Waters v. Lilley

1

KEITH WATERS, Petitioner, v. LYNN LILLEY, Superintendent, Respondent.

No. 17-CV-8258 (GHW) (RWL)

United States District Court, S.D. New York

April 14, 2023

REPORT & RECOMMENDATION TO HON. GREGORY H. WOODS PETITION FOR HABEAS CORPUS

ROBERT W. LEHRBURGER, United States Magistrate Judge.

Keith Waters (“Waters”), proceeding pro se, brings a petition for writ of habeas corpus pursuant to 28 U.S.C § 2554, challenging his conviction by a jury of two counts of criminal sale of a controlled substance in the first degree in the Supreme Court of the State of New York New York County. Waters argues that his petition should be granted because (1) the trial court violated his right to a public trial under the Sixth Amendment by closing the courtroom to the public during the testimony of an undercover officer; (2) admission of hearsay evidence deprived him of his right to confrontation under the federal and New York State constitutions; (3) he is actually innocent based on newly discovered evidence; and (4) the verdict was based on legally insufficient evidence. For the reasons that follow, I recommend that Waters' petition be DENIED and the petition dismissed.

Background

A. Crimes And Arrest

In January 2007, the New York City Police Department's Street Narcotics Enforcement Unit began an investigation into narcotics sales in and around the Martin Luther King Houses (the “King Houses”), a housing project in Manhattan. (Tr. 87-88.^[1]) On October 3, 2007, Undercover Officer No. 0059 (the “Officer”) was operating at the King Houses. (Tr. 87-88, 91.) After a failed attempt to meet and make a purchase from one target of the operation, the Officer was introduced to Michael Spears (“Spears”). (Tr. 91-93.) The Officer spoke with Spears while wearing a hidden recording device. (Tr. 9394, 194.)

The Officer later testified that Spears “mentioned a Keith ... would be able to hook me up if his man could hook him up ... I asked him how much he could handle. He basically told me . he could handle whatever I needed and he just had to contact his man Keith.” (Tr. 93.) The Officer quoted Spears as saying “Yo, I talk to my man, I talked to Keith. Spoke to Keith. He said . he's your man? We got to look at that shit.” (Tr. 313; see also 317.) Spears gave the Officer the number 646-672-0077 (the “0077 phone”) so he could later contact Spears. (Tr. 100-01.)

On November 8, 2007, the Officer called Spears to arrange a transaction (the “November transaction”). (Tr. 111, 558.) They met up, and Spears made two calls to 646-932-9129 (“the 9129 phone”).^[2] (Tr. 558-59.) After making the calls, Spears notified the Officer that he had to go get the drugs. (Tr. 239-43.) The Officer watched as Spears walked towards a vehicle parked on the street and got into the car, sitting in the front passenger seat. (Tr. 112, 231, 238-43.) The Officer observed the silhouette of a person in the driver's seat, with whom Spears briefly interacted, but could not see the driver clearly enough to describe him in his report. (Tr. 112, 229-31.) The Officer also wrote down the car's license plate number - CRJ6169. (Tr. 113-14.) Upon further investigation, police determined that the license plate was issued to a black 2006 Range Rover with the registered owner listed as “Keith Waters” at the address 1220 Shakespeare Avenue, apartment 5-CSO, The Bronx, New York, 10452. (Tr. 37-41.)

After sitting in the black Range Rover for a short time, Spears got out and walked back to the Officer. (Tr. 112, 231-32.) Spears handed the Officer a bag of what appeared to be cocaine marked with the number 20, and the Officer paid Spears. (Tr. 112-13, 232.) Spears then reentered the Range Rover, and the vehicle drove away. (Tr. 114-15, 233.) A laboratory analysis by a chemist employed by the New York City Police Department determined that the bag contained more than half an ounce of cocaine. (Tr. 330.)

On December 6, 2007, the Officer called Spears at the 0077 phone to arrange another transaction (the “December transaction”). (Tr. 127-28.) Once together, Spears and the Officer walked over to a four-door sedan Spears claimed was his. (Tr. 128, 271.) The two men sat in the car waiting on what Spears called “his men.” (Tr. 129.)

A bit later, Spears stepped out of the car to make calls to the 9129 phone, and upon returning inside the vehicle, said that someone would be there “soon.” (Tr. 13-31, 197, 561-62, 567-68.) Moments later, the same Range Rover the Officer had seen at the November transaction arrived. (Tr. 131, 197, 272, 318.) As the Range Rover pulled in front of the sedan in which the Officer and Spears were seated, the driver turned and looked over his shoulder in their direction. (Tr. 131, 197, 265-66.) The Officer saw the driver's face, later identifying the driver as Waters at trial. (Tr. 131-32, 253, 255, 257, 274, 312, 318.)

The Officer handed Spears money, after which Spears exited the sedan and entered the front passenger seat of the black Ranger Rover. (Tr. 132, 197, 273.) The Officer saw the driver “look down, shake his head [as if to say yes]” and then witnessed the two individuals “shifting [their] bodies.” (Tr. 131-33.) Spears got out of the Range Rover, rejoined the Officer, and the Range Rover drove away. (Tr. 131-33.) The license plate number noted by the officer was CRJ6169, confirming the Range Rover was the same vehicle from the November transaction. (Tr. 131.) Spears then handed the Officer a plastic bag marked “70” that contained almost two and a half ounces of cocaine. (Tr. 133, 333-34, 340.) In his report of the December transaction, the Officer estimated the Range Rover driver's height as 5'7” to 5'9” and his weight as 156 pounds. (Tr. 135-37.)

On February 20, 2008, the Officer called the 0077 phone but did not reach Spears. (Tr. 145.) Spears returned the call on a different number, 646-438-1318 (the “1318 phone”), and arranged with the Officer to meet for another transaction (the “February Transaction”). (Tr. 145-46, 148.) Spears explained, however, that “his man wouldn't be able to bring the coke to him that day ... So, [they] had to go to The Bronx to get it.” (Tr. 148, 309.) The two men took a taxicab to 1228 Shakespeare Avenue. (Tr. 148-49.) Upon arrival, the Officer handed Spears money, and Spears walked down the block into the building located at 1220 Shakespeare Avenue, the same address listed for “Keith Waters” on the Range Rover's registration. (Tr. 149-50.) Spears emerged minutes later from the building with a bag containing, as before, almost two and a half ounces of cocaine and gave it to the Officer. (Tr. 150, 336-337, 339-340.)

On June 3, 2008, police arrested both Spears and Waters. (Tr. 16.) Before the arrest, the Officer observed the two men together on the corner of 115^th Street “in the vicinity of the Range Rover.” (Tr. 207.) Waters was apprehended while driving away in the black Range Rover, and the Officer confirmed Waters as the drug seller, other than Spears, in the prior transactions. (Tr. 204-08, 369.) The police searched the Range Rover, where they found the 9129 phone and the 1318 phone. (Tr. 371-72, 378, 45256.)

B. Pre-Trial And Trial Proceedings

Waters and Spears were charged with two counts of criminal sale of a controlled substance in the first degree and one count of criminal sale of a controlled substance in the second degree. On October 21 2009, Waters and Spears were tried jointly before a jury, with presiding Justice Arlene Goldberg (the “Trial Judge”).^[3] The jury rendered its verdict on October 28, 2009, convicting both Waters and Spears on the two counts of first-degree drug sale and acquitting them of the second-degree sale count. (Tr. 673-81.) On January 4, 2010, Waters received a sentence of two concurrent sixteen-year prison terms and five years of supervised release.^[4] (Tr. ECF 706.) Waters was released on parole in October 2019 and remains under supervised release.^[5]

1. Pre-Trial Motion To Sever

On October 19, 2009, the Trial Judge conducted a Sandoval hearing to consider the admissibility of prior criminal acts.^[6] (Pre-Trial Tr. 19-34.^[7]) Before the start of those proceedings, Waters submitted a motion to sever his trial from Spears'. (Pre-Trial Tr. 7.) Waters pointed to various recorded statements made by Spears implicating Waters and argued that severance was necessary so that he could call Spears to the stand and exonerate himself. (Pre-Trial Tr. 8-9; Severance Motion 18-20.^[8]) The trial nevertheless proceeded against both Spears and Water jointly, effectively denying the severance motion, and Waters was unable to cross-examine Spears at trial.

2. Hinton Hearing

The Government made an application to close the courtroom during the testimony of the Officer, and on October 21, 2009, the Trial Judge conducted an evidentiary hearing pursuant to People v. Hinton, 31 N.Y.2d 71, 334 N.Y.S.2d 885 (1972). Citing to both state and federal public trial precedent, Waters asked the court to “strike a compromise” to complete closure and allow Gwendolyn Robinson (“Robinson”), “a close friend ... of both defendants,” to view the Officer's testimony at trial. (Hinton Tr. ECF 326-28.^[9]) The court granted the Government's application to close the courtroom during the testimony of the Officer and denied Waters' application to admit Robinson as an exception. (Hinton Tr. ECF 329-30, 332.)

3. Trial Testimony About Height And Weight

At trial, testimony confirmed that the Officer's estimate of Waters' height and weight - recorded in his December buy report based on having seen Waters seated in the driver's seat of the black Ranger Rover - was inaccurate. (Tr. 136-37; 33-34, 212.) In his buy report, the Officer described the height of Waters as 5'7” to 5'9”. (Tr 135-37.) At trial, however, it was revealed to the...