Keating v. Miller

1

MICHAEL KEATING, Petitioner, v. MARK MILLER, SUPERINTENDENT OF GREEN HAVEN CORRECTIONAL FACILITY, Respondent.

No. 21-CV-4065 (KAM)(LB)

United States District Court, E.D. New York

November 17, 2023

REPORT AND RECOMMENDATION

Lois Bloom, United States Magistrate Judge

Petitioner Michael Keating, files this pro se petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his 2015 New York Supreme Court, Kings County conviction of Murder in the Second Degree. The Honorable Kiyo A. Matsumoto referred this petition to me for a Report and Recommendation in accordance with 28 U.S.C. § 636(b). For the reasons set forth below, it is respectfully recommended that the petition should be denied.

BACKGROUND

I. Underlying Crimes

According to the evidence adduced at trial,^[1] at approximately 10:00 p.m on September 6, 1997, defendant Michael Keating (“petitioner”) shot and killed John Eric Ogaldez on Linden Street between Broadway and Bushwick Avenue in Brooklyn, New York. Trial Tr., ECF No. 6-5 at 9. Earlier that night, petitioner approached Sherlock Alvarez, who was sitting on the steps of an abandoned building, an area where Alvarez would “frequent” while selling marijuana. TT., ECF No. 7 at 41-42, 45. Alvarez testified that he was approached by petitioner and another man, who were together known to Alvarez as the “one set of guys ...selling crack” cocaine in that area, including near the abandoned building. Id. at 43-44. Petitioner and his companion asked Alvarez, “what the fuck are you doing here,” proceeded to go through Alvarez's pockets, and took his marijuana, house keys, and bicycle. Id. at 45-46, 85. Petitioner and his companion grabbed Alvarez by his hands and feet and attempted to take him into the abandoned building. Id. at 45-46.

Alvarez managed to get away from petitioner and the other man. Id. at 46-47. He ran in the direction of Levar Sebastian, Sebastian's brother John Eric Ogaldez, and their cousin Leroy Mendez, who were in the vicinity of the abandoned building at that time. TT., ECF No. 6-5 at 102-06. They saw Alvarez, who “looked beat up real bad.” TT., ECF No. 6-5 at 104-05. Sebastian and Alvarez had a conversation, after which the two men began walking towards the abandoned building with Ogaldez and Mendez following behind them. Id. at 106; TT., ECF No. 6-6 at 44-45. Alvarez got into “fighting kind of talk” with petitioner and the “fat guy” who was with petitioner. TT., ECF No. 6-6 at 45-46. Petitioner and the “fat guy” entered the building and then “suddenly” appeared from “behind.” Id. at 46-47. Petitioner started shooting at Alvarez. Id. Alvarez ran but petitioner continued to shoot at him. Id. at 47-49. When petitioner stopped shooting, someone said, “that guy too,” referring to John Eric Ogaldez. Id. at 49. Petitioner fired two shots at Ogaldez. Id. Ogaldez fell to the ground and died from the gunshot wounds. TT., ECF No. 6-6 at 20, 50, 61.

The New York Police Department (“NYPD”) immediately opened an investigation into the shooting of Ogaldez. TT., ECF No. 6-5 at 27. Several years later, on or around November 3, 2000, NYPD Detective Marco Martinez received information identifying petitioner as the shooter. Id. at 16; Def.'s Speedy Tr. Mot., ECF No. 6-1 at 5. Detective Martinez also received information confirming that petitioner was in Jamaica. TT., ECF No. 7 at 12-14. In 2003 or 2004, the NYPD began monitoring petitioner's “whereabouts” in Jamaica. TT., ECF No. 6-5 at 136-37. On March 13, 2013, Sergeant Howard Rowe of the Fugitive Apprehension Team of the Jamaican Constabulary Force received an arrest warrant for petitioner and arrested petitioner that day at his address in Jamaica. Id. at 137-40. Petitioner was taken into custody and brought to the United States on April 11, 2013. TT., ECF Nos. 6-5 at 142, and 6-6 at 4-7.

II. Relevant Pre-Trial Proceedings

On July 20, 2004, petitioner was indicted on two counts of second-degree murder (P.L. §§ 125.25(1), (2)), one count of second-degree weapons possession (former P.L. § 265.03), and one count of third-degree weapons possession (former P.L. § 265.02(4)). ECF No. 6-7 at 1-2. A decade later, on September 10, 2014, petitioner moved to dismiss the indictment, claiming that the long period of time between the 2004 indictment and 2013, when petitioner was brought from Jamaica and arraigned on the indictment, had deprived him of his right to a speedy trial in violation of the United States Constitution (“speedy trial motion”). Resp't Aff. ¶ 5, ECF No. 6 at 1-29; ECF No. 6-1 at 1-16.

On September 16, 2014, the Honorable Neil Jon Firetog of Supreme Court, Kings County conducted a combined Wade/Huntley hearing to consider petitioner's speedy trial motion and the identification procedures used by the NYPD during its investigation. ECF No. 6-4 at 1-86. Petitioner's speedy trial motion was denied on October 24, 2014. ECF No. 6-3 at 1-2. Petitioner's motion to suppress the identification evidence was denied on January 5, 2015. Resp't Aff. ¶ 16.

III. Petitioner's Trial

A jury trial was held from March 5 through March 13, 2015 in Supreme Court, Kings County before the Honorable Alan D. Marrus. Trial Tr., ECF Nos. 6-5, 6-6, 7, and 7-1. After both sides rested, the court addressed the jury charge with the parties. Defense counsel requested a charge as to whether petitioner's flight demonstrated consciousness of guilt (“flight charge”), but because the prosecutor did not ask the jury to consider the fact that petitioner had fled to Jamaica, the court declined to include the flight charge. TT., ECF No.7-1 at 156-58. Petitioner was found guilty of murder in the second degree. Id. at 164. On April 13, 2015, petitioner was sentenced to twenty-five years to life in prison. ECF No. 6-7 at 3.

IV. Procedural History

In or around October 2018, petitioner appealed his judgment of conviction to the Appellate Division, Second Department (hereinafter “Appellate Division”) on the following grounds: (1) he was deprived of his constitutional right to a speedy trial due to a post-indictment delay of more than eight years between his indictment and arraignment, ECF No. 6-8 at 36-52; (2) the evidence at trial was insufficient to convict him of second-degree murder, Id. at 53-56; (3) the jury should have been charged as to whether flight demonstrates consciousness of guilt, Id. at 56- 63; and (4) the prosecutor made improper remarks during summation, Id. at 63-73. In a supplemental pro se brief,^[2] petitioner also claimed his counsel was ineffective, because at the September 16, 2014 suppression hearing, counsel failed to make further unspecified arguments to support suppression of certain identification evidence; failed to object to the admission of hearsay evidence during Detective Martinez's testimony; and failed to use a “wanted” poster to impeach Detective Martinez.^[3] Petitioner further argued that his counsel was ineffective at trial for failing to object to Detective Martinez's testimony that petitioner was the shooter on the ground that the admission of that evidence violated petitioner's rights under the Confrontation Clause. ECF No. 6-10 at 13, 22, 33-42. The Appellate Division affirmed petitioner's judgment of conviction on May 6, 2020. People v. Keating, 183 A.D.3d 595, 123 N.Y.S.3d 160 (2d Dep't 2020). Petitioner sought leave to appeal to the New York Court of Appeals; his application for leave to appeal was denied. People v. Keating, 35 N.Y.3d 1113 (2020).

V. Instant Petition

Petitioner timely filed this pro se petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pet., ECF No. 2. Petitioner challenges his conviction on the same grounds presented to the Appellate Division: (1) violation of his constitutional right to a speedy trial because of long post-indictment delay; (2) insufficiency of the evidence; (3) denial of due process and a fair trial for failing to give a flight charge and the prosecutor's remarks in summation; and (4) ineffective assistance of counsel. Pet. at 5-6; Resp't Aff. ¶ 58. Respondent opposes the petition. See Resp't Br., ECF No. 6 at 30-58.

DISCUSSION

I. Standard of Review

The Antiterrorism and Effective Death Penalty Act (“AEDPA”) provides that “a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Under the AEDPA, the reviewing court may only grant a habeas petition if the claim “was adjudicated on the merits in State court proceedings unless the adjudication of the claim:

(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). “This is a ‘difficult to meet' . . . and ‘highly deferential standard[,]'” and review “is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (citations omitted). Moreover, a state court's factual findings “‘shall be presumed to be correct' unless the petitioner rebuts that presumption ‘by clear and convincing evidence.'” Fernandez v. Capra, 916 F.3d 215, 211 n.1 (2d Cir. 2019) (citing 28 U.S.C. § 2254(e)(1)).

A state court decision is “contrary to” clearly established Federal law if the “state court reached a conclusion of law that directly contradicts a holding of the Supreme Court” or, “when presented with ‘facts that are...