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Monroe v. Smith

United States District Court, S.D. New York

March 8, 2017

DWINEL MONROE, Petitioner,
v.
SUPERINTENDENT B.J. SMITH, Respondent.

          REPORT AND RECOMMENDATION

          JAMES C. FRANCIS IV UNITED STATES MAGISTRATE JUDGE.

         Dwinel 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.

         Background

         A. The Crime

         This 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).[1]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).

         Chad 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).

         Dr. 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).

         By that 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).

         Although 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).

         The 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).

         The 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, 22).

         B. Procedural History

         1. Indictment

         On 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)).[2] 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).

         On June 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 ¶ 38-39).

         2. Suppression Hearings

         On May 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).

         On 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 136).

         3. Trial, Sentencing, and Appeals

         A jury 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).

         On 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).

         Mr. 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).

         C. The Federal Habeas Corpus Petition

         The 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.

         Discussion

         A. Legal Standards

         1. Principles Governing Petitions Under Section 2254

         Under 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 court's adjudication

(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; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented ...

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