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Davidson v. Superintendent Cunningham

United States District Court, E.D. New York

August 29, 2017

Richard Davidson, Petitioner,
Superintendent Cunningham, Respondent.


          Joseph F. Bianco, United States District Judge

         On March 7, 2016, Richard Davidson (“petitioner” or “Davidson”) petitioned this Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his conviction in New York State Supreme Court (the “trial court”) on eight grounds. Following a jury trial, petitioner was convicted of the lesser included offense of second-degree assault (New York Penal Law (“NYPL”) § 120.05[2]), two counts of second-degree criminal possession of a weapon (NYPL § 265.03[1][b] and [3]), and attempted third degree assault (NYPL §§ 110/120.00(1)). (Resp. Aff., ECF No. 7, at ¶ 8; see also T.[1]1402-03.) On July 2, 2013, the trial court: (1) set aside the second-degree assault conviction pursuant to New York Criminal Procedure Law (“CPL”) § 330.30; (2) sentenced petitioner to concurrent terms of seven and one-half years and two and one-half years of post-release supervision for the two weapon-possession convictions; and (3) sentenced petitioner to time served for his attempted assault conviction. (S.[2] at 6, 23.) Subsequently, the Supreme Court, Appellate Division, Second Department (“Appellate Division”) reversed the trial court's decision to set aside the second-degree assault verdict and remanded the case to the trial court for resentencing, People v. Davidson, 122 A.D.3d 937, 938 (N.Y.App.Div. 2014), which resulted in a determinate term of four years of imprisonment and two years of post-release supervision served concurrently with his other sentences. (Resp. Aff. ¶ 10).

         Petitioner challenges his conviction on the following eight grounds: (1) the trial court erred in denying a mistrial following the question by the prosecutor to a defense witness that suggested that petitioner purchased a silver handgun in Georgia; (2) the prosecutor committed misconduct during summation in referencing petitioner's post-arrest silence; (3) the trial court erred in permitting the prosecutor's peremptory challenges to remove African-Americans from the jury panel in violation of Batson v. Kentucky, 476 U.S. 79 (1986); (4) the trial court improperly allowed the People's ballistics expert to testify with a “reasonable degree of certainty” that the recovered shell casings were fired from the same source; (5) the trial court issued an impermissible circumstantial-evidence charge to the jury; (6) the Appellate Division erroneously reversed the trial court's order to set aside petitioner's second-degree assault conviction, (Pet., ECF No. 1, at 6-12); (7) the indictment was defective because it was based on legally insufficient evidence; and (8) petitioner was denied effective assistance of counsel because counsel failed to move to dismiss certain counts of the indictment, to object to alleged trial-related prosecutorial misconduct, and to effectively question a defense witness. (Aff. Supp. Petitioner's Amend. of Habear Pet. (“Pet. Amend.”), ECF 11, at 2; see also Resp. Aff. Opp'n Supp., ECF No. 13 (“Resp. Supp. Aff.”), at ¶ 10.) For the reasons discussed below, the petition is denied in its entirety.

         I. Background

         The following facts are adduced from the petition, respondent's affidavit and memorandum in opposition, petitioner's reply, petitioner's supplemental affidavit in support of his amendment to the petition, respondent's affidavit and memorandum in opposition to supplemental papers, and the underlying record.

         A. Factual Background

         1. Underlying Crime

         On September 23, 2010, petitioner punched Tony Hinds at Hinds's workplace, accused Hinds of having an affair with petitioner's wife, and verbally threatened Hinds. (T. 671-72.) Approximately two months later, on November 21, 2010, petitioner again appeared outside Hinds's workplace. (Id. at 702, 754, 819-826.) He approached Hinds, pulled a handgun from his pocket, and began shooting. (Id. at 702-03, 824-27.) Multiple bullets struck Hinds in the back of his legs as he ran into the building. (Id. at 702-03, 708, 734, 748-53.) Petitioner pursued Hinds and shot him again at close range. (Id. at 703, 824-27.) Petitioner then fled. (Id. 703-04, 828.) Hinds sustained multiple gunshot wounds in his back, shoulder, and legs. (Id. at 1103-05.) Although he was bleeding heavily when paramedics arrived, doctors diagnosed only soft-tissue injuries that could be treated by cleaning and dressing at the hospital. (Id. at 568-71, 1114.)

         2. Jury Selection

         During jury selection, the People exercised peremptory challenges on eight African-American jurors, and petitioner raised Batson objections. (Id. at 400-05.) First, the People challenged Verace Skeete (id. at 201), who had a pending charge with the Nassau County District Attorney's Office (id. at 79- 80). The defense argued the prosecution violated Batson because four white individuals who “had close relatives presently or in the past prosecuted by this office” were not challenged. (Id. at 402-03.) The People argued Skeete's challenge was used because the Nassau County DA's Office was “currently prosecuting him.”[3] (Id. at 414.)

         Second, the People challenged Kimesha McPherson (id. at 282), whose fiancé was convicted of a felony by the Assistant District Attorney handling the voir dire (id. at 225-26). McPherson also stated that she did not believe the court system, the ADA, or the Nassau County DA's office treated her fiancé fairly. (Id. at 227-28.) Defense counsel argued the People violated Batson because they did not challenge four white individuals whose relatives either had been, or were in the process of being, prosecuted by the office. (Id. at 402-03.) The People claimed they challenged McPherson “because her fiancé was prosecuted only a year ago” by the same ADA working on the instant case and “she did not volunteer that information.” (Id. at 415-16.)

         Third, the People challenged Noe Arastil (id. at 281), a teacher and a native of Haiti (id. at 275). The defense alleged a Batson violation because the People did not get anything out of him that “deem[ed] him to be challenged.” (Id. at 402.) The People reasoned the challenge was made because of potential language issues, and Arastil's body language suggested he was not “receptive to what” the prosecution was saying.[4] (Id. at 417-18.)

         Fourth, the People challenged Carlene Bailey (id. at 280), a nurse (id. at 414), whose two brothers were convicted of crimes in the city (id. at 234). Defense counsel alleged a Batson violation based on the challenge to Bailey because she stated “the prosecutor treated her brothers fairly.” (Id. at 402.) The People claimed they challenged Bailey because she was a nurse, an occupation the DA's office trains prosecutors not to look for in jury selection. (Id. at 414-15.) Similarly, the People pointed out that they challenged another individual who was not African-American “because she works within a hospital as a doctor.” (Id. at 415.) In addition, the People perceived a “level of hostility” from her body language-shrugging her arms and rolling her eyes-“inside and outside the courtroom.” (Id. at 414.)

         The People also challenged Wanda Capers (id. at 282), a police officer's wife (id. at 229-30), who worked at a full-service law firm that sometimes handles criminal matters (id. at 230). The defense alleged a Batson violation because “[Capers'] husband is a police officer” and so “[c]learly pro-prosecution.” (Id. at 402.) The People reasoned, however, that it challenged Capers because “she works for a full-service law firm that includes criminal-type work . . . despite the fact that her husband is in the NYPD.” (Id. at 418.) The People also noted that it also “got[] rid of [a] white female” because “[s]he was also a lawyer who had sat on a criminal jury . . . [who] would have some knowledge of criminal-type cases.” (Id. at 418.)

         The People challenged Nkenge Fuller (id. at 386), whose voir dire revealed that she witnessed a history of “ongoing domestic abuse” toward her mother that resulted in regular contact with police (id. at 350-51). The defense argued Fuller would be “pro-prosecution” because of her experience as “an individual who has been a victim.” (Id. at 400-01.) The People reasoned Fuller's experiences “hit[] too close to home” because “this case does deal, to a certain extent, with the way men treat women.” (Id. at 419-20.) In addition, the People asserted that Fuller's body language-“she did not make eye contact” and “[s]he sat with her arms crossed”- supported the challenge. (Id. at 420-21.)

         Next, the People challenged Pasquale Delva (id. at 387), who was unemployed (id. at 346). Defense counsel alleged a Batson violation because Delva seemed “pro-prosecution.” (Id. at 400.) The People claimed Delva was challenged because she was “an unemployed individual.” (Id. at 421.) In addition, the People noted its peremptory challenge of a white juror on the grounds of his unemployment. (Id. at 419.)

         Finally, the People challenged Diane Nelson (id. at 388), whose husband was a pastor in Brooklyn (id. at 357). Here, defense counsel argued that Nelson was “also seemingly pro-prosecution” because her husband, like the victim in petitioner's case, was “a member of the clergy.” (Id. at 401.) The People reasoned Nelson may judge the complainant too strongly as a representation of her husband because of his alleged affair with the petitioner's wife. (Id. at 421.)

         The trial court found “the explanations of the People regarding race-neutral reasons for the peremptory challenges” acceptable and denied the defendant's Batson applications with one exception. (Id. at 431.) The court accepted the defendant's Batson application as to Arastil and gave the defense an additional peremptory challenge because “all we have on that situation is short answers and [Arastil] folding his arms.”[5] (Id. at 431.)

         2. Presentation of Evidence

         At the outset of trial, during voir dire, the court charged the jurors that “statements of counsel are not evidence.” (Id. at 154.) The court repeated its instruction prior to opening statements, during trial, and during its final charge. (Id. at 498-99, 805-06, 1316.)

         The People's first witness was police officer Rita Bopp-Carroll. (Id. at 526.) Officer Carroll testified to seeing the victim, Tony Hinds, “sitting . . . on the floor . . . bleeding.” (Id. at 531.) Hinds told the officer “he had been shot.” (Id. at 532.) Second, the People called Marc Pollack, a New York State Paramedic (id. at 563), who responded to the reported shooting (id. 568). Pollack testified to seeing Officer Carroll rendering care to Hinds, who “appeared to be suffering from multiple gunshot wounds.” (Id. at 569.) The People also called Dr. Venkadesh Sasthakunar, who treated the victim at the Nassau University Medical Center. (Id. at 1100.) Dr. Sasthkunar noted that Hinds suffered “multiple gunshot wounds.” (Id. at 1104-05.)

         In addition, the People called Tony Hinds, the victim in this case, to testify. (Id. at 650.) Hinds testified that, on November 21, 2010, petitioner arrived at his place of work at 40 Lois Place, pulled out a gun, and shot him multiple times. (Id. at 702-08.) Hinds further testified that petitioner used a silver handgun in the assault. (Id. at 703.) Next, Michael Bryan, Hinds's employee, testified that he recognized petitioner as the man approaching Hinds on November 21 from an altercation in September, and to hearing gunshots shortly after seeing petitioner's hands moving. (Id. at 816, 822-25.) Later, Michael Privnow, who lives nearby, also testified that he heard approximately six or seven gunshots on November 21, 2010. (Id. at 979, 985.)

         Finally, the People called Frank Miller, a detective previously assigned to the ballistics unit with the Firearm Identification Section, as a ballistics expert. (Id. at 863-64.) During his testimony, the trial court asked Miller if he “form[ed] an opinion, with a reasonable degree of certainty” as to whether seven shell casings recovered from the scene were fired from a common weapon. (Id. at 872-73.) Miller “determined [the shell casings] were fired by one common source firearm.” (Id.)

         After calling all of its witnesses, the prosecution moved to reduce one of the first degree assault charges to the lesser included crime of assault in the second-degree. (Id. at 1146-48.) The defense did not object to the prosecution's application, and the court granted it. (Id. at 1147-48.)

         During his case-in-chief, petitioner called Filesta Mathurin as a witness. (Id. at 1185.) On cross-examination, the prosecutor asked Mathurin, “[D]id you ever see the silver handgun [petitioner] had purchased in Georgia?”[6] (Id. at 1188.) Defense counsel objected to the question and moved to strike it. (Id. at 1188-89.) The court sustained the objection and instructed the jury to disregard the remark. (Id.)

         Defense counsel also moved for a mistrial on the basis of the question (id. at 1189), which the court later denied (id. at 1233, 1236). Instead, the court allowed the defense to draft a curative instruction that it read to the jury (id. at 1236), instructing them that, “despite the implication made during the prosecution's questions of Mathurin, there has been no evidence that [petitioner] ever purchased a gun” (id. at 1244-45). During summation, the prosecutor stated “the defendant was calm” during his arrest and that he “[w]asn't yelling, ” “screaming, ” or “confused.” (Id. at 1303.) Defense counsel objected to the prosecution's description, but was overruled by the court. (Id.) At the end of the trial, the court instructed the jurors that “if two inferences can be drawn, one consistent with guilt or one consistent with lack of guilt, you must give the inference consistent with lack of guilt to the defendant.” (Id. at 1318-19.)

         3. Verdict & Sentence

         The jury found petitioner guilty of the reduced count of second-degree assault (NYPL § 120.05[2]), two counts of second-degree criminal possession of a weapon (NYPL § 265.03[1][b] and [3]), and attempted third degree assault (NYPL § NYPL § 110/120.00(1). (T. 1402-03.) Petitioner then moved to set aside the verdict pursuant to CPL § 330.30. On July 2, 2013, the trial court denied the motion to set aside in part and granted the motion in part. (ECF No. 7 at 1.) For his weapon-possession convictions, petitioner was sentenced to concurrent terms of seven and one-half years of imprisonment and two and one-half years of post-release supervision, and to time served for his attempted assault conviction. (Resp. Aff. ¶ 9.) The trial court set aside the second-degree assault conviction because the reduction from first-degree assault improperly amended the indictment and created a non-waivable jurisdictional infirmity. (Id. ¶ 9.)

         4. Direct Appeal

         On appeal, the Appellate Division reversed the trial court's order to set aside the second-degree assault, reinstated the verdict, and remanded for re-sentencing. Davidson, 122 A.D.3d at 937. The court reasoned that “the alleged amendment of the indictment was not a non-waivable defect, and the defendant was required to make a timely objection at trial to preserve . . . a claim pursuant to CPL 330.30(1).” Id. The petitioner was then sentenced to a determinate term of four years of imprisonment and two years of post-release supervision served concurrently with his other sentences. (Resp. Aff. ¶ 10.)

         Meanwhile, petitioner argued on appeal that: (1) the trial court erroneously denied defense counsel's mistrial motion based on alleged prosecutorial misconduct; (2) the People improperly used its peremptory challenges in violation of Batson; (3) the trial court erred by permitting the expert's ballistics testimony; and (4) the trial court improperly gave a “two-inference” circumstantial evidence charge to the jury. (Id. at ¶ 11.) The Appellate Division rejected the claim of pros-ecutorial misconduct and the Batson claim on the merits, and held that “[t]he defendant's remaining contentions are unpreserved for appellate review” pursuant to C.P.L. § 470.05[2]. Davidson, 122 A.D.3d at 939-40.

         Petitioner sought leave to appeal to the New York State Court of Appeals from the Appellate Division's decision to reverse and remand the trial court's order to set aside and the court's affirmance of the convictions. (Resp. Aff. ¶ 12.) In addition, petitioner indicated that he sought to raise every issue raised on appeal before the Appellate Division. (Id.). The Court of Appeals denied both leave applications. People v. Davidson, 25 N.Y.3d 950, 950 (2015).

         5. Collateral Challenge

         On September 23, 2015, petitioner filed a collateral challenge to his conviction under C.P.L. § 440.10. (Resp. Supp. Aff. ¶ 6.) Petitioner argued that the indictment was defective because the People failed to offer sufficient evidence that petitioner possessed an operable handgun as related to the second-degree criminal possession of a weapon charge. (Id.) He also raised an ineffective of counsel claim because of counsel's alleged failure to seek dismissal of the two second-degree criminal possession of a weapon and the first and third-degree assault counts in the indictment, and failure to object to the following exchange during the People's direct of Hinds:

Q. Did you see the gun come in through the door?
A. It was all dark. I didn't put the lights on. So, it was dark. So, he pushed his hand in but then I saw the smoke, I saw all the fire, all the after shock of the discharge of the gun.
Q. You testified it was a silver handgun, correct?
A. Yes.

(T. 703; Pet. Amend. 3-5.) On November 12, 2015, the Nassau County Supreme Court denied petitioner's motion, finding the claims were “not supported by the record and should have properly been raised in his appeal.” People v. Davidson, Ind. No. 2550N-2010, Mot. No. C-006, at 2 (Sup. Ct. Nassau County Nov. 9, 2015 (Quinn, J.) (citing C.P.L. § 440.10(2)(c)). Petitioner's application for leave to appeal to the Appellate Division was denied on February 5, 2016, and his initial leave to appeal to the Court of Appeals from the Appellate Division's denial was withdrawn, effective May 4, 2016. (Resp. Supp. Aff. ¶ 6.)

         B. Procedural History

         On March 7, 2016, petitioner filed the first part of his pro se petition for writ of habeas corpus raising six claims pursuant to 28 U.S.C. § 2254. (ECF No. 1.) Respondent filed its affidavit and memorandum of law in opposition to the petition on May 2, 2016. (ECF No. 7.) Petitioner then submitted a reply to respondent's memorandum of law on September 6, 2016. (ECF No. 12.)

         On July 11, 2016, this Court granted petitioner's request to amend his habeas petition by filing supplemental claims; and, on August 31, 2016, petitioner filed supplemental papers containing two additional claims in support of the instant habeas petition. (ECF No. 11.) In turn, Respondent filed an additional affidavit and memorandum of law in opposition to the supplemental papers in support of the petition on September 16, 2016 (ECF No. 13), to which petitioner submitted his reply on October 11, 2016 (ECF No. 14). 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 proceedings.

28 U.S.C. § 2554. “‘Clearly established Federal law' means ‘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 ...

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