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Colvin v. Bunn

United States District Court, W.D. New York

October 31, 2017

ALLEN COLVIN, Petitioner,
v.
J. BUNN, Superintendent, Wyoming Correctional Facility, Respondent.

          DECISION AND ORDER

          HONORABLE MICHAEL A. TELESCA UNITED STATES DISTRICT JUDGE

         I. Introduction

         Pro se petitioner Allen Colvin("petitioner" or "Colvin") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the basis that he is being unconstitutionally detained in respondent's custody. Petitioner is incarcerated pursuant to a judgment entered against him in New York State Supreme Court, Monroe County (the "Trial Court"), following a jury verdict convicting him of first-degree robbery, second-degree robbery, and second-degree criminal possession of a weapon. On April 3, 2009, petitioner was sentenced, as a second violent felony offender, to an aggregate prison term of 12 years, with five years of post-release supervision.

         In the petition, petitioner asserts that his detention is unconstitutional because (1) the prosecution failed to disclose favorable evidence, (2) he was denied the effective assistance of trial counsel, (3) newly discovered evidence demonstrates that he is actually innocent of the crime for which he was convicted, and (4) the prosecution engaged in misconduct. For the reasons discussed below, the Court finds that petitioner has not shown he is entitled to relief.

         II. Background

         A. The Underlying Robbery

         On September 27, 2007, Brandon Taylor ("Taylor"), having just left his girlfriend's apartment, was waiting for a bus inside the bus stop shelter located at 2052 East Main Street in Rochester. Before the Trial Court, Taylor testified that he was standing alone in the bus stop shelter when a tan Saturn sedan drove slowly past him and turner right onto Kansas Street. Taylor observed four men in the Saturn - a Caucasian driver and three African-American passengers - all of whom looked at him as they drove past.

         Two minutes later, petitioner and Jerrod Dozier ("Dozier") walked rapidly toward Taylor from Kansas Street. Petitioner and Dozier asked Taylor what time the bus was coming and sat down behind him. Dozier then pointed a black handgun in Taylor's fast and repeatedly told him to get down on the ground. Taylor testified that he laid down on his stomach, at which point Dozier told petitioner to take Taylor's necklace, a gold chain with a pendant depicting Jesus' head. Petitioner removed the necklace from Taylor's neck and, at Dozier's direction, searched Taylor's pockets, removing a black Nautica wallet, a one-day bus pass, and Taylor's keys. Petitioner kept the wallet but threw the one-day bus pass and the keys on the ground. Taylor further testified that petitioner and Dozier then ran down Kansas Street. Taylor picked up his keys and the one-day bus pass, ran back to his girlfriend's house to drop of his backpack, and then ran down Kansas Street in an attempt to locate petitioner and Dozier. After he was unable to find petitioner and Dozier, Taylor spoke to the police.

         Rochester Police Department ("RPD") Patrol Sergeant Daryl Gaston ("Sergeant Gaston") testified that he heard the robbery reported over the police radio. Sergeant Gaston subsequently observed the tan Saturn at a convenience store on Culver Road. He saw petitioner and two other men exit the store and enter the Saturn. Sergeant Gaston followed the Saturn as it left the convenience store, and then pulled it over. Sergeant Gaston testified that as he sat in his patrol car waiting for backup, he observed Dozier turning around to look at him in a manner that seemed suspicious. Sergeant Gaston subsequently approached the Saturn and took petitioner and Dozier into custody.

         RPD Office Carlos Alvarado ("Officer Alvarado") arrived at the scene around this time. Officer Alvarado put Dozier in the back seat of his patrol car, then assisted Sergeant Gaston in taking the other two individuals in the Saturn into custody. Officer Alvarado observed a half-full bottle of beer on the floor in the back seat of the car. Sergeant Gaston returned to the car to recover the bottle, whereupon he observed the grip of a gun sticking out from under a black hooded sweatshirt in the back seat. Sergeant Gaston and Officer Alvarado recovered a loaded, operable Llama semiautomatic .380 caliber pistol from under the sweatshirt. Officer Alvarado further testified that, as he sat in the driver's seat of his patrol car, he noticed Dozier fidgeting in the back seat, and subsequently witnessed Dozier attempting to put Taylor's necklace into his pocket.

         Officer Alvarado and Sergeant Gaston brought petitioner and Dozier back to the bus stop, where Taylor identified Dozier as the individual who had pointed a gun at him and identified the necklace Officer Alvardo had recovered from Dozier as his.

         B. Petitioner's Interview by the RPD

         Petitioner was subsequently interviewed by RPD Investigator Michael Houlihan ("Investigator Houlihan") and RPD Investigator Brian Tucker ("Investigator Tucker"). Prior to this interview, petitioner had been given Miranda warnings and had agreed to speak to the police without counsel present. Petitioner stated that he had been present when Dozier, who was his girlfriend's brother, robbed a man at the bus stop, but denied participating in the robbery. The police recovered a red October 2007 bus pass from petitioner, which Taylor subsequently confirmed had been in his wallet when it was stolen. Petitioner claimed that Dozier had given him the red October 2007 bus pass.

         Investigator Tucker also interviewed Dozier. Dozier initially denied participating in the robbery and claimed to have purchased Taylor's necklace from someone on the street. However, after the police showed him petitioner's statement (as well as a fabricated statement allegedly from the Saturn's driver), Dozier changed his story. He claimed that the driver, Lane Thatcher ("Thatcher") had noticed Taylor's gold necklace when they drove past him and suggested that they rob Taylor. Dozier further claimed that he had watched petitioner commit the robbery, and that the gun used in the robbery belonged to Thatcher.

         The police impounded the Saturn and ultimately executed two search warrants on it. During these searches, the police found Taylor's black Nautica wallet in the front-seat center console and Taylor's learner's permit in the pocket of a black coat found on the floor of the back seat.

         C. Indictment, Suppression Hearing, and Trial

         On December 21, 2007, a Monroe County grand jury indicted petitioner and Dozier for having allegedly acted in concert to commit first-degree robbery, second-degree robbery, and second-degree criminal possession of a weapon.

         Prior to trial, petitioner moved to suppress his statements to law enforcement and the tangible evidence seized from him. The Trial Court (Valentino, J.) conducted a suppression hearing on May 12, 2008. Investigator Houlihan testified at the suppression hearing. During defense counsel's cross-examination of Investigator Houlihan, he testified that he had asked petitioner, who had recently moved to Rochester from Utica, whether he knew anything about a police shooting that had occurred in Utica. Investigator Houlihan further testified that petitioner had told him he did not know anything about that shooting. Defense counsel then asked Investigator Houlihan whether he had told petitioner that he wanted cooperation from him in helping solve the Utica shooting, and the prosecution objected on the grounds of relevancy. Defense counsel argued that the question was relevant because the questioning about the Utica shooting had occurred prior to petitioner receiving his Miranda warnings and making a statement to the police. The Trial Court sustained the objection.

         The Trial Court ultimately denied the suppression motion. The Trial Court ruled that Sergeant Gaston had acted appropriately, based on his reasonable suspicion that petitioner and Gaston had committed a robbery. The Trial Court further found that the police were justified in handcuffing and frisking petitioner and Dozier because they had reason to believe a weapon had been used in that robbery, that the police had probable cause to arrest the four occupants of the Saturn upon seeing a handgun in plain view, and that the identification procedure by which Taylor identified Dozier was not unduly suggestive. The Trial Court also held that petitioner and Dozier had knowingly and intentionally waived their Miranda rights and that their statements to the police investigators were voluntary.

         On June 18, 2008, Dozier pleaded guilty to first-degree robbery. During his plea allocution, Dozier stated that he and petitioner had committed the robbery and that he had pointed a gun at Taylor while petitioner stole Taylor's necklace and wallet. Dozier was sentenced to five years in prison on July 3, 2008.

         Petitioner's trial commenced on February 3, 2009. After the People rested, petitioner, through his counsel, sought to introduce into evidence an unsigned, undated note purportedly written by Dozier. The note stated:

I committed this crime not you so stop frontin b*tch n*gga I coped out to first degree robbery and took the minimum which is five years flat so stop frontin tellin n*ggas I taking the stand on you you b*tch a** n*gga you think if I was taking the stand on you I would still be taking 5 dumb a**! You f*ckin stupid for not taking 5 ...

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