Atchison v. Artus
Filing
7
-CLERK TO FOLLOW UP- DECISION AND ORDER denying the petition for a writ of habeas corpus and dismissing the petition. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 5/12/15. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
EDGAR ATCHISON,
Petitioner,
-vs-
No. 6:14-CV-06574(MAT)
DECISION AND ORDER
DALE ARTUS, Superintendent,
Respondent.
I.
Introduction
Represented by counsel, Edgar Atchison (“Petitioner”) seeks a
writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging a
judgment entered on May 2, 2012, in New York State Supreme Court,
Erie County (Wolfgang, J.), following a jury verdict convicting him
of criminal possession of a weapon in the second degree, unlawful
fleeing a police officer in a motor vehicle in the third degree and
reckless driving.
II.
Factual Background and Procedural History
Under Erie County Indictment No. 01094-2011, Petitioner was
charged with Criminal Possession of a Weapon in the Second Degree
(N.Y. Penal Law (“P.L.”) § 265.03(3)), Unlawfully Fleeing a Police
Officer in a Motor Vehicle (P.L. § 270.25) and Reckless Driving
(N.Y. Vehicle & Traffic Law (“V.T.L.”) § 1212).
On March 23, 2011, at about 12:45 a.m., the City of Buffalo
Police
Department
received
two
911
calls
trouble” at 66 Humber Street involving
regarding
“unknown
a “suspicious female,
light-skinned woman, early twenties, on porch, about five foot six,
black leather jacket.” T.139, 155, 193. Officers Harrington and
Kindzierski responded in their patrol car.
Upon arriving on Humber, the officers were headed south. A
white pickup truck facing north with its headlights on drew their
attention when it pulled forward and extinguished its lights.
T.143-33, 187. The officers continued south on Humber and observed
a woman matching the description given in the 911 call on the porch
at 66 Humber. Officer Kindzierski got out of the patrol car and
approached her, while Officer Harrington walked toward the white
pickup truck.
Meanwhile, the woman on the porch was pointing at the truck,
the occupants of which Officer Harrington was attempting to engage
in conversation. T.160, 184, 189.
However, Petitioner did not
respond to his inquiry and fled the scene. T.170, 591. Officer
Harrington pursued Petitioner’s vehicle in his patrol car, and
observed Petitioner pass through several stop signs without slowing
down. Officer Harrington was required to accelerate to about
50 miles per hour to gain ground. T.592.
During the chase, Officer Harrington observed the vehicle pull
onto the left side of Northumberland Street, slow down briefly and
quickly, and then speed off again. T.595. After about eight-tenths
of a mile, the truck pulled over and stopped at East Delavan near
Weber Avenue. T.598-99. Petitioner was forcibly removed from the
truck.
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The
police
ultimately
recovered
a
silver
handgun
on
a
residential lawn. Officer Pitts interviewed Petitioner’s female
passenger, Carlette Montgomery (“Montgomery”), who advised him that
a handgun was thrown from the vehicle. T.643. According to Officer
Pitts, Montgomery told him “she didn’t want to go to jail for
this.” Id.
Lieutenant
regarding
O’Rourke
why he
questioned
had fled
the
Petitioner
scene
when
at
the
scene
Officer Harrington
approached him. Petitioner explained that he just wanted to “get a
date” with Montgomery, that is, pay her to have sex with him. He
fled from the police because he did not want to go to jail for
soliciting a prostitute and he did not want his wife to find out.
Petitioner
testified
that
when
he
turned
onto
Northumberland
Street, Montgomery announced that she was in possession of a
weapon, and demanded that he pull over and let her out. As
Montgomery fumbled with the gun, Petitioner grabbed it and threw it
out of the vehicle. T.940. Petitioner indicated that he was going
to let her out when he slowed down, but he panicked when he saw the
police vehicle approaching, so he sped off again.
Montgomery testified for the defense that she had gotten into
Petitioner’s vehicle on the night of March 23rd intending to “get
money”
by
Petitioner
“turning
for
a
having
date[,]”
sex
T.850,
with
him.
i.e.,
When
getting
a
police
paid
by
cruiser
approached Petitioner’s truck, and an officer ordered them to “get
-3-
the fuck out of the car,” Petitioner drove away. T.852. While being
pursued by the police, Montgomery told Petitioner she had a handgun
and pulled it out of her pants. Taking the handgun from her,
Petitioner slowed down and threw the gun out of the window.
Montgomery estimated that Petitioner was in possession of the
handgun for “two point two seconds.” T.854-55. Petitioner sped up
again but came to a stop a short time later, and the police took
them both into custody.
Montgomery, who had a lengthy criminal record, gave the police
a false name because she believed there was a warrant out for her
arrest. Eventually, after the police discovered her real name,
Montgomery said that the gun belonged to Petitioner because the
police promised her she could go home if she implicated Petitioner.
T.859-60.
Montgomery testified under oath at the felony hearing and
admitted that the gun belonged to her. She gave a similar statement
to a private investigator, and was advised by an attorney that a
conviction for possession of a weapon carried a potential sentence
of 15 years. T.870-81. Montgomery explained that because she was a
person of the streets, she did not want to have “somebody go down
for [her].” T.872. Montgomery testified, “That’s my gun. I’m not
going to put it on him.” Id.
The jury returned a verdict convicting Petitioner on all
charges. He was sentenced to a determinate term of 15 years in
-4-
prison plus 5 years of post-release supervision on count one, and
to definite terms of 1 year in prison and 6 months in prison on
counts two and three, respectively. All sentences were set to run
concurrently with each other.
Represented by new counsel on appeal, Petitioner raised the
following arguments: he was deprived of his right to a fair trial
as a result of the improper and prejudicial comments made by the
prosecutor during cross-examination of the main defense witness;
his sentence was harsh and excessive; and he was denied due process
of law at sentencing. On November 8, 2013, the Appellate Division,
Fourth Department, of New York State Supreme Court unanimously
affirmed the conviction but exercised its discretion to reduce the
sentence on count one to 10 years in prison plus 5 years of postrelease supervision. People v. Atchison, 111 A.D.3d 1319 (4th Dept.
2013). The New York Court of Appeals denied leave to appeal. People
v. Atchison, 22 N.Y.3d 1137 (2014).
This timely habeas petition followed in which Petitioner
asserts the following grounds for relief: (1) he was deprived of
his right
prejudicial
to
a
fair
comments
trial
made
as
by
a
result of
the
the
prosecutor
improper
during
and
cross-
examination of the main defense witness; and (2) he was denied due
process of law at sentencing because the trial court relied on
arrests and other information in his criminal record without
ascertaining the reliability of that information. Respondent filed
-5-
an answer and memorandum of law in opposition to the petition, and
Petitioner filed a reply.
For the reasons discussed below, Petitioner’s request for a
writ of habeas corpus is denied.
III.
Discussion
A.
Prosecutorial Misconduct During Cross-Examination
Petitioner asserts, as he did on direct appeal, that
the
prosecutor committed misconduct during the cross-examination of
Montgomery. Some background is necessary to put the objectionable
questioning in context. Defense counsel initially objected to the
prosecutor’s question, “[T]he judge ruled that you were a material
witness in this case, correct? And he had to do that because you
wouldn’t cooperate with us, correct?” The trial court sustained
that objection. T.883. The prosecutor then asked, “You didn’t
cooperate with us, correct?” Montgomery answered, “Why should I
cooperate? You want me to lie.” T.883. The prosecutor continued in
this vein, suggesting that Montgomery intentionally was hiding from
the police and District Attorney’s office. When the prosecutor
accused Montgomery of not wanting to cooperate because she was
scared of Petitioner, defense counsel again objected. Before the
judge ruled, Montgomery retorted, “Man, I ain’t scared of him.
What’s wrong with you? Look at my rap sheet. What am I scared of?”
Defense withdrew his objection.
-6-
The prosecutor then asked, “You didn’t come into the DA’s
office and tell me that you were scared to testify–” Montgomery
interrupted him, stating, “I never told you that. Why you lying?
He’s lying.” Defense counsel objected on hearsay and relevance
grounds with regard to the prosecutor’s question mentioning out-ofcourt conversations he had with Montgomery. Before the trial judge
ruled on the objection, Montgomery answered, “I ain’t never said I
was scared. I said if you a snitch and [sic] can get killed. Now,
that’s what I said. That could be with anybody.” The trial judge
overruled defense counsel’s previous objection, and defense counsel
raised a new objection, since the witness had answered. See T. (“My
new objection is [the prosecutor]’s testifying to facts not in
evidence. . . . about some conversation that they had off the–it’s
not part of the record. It’s not evidence.”). The prosecutor
replied that defense counsel had done “the same thing” by asking
Montgomery about prior statements that she had given, and defense
counsel
disagreed.
The
trial
judge
ignored
defense
counsel’s
objection and stated, “So we’re getting to another question now.”
The prosecutor proceeded to question Montgomery about her rap
sheet.
On direct appeal, the Appellate Division agreed “that the
prosecutor’s questions about the witness’s statements to him were
improper[.]”
Atchison,
Paperno,
N.Y.2d
54
111
294,
A.D.3d
300-01
-7-
at
(1981)
1319
(citing
(unsworn
People
witness
v.
rule
generally stands for proposition that prosecutor may not inject his
own credibility into the trial; rule is violated when prosecutor,
by cross-examination, suggests existence of facts not in evidence);
other citation omitted). However, the Appellate Division concluded,
the trial court’s “failure to sustain defense counsel’s objection
to the line of questioning [was] harmless error because
“[t]he
evidence of guilt [was] overwhelming, and there [was] no reasonable
possibility that the jury would have acquitted defendant if the
prosecutor had not improperly placed his own credibility at issue
before the jury[.]” Id. (citing People v. Crimmins, 36 N.Y.2d 230,
237 (1975) (adopting the harmless error standard articulated in
Chapman v. California, 368 U.S. 18 (1967), to be used on direct
review of constitutional errors occurring at trial)). The Appellate
Division noted that Petitioner admitted possessing the weapon but
claimed
“his
possession
[of
the
firearm]
was
temporary
and
innocent” as “the gun belonged to someone else, and the only time
he possessed the weapon was when he threw it out of the window of
his moving vehicle, which the police were pursuing.” Id. However,
the Appellate Division found, “[e]ven accepting [Petitioner]’s
testimony as true, . . . his conduct was “utterly at odds with any
claim of innocent possession[.]” Id. at 1319-20 (quoting People v.
Williams, 50 N.Y.2d 1043, 1045 (1980) (finding evidence “utterly at
odds
with
any
claim
of
innocent
possession”
where,
upon
“discovering the gun, defendant removed the weapon and secreted it
-8-
in a new hiding place, removing it when it suited his own purpose
and handling it in a manner which may be charitably characterized
as reckless”)).
While some courts in this Circuit have treated violations of
the unsworn witness rule as mere errors of state law, the majority
of courts have viewed them as the Appellate Division did in this
case, namely, as instances of prosecutorial misconduct reviewable
in a § 2254 proceeding. See, e.g., Mitchell v. Artus, No. 07 CIV.
4688 LTS AJP, 2008 WL 2262606, at *22 (S.D.N.Y. June 2, 2008)
(“Like other claims of prosecutorial misconduct, a violation of the
‘unsworn witness’ rule results in a constitutional error ‘only when
the prosecutorial remarks were so prejudicial that they rendered
the trial in question fundamentally unfair.’”) (quoting Garofolo v.
Coomb, 804 F.2d 201, 206 (2d Cir. 1986); other quotation omitted);
Morales v. Miller, 41 F. Supp.2d 364, 378 (S.D.N.Y. 1999) (treating
habeas petitioner’s claim based on the violation of the “unsworn
witness” rule as a trial error subject to Brecht harmless error
test) (citing Nimmons v. Walker, No. 92 Civ. 5782 (JFK), 1995 WL
373446, at *3-*4 (S.D.N.Y. June 21, 1995)). The Second Circuit, on
direct review of a federal conviction, also has found error when an
attorney acts as an unsworn witness, for his “his role as advocate
may give his client an unfair advantage, because the attorney can
subtly impart to the jury his first-hand knowledge of the events
without
having
to
swear
an
oath
-9-
or
be
subject
to
cross
examination.” United States v. Locascio, 6 F.3d 924, 933 (2d Cir.
1993), cert. denied, 511 U.S. 1070 (1994). The Court follows this
approach here and analyzes the claim as a variety of prosecutorial
misconduct.
Because
the
Appellate
Division
adjudicated
Petitioner’s
prosecutorial misconduct claim on the merits, this Court must ask
whether that ruling amounted to an unreasonable application of the
Supreme Court’s clearly established precedent on the issue of
prosecutorial misconduct. See Williams v. Taylor, 529 U.S. 362,
404–06 (2000); 28 U.S.C. § 2254(d)(1). As the Appellate Division’s
was
not
“contrary
to”
any
clearly
established
Supreme
Court
precedent, Petitioner’s remaining avenue for relief is to meet the
“unreasonable application” prong of 28 U.S.C. § 2254(d)(1).
A claim of prosecutorial misconduct on habeas corpus is
reviewed under “the narrow [standard] of due process, and not the
broad exercise of supervisory power.” Floyd v. Meachum, 907 F.2d
347, 353 (2d Cir. 1990) (citation omitted). The relevant question
is whether “the prosecutorial remarks were so prejudicial that they
rendered the trial in question fundamentally unfair.” Garofolo v.
Coomb, 804 F.2d 201, 206 (2d Cir. 1986) (citations omitted).
Regardless of whether a prosecutorial misconduct claim is brought
on direct or habeas review, the absence or presence of prejudice is
central to the analysis. See Smith v. Phillips, 455 U.S. 209, 219
(1982)
(“Past
decisions
of
this
-10-
Court
demonstrate
that
the
touchstone
of
due
process
analysis
in
cases
of
alleged
prosecutorial misconduct is the fairness of the trial, not the
culpability of the prosecutor.”).
While the Court agrees with the Appellate Division that the
prosecutor made himself an unsworn witness when he referenced the
conversation with Montgomery, the Court cannot find that the
Appellate Division unreasonably applied clearly established federal
law
in
ruling
that
the
error
did
warrant
reversal
of
the
conviction. This is not a case where the prosecutor engaged in a
pervasive pattern of misconduct, such as repeatedly questioning
Montgomery or other witnesses about facts not in evidence. Clearly
established
Supreme
Court
precedent
teaches
that
criminal
convictions are not to be lightly overturned solely on the basis of
a
prosecutor’s
inappropriate
remarks
in
an
otherwise
fair
proceeding. United States v. Young, 470 U.S. 1 (1985). In addition,
during the final charge, see T.488, the trial court reiterated that
lawyers’ statements or questions are not evidence, and that the
jury could only consider the evidence. See Mitchell v. Herbert,
No. 01–CV–681, 2008 WL 342975 at *14 (W.D.N.Y. Feb. 6, 2008)
(rejecting
petitioner’s
habeas
claim
because,
although
the
prosecutor’s remark, which petitioner alleged violated the “unsworn
witness” rule, was “improper, the trial court at [petitioner’s]
trial
thereafter
appropriately
instructed
the
jury
that
this
comment by the prosecutor was . . . ‘not testimony that you can
-11-
consider’”) (citations omitted); see also Mitchell v. Artus, No. 07
Civ. 4688(LTS)(AJP), 2008 WL 2262606, at *23 (S.D.N.Y. June 2,
2008) (similar). The Court cannot find that the improper question
went beyond “ordinary trial error of a prosecutor” and amounted to
“that sort of egregious misconduct” constituting “a denial of
constitutional due process.” Donnelly DeChristoforo, 416 U.S. 637,
647–48 (1974) (citations omitted).
B.
Due Process Error at Sentencing
Petitioner contends that he was denied due process of law at
his sentencing hearing because the trial court relied on his
previous arrests which amounted to the improper consideration of
“factors having no evidentiary support in the record.” Petitioner’s
Reply Brief (“Reply”) at 15 (Dkt #5). Petitioner argued on appeal
the sentencing
court
was
required
to
assure
itself
that the
information regarding his prior criminal history was both reliable
and accurate. Petitioner’s Appellate Brief at 15-16 (citations
omitted). The Appellate Division summarily rejected this contention
as
without
merit.
As
discussed
further
below,
the
Appellate
Division did not incorrectly apply federal law.
As a general rule, a judge “has discretion to consider a wide
range
of
information
concerning
a
defendant’s
background
in
arriving at an appropriate sentence.” United States v. Romano, 825
F.2d 725, 728 (2d Cir. 1987) (citing United States v. Tucker, 404
U.S. 443, 446 (1972); other citations omitted). Thus, the Second
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Circuit
explained
in
Romano,
a
judge
“may
consider
hearsay
statements, evidence of uncharged crimes, dropped counts of an
indictment and criminal activity resulting in an acquittal in
determining sentence.” Id. (citing United States v. Pugliese, 805
F.2d 1117, 1122 (2d Cir. 1986) (citations omitted)). However, as
the United States Supreme Court reiterated in Gardner v. Florida,
430 U.S. 349 (1977), “the sentencing process, as well as the trial
itself, must satisfy the requirements of the Due Process Clause.”
Id. at 358. “Due process requires that a defendant be given an
opportunity
to
assure
the
accurate
presentation
of
reliable
sentencing information to the . . . court.” Romano, 825 F.2d at 728
(citing Townsend v. Burke, 334 U.S. 736, 741 (1948) (stating due
process precludes a defendant from being sentenced on the basis of
“materially untrue” statements or “misinformation”).
Here, when the trial court referred during the sentencing
hearing to the presentence report (“PSR”) prepared by the probation
department, neither Petitioner nor his trial counsel raised any
objections to the contents of the PSR. In short, Petitioner did not
contest the accuracy of any of the information contained in the
PSR. On appeal, Petitioner faulted the trial court for basing the
sentence on offenses “with no indicia of proof” that the arrests
and underlying conduct were “reliable and accurate.” Petitioner’s
Appellate Brief at 17. According to Petitioner, this procedure
“offended fundamental tenets of due process.” Id. However, as noted
-13-
above,
Petitioner
appeal–any
has
“materially
never
identified–at
untrue”
statements
sentencing
or
or
on
“misinformation”
either contained in the PSR itself or mentioned by the trial court
at the hearing. The Court therefore finds Petitioner’s due process
claim too vague and conclusory to warrant habeas relief.
IV.
Conclusion
For the reasons discussed above, Edgar Atchison’s petition for
writ of habeas corpus is denied, and the petition is dismissed.
Because Petitioner has failed to make a substantial showing of a
denial of a constitutional right, the Court declines to issue a
certificate
of
appealability.
See
28
U.S.C.
§
2253(c)(2).
Petitioner must file any notice of appeal with the Clerk’s Office,
United States District Court, Western District of New York, within
thirty (30) days of the date of judgment in this action. The Clerk
of the Court is requested to close this case.
SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
Rochester, New York
May 12, 2015
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