Thompson v. Griffin

DERRICK THOMPSON, pro se, Petitioner, v. PATRICK GRIFFIN, Superintendent, Sullivan Correctional Facility, Respondent.

14-CV-1641(DLI)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

March 25, 2019

MEMORANDUM AND ORDER

DORA L. IRIZARRY, United States District Judge:

On March 11, 2014, pro se¹ petitioner Derrick Thompson ("Petitioner"), currently incarcerated at Eastern New York Correctional Facility in Napanoch, NY, filed a petition ("Petition") seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pet., Dkt. Entry No. 1. The Queens County District Attorney, as counsel for Respondent, opposed the Petition on July 18, 2014. Mem. of Law in Opp. to Pet. ("Opp. to Pet."), Dkt. Entry No. 15. With leave from the Court, see Thompson v. Griffin, 2018 WL 1598607 (E.D.N.Y. Mar. 30, 2018), Petitioner filed an amended petition ("Amended Petition") on June 7, 2018. Am. Pet., Dkt. Entry No. 49. Respondent opposed the Amended Petition on August 2, 2018. Mem. in Opp. to Am. Pet. ("Opp. to Am. Pet."), Dkt. Entry No. 51. Petitioner replied on October 5, 2018. Reply, Dkt. Entry No. 56. For the reasons set forth below, the Amended Petition is denied in its entirety.

BACKGROUND

I. Pre-Trial Litigation

As set forth in greater detail below, a Queens County, New York grand jury indicted Petitioner for Burglary in the Second Degree (N.Y. Penal Law § 140.25[2]) and Larceny in the Third Degree (N.Y. Penal Law § 155.35[1]). Prior to his trial, the trial judge conducted a hearing regarding the admissibility of Petitioner's prior convictions pursuant to People v. Sandoval, 34 N.Y.2d 371 (1974) (the "Sandoval Hearing"), in the event that Petitioner elected to testify at trial. (See Apr. 28, 2010 Sandoval Hearing Transcript ("Sandoval Hr'g Tr."), Dkt. Entry No. 15-5). The trial judge ruled that the prosecutor could cross-examine Petitioner regarding the facts and nature of two prior second degree burglary convictions, a criminal trespass conviction, and two prior convictions for criminal possession of stolen property. (Sandoval Hr'g Tr. at 11-14). Additionally, the trial judge ruled that the prosecutor could inquire as to the offense level of Petitioner's two prior misdemeanor drug possession offenses, and felony assault conviction, as well as his use of an alias. (Sandoval Hr'g Tr. at 12-14). The trial judge prohibited the prosecutor from asking about Petitioner's prior convictions for harassment and aggravated unlicensed operation of a motor vehicle, as well as four prior felony convictions and two prior misdemeanor convictions that occurred prior to 1988, two of which were for burglary. (Sandoval Hr'g Tr. at 12-14).

II. The Case Against Petitioner

The evidence adduced at trial showed that, on April 7, 2006, Petitioner entered Doolarie Sooklall's ("Sooklall") home (the "Sooklall Home") and absconded with jewelry, electronics, passports, a bicycle, and $1,200 in cash. (Transcript of Petitioner's May 3-5, 2010 Jury Trial ("Tr.") at 205, 208-10, 212-17; Dkt. Entry Nos. 15-5, 15-6, 15-7). While this was going on, Sooklall was cleaning the basement of the Sooklall Home, and two elderly relatives watchedtelevision on the first floor. (Tr. 192-93). At approximately three o'clock in the afternoon, one of Sooklall's relatives discovered that the burglary had occurred as she noticed that a third floor bedroom door had been forced open and the home had been ransacked. (Tr.195-201). Sooklall and her relatives found blood on the broken door and a nearby wall. (Tr. 195-201). They reported the incident to the New York City Police Department ("NYPD"). (Tr. 202, 251).

In connection with the NYPD's investigation, Officer Michael Sznurkowski dusted the home for fingerprints and took a sample of the blood on the door and wall. (Tr. 225, 261, 266-68, 272). Criminologists determined that the blood was consistent with a DNA profile in the New York State Database for Petitioner. (Tr. 305-10, 366-69, 372-74, 378). During the investigation, Maryam Lipansky, the assistant district attorney assigned to the investigation, obtained a court order requiring Petitioner to provide a DNA sample for analysis. (Tr. 347-49). Petitioner refused to comply with the court order and, subsequently, Lipansky obtained an order authorizing the NYPD to use force to obtain the sample. (Tr. 349-50). Petitioner's attorney declined to be present during the execution of the order. (Tr. 349-51). On June 5, 2008, NYPD Detective John Hachadoorian attempted to swab Petitioner's mouth for DNA analysis. Petitioner refused and bit the swab, depositing his blood on the swab sticks. (Tr. 319-25). The testing of the blood on the swab sticks confirmed that Petitioner's blood was in the Sooklall Home. (Tr. 366-69)

At trial, Petitioner called NYPD Detective Daniel Svenelid ("Detective Svenelid") as a witness. (Tr. 383-88). Detective Svenelid testified that, shortly after Petitioner's arrest, he placed a photograph of another individual, Andrew Scott ("Scott"), in the investigation file. (Tr. 386). However, Detective Svenelid said that there was no evidence or legal basis to arrest Scott in connection with the burglary at the Sooklall Home. (Tr. 387). Petitioner did not testify.

The jury convicted Petitioner of Burglary in the Second Degree (N.Y. Penal Law § 140.25[2]) and Larceny in the Third Degree (N.Y. Penal Law § 155.35). (Tr. 439-40). Petitioner moved to set aside the verdict, which motion the trial judge denied. (Tr. 390). On May 19, 2010, the trial judge sentenced Petitioner as a mandatory persistent violent felony offender to concurrent indeterminate prison sentences of twenty years to life on the burglary conviction and two to four years on the grand larceny conviction. (May 19, 2010 Sentencing Transcript ("Sent'g Tr.") at 2-3, 14, Dkt. Entry No. 15-7). Petitioner remains incarcerated pursuant to the sentence.

III. Post-Conviction Litigation

A. Direct Appeal

Petitioner's counsel appealed the conviction on the ground that the trial judge's rulings at the Sandoval Hearing deprived Petitioner of his rights to due process and a fair trial in violation of the due process clause of the Fourteenth Amendment. (See Petitioner's Appellate Brief ("Pet'r's App. Br."), at 12-19, Dkt. Entry No. 15-2). Petitioner also contended that the prosecutor's summation improperly shifted the burden of proof to Petitioner and improperly vouched for a witness' credibility, in violation of due process clause of the Fourteenth Amendment. (Pet'r's App. Br. at 20-25). In a pro se supplemental appeal, Petitioner sought reversal on the additional grounds that: (1) the verdict was against the weight of the evidence and the prosecutor failed to establish every element of the crimes charged beyond a reasonable doubt; (2) the prosecutor's summation violated the due process clause of the Fourteenth Amendment; (3) the admission of the laboratory tests of the DNA samples without examination of the lab technicians who performed the analysis violated his right to confront witnesses, in violation of the Sixth Amendment; (4) ineffective assistance of trial counsel, in violation of the Sixth Amendment; and (5) improperjury instructions, in violation of the due process clause of the Fourteenth Amendment. (See generally Petitioner's Pro Se Appellate Brief ("Pet'r's Pro Se App. Br."); Dkt. Entry No. 15-3).

The Appellate Division, Second Department ("Appellate Division"), denied the appeal and affirmed Petitioner's conviction and sentence. See People v. Thompson, 99 A.D.3d 819 (2d Dep't 2012). The court rejected Petitioner's Sandoval claim as "without merit." Id. at 819. The court also held that Petitioner's claims regarding the prosecutor's summation comments were "unpreserved for appellate review," citing New York Criminal Procedure Law § 470.05[2]. Id. The court further held that, "although the defendant correctly contends that some of the prosecutor's comments impermissibly shifted the burden of proof to the [Petitioner], this error was harmless, as the evidence of the [Petitioner's] guilt was overwhelming and there was no reasonable possibility that [the prosecutor's] comments might have contributed to the [Petitioner's] conviction. Id. (citations omitted).

The Appellate Division also rejected the grounds for reversal asserted in Petitioner's pro se appellate brief. The court held that Petitioner's claim that the evidence was insufficient was "unpreserved for appellate review," citing New York Criminal Procedure Law § 470.05[2]. Id. at 820. However, the court noted that the evidence was "legally sufficient to establish the [Petitioner's] guilt beyond a reasonable doubt," and the court was "satisfied that the verdict of guilt was not against the weight of the evidence." Id. With respect to Petitioner's Confrontation Clause claim, the court held that his claim was "unpreserved for appellate review and, in any event, without merit." Id. With respect to Petitioner's challenge to the jury charge, the court held that the claim was "unpreserved for appellate review," citing New York Criminal Procedure Law § 470.05[2], and, "[i]n any event, the court properly charged the jury." Id. Finally, with respect to Petitioner's ineffective assistance of counsel claim, the court noted that his claim was "based, inpart, on matter appearing on the record and, in part, on matter outside the record." Id. In rejecting his claim, the court held that "it [was] not evident from the matter appearing on the record that the [Petitioner] was deprived of the effective assistance of counsel." Id. Furthermore, the court held that, "[s]ince the [Petitioner's] claim of ineffective assistance cannot be resolved without reference to matter outside the record, a CPL § 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety." Id.

The New York State Court of Appeals denied leave to appeal the Appellate Division affirmance of Petitioner's conviction on December 13, 2012. See People v. Thompson, 20 N.Y.3d 989 (2012).

B. Collateral...