H. at 10). During that time, Mr. Walton saw Mr. Monroe more
than once each day in the neighborhood around the Camden and
overheard Mr. Monroe complain about not having enough money
on numerous occasions, though he never personally spoke to
Mr. Monroe and did not know him by name. (H. at 10, 36-37;
Tr. at 38-39).
Moldi testified that at about 12:30 or 1:00 a.m. on April 13,
he was returning to his hotel from a visit to Times Square.
“Sentencing Tr.” refers to the transcript of the
petitioner's sentencing hearing held on February 24,
2012. (Docket No. 10, Attachment 5). “Voir Dire”
refers to the transcript of jury selection held on January
26, 2012. (Docket No. 10). (H. at 58; Tr. at 119-20). Mr.
Walton observed Mr. Monroe and his accomplice approach Dr.
Moldi on Broadway between 94th and 95th streets. (H. at 14;
Tr. at 43, 120). Mr. Walton estimated that he was ten to
twelve feet away from them. (H. at 17-18). Mr. Monroe and his
accomplice continued to approach Dr. Moldi and began to walk
alongside him at a distance of two to three feet (H. at 59,
62-63; Tr. at 123-24), at which point Mr. Monroe's
accomplice stated, “[H]ello, how are you doing?”
and asked Dr. Moldi if he was on vacation (H. at 61; Tr. at
123). Mr. Monroe then asked Dr. Moldi for a dollar to get
home. (H. at 17-18, 61; Tr. at 124-25). Dr. Moldi initially
refused, but Mr. Monroe insisted that Dr. Moldi check his
wallet. (H. at 62; Tr. at 125-26). Dr. Moldi walked under a
canopy with the two men and took out his wallet to give them
“a couple of dollars.” (H. at 64; Tr. at 126-27).
When Mr. Monroe saw the wallet, he commented that Dr. Moldi
“ha[d] a lot of money” (Dr. Moldi estimated that
he had about $600). (H. at 64, 87; Tr. at 127). In response
to Mr. Monroe's comment, Dr. Moldi immediately put the
wallet into his back pocket. (Tr. at 128). Mr. Monroe and his
accomplice then attempted “to snatch away” the
wallet. (H. at 64; Tr. at 128). Mr. Monroe's accomplice
held Dr. Moldi's neck from behind while Mr. Monroe,
standing in front of Dr. Moldi, tried to take the wallet from
Dr. Moldi's pocket, ripping Dr. Moldi's pants in the
process. (H. at 19-20, 66; Tr. at 46-47, 128-29).
time, Mr. Walton had realized that the two men were trying to
rob Dr. Moldi and moved closer to the incident. (H. at 20;
Tr. at 47). Mr. Walton called the police and told Mr. Monroe
and his accomplice to “get the hell away from [Dr.
Moldi].” (H. at 20, 66; Tr. at 47). Mr. Monroe and his
accomplice then fled without taking Dr. Moldi's wallet.
(H. at 20-21, 66-67, 95; Tr. at 48, 131). Mr. Monroe ran in
the direction of the Camden. (Tr. at 48). The security
officer at the front desk of the Camden observed Mr. Monroe
enter the building at 1:03 a.m. (Tr. at 308).
the attempted robbery occurred in the middle of the night,
the street was well lit, and Dr. Moldi testified that he
could see his assailants clearly. (H. at 63; Tr. at 124). Dr.
Moldi described Mr. Monroe's accomplice as tall,
physically fit, and wearing a jacket with the hood up; Dr.
Moldi estimated that he was about forty years old. (H. at
59-60; Tr. at 120-21). Dr. Moldi described Mr. Monroe as
shorter than his accomplice and wearing a jacket and a cap;
Dr. Moldi estimated that he was fifty years old. (H. at 60;
Tr. at 120-21). Mr. Monroe had a black beard flecked with
white hairs and was missing some of his upper front teeth.
(H. at 60-61; Tr. at 120-22, 168-71).
police arrived at the scene shortly thereafter and drove Dr.
Moldi to the Camden, where Mr. Walton had told 911 operators
that Mr. Monroe lived. (H. at 21, 67, 98-99; Tr. at 135). Mr.
Walton met Dr. Moldi and the officers outside the Camden, and
the group entered the building together. (H. at 101-02; Tr.
at 50). They proceeded to Mr. Monroe's apartment on the
third floor. (H. at 102-03; Tr. at 174-75). Mr. Walton and
Dr. Moldi waited in the third floor hallway while the
officers knocked on Mr. Monroe's door. (H. at 102-03; Tr.
at 65, 174, 204-05, 227-28). There was no answer, so the
officers asked the security officer to open the door with his
set of keys, which he did after knocking and announcing
himself. (Tr. at 228-29).
officers stepped into the apartment and found Mr. Monroe
standing behind the open front door. (Tr. at 229, 242). They
escorted him out of the apartment and brought him over to Mr.
Walton and Dr. Moldi for a showup identification. (Tr. at
174-75). Mr. Walton stated, “That's the guy,
” and Dr. Moldi positively identified him as the older
of the two men who attempted to rob him. (H. at 106; Tr. at
175-76). Dr. Moldi estimated that he was about six feet from
Mr. Monroe during the showup and saw him for five or six
seconds. (Tr. at 176). There was conflicting testimony as to
whether Mr. Monroe was handcuffed during the showup. Dr.
Moldi testified that he was (Tr. at 190), and Mr. Monroe
testified that he was arrested and handcuffed in his
apartment (P. at 29-30, 37). However, two officers testified
that he was not handcuffed until after the showup. (P. at 12,
April 14, 2011, the petitioner was arraigned in New York
County Supreme Court on a felony complaint. (Decision and
Order (“6/30/11 Order”), People v.
Monroe, No. 1989/11, at ¶ 36 (N.Y. Sup. Ct. June
30, 2011)). Defense counsel filed a grand jury notice,
and the case was adjourned to April 18, 2011. (6/30/11 Order
at ¶ 36). On April 18, defense counsel withdrew the
grand jury notice, and the case was adjourned for arraignment
on the indictment on May 3, 2011. (6/30/11 Order at ¶
37). At the May 3 arraignment, the petitioner asserted that
his right to testify before the grand jury was violated by
counsel's withdrawal of a grand jury notice and indicated
that he wanted new counsel. (6/30/11 Order at ¶ 37). On
May 17, 2011, Anne B. Rudman was assigned to represent the
petitioner. (6/30/11 Order at ¶ 37). She moved to
dismiss the indictment pursuant to New York Criminal
Procedure Law § 190.50 on the ground that the petitioner
was denied the right to testify before a grand jury. (6/30/11
Order at ¶ 36).
30, 2011, Justice Renee A. White denied the § 190.50
motion on two grounds. First, she found that the prosecution
had complied with § 190.50 because the grand jury notice
was withdrawn by the petitioner's attorney. (6/30/11
Order at ¶ 38). Second, she found that the petitioner
failed to establish that he was prejudiced by his inability
to testify before the grand jury. (6/30/11 Order at ¶
31, 2011, Mr. Monroe moved to suppress the identifications by
Mr. Walton and Dr. Moldi in the hallway of the Camden on the
ground that the showup was unduly suggestive. (Affirmation of
Anne B. Rudman at ¶ 13-14, Monroe, No. 1989/11
(May 31, 2011)). On June 6, 2011, the petitioner moved to
suppress those identifications on the additional ground that
they were the fruits of an unlawful warrantless arrest in his
home in violation of Payton v. New York, 445 U.S.
573 (1980). (Affirmation of Anne B. Rudman at ¶ 73-74,
Monroe, No. 1989/11 (June 6, 2011)). On September 8,
2011, Justice White held a hearing on those motions and
suppressed the identifications as the fruits of a
Payton violation but rejected the claim that the
showup was unduly suggestive. (P. at 49-50).
January 24, 2012, Justice Daniel Fitzgerald held a hearing to
determine whether Mr. Walton and Dr. Moldi had an independent
source -- other than the encounter in the hallway of the
Camden -- to identify the petitioner at trial. He concluded
that both men did. In Mr. Walton's case, his observation
of the attempted robbery and his knowledge of the petitioner
from the Camden and other housing facilities was sufficient.
(H. at 123-26). In Dr. Moldi's case, his face-to-face
interaction with the petitioner during the attempted robbery
was adequate. (H. at 132-36). Thus, Justice Fitzgerald held
that both men could identify the petitioner at trial. (H. at
Trial, Sentencing, and Appeals
trial began before Justice Fitzgerald on January 26, 2012. At
trial, the petitioner was represented by Sol Schwartzberg. A
significant amount of the evidence concerned the condition of
the petitioner's teeth. Dr. Moldi testified that the
petitioner was missing three to four of his upper front teeth
on the night of the attempted robbery. (Tr. at 170-71). The
prosecution introduced photographs of the petitioner's
teeth taken on January 17, 2012, approximately one week
before trial. (Tr. at 234, 280-82). The photographs are not
in the record before this Court; however, testimony regarding
the photographs suggests that the petitioner was missing all
of his upper teeth and all but four or five of his bottom
teeth. (Tr. at 283). At the conclusion of the trial, Mr.
Schwartzberg directed the petitioner to stand up and display
his teeth to the jury. (Tr. at 358).
February 1, 2012, the jury convicted the petitioner of
attempted robbery in the second degree. (Tr. at 431-33).
Three weeks later, Justice Fitzgerald sentenced the
petitioner as a second felony offender to a seven-year term
of imprisonment with five years of post-release supervision.
(Sentencing Tr. at 5-6).
Monroe appealed his conviction to the First Department. The
petitioner's principal appellate brief asserted that: (1)
Dr. Moldi should not have been permitted to identify the
petitioner in court because the independent source
determination was erroneous and the showup was unduly
suggestive; (2) the court violated the petitioner's right
to self-representation by failing to inquire into his
interest in proceeding pro se; and (3) the sentence
was excessive. (Brief for Defendant-Appellant at ¶
121-22, People v. Monroe, No. 1989/11 (1st Dep't
June 24, 2013)). The petitioner also submitted a supplemental
pro se brief arguing that: (1) he was denied the
right to testify before the grand jury when counsel withdrew
the grand jury notice without his consent; and (2) he
received ineffective assistance of counsel because his first
attorney withdrew the grand jury notice and because Mr.
Schwartzberg was allegedly intoxicated during trial. (Brief
for Defendant-Appellant (“Pet. 1/24/14 Memo.”) at
¶ 154, Monroe, No. 1989/11 (1st Dep't Jan.
24, 2014)). The Appellate Division affirmed the conviction.
It declined to review the petitioner's ineffective
assistance of counsel claims because they involved matters
outside the record and rejected his remaining claims on the
merits. People v. Monroe, 132 A.D.3d 426, 426-27, 17
N.Y.S.3d 292, 293 (1st Dep't 2015). The New York Court of
Appeals denied leave to appeal. People v. Monroe, 26
N.Y.3d 1090, 1090, 23 N.Y.S.3d 647 (2015) (Table).
The Federal Habeas Corpus Petition
petitioner seeks relief from his conviction and sentence
pursuant to 28 U.S.C. § 2254 on the following grounds:
(1) violation of his right to testify before the grand jury;
(2) violation of his Fourth Amendment rights when the police
arrested him in his home; (3) ineffective assistance of
counsel at several stages of the prosecution; (4) violation
of his due process rights because Dr. Moldi did not have an
independent source for identifying him at trial and because
the showup was unduly suggestive; and (5) violation of his
Sixth Amendment right to self-representation.
Principles Governing Petitions Under Section 2254
the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), a federal court may grant a writ of
habeas corpus to a state prisoner for a claim that a state
court has adjudicated on the merits only where the state
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented