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Tucker v. Yelich

United States District Court, E.D. New York

August 24, 2017

Cordell Tucker, Petitioner,
v.
Bruce Yelich, Superintendent, Barehill Correctional Facility, Respondent.

          MEMORANDUM AND ORDER

          JOSEPH F. BIANCO UNITED STATES DISTRICT JUDGE.

         Cordell Tucker (hereinafter "petitioner") petitions this Court for a writ of habeas corpus, pursuant to 28 U.S.C § 2254, challenging his conviction in state court. (Pet, ECF No. 1.)

         On May 24, 2014, petitioner was convicted of manslaughter in the second degree (N.Y. Penal Law ("Penal Law") § 125.15(1)); grand larceny in the third degree (Penal Law § 155.35); assault in the second degree (Penal Law § 120.05(4)); unlawful fleeing a police officer (Penal Law § 270.35); criminal possession of stolen property in the third degree (Penal Law § 160.50); and aggravated unlicensed operation of a motor vehicle (N.Y. Vehicle & Traffic Law ("VTL") § 511.1). (Pet. 1.) On June 27, 2013, petitioner was sentenced to the following indeterminate terms of imprisonment: 5 to 15 years for the manslaughter conviction, 2 and one-third to 7 years for the unlawful fleeing conviction, 2 and one-third to 7 years for the grand larceny charge, and 2 and one-third to 7 years for the criminal possession charge; as well as the following determinate terms of imprisonment: 7 and one-half years followed by three years of post-release supervision for the assault conviction, and 30 days for the unlicensed operation conviction. (Answer, ECF No. 12, ¶ 49; Sent'g Tr., ECF No. 12-56, at 18-20.) The sentencing court ordered that the manslaughter sentence be served consecutively to the remainder of his sentence. (Sent'g Tr. 20.)

         In the instant habeas petition, petitioner challenges his conviction on the following grounds: (1) petitioner's Fourteenth Amendment rights were violated under Batson v. Kentucky, 479 U.S. 79 (1986); (2) the verdict was against the weight of the evidence; (3) the sentence imposed was cruel and unusual in violation of the Eighth Amendment; (4) petitioner's Sixth Amendment rights were violated because he was not present when his sentence was amended; (5) the police violated their own procedure in the course of the events at issue; and (6) ineffective assistance of counsel. (See Pet. 5-11.) For the reasons discussed below, petitioner's request for a writ of habeas corpus is denied in its entirety.

         I. Background

         A. Factual Background

         The following facts are adduced from the instant petition and underlying record.

         1. The Underlying Crimes

         At just past 11:00 a.m. on June 27, 2011, two black men dressed in red entered the True Religion Clothing Company at the Tanger Outlets in Riverhead, New York. (Tr. 3[1] at 29-30.) Sales associate Shannon Holm ("Holm") asked one of the men if they needed help, and they both declined. (Mat 30.) The men left the store, informing her that they would return. (Id.) Later, the men returned with a black woman. (Id. at 31.) Holm again asked one of the men if they needed help. (Id.) The man, who was later identified to be petitioner, declined. (Id.) Holm noticed that he was sweating profusely. (Id.) Afterwards, Holm heard the store alarm sound. She saw the two men and woman pick up merchandise from the tables and run out of the store. (Id.) The merchandise was valued at over $5, 000. (Id. at 44.)

         Holm ran out of the store after the group. (Id. at 31.) She asked passing shoppers if they had seen people carrying jeans. (Id. at 32.) Some pointed to a black Lincoln Town Car driving erratically out of the parking lot. (Id.) Holm read the license plate and noted that petitioner was driving the car. (Id. at 32.) She returned to the store and described the car and the individuals to her manager. (Id. at 32-33.)

         At approximately 1:00 p.m. that day, Suffolk County Deputy Sheriff John Rung ("Deputy Sheriff Rung") was alone in a marked sheriffs unit located at the center median of the Long Island Expressway east of exit 67. (Id. at 54.) He received a radio notification about the black Lincoln Town Car with New Jersey license plates. (Id.) The notification stated that the vehicle's occupants, two black men wearing red clothing, were wanted for a Riverhead larceny. (Id. at 54-55.) Soon after, Deputy Sheriff Rung saw a black Lincoln Town Car with New Jersey plates being operated by a driver fitting the description issued in the notification. (Id. at 55.) He also saw a black woman in the front passenger seat and a black man in the back seat. (Id.) He pulled out from the median and followed the Town Car. (Id.) Deputy Sheriff Rung notified dispatch that he was following the vehicle, and he noticed that the license plate did not match the number stated in the notification. (Id.) He conducted a registration check on the plate. (Id.) Dispatch notified him that the plate came back "no hit, " meaning it was either an old plate that had not been registered to a car for years, or was fake. (Id. at 56.)

         Deputy Sheriff Rung pulled the vehicle over near exit 64. (Id. at 57-58) A K9 unit pulled up behind Deputy Sheriff Rung's vehicle. (Id. at 58.) Deputy Sheriff Rung exited his car and approached the vehicle. (Id.) Deputy Sheriff Greg Negra ("Deputy Sheriff Negra"), who operated the K9 unit, accompanied him. (Id.) As they approached the vehicle, petitioner placed it into drive and sped away. (Id. at 58-59.) The officers returned to their respective vehicles and followed the vehicle off exit 64 and onto a service road. (Id. at 59.) Petitioner drove all over the roadway, reaching 60 miles per hour very quickly. (Id.) Petitioner approached Route 112, which runs north and south, and made a right turn without stopping, heading north. (Id. at 59-61.) He drove over a median, causing debris and pieces of his vehicle to fly. (Mat 61-62.) Petitioner drove south on Route 112, running a red light and driving in the northbound lane. (Id. at 62; Tr. 4[2] at 56; Tr. 5[3] at 100.) Deputy Sheriff Rung followed in the northbound shoulder of Route 112. (Tr. 3 at 62-63.) Other vehicles were traveling north in the northbound lane. (Id. at 65; Tr. 4 at 56.) The road was congested, and petitioner was driving aberrantly and fast. (Tr. 4 at 67, 82.) Petitioner's speed reached 55 miles per hour in a 40 miles per hour zone. (Tr. 5 at 100.) He also drove onto the sidewalk. (Id. at 99.)

         When petitioner drove onto the sidewalk, Deputy Sheriff Rung notified dispatch that he and Deputy Sheriff Negra were backing off, which he thought might lead petitioner to slow down. (Tr. 3 at 66-67.) Deputy Sheriff Rung returned to the southbound lane, where he drove behind Deputy Sheriff Negra. (Id. at 67.) At this time, they were a "couple of hundred feet" behind petitioner's vehicle. (Tr. 4 at 105.)

         Petitioner subsequently turned into a Walgreen's parking lot. (Tr. 3 at 70-71.) At that time, Maureen Fiametta was leaving Walgreen's and heard a loud bang. (Tr. 6[4] at 60.) She looked to her left and saw a black vehicle coming into the parking lot toward her. (Id.) She started running forward, and the vehicle was speeding directly toward her. (Id. at 61.) The vehicle came extremely close to her. (Id. at 62.)

         Petitioner then exited the parking lot and drove at almost twice the posted 30 miles per hour speed limit. (Tr. 5 at 102-03.) Petitioner ignored a stop sign and subsequently made a turn at an intersection despite a red light and a "no turn on red" sign. (Id. at 104-05.) Petitioner drove through another red light. (Id. at 105-06.) Petitioner accelerated to a high rate of speed and merged onto Sunrise Highway. (Id. at 106.) He sped past other vehicles, sometimes driving on the shoulder and/or in close proximity to other vehicles. (Id. at 106-07.) Deputy Sheriff Negra estimated that petitioner was driving over 100 miles per hour. (Id. at 108.) Another police vehicle began following petitioner with its emergency lights activated. (Id.) Petitioner repeatedly attempted to evade the third police vehicle. (Id. at 108-09.)

         Petitioner then took a service road. (Tr. 4 at 121.) When he approached an intersection at Lincoln Avenue, he collided with a Subaru. (Tr. 6 at 101-03.) The Subaru was propelled 10 feet into the air. (Id. at 78.) It spun around and stopped on the west side of Lincoln Avenue. (Id. at 103.) The airbags deployed. (Tr. 7[5] at 24.) When the car stopped, Alan Sacher ("A. Sacher"), the driver of the Subaru, realized his left knee was "split open" and saw that his wife, Gail Sacher ("G. Sacher"), who was seated in the front passenger seat, was unconscious and barely breathing. (Id.) He yelled for help and yelled at his wife to wake up. (Id. at 20-25.) She did not respond. (Id.)

         Deputies surrounded the Town Car. (Tr. 6 at 105.) The man in the back seat, Rashawn Smith, was trying to climb out of the vehicle. (Tr. 5 at 16.) Deputy Sheriff Negra took him out of the car and handcuffed him. (Id.) Another officer handcuffed petitioner. (Id. at 17.) A search of the vehicle revealed three bags of clothing, which were revealed to be from the True Religion Outlet Store and various other stores. (Id. at 19, 37-38; Tr. 6 at 81, 84; Tr. 7 at 17.) Another officer handcuffed Essence Smith, the woman seated in the front passenger seat of the vehicle. (Tr. 5 at 18.) All were placed under arrest. (Id.)

         Both A. and G. Sacher were taken by emergency responders. (Tr. 7 at 42.) G. Sacher died of blunt impact injuries to her torso. (Id.) A. Sacher suffered broken wings of his vertebrae and a broken sternum with a hematoma behind it. (Id. at 27.) He later developed blood clots heading toward his lungs, which required surgery and invasive treatments, and he also later developed fluid around his heart caused by trauma from the crash. (Id. at 28-29.)

         Later, petitioner insisted he was not thinking and was not in the right state of mind during the pursuit. (Tr. 8[6] at 77.) He said that he was only acting to get away because he was scared, and he thought the police would harm him. (Id. at 76, 79-80, 97.) He also said he was not aware of the danger he was creating. (Id. at 77.) In addition, petitioner stated that he did not know how fast he was going. (Id. at 79.)

         2. The Dismissal of Potential Jurors Deborah Morton and Raul Williams

         On May 13, 2013, jury selection in petitioner's trial commenced. (Jury Tr. I[7] at 1.) During voir dire, prospective juror Deborah Morton ("Morton") stated that she was the mother of two adult children and was a longtime resident of Babylon, she was unemployed and babysat in her spare time, and she previously ran an after-school program and worked for a non-profit organization. (Id. at 44, 81-82.) The People asked the panel of prospective jurors if anyone had positive or negative feelings toward the police. (Id. at 92.) In response, Morton said that she did "from time to time feel that they should not be above the law as the rest of us." (Id.) The trial court asked if she could take each person as an individual and not "give them more credibility or less credibility because they're police officers ..." (Id. at 93.) Morton replied, "Absolutely yes, yes." (Id.) The People subsequently used a peremptory challenge to excuse Morton. (Id. at 115.)

         Defense counsel made aBatson challenge in response, noting that Morton was the only African American in the panel. (Id.) The trial court stated that, in light of case law indicating that the striking of even one African-American potential juror could be a pattern, it would allow the challenge. (Id.) The People responded that Morton's statement that the police should not be above the law indicated that Morton had some animosity toward the police, which formed the basis of the use of the peremptory challenge to strike her. (Id. at 115-16.) The trial court accepted this as a nondiscriminatory reason. (Id. at 116.) Defense counsel argued that Morton had made clear that she would be impartial to police witnesses. (Id.) However, the trial court accepted the People's reason as a nondiscriminatory reason to challenge Morton. (Id.)[8]

         Jury selection continued on May 14, 2013. (Jury Tr. 2[9] at 1.) The People attempted to exercise a for-cause challenge as to Raul Williams ("Williams") on the ground that he did not give a satisfactory answer as to whether his brother-in-law's drug conviction would influence his decisionmaking in petitioner's trial. (Id. at 73-74.) The trial court denied the request because Williams had stated unequivocally that he could be fair, his brother-in-law's conviction was for out-of-state conduct, and that, even though he felt the particular police officers involved in that conduct did not do the right thing, he could judge police officers fairly. (Id. at 74.) The People subsequently exercised a peremptory challenge as to Williams. (Id. at 80.) Defense counsel did not object to the challenge. (Id.)

         3. Procedural History

         Following petitioner's May 24, 2014 conviction and June 27, 2013 sentencing, petitioner appealed his conviction to the New York Appellate Division, Second Department, on the following grounds: (1) his Fourteenth Amendment rights were violated by the exclusion of a juror of the same race during voir dire; (2) the verdict was against the weight of the evidence; (3) his sentence was harsh and excessive; and (4) the sentencing court amended his sentence in his absence. (Pet. 2.) His conviction was affirmed. (Answer ¶ 51.) Petitioner requested leave to appeal to the New York State Court of Appeals, but the request was denied on November 4, 2015. (Id.; see also People v. Tucker, 26 N.Y.3d 1043 (2015).)

         4. The Instant Petition

         On August 29, 2016, petitioner filed a petition for writ of habeas corpus in this Court. On November 23, 2016, respondent opposed the writ. (Resp'tBr. Opp'n("Opp'n Br."), ECF No. 12-1.) On January 23, 2017, petitioner filed a reply affidavit in support of his petition. (Pet'r Reply Br. Supp., ECF No. 15.) The Court has fully considered the parties' submissions.

         II. Standard of Review

         To determine whether a petitioner is entitled to a writ of habeas corpus, a federal court must apply the standard of review set forth in 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act ("AEDPA"), which provides, in relevant part:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -
(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 in the State court proceeding.

28 U.S.C. § 2554. "Clearly established Federal law" is comprised of "the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Green v. Travis, 414 F.3d 288, 296 (2d Cir. 2005) (quoting Williams v. Taylor, 529 U.S. 362, 412 (2000)).

         A decision is "contrary to" clearly established federal law, as determined by the Supreme Court, "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams, 529 U.S. at 413. A decision is an "unreasonable application" of clearly established federal law if a state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case." Id. AEDPA establishes a deferential standard of review: "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Gilchrist v. O 'Keefe,260 F.3d 87, 93 (2d Cir. 2001) (quoting Williams, 529 U.S. at 411). The Second Circuit added that, while "[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Id. (quoting Francis S v. Stone,221 F.3d 100, 111 (2d Cir. 2000)). Finally, "if the ...


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