Brown v. Burnett

KILROY BROWN, Petitioner, v. EDWARD BURNETT, Superintendent, Fishkill Correctional Facility^[1], Respondent.

No. 9:19-CV-1295 (TJM)

United States District Court, N.D. New York

October 27, 2021

KILROY BROWN Petitioner pro se

HON LETITIA JAMES Attorney for Respondent New York State Attorney General

MARGARET A. CIEPRISZ, ESQ. Ass't Attorney General

DECISION AND ORDER

THOMAS J. MCAVOY SENIOR UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

Petitioner Kilroy Brown ("Petitioner") seeks federal habeas corpus relief pursuant to 28 U.S.C. § 2254. Dkt. No. 1 ("Petition"). On November 6, 2019, the Court directed Petitioner to file an affirmation explaining why the statute of limitations should not bar his petition. Dkt. No. 5. Petitioner timely filed said affirmation. Dkt. No. 6. The Court then directed Respondent to answer the petition. Dkt. No. 7.

Respondent opposed the petition, but does not contest the petition's tim eliness. Dkt. No. 15, Memorandum of Law in Opposition; Dkt. No. 16, Answer; Dkt. No. 17, State Court Records. Despite being afforded the opportunity to file a traverse, Petitioner did not respond to Respondent's brief and did not ask for an extension of time. Dkt. No. 19.

For the reasons that follow, the habeas petition is denied and dismissed.

II. RELEVANT BACKGROUND

A. Arrest and Indictment

On July 2, 2013, Reginald Cromwell ("Cromwell") was shot outside a bar on Rutger Street in Utica, New York. SR. at 25-26.^[2] Id. On July 10, 2013, Cromwell provided a written statement describing the assailant as a black male, in his late twenties or early thirties, approximately 5'10" to 6'1" in height "with a stocky muscular build." Id. at 25. During the police investigation, Cromwell viewed a photo array containing six photographs of black males and identified Petitioner as the assailant. Id. at 26.

On August 27, 2013, Petitioner was arrested. SR. at 9.

On January 23, 2014, an Oneida County grand jury returned an Indictment charging Petitioner with attempted second degree murder, first degree assault, first degree criminal use of a firearm, and second degree criminal possession of a weapon. SR. at 1-2. On January 27, 2014, Petitioner was arraigned and entered a plea of not guilty. Id. at 57.

B. Plea and Sentencing Proceedings

On February 24, 2014, Petitioner and his counsel Gregg Starzewski, Esq., appeared in Oneida County Court for a plea hearing. TR. at 2-18. The parties acknowledged their agreement to the following plea: Petitioner would plead guilty to assault in the first degree, in full satisfaction of the indictment, in exchange for a sentence of ten years as a second violent felony offender and five years post-release supervision. Id. at 3.

During the hearing, Petitioner stated he had enough time to discuss the case and plea agreement with his counsel and indicated he had no questions of the court or his counsel. TR. at 3-4, 7. Petitioner also stated he had not been promised anything or threatened into pleading guilty. Id. at 4. Petitioner was placed under oath. Id. at 4. Petitioner stated he understood the agreement and had no questions about its terms. Id. at 4. Petitioner represented he could understand English and the proceedings, and had not taken any medication or drugs which would impair his thinking. TR. at 4-5.

The trial court then explained the myriad of trial rights to which Petitioner was entitled and agreed to waive as a condition of the plea agreement. TR. at 5-7. Petitioner was presented with, and signed, a waiver of appeal form. Id. at 7. The court engaged in a colloquy with Petitioner whereupon he admitted to shooting Cromwell with the intention to cause serious physical injury. Id. at 8.

The Court concluded "defendant understands his rights, he's fully discussed them with counsel, and at this time he's prepared to waive or give up his right to have a jury trial in this matter." TR. at 9. The Court was "convinced" Petitioner entered the plea "freely, knowingly, and voluntarily" and adjourned the matter for sentencing. Id.

On April 14, 2014, Petitioner was sentenced as a second violent felony offender to a ten-year determinate sentence followed by five years post-release supervision. TR. at 16.

On April 18, 2014, Petitioner's counsel filed a notice of appeal.^[3] SR. at 6.

C. First Motion to Vacate Judgment

On April 20, 2017, Petitioner filed a pro se motion to vacate his conviction pursuant to New York Criminal Procedure Law ("CPL") § 440.10. SR. at 7-37. In the motion, Petitioner represented to the court that, on May 16, 2016, in response to a Freedom of Information Law ("FOIL") request to obtain copies of documents created during the Utica Police Department's investigation, Petitioner received the following:

(1) an Incident Report dated July 2, 2013 with a Narrative indicating, "[w]hile at the Hospital[, ] I spoke to Cromwell regarding this incident at which time Cromwell stated he did not know what happen[ed] and stated this several times[]" and a notation indicating the suspect had a "large build";

(2) an undated Addendum to the Incident Report indicating that the suspect had a "medium build"^[4]; and

(3) a statement by Brandon Schmidt, a bartender at Two J's, which included a description of the suspect as a black male, with a baseball hat.

SR. at 11, 30, 32, 34-35. Petitioner annexed the aforementioned documents to the motion and argued the prosecution improperly withheld the Brady material^[5] and that, as a result of the suppression, his guilty plea was not knowingly, intelligently or voluntarily entered. Id. at 12-15. Petitioner also claimed his counsel was ineffective for: (1) failing to allow Petitioner to testify before the grand jury; (2) failing to file a motion indicating Petitioner's willingness to testify; and (3) failing to present his nephew, Antonio Brown ("A. Brown"), as a witness before the grand jury. In support of his request, Petitioner filed an affidavit, written by his nephew. SR. at 28. In the statement, A. Brown described Petitioner as "kind of chubby, and somewhat flabby, he had a medium build, medium height, and his stomach poked out a little. He was not stocky nor was he muscular." Id.

The People opposed Petitioner's § 440 motion. SR. at 38-46. The People claimed prosecutors maintain "an open file" policy and "turn over all items received unless prohibited by law." Id. at 38. The People also pointed to Petitioner's sworn statements during the plea hearing including his assurance, under oath, that he understood the ramifications of pleading guilty. Id. at 38-39. Finally, with respect to Petitioner's ineffective assistance of counsel argument, the People provided the following: (1) a copy of the notice to appear before the grand jury which was served upon Petitioner's counsel on January 8, 2014; (2) a request to appear before the grand jury, dated September 4, 2013, filed by Petitioner's counsel; and (3) a copy of correspondence from Petitioner's counsel, dated January 7, 2014 indicating his client would not testify before the grand jury. Id. at 39, 41, 43-45.

Petitioner filed a reply to the opposition. SR. at 47-50.

Assistant District Attorney Joseph Saba ("ADA Saba"), the attorney who prosecuted Petitioner's case, filed an affirmation on behalf of the People. SR. at 51-52. ADA Saba averred that Petitioner filed a request, through his counsel, to appear before the grand jury to offer testimony and evidence on his own behalf. Id. at 51. ADA Saba also stated that Petitioner's counsel advised him, during a telephone conversation on January 7, 2014, that Petitioner would not testify before the grand jury. Id. ADA Saba also received a letter from counsel confirming that decision. Id. at 51-52. After Petitioner's arraignment, ADA Saba met with Petitioner's counsel and provided him with copies of all documents, police reports, and the supporting deposition. SR. at 52. ADA Saba did not provide copies of the photo arrays. Id.

Petitioner's counsel filed an affirmation in response to Petitioner's allegations. SR. at 53-55. Attorney Starczewski indicated he was assigned by the local City Court of Utica to represent Petitioner. Id. Counsel affirmed that he faxed and sent, via U.S. mail, a notice on behalf of his client preserving Petitioner's right to testify before the grand jury. Id. at 54. Sometime later, counsel visited with Petitioner and "thoroughly discussed the nature and relevance of grand jury proceedings." Id. After that discussion, counsel concluded, "it was clear that [Petitioner] did not want to testify or call any witnesses to the grand jury proceeding." SR. at 54. Thus, counsel "promptly" notified ADA Saba in written correspondence. Id. Counsel claimed ADA Saba provided all pertinent discovery material, including "the document in which Cromwell identified [Petitioner] as the perpetrator" and the photo array. Id. Counsel claimed that he provided copies of all material to Petitioner, except documents pertaining to the photo array (which were not provided by ADA Saba), and informed Petitioner that Cromwell identified Petitioner as the perpetrator. Id.

On August 1, 2017, the Oneida County Court denied Petitioner's § 440 motion. SR. at 56-74. The court first determined that the sworn statements of counsel were credible and, as such, found that Petitioner failed to meet his burden of proving that the documents received pursuant to his FOIL request were, in fact, suppressed by the prosecution. Id. at 62. Moreover, the court concluded that the documents/information did not directly inculpate or exculpate Petitioner, or anyone else, as the perpetrator of the shooting. Id. at 62-64.

Second the court found Petitioner's claims related to his guilty plea lacked merit. The court reiterated that the prosecution did not withhold Brady material...