Watkins v. Ercole

Filing 35

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 30 Report and Recommendations. For the foregoing reasons, the Court adopts the R&R in full and denies Watkins's petition for a writ of habeas corpus. As Watkins has not made a substantial showing o f the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253; see Lozada v. United States, 107 F.3d lO11 (2d Cir. 1997), abrogated on other grounds by United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997). The Clerk of Court is directed to enter judgment accordingly, and close this case. (Signed by Judge Paul A. Crotty on 4/11/11). Copies Mailed By Chambers. (djc) Modified on 4/11/2011 (djc).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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PAUL WATKINS,
:
:
Petitioner,
:
:
-against:
:
ROBERT ERCOLE,
:
:
Respondent.
:
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: April 11, 2011

06 Civ. 15222 (PAC) (GWG)
ORDER ADOPTING R&R

HONORABLE PAUL A. CROTTY, United States District Judge:
Pro se petitioner Paul Watkins (“Watkins”) seeks habeas relief following his February 15,
2002 conviction in New York State Supreme Court, Bronx County of two counts of Attempted
Murder in the Second Degree and one count of Robbery in the First Degree. He requests relief
based on any of the following claims: (1) ineffective assistance of trial and appellate counsel; (2)
the trial court’s failure to properly adjudicate his speedy trial motions; (3) the admission of a
complainant’s hearsay testimony in violation of the Confrontation Clause of the Sixth
Amendment; (4) the trial court’s failure to disqualify an interpreter for speaking a different
dialect than the witness; (5) the line-up in which he was identified was unduly suggestive; (6) the
trial court’s failure to charge to jury on the suggestive and speculative nature of the
identification; (7) the admission of an unduly prejudicial letter from Watkins to his co-defendant;
(8) the prosecution’s use of the allegedly perjured testimony of Watkins’s co-defendant; (9) the
imposition of consecutive sentences on offenses that arose out of a single transaction. (See
Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus, July 8, 2006 (“Pet.”) (Dkt. 2);
Amended Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus, Feb. 23, 2007 (“Am.
Pet.”) (Dkt. 4).)

On March 16, 2007, this Court referred the general pretrial matters and dispositive
motions in the case to Magistrate Judge Gabriel W. Gorenstein. (Dkt. 7.) On September 9, 2008,
Magistrate Judge Gorenstein issued a Report & Recommendation (“R&R”), recommending that
the Court deny the Petition. (Dkt. 30.) After receiving several extensions, Watkins filed late
objections to the R&R on November 14, 2008. (Dkt. 33.) The Court has reviewed the R&R and
Watkins’s objections. For the reasons that follow, the Court adopts Magistrate Judge
Gorenstein’s findings and recommendations in full and denies Watkins’s petition.
BACKGROUND
I. Facts 1
A. Speedy Trial Motion
On November 20, 2000, Watkins was indicted by a grand jury on numerous charges,
including attempted murder and robbery. (R&R at 1; Affidavit in Opposition to Petition for
Habeas Corpus, filed May 22, 2007 (“Resp. Aff.”) (Dkt. 9), at ¶ 15.) On June 27, 2001, Watkins
moved to dismiss the charges against him on speedy trial grounds under N.Y. Crim. Proc. Law
§§ 30.20 and 30.30 (“Speedy Trial Motion”), arguing that there were over 180 days countable
against the state since the commencement of the action against him. (R&R at 2; Notice of
Motion, June 27, 2001 (Resp. Aff. Ex. 4).) Justice Patricia A. Williams of the New York State
Supreme Court, Bronx County denied the motion on September 4, 2001, finding that there were
only 111 days chargeable to the state. (Decision and Order, Sept. 4, 2001 (Resp. Aff. Ex. 6)
(“30.30 Dec.”).)
Before trial, Watkins’s trial counsel, Robert Bornstein, moved for reconsideration of the
decision on the Speedy Trial Motion. (Notice of Motion, Dec. 3, 2001 (Resp. Aff. Ex. 10).)
Bornstein argued that a cooperation agreement between the Bronx County District Attorney’s
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The facts are taken from the R&R, unless otherwise noted.

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Office and Watkins’s co-defendant Jonathan Keitt was probative of the fact that the prosecution
was not ready for trial by the time determined in Justice Williams’s decision, “since the
prosecution was unwilling to proceed to trial against the defendant without first securing the codefendant as a witness against the defendant.” (Id. at 7.) Justice Williams orally denied the
motion on December 6, 2007 because a “defendant, any defendant, has a right to make whatever
agreements he wishes with the prosecution . . . at whatever time they see fit.”. (Transcript, Dec.
6, 2007, at 8-14 (Dkt. 13).) Justice Williams found that, after reading the Grand Jury minutes,
“the People had a case. The evidence was sufficient. . . . The People don’t become unready
simply because they acquire better or more information or evidence nor are they compelled to be
unready because their case gets better. That’s essentially the entirety of this motion . . . .” (Id. at
10.)
B. Trial
Watkins was tried in January and February of 2002. (R&R at 3.) On February 15, 2002,
the jury found Watkins guilty of two counts of Attempted Murder in the Second Degree and one
count of Robbery in the First Degree. (Id. at 3-4.) On May 22, 2002, Watkins was sentenced to
two consecutive prison terms of 20 years on the attempted murder counts, and a concurrent
prison term of 10 years on the robbery count. (Id. at 4.)
Bornstein made a post-trial motion requesting relief on several grounds. 2 (R&R at 4;
Resp. Aff. Ex. 11.) The motion was denied in all respects. (R&R at 4; Resp. Aff. Ex. 12.)

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The motion sought an order setting aside the verdict; an order granting discovery and disclosure of fingerprint
comparison evidence; an order directing the District Attorney to submit certain property for the court’s in camera
inspection; an order directing the District Attorney to make witnesses available; an order dismissing the indictment
pursuant to Brady v. Maryland; an order granting the defendant permission to inspect the Grand Jury minutes; and
an order dismissing the indictment on the ground of improper presentation to the Grand Jury. (R&R at 4; Resp. Aff.
Ex. 11.)

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C. State Court Appeals
Alireza Dilmaghani of the Furman Law Firm represented Watkins in his appeal to the
Appellate Division, First Department. Dilmaghani submitted a brief on March 5, 2002. (Brief
for Defendant-Appellate, Mar. 5, 2002 (Resp. Aff. Ex. 13) (“Pet. App. Br.”).) 3 Watkins moved
for permission to submit a supplemental brief, pro se, raising additional arguments—including
that the trial court erred in failing to dismiss the indictment on speedy trial grounds 4—and
requested court documents so that he could complete his brief. (R&R at 5-6.) The First
Department denied the motion. (R&R at 6.)
On November 4, 2004, the First Department affirmed Watkins’s conviction, making
findings on all of Watkins’s claims. People v. Watkins, 786 N.Y.S.2d 133 (N.Y. App. Div. 1st
Dep’t 2004); R&R at 6. Watkins’s leave to appeal to the New York Court of Appeals was
denied on March 31, 2005. People v. Watkins, 829 N.E.2d 684 (2005). The Court of Appeals
also denied Watkins’s application for reconsideration of the decision to deny leave to appeal.
People v. Watkins, 834 N.E.2d 1275 (2005).
D. CPL § 440.10 Motion to Vacate
On May 19, 2006, Watkins submitted a Petition for a Writ of Habeas Corpus in state
court, which was converted into a CPL § 440.10 motion to vacate the judgment. (Decision and
Order, Dec. 6, 2006 (Resp. Aff. Ex. 20), at 1.) The motion argued that his conviction should be
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This brief argued that (1) the trial court erred by allowing the complainant to testify through an interpreter who did
not speak complainant’s dialect and by denying Watkins’s subsequent request for a mistrial; (2) the trial court erred
by failing to charge the jury on the suggestiveness and inaccuracy of Watkins’s line-up and in-court identification;
(3) the prosecution failed to prove its case beyond a reasonable doubt and knowingly used perjured testimony of
Watkins’s co-defendant, Keitt; (4) the trial court erred by denying Watkins’s motion to suppress a letter he wrote to
Keitt and refusing to redact portions of the letter that referred to shared proceeds; (5) the trial court erred by denying
Watkins’s motion to dismiss the indictment on the basis of Grand Jury impairment or prosecutorial misconduct; and
(6) the trial court erred by sentencing Watkins’s to consecutive terms for offenses that arose out of a single act.
(R&R at 5; Pet. App. Br. at 3-4.)
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Watkins also argued that the complainant gave false testimony about the alleged perpetrators of the robbery and
what was stolen from him; and that the prosecutor acted improperly in the presentation to the Grand Jury. (R&R at
5; Affidavit in Support of Motion for Permission to File a Supplemental Appeal Brief, Mar. 18, 2004 (Resp. Ex.
15).)

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set aside on several grounds, all revolving around the disposition of his Speedy Trial Motion.
(Resp. Aff. Ex. 18.) On December 6, 2006, Judge Peter J. Benitez of New York State Supreme
Court denied Watkins’s motion on procedural grounds because he could have raised these claims
on direct appeal. (Decision and Order, Dec. 6, 2006 (Resp. Aff. Ex 20), at 4.) Watkins’s request
for leave to appeal the decision was denied by the First Department on May 1, 2007. (R&R at 8.)
E. Petition for Writ of Habeas Corpus
Watkins submitted to this Court, pro se, an original petition on December 18, 2006 and
an amended petition on March 2, 2007. These petitions jointly assert four grounds for relief: (1)
ineffective assistance of trial and appellate counsel; (2) the trial court’s failure to adjudicate the
Speedy Trial Motion and the substance of that motion; (3) appellate counsel’s failure to appeal
the issue of complainant’s inconsistent identification of Watkins; and (4) improper admission of
hearsay testimony. (Pet.; Am. Pet.; R&R at 8-9.)
Because Watkins submitted a mixed petition, containing both exhausted and unexhausted
claims, Magistrate Judge Gorenstein allowed him until June 29, 2007 to request a stay of his
habeas petition while he exhausted his state court remedies. (Order, May 25, 2007 (Dkt. 10), at
1.) Watkins claimed that respondents failed to respond timely to his amended petition and,
therefore, were precluded from opposing it; and also denied that his amended petition was a
mixed petition. (Affidavit in Reply to Respondent’s Opposition to Petition for Writ of Habeas
Corpus, June 18, 2007 (Dkt. 28).)
On September 28, 2007, Watkins wrote to Magistrate Judge Gorenstein seeking a stay of
his habeas petition and listing the claims he sought to exhaust in state court. (Letter from Paul
Watkins, Sept. 28, 2007 (Dkt. 29).) The Court ordered Watkins’s petition to include all claims in

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his petition, amended petition, and the September 28 letter, to the extent that it included new
claims. (Order, Nov. 19, 2007 (Dkt. 21).)
II. Magistrate Judge Gorenstein’s R&R
Magistrate Judge Gorenstein issued an R&R on September 9, 2008, recommending that
this Court deny Watkins’s petition.
A. Ineffective Assistance of Counsel
Under Strickland v. Washington, a petitioner must show (1) “that counsel’s
representation fell below an objective standard of reasonableness”; and (2) “any deficiencies in
counsel’s performance [were] prejudicial to the defense.” 466 U.S. 668, 688, 692 (1984). In
evaluating the first prong—whether counsel’s performance fell below an objective standard of
reasonableness—“judicial scrutiny . . . must be highly deferential,” and the petitioner must
overcome the “presumption that, under the circumstances, the challenged action might be
considered sound trial strategy.” Bell v. Cone, 535 U.S. 685, 698 (2002) (quoting Strickland, 466
U.S. at 689)). To satisfy the prejudice requirement, the petitioner “must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694.
Although Magistrate Judge Gorenstein found that Watkins’s ineffective assistance of
counsel claims were not exhausted, he denied them on the merits. (R&R at 14-18.) He found
“Watkins’s conclusory assertion that his trial counsel ‘failed to advocate . . . to the best of his
knowledge’” to be insufficient; and rejected Watkins’s assertions that his trial counsel abandoned
his Speedy Trial Motion before it was properly adjudicated by failing to obtain a written opinion
from the court denying the motion for reconsideration. (Id. at 15-16.) Magistrate Judge

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Gorenstein likewise concluded that Watkins failed to show that his appellate counsel was
ineffective. (Id. at 16-18.)
B. Additional Issues Raised in Habeas Petition
Magistrate Judge Gorenstein found no merit in Watkins’s remaining claims either. (R&R
at 18-42.) Regarding the failure to properly adjudicate the Speedy Trial Motion, Magistrate
Judge Gorenstein concluded that “federal habeas corpus relief does not lie for errors of state
law.” (Id. at 22 (citing cases).)
As to the alleged admission of hearsay testimony before the Grand Jury and at trial,
Magistrate Judge Gorenstein did not review the statements made before the Grand Jury due to
Watkins’s ultimate conviction before a petit jury; and concluded that the statements introduced at
trial were properly admitted as nontestimonial hearsay statements under the standards of
Crawford v. Washington, 541 U.S. 365 (2005) and Davis v. Washington, 547 U.S. 813 (2006).
(R&R at 23.)
On Watkins’s claim about the interpreter, Magistrate Judge Gorenstein determined that
there was no Confrontation Clause violation because Bornstein was able to cross-examine the
witness extensively, elicited responsive answers to all his questions, and thus was “able to get to
all the points that an experienced Defen[se] counsel would normally make.” (R&R at 24-28.)
On Watkins’s claim that the line-up in which he was identified was suggestive due to the
fact that he was the only one wearing a bright orange shirt, Magistrate Judge Gorenstein
examined the line-up photographs and found “no basis to conclude that the decision to admit the
line-up identification was an unreasonable application of federal law.” (R&R at 32.)
As to the failure to charge the jury on the suggestive and speculative nature of Watkins’s
identification, Magistrate Judge Gorenstein determined that there had been “no showing that the

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trial court’s jury instruction either misstated the law or violated a right guaranteed under federal
law,” and further noted that the “trial judge used text from New York’s standardized Criminal
Jury Instructions,” and that the trial judge “instructed the jury in accordance with Watkins’s
argument that he had been mistakenly identified in the line-up.” (Id. at 34.) Since Magistrate
Judge Gorenstein also determined that the line-up was not duly suggestive, “no special jury
instruction was required beyond what the trial judge provided.” (Id.)
On Watkins’s claim that his letter to co-defendant Keitt was more prejudicial than
probative and should have been excluded, Magistrate Judge Gorenstein found that Watkins did
not show error under New York law, let alone the U.S. Constitution. (Id. at 37.)
Magistrate Judge Gorenstein also rejected Watkins’s claim that the prosecutor’s use of
Keitt’s testimony deprived him of his Due Process rights because Keitt had given prior
inconsistent statements about the events of the crime. He found that Keitt’s inconsistencies were
properly before the jury to make their own credibility findings, (id. at 38), and further that there
was no evidence that the testimony “was or should have been known to the prosecution to be
false.” (Id. 38-39.)
Finally, on Watkins’s claim that his convictions arose out of a single transaction, making
consecutive sentences improper, Magistrate Judge Gorenstein found the sentences proper and not
in violation of the federal Constitution, citing to the Eighth Amendment’s prohibition only
against “extreme sentences that are grossly disproportionate to the crime.” (Id. at 40-41.)
III. Watkins’s Objections and District Attorney’s Response
After receiving an extension until October 27, 2008, Watkins submitted untimely
objections to the R&R on November 14, 2008. (Objections to the R&R (“Obj.”) (Dkt. 33.) The

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District Attorney’s Office submitted a letter responding to the objections on December 5, 2008.
(Letter from Rither Alabre, Assistant District Attorney, Dec. 5, 2008 (“DA Let.”).)
DISCUSSION
A district court may “accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). When a timely
objection has been made to the recommendations of the magistrate judge, the court reviews the
contested issues de novo. Hynes v. Squillace, 143 F.3d 653, 656 (2d Cir. 1998). The Court,
however, “may adopt those portions of the Report [and Recommendation] to which no objections
have been made and which are not facially erroneous.” La Torres v. Walker, 216 F. Supp. 2d
157, 159 (S.D.N.Y. 2000).
After reviewing the objections and responding letter, the Court finds no basis for
objection to Magistrate Judge Gorenstein’s R&R.
I.

Ineffective Assistance of Counsel Claim
Watkins spends most of his lengthy objections providing evidence of his appellate

counsel’s ineffective assistance. (Obj. at 20-48.) Watkins fails, however, to satisfy the rigorous
Strickland standard. First, he raises new factual assertions not in his original petition or his
opposition to the respondent’s response, (DA Let. at 2), including a conflict of interest between
himself and appellate counsel, (e.g., Obj. at 27, 42); and the claim that appellate counsel’s law
firm, the Furman Law Firm, was a criminal enterprise (e.g., id. at 21, 23-24, 34, 37, 39.) This
Court cannot consider these factual allegations in an objection to the R&R because they were not
before the Magistrate Judge. See, e.g., Forman v. Artuz, 211 F. Supp. 2d 415, 419 n.8 (S.D.N.Y.
2000).

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Even if his claims were considered, however, Watkins misapplies New York State and
Second Circuit law in claiming that appellate counsel’s alleged involvement in criminal activities
requires a per se reversal based on ineffective assistance of counsel, avoiding the required
showing of prejudice. (Obj. at 37-39.) This is not the law. The cases to which Watkins cites to
support this conclusion are inapposite in that they involve laymen not, as here, a legally licensed
attorney allegedly brought up on disciplinary charges. See, e.g., Solina v. United States, 709 F.2d
160, 164 (2d Cir. 1983); People v. Felder, 47 N.Y.2d 287, 291-92 (1979). No Second Circuit or
New York opinion has found other circumstances to warrant per se reversal of a conviction
without a showing of prejudice. The facts of this case are so “unique,” as Watkins argues, to
warrant such a reversal. (Obj. at 39-40.) Indeed, appellate counsel raised six arguments in its
brief, sought leave to appeal the First Department’s decision, and sought reconsideration of the
denial of leave to appeal. (R&R at 17.) Moreover, Watkins provides no documentation or other
evidence demonstrating that the trial court incorrectly decided the Speedy Trial Motion.
Accordingly, Watkins fails to meet the rigorous Strickland standard.
II.

Additional Claims
Watkins’s other arguments do not contradict the Magistrate Judge Gorenstein’s

conclusions. Among other things, he complains of several immaterial issues, including that: (1)
his state petition for a writ of habeas corpus was improperly converted to a CPL § 440.10 motion
(Obj. at 4, 8); (2) the appellate records in the record are incomplete and missing documents, such
as his bail application, pro se reargument motion, motion for reconsideration of the denial of
leave to appeal to the Court of Appeals, (id. at 6); (3) Magistrate Judge Gorenstein
mischaracterized the underlying crime, (id. at 5); (4) Magistrate Judge Gorenstein was biased
against Watkins, (id. at 9); and (5) Magistrate Judge Gorenstein improperly executed his Report

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and Recommendations before Watkins's state court writ of error coram nobis was resolved, (id.
at 12.) Since Magistrate Judge Gorenstein analyzed each of Watkins's claims on the merits,
regardless of whether or not they had been exhausted in state court, there was no need to wait for
the state court procedures to conclude. In addition, the cited missing records, alleged
mischaracterization of the underlying crime in the R&R, and conversion of his state court habeas
petition to a motion to vacate his conviction do not impact the decision made by the Court.
CONCLUSION
For the foregoing reasons, the Court adopts the R&R in full and denies Watkins's petition
for a writ of habeas corpus. As Watkins has not made a substantial showing of the denial of a
constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253; see Lozada v.
United States, 107 F.3d lOll (2d Cir. 1997), abrogated on other grounds by United States v.
Perez, 129 F.3d 255, 259-60 (2d Cir. 1997). The Clerk of Court is directed to enter judgment
accordingly, and close this case.
Dated: New York, New York
April 11,2011

United States District Judge
Copies Mailed To:
Paul Watkins
#02-A-3678
Five Point Correctional Facility
State Route 96
P.O. Box 119
Romulus, NY 14541
Ri ther Alabre
Bronx District Attorney Office
198 East 161 st Street
Bronx, NY 10451

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