Brown v. Lee

RAHASHEEM A. BROWN, Petitioner,

v.WILLIAM A. LEE, Respondent.

9:10-CV-0311 (NAM)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

Date: March 25, 2011

APPEARANCES:

OF COUNSEL:

Rahasheem A. Brown

Petitioner, pro se

Eric T. Schneiderman

Office of the Attorney General

Attorney for Respondent

Paul M. Tarr, Esq.

Assistant Attorney General

Norman A. Mordue, Chief United States District Judge

MEMORANDUM-DECISION AND ORDER

I. BACKGROUND

A. State Court Proceedings

According to the state court records provided to this Court, on the afternoon of April 29, 2005, New York State Police Investigators Richard Butterfield and Frank Cameron were working in an undercover "buy and bust" operation in the City of Schenectady, New York. See Transcript of Trial of Rahasheem A. Brown (12/5/05) ("Trial Tr.") at pp. 368-69. While the two traveleddown Emmett Street in Schenectady during that investigation, they saw a thin black male wearing a green jacket, gray jeans, and a hat. Id. at p. 371. The two investigators gestured to the man, later identified as petitioner, pro se, Rahasheem A. Brown, id. at pp. 371-72, 379-80, and Brown motioned for them to pull their automobile over. Id. at pp. 434-35. Once the officers had stopped their vehicle, Brown approached the passenger's side of the car where Investigator Cameron was seated. Id. at p. 372. Investigator Cameron asked Brown if he had any $20.00 pieces of crack cocaine for sale, however he responded that he only had $10.00 pieces he could sell. Id. at p. 435. Investigator Cameron then asked Brown for two $10.00 pieces, and the investigator paid for those pieces by handing Brown a ten dollar bill and two five dollar bills. Id. Brown then handed Investigator Cameron two baggies containing substances that later proved to be crack cocaine. Id. at pp. 435, 586-91. After the sale to Investigator Cameron, Investigator Butterfield asked Brown, "are they big, " id. at p. 372, to which Brown replied, "Yeah, they're big, " and held out bags of crack cocaine for Investigator Butterfield to view. Id. Investigator Butterfield then declared that he would also purchase two baggies of crack cocaine, and handed Brown $20.00 for that purchase. Id. Brown then handed Investigator Butterfield two baggies containing items that later tested positive for the presence of cocaine. Id. at pp. 372, 586-91.

After those transactions, Investigator Butterfield asked Brown if he would "be out all day, " to which Brown replied, "Yes, I'll be out all day." Id. at p. 374. Brown also provided the investigators with his cell phone number. Id. Soon thereafter, Investigator Cameron requested assistance from other officers in apprehending Brown. Id. at p. 439. In response to that transmission, Schenectady Police Officer Sean Clifford began looking for Brown in the area where the drug sales had just occurred. Id. at pp. 493-94. After a period of time, Officer Cliffordobserved Brown walking on Emmett Street in Schenectady. Id. at pp. 494-95. Brown noticed Officer Clifford's marked patrol car, however, and dropped items that he was holding out of his right hand. Id. at pp. 495-96. Officer Clifford succeeded in apprehending Brown, and the officer also recovered the items Brown had dropped just prior to his arrest. Id. at pp. 496-97. Those items included five baggies containing crack cocaine as well as some money. Id. at pp. 497-98, 586-91. The money recovered from Brown was then provided to Detective Daniel Moran, who compared the serial numbers on that currency with photocopies of the "buy money" that had been made for purposes of the investigation. Id. at pp. 497-500. Detective Moran determined that the serial numbers on one ten dollar bill and one five dollar bill recovered from Brown matched the serial numbers on the photocopies of the bills that had been provided to Investigators Butterfield and Cameron for their investigation. Id. at pp. 543-45.

After Brown was brought to the police station, Officer Clifford gave the $40.00 that was taken from Brown in conjunction with his arrest to Detective William Relyea, who placed the ten dollar bill and five dollar bill that had been identified as the "buy-money" in a tamper-proof evidence bag. Id. at pp. 496-98. The other $25.00 recovered from Brown was inventoried along with other personal items taken from him by booking assistant Officer Ronald Kent. Id. at pp. 598-99.

As a result of the foregoing, a Schenectady County Grand Jury returned an indictment against Brown which accused him of two counts of third degree criminal sale of a controlled substance and three counts of criminal possession of a controlled substance in the third degree. Id. at pp. 332-33.¹

Brown's jury trial on the above charges commenced in Schenectady County Court on December 5, 2005, with acting Schenectady County Court Judge Jerome J. Richards presiding. At the conclusion of that trial, the jury found Brown guilty of two counts of criminal sale of a controlled substance in the third degree and three counts of third degree criminal possession of a controlled substance. Trial Tr. at pp. 723-27. On February 24, 2006, Brown appeared before Judge Richards for sentencing. At that proceeding, the Trial Court sentenced Brown, as a second felony offender, to a determinate prison term of eleven years, to be followed by three years of post-release supervision. See Transcript of Sentencing of Rahsheem Brown (2/26/06) (Dkt. No. 15-21) ("Sentencing Tr.") at pp. 15-16.

Brown appealed the foregoing convictions and sentence to the New York State, Supreme Court, Appellate Division, Third Department. Appellate counsel filed a brief in support of that appeal, see Appellate Brief on Appeal (Dkt. No. 15-1) ("App. Br."), and Brown filed a pro se appellate brief in further support of his appeal. See Dkt. No. 15-2 ("Pro Se Appellate Brief"). The Schenectady County District Attorney ("District Attorney") filed a memorandum of law in opposition, Dkt. No. 15-3, to which Brown filed a Pro Se Reply Brief. See Dkt. No. 15-4 ("Pro Se Reply"). On June 12, 2008, the Third Department affirmed Brown's convictions and the imposed sentence in all respects. People v. Brown, 52 A.D.3d 943 (3d Dept. 2008), leave denied, People v. Brown, 11 N.Y.3d 735 (2008).

On March 30, 2009, Brown filed a motion to vacate his judgment of conviction pursuant to New York's Criminal Procedure Law ("CPL"), § 440.10 ("CPL Motion"). See Dkt. No. 15-10. The District Attorney opposed that application, see Dkt. No. 15-11, and Brown filed a pro se reply affirmation in further support of his request. See Dkt. No. 15-12 ("CPL Reply"). On June 2, 2009, the County Court issued a Decision and Order that denied Brown's CPL Motion in its entirety. See Dkt. No. 15-13 ("June, 2009 Order"). Brown sought permission to appeal the denial of his CPL Motion, however on September 2, 2009, the Third Department denied that application. See Dkt. No. 15-16.

B. This Action

Brown commenced the present action, pro se, on February 25, 2010. See Dkt. No. 1 ("Petition"). In his pleading, he argues that he is entitled to federal habeas intervention because: i) the prosecutor engaged in misconduct; ii) he received the ineffective assistance of trial counsel; iii) the prosecutor wrongfully withheld evidence from the Grand Jury that ultimately indicted Brown; and iv) a tape recording made at the time of the alleged crimes establishes that Brown is actually innocent of all crimes of which he was convicted. See Petition, Grounds One through Four.

On December 23, 2010, the Office of the Attorney General for the State of New York, acting on respondent's behalf, filed an answer (Dkt. No. 14) and a memorandum of law in opposition to the petition (Dkt. No. 16) ("Resp. Mem."), which memorandum was supplemented by the respondent in his letter-brief filed January 27, 2011 (Dkt. No. 18). The respondent has also provided the Court with various state court records relating to Brown's conviction. Dkt. No. 15. In opposing Brown's habeas application, respondent argues that petitioner has failed to fully exhaust all but one of his grounds for relief, and that all of his claims lack merit. See Resp. Mem.

This matter is now currently before this Court for disposition.

II. DISCUSSION

A. Unexhausted Claims

In opposing petitioner's application, respondent initially contends that Brown has not fullyexhausted his habeas theories which allege that: i) the prosecutor engaged in misconduct by failing to advise the defense that the prosecutor intended to introduce a tape recording as evidence against Brown (Petition, Ground One); ii) the District Attorney failed to provide the defense with a photocopy of the pre-recorded "buy" money used in the undercover investigation (id.); iii) the prosecutor wrongfully utilized certain of Brown's personal effects against him at his trial (id.); and iv) the prosecution improperly failed to play to the Grand Jury an exculpatory tape recording (id., Ground Three). See Resp. Mem. at pp. 13-18. Additionally, Brown himself concedes that his fourth ground for relief, in which he argues that he is actually innocent of the crimes of which he was convicted, is unexhausted. See Dkt. No. 2 at ¶¶ 1-3; Dkt. No. 8 at p. 1 (noting that state court challenge filed by Brown after he commenced this action related to the fourth ground raised by him in his petition); Dkt. No. 17 at ¶ 1 (same); see also Petition, Ground Four.

It is well-settled that a federal district court " 'may not grant the habeas petition of a state prisoner unless it appears that the applicant has exhausted the remedies available in the courts of the State....' " Shabazz v. Artuz, 336 F.3d 154, 160 (2d Cir. 2003) (quoting Aparicio v. Artuz, 269 F.3d 78, 89 (2d Cir. 2001)); see also Hill v. Mance, 598 F.Supp.2d 371, 375 (W.D.N.Y. 2009). This is because "[s]tate courts, like federal courts, are obliged to enforce federal law." Galdamez v. Keane, 394 F.3d 68, 72 (2d Cir. 2005) (quoting O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999)) ...