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Green v. Keyser

United States District Court, S.D. New York

November 1, 2017

BARRY A. GREEN, Petitioner,
v.
WILLIAM F. KEYSER, Respondent.

          OPINION

          Thomas P. Griesa U.S. District Judge

         Before this court is a petition for habeas corpus pursuant to 28 U.S.C. § 2254 (2012). Petitioner Barry A. Green, an inmate at the Woodbourne Correctional Facility, files this petition pro se seeking habeas relief for his conviction of first-degree promoting prison contraband. ECF No. 1.

         Petitioner was convicted, after a jury trial in Sullivan County Court, of first-degree promoting prison contraband on February 4, 2011. ECF No. 1, at 20. On February 23, 2012, the County Court found that, because the above-mentioned conviction was Petitioner's second felony conviction, he would serve a three-to-six year prison term running consecutively with the 15-year-to-life sentence that he was already serving for a prior second-degree murder conviction. ECF No. 12, at 7. The County Court denied Petitioner's motion to set aside the jury verdict pursuant to New York Criminal Procedure Law § 330.30 (McKinney 2017), and the Appellate Division affirmed Petitioner's conviction upon direct appeal. People v. Green, 984 N.Y.S.2d 680 (N.Y. A.D.3d Dep't 2014); see also ECF No. 12, at 7-8. The New York Court of Appeals denied Petitioner's application for leave to appeal on August 25, 2014. People v. Green, 18 N.E.3d 1142 (N.Y. 2014).

         Petitioner filed the instant petition for habeas relief on February 6, 2015. ECF No. 1. In his petition, he claims that (1) he was deprived of his right to testify before the grand jury; (2) the verdict was not supported by legally sufficient evidence; (3) the County Court's jury instructions were improper; and (4) he had ineffective assistance of trial counsel. ECF No. 1; ECF No. 12, at 10-11. Upon consideration of each claim, the court denies the requested relief in its entirety.

         BACKGROUND

         I. Facts Giving Rise to Petitioner's Conviction

         The facts of the case, as recounted by the prosecution as well as the Appellate Division's decision affirming Petitioner's conviction, are as follows.

         On September 9, 2009, Petitioner, an inmate at Woodbourne Correctional Facility in Sullivan County ("Woodbourne") serving his sentence for second-degree murder, was found using a cell phone inside his prison cell. ECF No. 12, at 3; People v. Green, 984 N.Y.S.2d 680, 681 (N.Y. A.D.3d Dep't 2014). A corrections officer named Randy Hendrickson was making his daily rounds that day when he noticed that there was a towel covering Petitioner's cell window. ECF No. 12, at 4. When he stopped in front of Petitioner's cell, he could hear Petitioner talking to somebody in a formal manner. ECF No. 12, at 4. After Hendrickson checked the adjoining cells and found the cells empty, he notified his supervisor, Sergeant Tammy Chaboty. ECF No. 12, at 4.

         Upon being notified, Chaboty entered Petitioner's cell with several other corrections officers. ECF No. 12, at 4. They conducted a thorough search of the cell. ECF No. 12, at 4. Officer James Duesler found a cell phone charger in Petitioner's bed. ECF No. 12, at 5. Inside Petitioner's shoe he also found a piece of paper with phone numbers and a password written on it. ECF No. 12, at 5.

         While Petitioner's cell was being searched, Chaboty stayed with Petitioner in a separate room. ECF No. 12, at 5. Chaboty asked Petitioner if he had any contraband on him, and Petitioner denied having any. ECF No. 12, at 5. After discovering the charger and the piece of paper, Duesler took Petitioner to a private area to perform a "strip frisk"-a procedure involving Petitioner removing his clothing so that the officers could search his body for hidden items. ECF No. 12, at 4. Upon removing his underwear, Petitioner "pulled out a Motorola cell phone from his buttocks" and gave it to the officer. ECF No. 12, at 5; see also Green, 984 N.Y.S.2d at 681. The officer gave the phone to Chaboty who then inputted the passcode to unlock the phone. ECF No. 12, at 5.

         Because cell phones are strictly prohibited inside Woodbourne, after the officers uncovered the cell phone, on October 1, 2009, Petitioner met with Andres Roman-an investigator with the New York State Department of Corrections Inspector General's Office-for an interview. ECF No. 12, at 3, 5. Roman read Petitioner his Miranda rights, and Petitioner waived them to verbally answer questions. ECF No. 12, at 5. He told Roman that he had purchased the cell phone for $500 so he could speak to his wife, with whom he was having marital troubles. ECF No. 12, at 5-6. He did not want anyone at Woodbourne monitoring or recording his calls. ECF No. 12, at 6.

         II. State Court Proceedings

         A. Trial

         Petitioner was indicted and charged with one count of first-degree promotion of prison contraband. Green, 984 N.Y.S.2d at 681. During the trial, James Walsh, the supervising superintendent for Woodbourne and six other correctional facilities, testified regarding procedures for inmate phone calls at Woodbourne. ECF No. 12, at 6-7; Green, 984 N.Y.S.2d at 683-84.

         Walsh testified about the strict no cell phone policy, and how the policy is in place to ensure that inmates would not bypass Woodbourne's call monitoring and recording system. ECF No. 12, at 6. Under Woodbourne's monitoring system, inmates are required to list the names and phone numbers of the people they wish to call. ECF No. 12, at 6. Inmates are limited to a list of 15 people and can only call those on the list between 7:00am and 11:00pm. ECF No. 12, at 6. Walsh testified that the "ability to bypass the monitoring system by using a cell phone poses an even greater risk of inmates conducting criminal activities or developing escape plans." ECF No. 12, at 6. He also testified that cell phone privileges are occasionally offered as a reward for good behavior. ECF No. 12, at 7. Walsh then stated that Petitioner at no time had authorization to purchase or use a cell phone. ECF No. 12, at 7. Petitioner did not call any witnesses to the stand. ECF No. 12, at 7, The jury convicted Petitioner on February 3, 2011, and after several adjournments, Petitioner was sentenced to a secondary prison term of three to six years, to be served consecutively with the sentence he was serving for his second-degree murder conviction. ECF No. 12, at 7; Green, 984 N.Y.S.2d at 682. Before he was sentenced, Petitioner moved pursuant to New York Criminal Procedure Law § 330.30 (McKinney 2017) to set aside the jury's verdict. ECF No. 12, at 7. In his motion, he claimed that the evidence was not legally sufficient to sustain the verdict. ECF No. 12, at 7. The County Court denied the motion. ECF No. 12, at 7.

         B. Appeal

         Petitioner appealed his conviction to the Appellate Division, claiming that (1) his conviction was not supported by legally sufficient evidence; (2) he was deprived of a fair trial because of improper jury instructions; and (3) he was denied his right under state and federal law to testify before the grand jury. ECF No. 12, at 8. Additionally, Petitioner, filing pro se, argued three claims: (1) he was denied the right to testify before the grand jury; (2) his indictment was illegal; and (3) he had ineffective assistance of counsel. ECF No, 12, at 8.

         On May 8, 2014, the Appellate Division affirmed Petitioner's conviction. Green, 984 N.Y.S.2d at 680. With respect to the legal sufficiency claim, in which Petitioner claimed that the prosecution failed to establish the phone was "dangerous contraband, " the Appellate Division found that the cell phone did constitute "dangerous contraband" because it was "capable of such use as may endanger the safety or security of a detention facility or any person therein." Id. at 682. The Appellate Division found that "the item in question need not be inherently dangerous in order to qualify as dangerous contraband" and that "[b]ased upon [its] review of the record as a whole-particularly the detailed and specific testimony offered by the supervising superintendent-[the court was] satisfied that the [prosecution] met their burden of establishing that the cell phone seized from [Petitioner] constituted dangerous contraband." Id. at 682-84.

         Secondly, regarding Petitioner's claim that the County Court's jury instructions were erroneous, the Appellate Division found that the claim was not preserved for appellate review because Petitioner failed to object to the jury-instructions during trial. Id. at 685 ("[Petitioner's] assertions that County Court improperly instructed the jury as to the definition of dangerous contraband in the first instance and thereafter failed to meaningfully respond to the jury's requests for further instruction also are unpreserved for our review, as the record reveals that defendant raised no objections thereto."). The Appellate Division found that even if it was preserved, the claim had no merit because the instructions "in large measure" followed the Model Jury Charge for the charge of promoting prison contraband. Id. The Appellate Division also held that Petitioner's claim that he was denied his statutory right to appear and testify before the grand jury was procedurally barred and waived because he "failed to move to dismiss the indictment upon this ground within five days of his arraignment thereon." Id.

         Lastly, the Appellate Division denied Petitioner's ineffective assistance of counsel claim, stating that the claims were either based on "matters outside of the record" or that they were meritiess. Id. at 686. The court found that counsel "filed an omnibus motion, presented a cogent trial strategy, effectively cross-examined the [prosecution's] witnesses, made relevant objections and articulated coherent opening and closing statements, " and that this was "meaningful representation." Id., After the Appellate Division issued its Opinion, Petitioner, through counsel, filed an application for leave to appeal to the New York Court of Appeals on the sufficiency of evidence claim. ECF No. 12, at 10; ECF No. 13, Ex. 8, at 87. Petitioner additionally filed a pro se letter requesting leave to appeal the pro se claims: that he was denied the right to testify before the grand jury; his indictment was illegal; and he had ineffective assistance of counsel. ECF No. 12, at 10; ECF No. 13, Ex. 8, at 88. On August 25, 2014, the Court of Appeals denied leave to appeal with respect to all claims. People v. Green, 18 N.E.3d 1142 (N.Y. 2014).

         III. 28 U.S.C. § 2254 Petition

         Petitioner filed the instant petition for habeas corpus pursuant to 28 U.S.C. § 2254 on February 6, 2015. ECF No. 1. In his petition, he claims that (1) he was deprived of his right to testify before the grand jury; (2) the verdict was not supported by legally sufficient evidence; (3) the County Court's jury-instructions were improper; and (4) he had ineffective assistance of trial counsel. ECF No. 1; ECF No. 12, at 10-11.

         The petition was originally assigned to Judge Loretta A. Preska, was later reassigned to Judge Vincent L. Briccetti, and was again reassigned to the undersigned Judge on September 26, 2017. This court now considers and evaluates the above-mentioned claims.

         LEGAL ...


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