Whitehead v. Haggett

LAMAR WHITEHEAD Petitioner, v. WILLIAM T. HAGGETT, Superintendent, Mt. McGregor Correctional Facility Respondent.

12-cv-04946 (AMD)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

FILED: February 6, 2017

February 3, 2017

MEMORANDUM DECISION AND ORDER

ANN M. DONNELLY, District Judge.

The petitioner seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On April 1, 2008, following a jury trial in Suffolk County, New York, the petitioner was convicted of one count of Scheme to Defraud in the First Degree, one count of Attempted Grand Larceny in the Second Degree, thirteen counts of Identity Theft in the First Degree, and two counts of Identity Theft in the Third Degree. (Dkt. No. 1 at 2.) The petitioner challenges his conviction under the Fifth, Sixth, and Fourteenth Amendments. (Id. at 1-2.) Specifically, he asserts that his trial lawyer was ineffective and that the court improperly admitted evidence of uncharged crimes and a witness's unsworn testimony. For the reasons that follow, the petition for a writ of habeas corpus is denied.

FACTUAL BACKGROUND

I. Overview

The petitioner's conviction arose out of a fraudulent loan scheme. The trial established that the petitioner exploited his former girlfriend, Valerie Rodriguez, who had access to personal identifying information through a computer credit check program at a Baron Honda car dealership, where she worked. The scheme involved creating fake email accounts and voicemail boxes using stolen identifying information, filling out fraudulent loan applications, and using these loans to obtain vehicles.

II. Investigation

On May 5, 2005, Maria Macarle received a telephone call from a loan representative about a recent application. (Dkt. 16, Ex. 20 at 56-57.) Because Ms. Macarle had not applied for a loan, she called the Suffolk County Police Department. (Dkt. 16, Ex. 12 at 80.) Detective Thomas Gabriele investigated and determined that someone took out a loan in Ms. Macarle's name to purchase a motorcycle at Kings Cycles in Brooklyn, New York. (Dkt. 16, Ex. 20 at 59:7-19.) The loan included a sales agreement in her name (Id. at 60:4-63:13) and a copy of a driver's license that had her name, but someone else's picture. (Id. at 61:10-12, 64:7-18.) The person in the photograph was later identified as Anita Bryant, the petitioner's friend. (Id. at 64:7-24; 73:22-74:12.)

On June 7, 2005, Detective Gabriele learned that the petitioner had been arrested in Manhattan while riding the motorcycle purchased in Ms. Macarle's name. (Dkt. 16, Ex. 19 at 94:3-99:13; id. Ex. 21 at 16:14-17:4.) The same month, Detective Gabriele traced a phone number on the sales-purchase documents to Aerobeep and Voicemail Services, a business that provides customers with phone numbers and mail receiving services. (Dkt. 16, Ex. 20 at 74:16-77:19; Dkt. 16, Ex. 19 at 27:20-29:20.) He asked for a list of accounts associated with that number, and in July of 2005 he recorded voicemails associated with those accounts. (Dkt. 16, Ex. 20 at 74:21-79:7.) He discovered that the petitioner had an Aerobeep account and that several phone numbers used in fraudulent loan applications were opened under other Aerobeep accounts. (Id. at 30:10-52:25; Dkt. 16, Ex. 20 at 82:6-89:23.) For example, an account in the name of "John Wilson" purchased 10 numbers, including the one that was included on the motorcycle sales agreement under Maria Macarle's name. (Dkt. 16, Ex. 29 at 37:7-39:23; Dkt. 16, Ex. 20 at 63:11-18.)

On August 5, 2005, Detective Gabriele sought and obtained search warrants from a Suffolk County judge for two residences in connection with the identity theft investigation. (Dkt. 16, Ex. 21, 65:20-69:25.) He seized two computer systems from one of the houses, and submitted them for forensic analysis. (Id. at 71:1-74:10.)

The detective's investigation of telephone and bank records revealed that the personal identifying information of several Baron Honda customers was used to create fraudulent loan applications. (Dkt. 16, Ex. 20, at 86-89; Dkt. 16, Ex. 21 at 19-47, 89-100.)

From January 23 through 25 of 2006, Detective Gabriele and other officers began surveilling the petitioner's home in Teaneck, New Jersey. (Dkt. 16, Ex. 30 at 38:10-44:25.) On January 25th, the officers saw the defendant drive his car into New York, where they arrested him. (Id. at 46:1-48:20.) The same day, Judge Toni Bean issued a search warrant for the petitioner's car, where officers found documents, clothing, and three cell phones. (Id. at 68-80.) The documents included a Con Edison bill, which Detective Gabriele testified was used "as address verification" for several false loan applications. (Dkt. 16, Ex. 31, at 32:10-33:24.)

On January 27, 2006, Detective Gabriele contacted the Teaneck Police Department to obtain a search warrant for the petitioner's home in Teaneck, New Jersey. (Id. at 78:22-79:10.) A Teaneck detective, Michael Richter, obtained a search warrant from a municipal court judge, and Detective Gabriele joined officers from the Teaneck Police Department to execute the warrant. (Dkt. 1, Ex. 12 at 9; id., Ex. 14 at 8.) They seized a laptop computer, cell phones, and various documents. (Dkt. 1, Ex. 14 at 11.) On January 30, 2006, the Suffolk County Court issued a computer search warrant to search the laptop and three cell phones. (Dkt. 1, Ex. 34 at 1.)

III. Pre-Trial Proceedings

On February 3, 2006, the petitioner was charged in Suffolk County with one count of Attempted Identity Theft in the First Degree and one count of Attempted Grand Larceny in the Second Degree. (Dkt. 1, Ex. 35.) His attorney, Robert Macedonio, filed discovery motions seeking search warrants issued against the petitioner's property and "the affidavit(s) and returns thereof," as well as property (or photographs of property) seized pursuant to those warrants. (Dkt. 1, Ex. 36 at 2; Dkt. 1, Ex. 37 at 10.) Assistant District Attorney (ADA) Douglas Byrne responded "the People [we]re in possession of three Cellular Phones and one vehicle." (Dkt. 1, Ex. 38 at 3.) He did not address the laptop or the warrants, and noted that all requests not addressed were beyond the scope of what the state discovery law required. (Id. (citing N.Y. Crim. Proc. Law § 240.20).¹ The petitioner claims that Mr. Macedonio told him "that there was no evidence in the case and that the indictment would not stand." (Affidavit of Lamar Whitehead, ("Pet. Aff.") Dkt. 1, Ex. 41 ¶ 3.)

On April 25, 2006, the People filed a superseding indictment charging the petitioner with three counts of Attempted Identity Theft in the First Degree, one count of Attempted Grand Larceny in the Second Degree, two counts of Identity Theft in the First Degree, two counts of Grand Larceny in the Third Degree, and three counts of Unlawful Possession of Personal Identification Information in the Third Degree. (Dkt. 1, Ex. 39 at 1-2.)

In March of 2006, the petitioner was indicted in New York County for criminal possession of a 2004 Land Rover—the car that was searched in connection with the Suffolk County case against him. (Dkt. 16 ¶ 9.)²

On August 28, 2006, ADA Byrne supplemented his response to the petitioner's prior discovery motion, but still did not mention the warrants or seizures of other evidence. (Dkt. 1, Ex. 40 at 3.)

In September of 2006, the petitioner discharged Mr. Macedonio and retained Ms. Camille Russell. (Pet. Aff. ¶ 5.) At that point, based on the ADA's response to defense counsel's discovery demands, Ms. Russell believed that the trial evidence would be limited to "a Manila envelope, a Geico insurance card, several pieces of mail, Mr. Whitehead's statement and a fingerprint analysis." (Affidavit of Camille Russell ("Russell Aff.") Dkt. 1, Ex. 42 ¶ 2.) On September 19, 2006, "the Assistant District Attorney revealed that he intended to introduce tape recordings" as evidence and invited Ms. Russell to review all the physical evidence he intended to introduce. (Id. ¶ 6.)

On September 20, 2006 Ms. Russell moved to preclude any evidence that the prosecution did not disclose in response to earlier discovery demands, as well as any evidence obtained inviolation of the petitioner's constitutional rights. (Dkt. 1, Ex. 43 at ¶¶ 22-33.) In this motion, she challenged the validity of any search warrants issued in the case. Counsel claims that she did not have actual knowledge of any search warrants, but "made boilerplate arguments," including assertions that the warrants were issued without probable cause and were executed beyond their scope. (Russell Aff. ¶ 8.) On September 27, 2006, Ms. Russell went to the assigned assistant district attorney's office to review the physical evidence in the case. (Id. ¶ 7.) She listened to tape recordings, viewed an identification card with the petitioner's photograph, and examined a chart that the Suffolk County Police Department prepared for the case. (Id.)

In his response to counsel's omnibus motion, the ADA stated that "Ms. Russell was able to see all property seized from the defendant,...was able to listen to tapes of the defendant," and that she saw "property seized pursuant to a New Jersey search warrant and the subsequent search of the defendant's vehicle." (Dkt. 1, Ex. 44 at 3.) According to the prosecutor, the only piece of evidence counsel did not see was "a laptop computer seized from a New Jersey search warrant;" the ADA represented that the computer would be "available to defense counsel" for review. (Id.) The ADA urged the court to deny the petitioner's motion to suppress, because the property recovered from him was seized pursuant to a valid search warrant and was made available to the petitioner's counsel. (Id. at 3-4.)³

The court denied the petitioner's motion for a hearing to determine whether the search warrant was supported by probable cause, noting that such hearings are not "available for the asking by boilerplate allegations." (Dkt. 1, Ex. 45 at 4.) Ms. Russell did not renew her motions. According to the petitioner, he became aware of the...