Philbert v. Brown

LASANA RENNIE PHILBERT, Petitioner, v. WILLIAM D. BROWN, Superintendent of Eastern Correctional Facility, Respondent.

1:11-CV-1805 (NGG)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

Filed: October 11, 2012

October 5, 2012

MEMORANDUM & ORDER

NICHOLAS G. GARAUFIS, United States District Judge.

Lasana Philbert brings this pro se Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254, attacking his state convictions in 2007 for Assault on a Police Officer and Assault in the Second Degree. He asserts seven claims: (1) that there was a lack of probable cause for his arrest; (2) that his identification in a lineup was unduly suggestive and that the in-court identification ought to have been precluded; (3) that he is actually innocent; (4) that he received ineffective assistance from his trial counsel because counsel (a) failed to call two alibi witnesses, and (b) misled Philbert about whether he could testify on his own behalf; (5) that he received ineffective assistance from his appellate counsel because counsel: (a) failed to raise the claim of ineffective assistance of trial counsel, (b) failed to raise the prosecutor's failure to provide exculpatory evidence in violation of Brady, (c) failed to raise a Batson claim based on an exclusion of jurors by the prosecutor due to their race, and (d) failed to raise "any arguable issue" in the appellate brief; (6) that his conviction was the result of prosecutorial misconduct in that the prosecutor (a) knowingly allowed false testimony; and (b) failed to turn over exculpatory evidence in violation of Brady; and (7) that he was denied his right to present a defense due to trial counsel's failure to call available alibi witnesses. For the reasons set forth below, Philbert's Petition is DENIED.

I. BACKGROUND

A. Facts

On the morning of June 14, 2005, at approximately 7:45 A.M., Police Officer Christopher Wiesneski, on patrol near the "Laurelton playground" in Queens, saw a man walking down a path where Wiesneski had previously issued summonses and made arrests for drug crimes. (Def. App. Br. (Docket Entry # 11-1) at 3-4.) Officer Wiesneski entered the park on his scooter and approached the man—whom he later identified as Lasana Philbert—on foot. (Id. at 4.) Wiesneski observed that the man had his hands clenched in fists, and that he had a cigar in one hand that appeared to be partially unraveled. (Id.) Believing that the man had marijuana in his possession, Wieseski informed him that if he handed over the marijuana, Wiesneski would only write him a summons. (Id.) The man complied. (Id.) From the time that Officer Wiesneski initially approached the man to this point in their interaction, the two men were approximately two feet apart, the sun was up, and approximately three to four minutes had elapsed. (Id. at 4-5.) Officer Wieneski was therefore able to get a "good look" at the man. (Id. at 5.)

After this initial exchange, Officer Wiesneski told the man to stand up, and, when the man complied, Wiesneski observed what he believed to be the butt of a gun sticking out of the man's front pants-pocket. (Id.) Officer Wiesneski pulled out and raised his own gun towards the man. (Id.) The man then lunged at Officer Wiesneski, grabbed Wiesneski's gun, and attempted to pull the weapon from Wiesneski's grasp. (Id.) The two struggled for approximately twenty seconds before the gun discharged and a single bullet struck Officer Wiesneski in the leg. (Id.) Wiesneski fell to the ground, and the man fled the scene. (Id.)

Officer Wiesneski radioed for assistance, and described the suspect as a black man in his early twenties, between 5'9" and 5'11" tall, 170 to 180 pounds, wearing blue jeans, a black t-shirt and a white "do-rag." (Id.) Wiesneski also told a detective that the suspect had a "bit" of facial hair, and may have said that the suspect had a "heavy" Jamaican accent. (Id. at 6.) The police brought a suspect matching at least part of this description to the hospital just before Officer Wiesneski underwent surgery, but Wiesneski did not identify the man as his assailant. (Id. at 6-7.)

Philbert was first detained and questioned about the shooting the night of June 14, 2005, but he was charged with an unrelated offense and released. (Pet'r Mem. (Docket Entry # 1) at 3.) Almost a month later, on July 11, 2005, Duane Martin, an individual arrested for an unrelated matter, told the police that Philbert told him that Philbert had assaulted Officer Wiesneski. (Resp. Mem. (Docket Entry # 12) at 2.) Detective Christopher Drew went to Philbert's home, and Philbert agreed to go to the police precinct to be interviewed. (Id.) Detective Drew initially identified himself as an "investigator from the Internal Affairs Bureau" who was investigating the circumstances surrounding Philbert's initial June 14, 2005 arrest. (Resp. Ex. A (Docket Entry # 11-1) at 2.)

At the station-house, Philbert was taken into custody. (Id. at 3.) He was then read his Miranda warnings and interviewed by detectives. (Id.) Philbert denied any involvement in the shooting, and he gave his alibi to the detectives—that he had been with a girlfriend the night before the shooting and did not return to the Cambria Heights neighborhood until after the assault. (Id.) Philbert was detained at the police precinct overnight and was placed in a lineup the following day. (Resp. Mem. at 2-3.) Officer Wiesneski viewed this lineup and identified Philbert as his assailant. (Id. at 3.)

B. Huntley, Wade, and Dunaway Hearing

A Huntley, Wade, and Dunaway hearing was held on June 21, 2006, June 27, 2006, and July 25, 2006.¹ (Resp. Ex. A at 1.) After hearing testimony from Detective Drew, the hearing court concluded that there was no probable cause to arrest Philbert and hold him for nearly twenty-four hours prior to the lineup. (Id. at 7.) Accordingly, the lineup identification was suppressed. (Id.)

C. Independent Source Hearing

Because of the suppression of the lineup identification, the state court held an independent source hearing on August 23, 2006 to determine whether there was an independent basis upon which Officer Wiesneski could identify Philbert. (Id.; Ind. Source Hearing Tr. at 2.) The court concluded that there was such a basis. (Ind. Source Hearing at 32.) It observed:

The officer had several minutes of broad daylight focused only on this person who committed this crime, and his description matches the defendant. . . . I can't say that he is correct when he says it was this defendant, but he had independent opportunity to make the observations and an opportunity to recall them. That took place at the time of the lineup.

(Id.) Philbert's counsel raised no objections, and the court issued an order finding that Wiesneski had an independent source. (Id.; Resp. Ex. B (Docket Entry # 11-1).)

D. Trial Court Proceedings

A Queens County Grand Jury charged Philbert with aggravated assault on a police officer or a peace officer, assault in the first degree, assault on a peace officer, police officer, fireman or emergency medical services professional, and assault in the second degree. (Resp. Mem. at 3.) Count two of the indictment, assault in the first degree, was dismissed prior to trial by application of the People. (Trial Tr. (Docket Entry # 11-4) at 4-5.)

Philbert's jury trial began January 17, 2007. (Id. at 1.) At the outset of the trial, the state court granted a motion in-limine which sought to exclude two pictures obtained from Philbert's cell phone of Philbert holding what appeared to be a gun and an admission by Philbert that he was a marijuana user. (Id. at 6-10.) The court also issued a Sandoval ruling, which would have allowed the prosecutor, had Philbert testified on his own behalf, to question him about his admitted daily marijuana use, his arrest for a violation, and an assault he allegedly committed while at Rikers Island. (Id. at 11-13.)

Officer Wiesneski, Officer Theodore Imbasciani, Detective Paul Brown, and Detective Drew testified for the prosecution. (Id. at 42 (Wiesneski); Id. (Docket Entry # 11-5) at 166 (Imbasciani); Id. at 197 (Brown); Id. at 227 (Drew).) Philbert's trial counsel called a single witness, Hayden Thomas, to testify that Philbert had large tattoos on his arms at the time of Wiesneski's assault. (Id. at 235, 258.) On January 27, 2007, the jury acquitted Philbert of aggravated assault on a police officer or a peace officer but convicted petitioner of assault on a peace officer, police officer, fireman or emergency medical services professional and assault in the second degree. (Id. at 372.) On February 27, 2007, the court sentenced Philbert to concurrent sentences of twelve years for assault on a peace officer, police officer, fireman or emergency medical services professional and five years for assault in the second degree. (Sentence Tr. at 12.)

E. Direct Appeal

Philbert appealed his conviction to the New York Supreme Court, Appellate Division, Second Department on June 30, 2008. (Resp. Ex. C (Docket Entry # 11-1).) Philbert was granted leave to appeal as a poor person and was represented by new counsel on appeal. (Id.) Philbert argued (1) that he had been denied his right to a fair trial as a result of certain statementsmade by the People in their summation (Id. at 16), and (2) that the twelve-year sentence was excessive given Philbert's age and status as a first-time offender (Id. at 27). On March 3, 2009, the Appellate Division affirmed petitioner's conviction and sentence summarily, stating (1) that the claim of prosecutorial misconduct was unpreserved, and that, alternatively, it was without merit, and (2) that the sentence imposed was not excessive. People v. Philbert, 63 A.D.3d 698, 699 (N.Y. App. Div. 2d Dep't 2009). Philbert was denied leave to appeal to the New York Court of Appeals on June 15, 2009. People v. Philbert, 12 N.Y.3d 919 (2009).

F. Motion to Vacate Judgment

Philbert filed a pro se motion to vacate his conviction under New York Criminal Procedure Law § 440.10 on ...