Fashaw v. Griffin

MACQUAN FASHAW, Petitioner, v. THOMAS GRIFFIN, Respondent.

17 Civ. 7328 (KPF)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

November 4, 2020

OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

KATHERINE POLK FAILLA, District Judge:

Pending before the Court is the August 25, 2020 Report and Recommendation from United States Magistrate Barbara Moses (the "Report" (Dkt. #19), attached), addressing Petitioner Macquan Fashaw's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Judge Moses recommends that Fashaw's petition (the "Petition") be dismissed in its entirety.

The Court has examined the Report and notes that no party has objected within the fourteen-day period from its service, as provided by 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. For the reasons set forth below, the Court finds no error in the Report and adopts it in its entirety.

BACKGROUND

The relevant facts underlying this action are set forth in the Report, and the Court assumes familiarity with them. A brief overview is set forth herein, drawing from the recitation of the facts in the Report (see Report 2-11), as well as from entries in the public docket.

On February 24, 2011, Fashaw was arrested in connection with the February 14, 2011 assault and robbery of Nathalio Peguero. (Report 3-4). Prior to Fashaw's arrest, Peguero had identified him as his assailant from a photo array shown to him in the hospital while he recovered from gunshot wounds sustained during the assault. (Id. at 3). Detectives and officers from the New York City Police Department (the "NYPD") subsequently came to the home of Fashaw's father, and proceeded to take Fashaw into custody upon hearing a "loud noise, like a boom," from a bedroom in which Fashaw's father confirmed Fashaw was located. (Id.). The officers did not have a warrant for Fashaw's arrest. (Id.).

In the hours after Fashaw's arrest, he was twice read his Miranda rights, and twice waived them before making statements to an NYPD officer and to an Assistant District Attorney about his whereabouts on the night of the robbery. (Report 3-4). The same day, Peguero identified Fashaw in a lineup. (Id. at 4).

Fashaw later moved to suppress statements that he made to the police and the prosecutor, and on April 16 and 18, 2012, Justice Renee White of the New York County Supreme Court conducted a hearing on Fashaw's motions to determine whether Fashaw's statements should be suppressed as the unattenuated fruits of an unlawful arrest under Payton v. New York, 445 U.S. 573 (1980). (Report 4). At the conclusion of the hearing, and following testimony from certain of the officers involved in Fashaw's arrest and interviews, Justice White denied Fashaw's motion. (Id. at 4-5). On April 18 and 23, 2012, Justice White conducted a hearing pursuant to People v.Molineux, 168 N.Y. 264 (1901), to determine the admissibility of certain evidence retrieved from Fashaw's Facebook account. She ruled admissible limited portions of Fashaw's Facebook communications, all of which had been sent and posted in close proximity to the date of the assault and which, in the court's view, were probative of either Fashaw's identity or his consciousness of guilt. (Id. at 5-6).

On April 30, 2012, following a six-day trial in the New York County Supreme Court and two days of deliberations,¹ a jury found Fashaw guilty of five counts: one count of assault in the first degree; two counts of robbery in the first degree; and two counts of criminal possession of a weapon in the second degree. (Report 8). The jury acquitted Fashaw of attempted murder in the second degree. (Id.). On May 15, 2012, Fashaw was sentenced to concurrent prison terms of 18 years and 15 years. (Id. at 8-9).

Fashaw filed a timely notice of appeal to the Appellate Division, First Department, presenting four questions:

Whether evidence that Mr. Fashaw committed the robbery and assault was legally insufficient, as a matter of law, where, in the absence of physical evidence linking Mr. Fashaw to the crimes, the prosecution's case rest on the complainant's unreliable and uncorroboratedidentification testimony; alternatively, whether the verdict is against the weight of the evidence. . . .

Whether the introduction of Mr. Fashaw's Facebook entries as evidence of consciousness of guilt, over objection, denied Mr. Fashaw his due process right to a fair trial, where the alleged nexus between the postings and the assailant's identity was highly speculative and, in any event, unduly prejudicial due to the vulgar language and irrelevant references to drugs, guns, and racial slurs. . . .

Whether Mr. Fashaw's oral and videotaped statement should be suppressed as the fruit of an illegal arrest, where the suppression court, upon properly determining that Mr. Fashaw's warrantless arrest violated Payton v. New York, 445 U.S. 573 (1980), erroneously held, over objection, that the statements were attenuated from the illegality even though both statements occurred as an unbroken chain of events mere hours after the illegal arrest. . . .

Whether Mr. Fashaw's 18-year sentence is unduly harsh and severe, particularly in light of his minor criminal history, rehabilitative potential, and significantly lower sentencing offer before trial.

(Report 9).

On December 10, 2015, the Appellate Division rejected each claim on the merits. (Report 9). Following this decision, Fashaw sought leave to appeal to the New York Court of Appeals, and was denied such leave on June 24, 2016. (Id. at 10-11).

On September 26, 2017, Fashaw filed the instant Petition for habeas corpus pursuant to 28 U.S.C. § 2254, raising the same four claims he had asserted on direct appeal. (Dkt. #1 at 1-4; Report 11). The Court granted Fashaw's request to proceed in forma pauperis (Dkt. #4; Report 11), and referred the matter to Magistrate Judge Moses for a report andrecommendation (Dkt. #7; Report 11). On February 27, 2018, Respondent filed a memorandum of law in opposition to the Petition (Dkt. #10; Report 11), as well as an answer to the Petition (Dkt. #9; Report 11), the latter of which enclosed the state court record and trial court transcripts. Respondent argued, inter alia, that Fashaw's habeas claims, with one exception, were procedurally barred because he had not raised them to the New York Court of Appeals. (Dkt. #10 at 2, 17-18, 29; Report 11).

On April 24, 2020, Judge Moses ordered Respondent to supplement the record with a copy of Fashaw's initial letter to the Clerk of Court of the New York Court of Appeals. (Dkt. #13; Report 11). In an affidavit and letter dated May 11, 2020, Respondent reported that he could not produce Fashaw's initial letter and on that basis withdrew his argument that Fashaw's claims were procedurally barred. (Dkt. #17, 18; Report 11-12).

On August 25, 2020, Judge Moses issued the Report and recommended that the Court dismiss the Petition in its entirety. (Report 28). Given both the incomplete record on whether Fashaw had raised all four of his habeas claims to the New York Court of Appeals, as well as Fashaw's pro se status, Judge Moses recommended that each of his four claims be deemed exhausted to the extent they were raised to the Appellate Division. (Id. at 14-15). Judge Moses proceeded to recommend that this Court find that each of Fashaw's habeas claims failed under the Antiterrorism and Effective Death Penalty Act's deferential standard of review.

With respect to Fashaw's claims that the evidence presented at trial was legally insufficient to establish that he was Peguero's assailant,² Judge Moses found that Fashaw could not overcome the "doubly deferential standard of review" required by the Second Circuit, under which a federal court may not grant the writ of habeas corpus unless it concludes "that no reasonable court could have held that any reasonable jury could have read the evidence to establish petitioner's guilt beyond a reasonable doubt." (Report 18 (quoting Garbutt v. Conway, 668 F.3d 79, 81-82 (2d Cir. 2012) (per curiam) (emphases in original))). Judge Moses determined that the Appellate Division could have reasonably concluded that Peguero's identification, together with the circumstantial evidence in the record related to Fashaw's Facebook posts and messages, provided a legally sufficient basis for the jury's conclusion that Fashaw was Peguero's assailant. (Id. at 18-20).

Judge Moses next considered Fashaw's second claim that the admission of his Facebook posts and messages was unduly prejudicial and deprived him of a fair trial in violation of the Sixth and Fourteenth Amendments, and found that this claim also failed on the merits. Judge Moses observed that Fashaw had to demonstrate that the state court's determinations on the admissibility of this evidence rose to the level of depriving him of a "fundamentally fair trial." (Report 21 (quoting Zarvela v. Artuz, 364 F.3d 415, 418 (2d Cir. 2004) (citationomitted))). As Justice White had conducted a thorough hearing on the admissibility of Fashaw's Facebook posts and messages, admitted only those entries that were close in time to the robbery and that "went to consciousness of guilt as well as identity," and provided an appropriate jury instruction, Judge Moses agreed with the Appellate Division's holding that this ruling did not violate New York law. (Id. at 22-23).³

Judge Moses also concluded that Fashaw could not obtain habeas relief on his claim that his oral and videotaped statements made after his arrest should have been suppressed as the fruit of an illegal arrest, as Fashaw had not demonstrated that he had been denied "an opportunity for full and fair litigation of the claim in the state courts." (Report 24-25 (quoting Applewhite v. McGinnis, No. 04 Civ. 6153 (PKC) (JCF), 2006 WL 1317016, at *2 (S.D.N.Y. May 15, 2006) (citation omitted))). Specifically, Judge Moses reasoned that Fashaw had presented neither of the limited instances in which a court may review Fourth Amendment claims in...