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Goldston v. O'Meara

United States District Court, N.D. New York

July 17, 2017


          TASHEEM GOLDSTON Petitioner, pro se

          ERIC T. SCHNEIDERMAN HANNAH S. LONG, AAG Attorney for Respondent Office of the Attorney General


          BRENDA K. SANNES United States District Judge


         Petitioner Tasheem Goldston filed a petition for a writ of habeas corpus, a supporting memorandum of law and exhibits pursuant to 28 U.S.C. § 2254. Dkt. No. 1, Petition ("Pet.") at 1-6; Dkt. No. 1-1, Memorandum of Law; Dkt. No. 1-2, Exhibits. He argues: (1) two of his attorneys were ineffective; (2) he was denied the right to confront an identification witness at a suppression hearing; and (3) the "People and the police used fraud and duress to secure" his conviction. Dkt. No. 1 at 5-10; Dkt. No. 1-1 at 2-14. Respondent opposes the petition.

         Dkt. No. 17, Answer; Dkt. No. 17-1, State Court Record ("SCR"); Dkt. No. 17-2, Transcripts ("TR"); Dkt. No. 17-3, Respondent's Memorandum of Law in Opposition to the Petition for a Writ of Habeas Corpus. Petitioner filed a reply with exhibits. Dkt. No. 20, Reply.[1]

          For the reasons that follow, the petition is denied and dismissed.


         A. The Charges

         In July 2011, an Albany County grand jury returned an indictment charging petitioner with ten different crimes occurring on two different dates. The first eight counts of the indictment stemmed from petitioner's alleged involvement in the armed attempted robbery and shooting of Rashim Mayo on June 18, 2010. Dkt. No. 17-1 at SCR 48-55. Mayo told police he was shot by "Sheemstone" or "Sheem Stony, " and on June 22, 2010, he identified petitioner as the shooter from a photo array. For that incident, petitioner was charged with first degree assault (N.Y. Penal Law §120.10(1)), two counts of second degree criminal possession of a weapon (N.Y. Penal Law §§265.03(1)(b) and (3)), third degree criminal possession of a weapon (N.Y. Penal Law §265.02(1)), three counts of first degree attempted robbery (N.Y. Penal Law §§110.00/160.15(1), (2), and (4)), and second degree attempted robbery (N.Y. Penal Law §§110.00/160.10(1)). See Id. at SCR 48-55.

         Petitioner was charged in the same indictment with additional counts of second and third degree criminal possession of a weapon (N.Y. Penal Law §§265.03(3), 265.02(1)). Dkt. No. 17-1 at SCR 56-57. Those charges stemmed from petitioner's possession of a loaded Lorcin Model L32 pistol, found on his person when he was arrested on July 21, 2010 in connection with the June 18, 2010 incident. See id.

         B. State Court Proceedings

         Petitioner was arraigned on the indictment on August 2, 2010. Dkt. No. 17-2 at ¶ 1-7. On August 25, 2010, he appeared in court with Assistant Alternate Public Defender Andrew Purrott. Id. at TR 8-9. Petitioner rejected a plea offer that would have required him to plead guilty to second degree criminal possession of a weapon in exchange for a determinate sentence not to exceed 13 years in prison, followed by 5 years post-release supervision. Id. at TR 9. Purrott told the court he spoke with petitioner "numerous times at the jail" and told him that he faced a consecutive sentences on the two sets of charges. Id. He also told the court he and petitioner had a "very harmonious relationship up to this point." Id. at TR 10. Petitioner confirmed that he did not want to plead guilty, and understood he faced lengthy, and possibly consecutive, sentences. Id. at TR 11-12.

         In papers dated October 8, 2010, Purrott filed an omnibus motion that included, as relevant here, motions to suppress Mayo's identification testimony, petitioner's statements about the gun on the day of his arrest, and the gun itself on the ground that police lacked probable cause to arrest him. Dkt. No. 17-1 at SCR 66-69, 71-72, 80-83. Purrott also moved to sever the July 21 gun charges from the indictment. Id. at SCR 67, 83-84. The People opposed the motions, but consented to hearings on the admissibility of the challenged evidence. Id. at SCR 100-107. In a Decision and Order dated November 30, 2010, the trial court denied petitioner's motion to sever, but granted hearings on the suppression motions. Id. at SCR 109-10.

         On December 21, 2010, petitioner appeared in court with new counsel, Alternate Public Defender Thomas Dulin, for a hearing on the motions. Dkt. No. 17-2 at ¶ 15. The People made a revised plea offer. Under its terms, petitioner would have to plead guilty to second degree criminal possession of a weapon in exchange for a sentence of 10 years in prison followed by 5 years post-release supervision. Petitioner would be a "second felony offender, there would be an Order of Protection, Waiver of Right to Appeal, and any restitution, if any, " and the sentence would run consecutively to any time petitioner owed "to the State on parole[.]" Id. at SCR 19. Dulin told the court the offer was conveyed, and while he did not mention restitution, counsel did not think that condition was "a deal breaker one way or the other." Id. Dulin also told the court that when he last spoke with petitioner, petitioner was not "interested in a plea right at this moment, " and that petitioner wanted to address the court directly. Id. at SCR 19-20.

         Petitioner told the court he was "for the most part" represented by Purrott and saw him "about three times, for an approximate time of about 40 minutes, for the whole five months I have been locked up for." Dkt. No. 17-2 at ¶ 20-21. He explained "they came" to see him the previous Saturday, and "he told me that they didn't think it would be wise" if petitioner went to trial. Id. at TR 21. He claimed he gave Purrott names of witnesses and "various defenses" that were not pursued, and Purrott did not seem familiar with the paperwork and facts of the case. Id. at SCR 21-22. Petitioner further stated that his counsel told him the suppression motions would fail, and petitioner disagreed because he "read the law, " could understand it, and believed he could win, but was not "comfortable with their representation." Id. at SCR 22. Petitioner questioned the content and quality of the omnibus motions, and told the court he did not think counsel had time to represent him. Id. at SCR 23-24.

         The court asked Dulin if he was ready to proceed on the suppression motion, and Dulin answered that he was "reasonably prepared, " but there was "a witness mentioned" during the previous meeting with petitioner and an investigator was trying to subpoena that witness. Dkt. No. 17-2 at ¶ 24. Dulin was able to review "some additional documents, " but stated there appeared to be some information about "some of the witnesses who observed some of the events" that was not yet turned over. Id. at TR 24-25. Dulin explained that the content of the witness statements was disclosed, but their names were redacted from the records, which made it "a lot more difficult for us to prepare." Id. at TR 25. Dulin characterized the omission of the names as a Brady[2] violation, asserted that if he could have interviewed the witnesses, he would have a "better understanding of what could be proven, " and claimed his preparation was "hampered." Id. Dulin then assured the court he was "reasonably prepared as best as possible to this point." Id.

         The court denied petitioner's request for new counsel, confirmed that petitioner rejected the People's revised plea offer, and the suppression hearing began. Dkt. No. 17-2 at ¶ 28. The People called as witnesses Detective Timothy Haggerty and police officers Robert Mulligan and John Regan. Id. at TR 28-114. When the People rested, Dulin requested a continuance, explaining that his investigator was trying to serve a subpoena on a witness counsel "just learned" about. Id. at TR 115-16. The court adjourned the hearing until the next day to allow Dulin's investigator time to secure the witness. Id. at TR 118.

         The suppression hearing continued on December 22, 2010. Dkt. No. 17-2 at ¶ 121. Dulin identified the witness he was attempting to subpoena as Mayo, and explained that Mayo was not present in court. Id. at TR 125. The investigator left a subpoena at Mayo's home, and when she returned later that day, the subpoena "had been removed." Id. at TR 124. The investigator spoke with Mayo's neighbors, who stated Mayo's car was parked in front of the residence and confirmed he lived in the building. Id. When the investigator "attempted to get a response at the door, she was told in no uncertain terms to stop ringing the doorbell, " and no one answered the door. Id. at TR 124-25. According to Dulin, petitioner told him that Mayo would "contradict what the police officers had to say, with respect to reasonable cause and with respect to the identification procedures itself." Id. at TR 125. Specifically, Dulin expected Mayo to say he did not identify petitioner as the shooter, and did not "voluntarily pick out any particular photographs that were provided to him in a photo array. Id. at TR 126. Dulin argued that if Mayo so testified, "that would place in jeopardy whether or not the police had reasonable cause to approach and accost" petitioner on the day he was arrested. Id. at TR 126.

         The prosecutor opposed any further continuance in order for Dulin to produce Mayo, arguing that "it's a fishing expedition and it is not a discovery mechanism and it's just a means to harass the victim." Dkt. No. 17-2 at ¶ 127. He further stated he had no "belief at this time that Mr. Mayo will say, anything contradicting the People's case." Id. The prosecutor confirmed he had not heard from Mayo on either December 21 or 22, 2010. Id.

         After a brief recess, the trial court asked Dulin to explain his basis for believing Mayo would contradict the People's case. Dkt. No. 17-2 at ¶ 127-29. Dulin conferred with petitioner, and told the court "at least two of [petitioner's] relatives and several other people with whom he's acquainted have had conversations with ... Mayo, " and Mayo "was purported to have told each of these people, that he did not identify any photographs, that he did not sign any documents for the police, that he did not identify to the police [petitioner] as being the person who shot him[.]" Id. at TR 129. Dulin repeated his argument that if Mayo so testified, police lacked reasonable cause to stop petitioner. Id. at TR 129-30.

         The court denied Dulin's request for an adjournment to secure Mayo's testimony pursuant to People v. Chipp, 75 N.Y.2d 327 (1990).[3] Dkt. No. 17-2 at ¶ 130-33. The court ruled that petitioner did not claim the photo array identification procedure "was suggestive, unconstitutionally suggestive, " and concluded the photo array was "fair." Id. at TR 132. Instead, petitioner claimed Mayo was "flat out lying" about his identification of petitioner. Id. at TR 132. The court concluded that Mayo "testified before the Grand Jury, " and it was "very highly unlikely" that Mayo would now testify the identification "never happened" and "was concocted." Id. at TR 132-33. The court also opined that the "other possible purpose" of calling Mayo, a "misguided attempt[] at discovery and harassing the witness ... are still paramount in this case[.]" Id. at TR 133.

         Petitioner then asked the court for permission to proceed pro se. Dkt. No. 17-2 at ¶ 134-42. The court reserved decision on that request and on the suppression motions. Id. at TR 142-43.

         On February 2, 2011, while petitioner's request to proceed pro se was pending, the trial court issued a decision denying the suppression motion. Dkt. No. 17-1 at SCR 112-23. The court concluded that Haggerty, Mulligan and Regan "each appeared frank, candid, and trustworthy, and their testimony had the general force and flavor of credibility." Id. at SCR 115-16. The trial court made the following findings of fact:

On June 18, 2010 at approximately 11:00 p.m., Det. Haggerty responded to a shooting incident near ... Sloan Street in the City of Albany. The victim, Rashim Mayo ("Mayo"), was transported to the hospital. On June 19, 2010, Det. Haggerty went to speak to Mayo at the hospital. Mayo described the shooter as a short, stocky black male wearing a black hooded sweatshirt and a red bandana. Mayo also told Det. Haggerty that he knew the defendant as "Sheem Stone" from meeting him at a parole office and that the defendant's brother drives a Subaru station wagon with a "Superman" sticker on it.
Based upon that information, the police created a photo array containing the defendant's photo (People's Exhibit #1). On June 22, 2010 at approximately 5:55 p.m., Det. Haggerty returned to the hospital to show Mayo the photo array. Det. Haggerty told Mayo that he had a photo array with six photos on it; that the person who shot him may or may not be in the photo array; and that if Mayo recognized anyone to let him know where he recognized that individual from. Mayo identified photo #5 and wrote: "This is shooter." Mayo then completed and signed a written statement regarding the photo array (People's Exhibit #2). This Court finds that the different incident numbers on the photo array, the photo array affidavit, and other police documents are not significant factors regarding Mayo's photographic identification of the defendant.
On July 21, 2010 at approximately 6:00 p.m., Det. Haggerty and Det. Cornell observed the defendant in the area of 118 Second Avenue in the City of Albany. Det. Haggerty turned his car around, came back to that area, and stopped his vehicle. Det. Haggerty then approached the defendant and asked him his name. The defendant identified himself, and he was asked to step away from other individuals in that area. Det. Haggerty asked the defendant to come to the police station to speak to the police. Initially, the defendant agreed but then asked to go and get a shirt. When Det. Haggerty told the defendant that would not be necessary, the defendant ran. The detectives gave chase and called out for additional units.
The defendant was apprehended at gunpoint in the backyard of 118 Second Avenue. The defendant was directed to get down on the ground - where Det. Cornell handcuffed him. Officer Regan arrived in the area, and the defendant yelled to Officer Regan: "I got something important to tell you." At first Officer Regan ignored the defendant, but then said: "Ok, what do you want to tell me?" Defendant stated that he had a gun in his front pocket. Officer Regan then rolled the defendant over and removed a ...

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