United States District Court, N.D. New York
TASHEEM GOLDSTON Petitioner, pro se
T. SCHNEIDERMAN HANNAH S. LONG, AAG Attorney for Respondent
Office of the Attorney General
DECISION AND ORDER
K. SANNES United States District Judge
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.
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,
the reasons that follow, the petition is denied and
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.
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.
State Court Proceedings
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.
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.
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.
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.
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 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
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.
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.
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.
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
court denied Dulin's request for an adjournment to secure
Mayo's testimony pursuant to People v. Chipp, 75
N.Y.2d 327 (1990). 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.
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
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 ...