Jones v. Artus, 16-CV-6149

CLEMON JONES, Petitioner, v. DALE ARTUS, Respondent.

16-CV-6149

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

May 14, 2018

DECISION AND ORDER

INTRODUCTION

Pending is petitioner Clemon Jones's ("Jones") pro se petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. Jones is currently serving two concurrent prison terms of 15 years to life, following his conviction, upon a jury verdict, and his September 4, 2007, sentencing, as a persistent felony offender, in Monroe County Court of two counts of criminal possession of a forged instrument in the second degree (N.Y. Penal Law § 170.25).

The petition for a writ of habeas corpus is denied, and the Court denies issuance of a certificate of appealability.

BACKGROUND

I. Relevant Factual Background

Jones was charged with 118 counts of criminal possession of a forged instrument in the first degree (N.Y. Penal Law § 170.30) and two counts of criminal possession of a forged instrument in the second degree (N.Y. Penal Law § 170.25). At trial, undercover police officer Dale Pascoe ("Pascoe") testified that he met with Jones and Lamar Watson, a confidential informant, on July 18, 2006, in Pascoe's car. Pascoe testified that, after negotiating a price, Jones sold him 118 counterfeit bills with a face value of $3,080, for $1,200. Pascoe further testified that on August 19, 2006, he met with Jones to purchase fake identification cards. After initially rejecting the identification cards as unsatisfactory, the two met again on August 21, 2006. At that time, Jones sold Pascoe fake identification cards, including a Florida driver's license and a New York State benefits card. Pascoe wore a body wire during these three encounters, and the prosecution played the audio recordings for the jury.

Jones also testified at the trial and sought to challenge his level of involvement in the July 18, 2006, transaction, and to establish the affirmative defense of entrapment regarding the fake identification transaction. The trial court later instructed the jury on the elements of the entrapment defense and Jones's counsel argued the matter.

The jury was not able to reach a verdict regarding the 118 counts of criminal possession of a forged instrument in the first degree, and a mistrial was declared as to those counts. The jury did, however, convict Jones on the two counts of criminal possession of a forged instrument in the second degree. After a hearing, the trial court sentenced Jones on September 4, 2007, to concurrent terms of imprisonment of 15 years to life as a persistent felony offender ("PFO") (N.Y. Penal Law § 70.10).¹

II. Relevant Procedural Background

A. Motion To Set Aside the Sentence

On April 1, 2009, Jones filed a pro se motion in Monroe County Court, pursuant to New York Criminal Procedure Law ("CPL") Section 440.20, challenging his sentence as a PFO. (Dkt. # 10-2 at 1-9).² Jones argued that two of his prior felony convictions could not be used to enhance his sentence under New York's PFO statute because those crimes did not have equivalent elements to crimes under New York State law. (Id. at 3). The trial court denied Jones's request. (Id. at 87). The Appellate Division, Fourth Department, of the New York State Supreme Court (the "Appellate Division"), affirmed the trial court's decision. People v. Jones, 109 A.D.3d 1108 (4th Dep't 2013). The New York Court of Appeals granted leave to appeal, and affirmed the Appellate Division's decision. People v. Jones, 25 N.Y.3d 57, 61 (2015) ("New York's [PFO] statute, by its plain terms, does not require that, in order to classify someone as a [PFO], an out-of-state predicate felony must have a New York counterpart.").

B. Direct Appeal of the Judgement of Conviction

Jones filed both counseled and pro se supplemental briefs to the Appellate Division challenging his conviction and sentence. The Appellate Division unanimously affirmed the judgment, for reasons discussed in more detail throughout this Decision and Order. People v. Jones, 114 A.D.3d 1239 (4th Dep't 2014), lv. denied, 25 N.Y.3d 1166 (2015).

C. Jones's Petition

Jones raises nine principal grounds for relief in his petition: (1) the evidence was not legally sufficient to support the jury verdict; (2) his due process rights were violated because of police misconduct; (3) his conviction was against the weight of the evidence; (4) the trial court abused its discretion by failing to assign new trial counsel; (5) he was denied effective assistance of trialcounsel; (6) his due process rights were violated because of prosecutorial misconduct; (7) he was improperly shackled during his PFO hearing; (8) he was improperly determined to qualify as a PFO; and (9) his sentence as a PFO was inappropriate. (Dkt. # 1 at 5-14) (the "Petition"). Respondent answered the Petition on September 9, 2016, (Dkt. # 10), which included its memorandum of law in opposition to Jones's Petition, (Dkt. # 10-1) ("Resp. MOL.").³

By motion dated September 22, 2016, Jones moved to amend his Petition pursuant to Rule 15(a) of the Federal Rules of Civil Procedure to add a tenth ground for relief—ineffective assistance of appellate counsel—based on the seven reasons described in his state-court coram nobis motion, filed on July 26, 2016. (Dkt. Nos. 14; 15). Respondent opposed that motion because Jones's coram nobis motion was unexhausted in state court. (Dkt. # 17). By motion papers dated October 19, 2016, Jones then moved to stay his Petition until he exhausted this claim (Dkt. # 18), which Respondent also opposed, (Dkt. # 20).

Prior to this Court deciding Jones's motions to amend and for a stay, Jones exhausted the additional claim and moved to "reinstate" the Petition on June 22, 2017. (Dkt. # 22). By Order dated August 9, 2017, this Court denied Jones's motion to stay as moot, and treated Jones's motion to "reinstate" as "a renewal of the original motion to amend." (Dkt. # 23). The Court then directed Respondent to file a response to Jones's renewed motion to amend, and to respond to the merits of Jones's ineffective-assistance-of-appellate-counsel claim. (Id.). On September 11, 2017, Respondent indicated that it "d[id] not oppose petitioner's motion to amend the petition to the extent that he seeks to add the ineffective assistance of appellate counsel claims that he raised inthe state court in his July 26, 2016 coram nobis motion," and proceeded to respond to the merits of Jones's additional claim. (Dkt. # 24).

Based on the fact that Respondent does not, at this point, oppose Jones's motion to amend, that motion (Dkt. Nos. 14, 15 and 22) is granted. Therefore, the Court will address all of Jones's claims.

DISCUSSION

I. Legal Standard

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), when a claim has been adjudicated on the merits in state court, federal habeas corpus relief is available only if the state court proceeding: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).

"Clearly established federal law refers to the holdings, as opposed to the dicta, of the Supreme Court's decisions as of the time of the relevant state-court decision." Howard v. Walker, 406 F.3d 114, 122 (2d Cir. 2005) (quotations omitted). A state court decision is "contrary to" clearly established federal law as determined by the Supreme Court when "the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts." Carmichael v. Chappius, 848 F.3d 536, 544 (2d Cir. 2017) (alterations omitted) (quoting Williams v. Taylor, 529 U.S. 362, 412-13 (2000)). A state court decision is an "unreasonable application" of clearly established federal law "if the state court identifies the correct governinglegal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. (quoting Williams, 529 U.S. at 413). The question is "not whether the state court was incorrect or erroneous in rejecting [petitioner's claim], but whether it was objectively unreasonable in doing so." Sellan v. Kuhlan, 261 F.3d 303, 315 (2d Cir. 2001) (quotations omitted). The petition may be granted only if "there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents." Harrington v. Richter, 562 U.S. 86, 102 (2011). "This is 'meant to be' a difficult standard to meet." Virginia v. LeBlanc, 582 U.S. ___, ___, 137 S.Ct. 1726, 1727 (2017) (per curiam) (quoting Harrington, 562 U.S. at 102)).

Moreover, under the AEDPA, "a determination of a factual issue made by a State court shall be presumed to be correct," and the petitioner has "the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(l). A state court's findings "will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

A. Whether the Evidence Was Legally Sufficient To Support the Verdict (Ground One)

Jones first contends that the evidence was not legally sufficient to support the jury verdict convicting him of two counts of criminal possession of a forged instrument in the second degree. (Petition at 5). As support, Jones states that his trial defense counsel, Mr. James Nobles, Esq. ("Nobles"), successfully requested that the trial court read a charge for the affirmative defense of entrapment to the jury. (Id.). Jones argues that because his entrapment defense "was demonstrated in its totality, the...