Heron v. Griffin

CHRISTOPHER HERON, Petitioner, v. THOMAS GRIFFIN, Respondent.

No. 18-CV-00004 (JFB)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

March 5, 2019

MEMORANDUM AND ORDER

JOSEPH F. BIANCO, District Judge:

Christopher Heron (hereinafter "petitioner"), proceeding pro se, petitions this Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his conviction in New York state court. On October 19, 2012, following a jury trial, petitioner was convicted of Murder in the Second Degree (New York Penal Law § 125.25(1)) and Criminal Possession of a Weapon in the Fourth Degree (New York Penal Law § 265.01(2)). (T. 585-87, ECF No. 6-3.)¹ Petitioner was thereafter sentenced to an indeterminate term of imprisonment of twenty-two years to life on the murder conviction and a concurrent term of one-year imprisonment on the weapon-possession conviction. (Sent'g 24-25, ECF No. 6-7.)²

In the instant habeas petition, petitioner challenges his conviction as unconstitutional on the grounds that: (1) he was denied effective assistance of counsel; and (2) the trial prosecutor suppressed evidence. (Pet. for Writ of Habeas Corpus ("Pet.") 6, ECF No. 1.) For the reasons discussed below, petitioner's request for a writ of habeas corpus is denied in its entirety.

I. BACKGROUND

A. Factual Background

The following facts are adduced from the underlying record.

1. Underlying Crime

On the night of August 11, 2012, petitioner and William Mena (hereinafter, "Mena") wereworking as "PM drivers"—the 6:00 p.m. to 6:00 a.m. shift—for Ollie's Taxi and Airport Service ("Ollie's"), located at 851 Hempstead Turnpike, Franklin Square, New York. (T. 421-24.) During that shift, petitioner was assigned to a black, unmarked town car (car number 70) and Mena was assigned to a white Crown Victoria (car number 58). (T. 425.) At approximately 9:30 p.m., dispatch assigned a $6.50 pick-up at Wendy's in Franklin Square to petitioner over the radio. (T. 360-61, 364-65.) When petitioner arrived at the Wendy's, he reported to dispatch that he saw car number 58 leaving with a passenger. (T. 366.)

Later that shift, in the early morning hours of August 12, 2012, petitioner was sitting in his taxi cab in a municipal parking lot—Town of Hempstead Municipal Parking Field Number 7—off Hempstead Turnpike on James Street. (T. 330-31, 341-44, 426-27.) Ollie's drivers often waited in the lot for their next assignments. (T. 426.) At approximately 12:45 a.m., Mena pulled into the lot, stopping partially behind petitioner's vehicle. (T. 331-32, 341-44, 426-27; People's Ex. 23 at 11:21.³)

Petitioner exited his car and approached the passenger side of Mena's vehicle. (People's Ex. 23 at 11:36.) An argument ensued, and petitioner reached through Mena's passenger window, punching him twice. (Id. at 12:59.) Mena exited his vehicle, walked around to the passenger side, and was punched twice more by petitioner. (Id. at 13:04-13:16.)

After a brief pause, petitioner reached into his pocket, grabbed a knife, and charged at Mena. (Id. at 13:16-13:26.) Petitioner swung aggressively, landing an overhead blow to Mena's chest. (Id. at 13:26-13:27.) Petitioner then swung again, but Mena blocked the blow, causing the knife to fly from petitioner's hand. (Id. at 13:30-13:33.) Petitioner retrieved the knife and struck Mena several more times. (Id. at 13:33-13:45.) Mena then stepped backwards, hunched over, and grabbed his stomach before falling to the ground. (Id. at 13:45-13:56.) Petitioner fled the scene on foot. (Id. at 13:54-14:04.)

An autopsy of Mena's body revealed three stab wounds, two on the left side of Mena's chest and one on the left side of his abdomen. (T. 295-96.) The three stab wounds caused Mena's death. (T. 303.)

2. Trial

Petitioner was tried by a jury in Supreme Court, Nassau County. The Court will summarize the portions of the trial relevant to petitioner's claims.

a. Jury Selection (Juror Number 10)

During voir dire, potential jurors were instructed to approach the court with scheduling conflicts that would make them unable to serve. (J.S. 9, ECF No. 6-2.)⁴ Additionally, the court asked the following two questions: (1) "Has any member of your family ever participated in a criminal case as a complainant or witness for the government?"; and (2) "Have you or any member of your immediate family participated in a criminal case as a defendant or a witness for the defense . . . ?" (J.S. 130-31.) Juror Number 10 did not approach the bench with a scheduling conflict or respond to these two questions. (See J.S. 123, 130-31, 165.)

b. Presentation of Evidence

The prosecution called numerous witnesses to the stand, including Nassau County Police detectives (T. 200, 249, 401, 434, 460), Mena's sister (T. 283), thephysician who conducted the autopsy (T. 288), an eyewitness (T. 325), Ollie's dispatcher on the night of the incident (T. 354), and Ollie's operations manager (T. 421). Defense counsel cross-examined each witness called by the prosecution (see generally T. 224-48, 268-83, 306-21, 337-54, 378-96, 413-21, 427-34, 448-60, 482-97), except Mena's sister, who only testified that she identified Mena at the Medical Examiner's Office (see generally T. 283-87.) In addition, the video of the incident, People's Ex. 23, was played in open court. (T. 426.)

c. Waiver of Petitioner's Right to Testify

After the prosecution rested, the judge asked defense counsel, "For the record, [counsel], are you putting on a case?" (T. 501.) Defense counsel responded, "No, your Honor." (Id.) The judge continued, "So tomorrow morning, you rest in front of the jury." (Id.) Defense counsel confirmed, "Yes." (Id.) The trial was adjourned for the evening. (Id.)

The next morning, when asked whether the defense would put on a case, defense counsel responded, "No, your Honor. At this time, the defense rests." (T. 511.) The record does not reflect any disagreement by petitioner with counsel's responses or decision to not put on a case. (See T. 501, 511.)

d. Closure of the Courtroom for the Jury Charge

After closing statements, the clerk ordered the courtroom sealed for the jury charge, saying: "The Judge is about to charge the jury. If anyone wishes to leave, you must do so now. No one is permitted to enter or leave the courtroom during the Court's charge." (T. 541.) No objections were registered. (See id.) The jury entered the courtroom, and the charge was delivered. (T. 541-42.)

e. Court's Handling of Jury Notes

During deliberations, the jury sent out two notes. (T. 572.) The judge shared the content of the notes with both attorneys. (Id.) The first note requested to view evidence, including the video of the incident, and the second sought clarification on the intent requirements for both charges. (Id.) The judge then called for the jury and proceeded to reread the intent portion of both charges while the audio-visual department set up the video in the jury room for the jurors to review. (T. 572-76.) No objections were registered. (See id.)

Later that afternoon, Juror Number 10 sent out two notes indicating that a personal matter would conflict with the next day's deliberations. (T. 577.) The judge then gave separation instructions, released the jury, and spoke with Juror Number 10 individually in the presence of the prosecutor, defense counsel, and petitioner. (T. 577-81.) The judge discussed the juror's pending civil matter that presented the scheduling conflict and informed the juror that the judge presiding over that case had agreed to reschedule. (T. 581-83.) No objections were registered. (See T. 577-83.)

f. Verdict and Sentence

The jury found petitioner guilty of Murder in the Second Degree (N.Y.P.L. § 125.25(1)) and Criminal Possession of a Weapon in the Fourth Degree (N.Y.P.L. § 265.01(2)). (T. 585-87.) As discussed below, petitioner then moved to set aside the verdict pursuant to New York Criminal Procedure Law § 330.30, which was denied by the trial court. The trial court then sentenced petitioner to an indeterminate term of imprisonment of twenty-two years to life for his murder conviction and a concurrent term of one-yearimprisonment for his weapon-possession conviction. (Sent'g 24-25.)

B. Procedural History

1. Section 330 Motion

On March 5, 2013, prior to sentencing, petitioner filed a motion in Supreme Court, Nassau County, to set aside his guilty verdict pursuant to New York Criminal Procedure Law § 330.30 ("Section 330"). (Section 330 Mot., ECF No. 6-4.) In his motion, petitioner argued that trial counsel was ineffective because "he wanted to testify in his own defense and was denied that opportunity by his attorney." (Section 330 Mot. 3, 6.) Petitioner further asserted that his failure to testify precluded counsel from arguing justification to the jury and the jury from considering lesser-included charges (Section 330 Mot. 8), requests which were both denied by the trial judge (T. 503-06, 508-11).

On April 18, 2013, the Supreme Court, Nassau County, denied petitioner's motion because his allegations were unsupported by the record. (Section 330.30 Decision, ECF No. 6-6.)

2. Direct Appeal

On May 14, 2013, the day after sentencing, petitioner filed a notice of appeal with the Appellate Division, Second Department. (Appellant's Br. 4, ECF No. 6-8.) On appeal, appellate counsel argued that the Supreme Court erroneously denied petitioner's Section 330 motion because of its reliance on petitioner "'remain[ing] mute' when his attorney told the court that he did not intend to put on a direct case."⁵ (Id. at 22.) He further asserted that "[t]he Supreme Court could have avoided any question about the involuntariness of Mr. Heron's waiver of his constitutional right to testify by canvassing the defendant about whether he had discussed this right with his counsel and, knowing and understanding it, freely wished to waive it." (Id.)

In a pro se supplemental brief, petitioner argued that his trial counsel was ineffective for three additional reasons. (Def.'s Pro Se Suppl. Appellate Br., ECF No....