Mahon v. Comm'n of N.Y. State Div. of Parole

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KALONJI MAHON, Petitioner, v. COMMISSION OF NEW YORK STATE DIVISION OF PAROLE, Respondent.

Civil Action No. 19 Civ. 9498 (JLR) (SLC)

United States District Court, S.D. New York

October 3, 2022

THE HONORABLE JENNIFER L. ROCHON, UNITED STATES DISTRICT JUDGE

REPORT AND RECOMMENDATION

SARAH L. CAVE, UNITED STATES MAGISTRATE JUDGE.

I. INTRODUCTION

On October 11, 2019, Kalonji Mahon (“Mahon”), filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging his 2012 New York State conviction for narcotics offenses. (ECF No. 1 at 1 (the “Petition”)). Mahon challenges his conviction on three grounds: (1) his trial counsel was ineffective in five respects; (2) the trial court failed to hold an evidentiary hearing; and (3) prosecutorial misconduct. (Id. at 5-8). Respondent New York State Division of Parole (“Respondent”)^[1] opposes the Petition on the grounds that: (1) all but one of the ineffective assistance of counsel claims and the prosecutorial misconduct claims are unexhausted and procedurally defaulted; (2) the New York appellate court's rejection of the exhausted ineffective assistance of counsel claim was not an unreasonable application of or contrary to well-established precedent; and (3) the trial court's application of state procedural law to deny Mahon's request for an evidentiary hearing does not present a federal constitutional claim cognizable under § 2254. (ECF No. 15).

For the reasons set forth below, the Court respectfully recommends that the Petition be DENIED.

II.BACKGROUND

A. Factual Background

On the early morning of December 1, 2010, near Olinville Avenue in the Bronx, Sergeant John Urena of the Bronx Narcotics Division of the New York City Police Department (“NYPD”) was supervising a “buy-and-bust operation” conducted by an enforcement team that included Detectives Luis Rodriguez, Manuel Sanchez, and Frank Hernandez, and two undercover officers (“UC 212” and “UC 233,” together the “UCs”). (ECF No. 14-1 at 9-12, 452, 454, 519-20).^[2] During a tactical meeting before the operation, Sergeant Urena discussed where the operation was to take place and distributed Kel transmitters (which permitted him to hear his team's statements during the operation), and Detective Rodriguez provided each of the UCs $30.00 in prerecorded buy money. (ECF No. 14-1 at 452-54, 521-22, 525-26).

At approximately 1:25 a.m., after Sergeant Urena gave the “green light”-a radio signal informing the UCs that they could begin the operation-UC 212 exited her vehicle and began walking north on White Plains Road near Allerton Avenue. (ECF No. 14-1 at 456-58, 527). A person later identified as Mahon “engaged” with UC 212 as he pulled his white sedan up next to her and asked her where she was going, to which she responded that she was meeting a friend. (Id. at 13-14, 26-27, 43, 456-58, 527). Mahon parked his car, approached UC 212, and asked her what she was doing, to which she responded that she was “trying to cop something.” (Id. at 458, 495). Mahon asked her what she wanted, and she responded that she “wanted to cop three.” (Id. at 458, 495). Mahon said he had run “out of material,” but “his boys were gonna bring him some,” if she wanted to wait, which she agreed to do. (Id. at 458-59, 496). UC 212 and Mahon then walked south on White Plains Road toward Allerton Avenue. (Id. at 15). As UC 212 and Mahon reached the corner of Allerton and Olinville, Mahon made a call on the pay phone, telling the person on the other end that he was “by the train station” and “was waiting for him there.” (Id. at 459-60, 496). “A short time later,” (id. at 460), a white van pulled up, and Mahon climbed into the van, pulling from his sock or shoe “a knot of money,” which he handed to the driver of the van, later identified as Victor Gallegos. (Id. at 17, 460-61, 500-01, 521, 531). For “a minute or two,” Mahon remained in the van, which drove around the corner and parked, before he “jumped out” and the van drove away. (Id. at 461, 502, 532). UC 212 walked toward Mahon, who gave UC 212 “two Ziploc bags of crack,” telling her that “one was a twenty and one was a dime[,]” in exchange for the $30.00 in prerecorded buy money (the “Buy Money”). (Id. at 462, 502-503). UC 212 then walked alone toward Allerton. (Id. at 462).

After UC 212 gave “a positive buy sign,” i.e., a signal that a drug transaction had occurred, Sergeant Urena instructed the team to stop the van, exited his vehicle, and began to follow UC 212 and Mahon. (ECF No. 14-1 at 17-18, 43, 533). Sergeant Urena stopped Mahon near the intersection of White Plains Road and Britton. (Id. at 18, 43-44, 533). About five minutes later, UC 212 conducted a “driveby” and positively identified Mahon standing with Sergeant Urena and Detective Rodriguez. (Id. at 18-20, 474, 478-79). Sergeant Urena “patted [Mahon] down when [he] stopped him,” and Detective Rodriguez arrested and searched Mahon, recovering $207.00 (the “Cash”) from Mahon's pocket and one Ziploc of crack cocaine from his sock or sneaker. (Id. at 20, 23, 31-33, 44, 535, 559-60).

Mahon was transported to the 42nd Precinct, where another Ziploc bag of crack cocaine “fell out of [his] pants” and was recovered. (ECF No. 14-1 at 20-21, 34-35, 45, 536). UC 212 sealed the two Ziploc bags, which had remained in her custody since she purchased them from Mahon, along with a voucher in an evidence container, the seal for which Sergeant Urena signed. (Id. at 482-84, 546). Within the Cash recovered from Mahon, Detective Rodriguez identified the Buy Money. (Id. at 23-24, 36-38, 510, 537, 559).^[3] Of the Buy Money, $25.00 was returned to the buy-money fund, and $5.00 “was vouchered as evidence.” (ECF No. 14-1 at 39-40, 44, 537, 540-42). Gallegos, the van driver, and Deon Herring, who had been a passenger in the van, were also arrested. (Id. at 30, 521, 552).

B. Procedural Background

1. State Court Proceedings

a. Indictment and Pretrial Proceedings

On December 23, 2013, Mahon was charged in an indictment (the “Indictment”) with three offenses: (i) criminal sale of a controlled substance in the third degree, in violation of N.Y. Penal Law § 220.39 (“Count 1”); (ii) criminal possession of a controlled substance in the third degree, in violation of N.Y. Penal Law § 220.16 (“Count 2”); and (iii) criminal possession of a controlled substance in the seventh degree, in violation of N.Y. Penal Law § 220.03 (“Count 3”). (ECF No. 14-1 at 83, 664-67; 15-3 at 1 ¶ 3). Patrick L. Bruno, Esq. (“Bruno”) represented Mahon for all pre-trial proceedings, trial, and a portion of the post-trial proceedings. (ECF No. 14-1 at 1, 7, 50, 85, 178, 320, 426, 568, 621, 680, 686).

On May 10, 2012, Justice Gross held a Gethers/Mapp hearing^[4] seeking to suppress the Buy Money and the two Ziplocs of crack cocaine recovered from Mahon-i.e., the one found in sock or sneaker during the pat-down and the one that fell from his pants at the precinct-during the arrest. (ECF No. 14-1 at 2, 7-49 (the “Mapp Hearing”)). The prosecution called Sergeant Urena, who testified regarding his recollection of the buy-and-bust operation and Mahon's arrest on December 1, 2010. (Id. at 7-41; see § II.A, supra). New York State Supreme Court Justice Michael Gross found Sergeant Urena credible and determined that it was reasonable to detain Mahon briefly until UC 212 could positively identify Mahon as the person who sold the drugs to her. (ECF No. 14-1 at 41, 45). Because there was “reason to detain” Mahon and, following UC 212's positive identification, probable cause to arrest him, Justice Gross held that the search incident to arrest, which recovered the Cash and first Ziploc of crack cocaine, was proper, and the search “pursuant to processing at the precinct,” which recovered the second Ziploc of crack cocaine, was also proper. (Id. at 45-46). Accordingly, Justice Gross denied Mahon's motion to suppress the Cash and two Ziploc bags. (Id. at 46).

The same day as the Mapp Hearing, Justice Gross held a hearing pursuant to People v. Sandoval, 34 N.Y.2d 371 (1974), to determine whether evidence of Mahon's criminal record would be admissible at trial if he chose to testify. (ECF No. 14-1 at 50-61 (the “Sandoval Hearing”)).^[5] Justice Gross excluded evidence of Mahon's January 2007 and December 1992 convictions for possession of a controlled substance, but held that the prosecution would be permitted to question Mahon about his July 2009 conviction for criminal facilitation (the “2009 Conviction”) and his March 1995 conviction for multiple counts of assault (the “1995 Conviction”) because they reflected on his willingness to “plac[e] self-interest over societal interest.” (Id. at 58-61).

Following the Sandoval Hearing, Justice Gross addressed several pretrial matters, including Mahon's complaint that Bruno was “ignoring the agency defense issue.” (ECF No. 14-1 at 73).^[6] Bruno explained that he had chosen not to press an agency defense on Mahon's behalf, based on: (i) his review of the grand jury minutes, which contained Mahon's testimony that he had not been “working to assist” UC 212; (ii) Mahon's four prior drug-related convictions; and (iii) his understanding of agency case law. (Id. at 73-74).

b. Trial

On May 11, 2012, the trial commenced with jury selection, and on May 17, 2012, after preliminary jury instructions, counsel gave their opening statements and the prosecution began its case-in-chief. (ECF No. 14-1 at 85-425; 442-47). The prosecution called as witnesses UC 212, Sergeant Urena, and two criminalists in the NYPD Controlled Substance Analysis Section. (Id. at 447-512, 518-70, 591-611). Mahon did not present a defense case or testify. (Id. at 612).

In a conference outside the presence of the jury, Bruno notified Justice Gross that Mahon had renewed his...