Daniels v. LaManna
Filing
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DECISION AND ORDER dismissing 1 Petition for Writ of Habeas Corpus filed by Mark Daniels. The Court finds that Daniels has failed to show that his conviction was "contrary to," or involved an unreasonable application of, clearly estab lished Federal law. 28 U.S.C. § 2254(d)(1). Accordingly, Daniels' application under 28 U.S.C. § 2254 [ECF No. 1] is denied. The Clerk of the Court is hereby ordered to close this case. Pursuant to 28 U.S.C. § 2253, the Court de clines to issue a certificate of appealability, because Daniels has not made a substantial showing of the denial of a constitutional right. The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would no t be taken in good faith and leave to appeal to the Court of Appeals as a poor person is denied. Coppedge v. United States, 369 U.S. 438 (1962). Further requests to proceed on appeal in forma pauperis should be directed on motion to the United States Court of Appeals for the Second Circuit in accordance with Rule 24 of the Federal Rules of Appellate Procedure.Signed by Hon. Charles J. Siragusa on 4/20/21. Copy of this NEF and decision and order mailed to pro se petitioner at Shawangunk.(KAP)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_________________________________________
MARK DANIELS,
-vs-
Petitioner,
DECISION AND ORDER
17-CV-6395 (CJS)
JAMIE LAMANNA, Superintendent of
Shawangunk Correctional Facility,
Respondent.
_________________________________________
The petitioner, Mark Daniels (“Daniels”), brings this pro se petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. Daniels challenges his conviction in the New
York Supreme Court, after a bench trial, on two counts of robbery in the second degree, one
count of grand larceny in the third degree, and one count of reckless driving. For the reasons
discussed below, the petition for a writ of habeas corpus is denied.
BACKGROUND 1
The following facts are undisputed by the parties. Shortly after 5:30 p.m. on
December 16, 2011, less than thirty minutes from the close of business, an individual
wearing a hooded sweatshirt, black spandex pants, white shoes, dark gloves, and a face
covering, entered the branch of Evans Bank located in Amherst, New York, jumped over the
counter, and took more than $4,000 in cash from the drawer of Ann Ostrowski, the lone
bank teller still on duty that evening. The individual also grabbed from the drawer a packet
The following background is drawn primarily from the transcripts of Petitioner’s three-day bench trial before
the Honorable Michael L. D’Amico of the New York Supreme Court, Erie County. Trial Tr., vols. I, II, III, and
IV, Dec. 10, Dec. 11, Dec. 17, and Dec. 18, 2012. Because the transcripts were consecutively paginated, where
appropriate the Court will cite to the transcripts using a single abbreviation: “Tr.”
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of bills containing a hidden GPS tracker, which he placed in a light-colored bag with the
rest of the cash. The robbery was also witnessed by Mark Galantowicz, the bank employee
in charge of personal banking. Galantowicz observed the robbery from his nearby office,
noted the robber’s appearance, and followed the robber at a careful distance as he exited the
branch, got into the driver’s side of a light-colored sedan, and drove away. Both Ostrowski
and Galantowicz testified that the robber’s face covering prevented them from making a
positive identification of the robber, but that they were able to discern that he was an
African American male.
The GPS tracker had automatically activated upon its removal from Ostrowski’s
teller drawer, and within minutes the Amherst police were able to trace the location of the
stolen cash to the nearby intersection of Bailey Drive and Eggert Road in Amherst. When
officers arrived at the intersection of Bailey and Eggert, they stopped traffic and began
screening vehicles for individuals matching the description of the Evans Bank robber. Soon
thereafter, Officer Daniel Busher noticed Daniels in the driver’s seat of a light silver
Chevrolet Impala, waiting to move south on Bailey Drive. Officer Busher immediately drew
his weapon and directed Daniels to exit the vehicle. Rather than comply, Daniels
maneuvered his vehicle onto the curb – nearly striking Officer David Awald, who had moved
in to assist Officer Busher – and sped away down Bailey Drive. The ensuing high-speed
chase, which involved several police vehicles over several miles and speeds exceeding 80
miles per hour, ended when Daniels crashed into two other vehicles. Daniels was
apprehended by police at the crash scene, in possession of a white bag containing over $4,000
in cash and the GPS tracker from Evans Bank.
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At trial, in Daniels’ papers contesting his conviction in state court, and in the present
petition, two different accounts emerged regarding how Daniels came into possession of the
bag containing the cash and the GPS tracker. The prosecution argued that Daniels was in
possession of the of the bag because he was the individual who robbed Evans Bank. In
support of its position, the prosecution presented substantial evidence. In addition to
Daniels’ possession of the bag of cash with the GPS tracker, and the high speed chase, the
prosecution introduced evidence that Daniels was wearing black spandex pants and white
shoes at the time of his arrest (Tr. at 170–71), and that police recovered a pair of dark gloves
from his vehicle (Tr. at 194). Moreover, the prosecution introduced evidence that police
witnessed Daniels throw a hooded sweatshirt from his car during the car chase (Tr. at 115,
134), and later recovered that sweatshirt and a ski mask from along the route of the chase
(Tr. at 156). Police conducted a DNA analysis of the sweatshirt and ski mask, and found
that Daniels could not be excluded as a contributor to the DNA on the sweatshirt (Tr. at
248), and that the DNA on the ski mask matched Daniels’ DNA profile (Tr. at 249).
For his part, Daniels reiterated that neither bank teller Ostrowski, nor personal
banker Galantowicz, were able to positively identify him as the perpetrator of the robbery.
Tr. at 23, 51. He also provided a different reason for his high-speed flight from the police,
and a different account of how he came to possess the bag of cash. Daniels’ explanation was
most clearly and concisely presented in an affidavit he submitted to the trial court in support
of his pro se post-trial motion to vacate his judgment of conviction in 2016:
. . . I was either at a restaurant having dinner with my girlfriend or on the
telephone with her as I was leaving the dinner date, at the purported time of
the robbery . . . .
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. . . [I]mmediately after I ended the telephone call with my girlfriend, I saw
someone running towards me. That person stopped on the side of a pet store
and put something under a dumpster. He or she then fled in a different
direction. I went to see what was stashed under the dumpster. I saw a sack
with money and clothing inside. I took it and ran to my car which was nearby.
I drove away, and shortly afterwards I was surrounded by police when I
stopped at a red light. I panicked and fled the scene.
Ex. 1 (Aff.), 31–32, June 19, 2017, ECF No. 1-1. In his opening statement at trial, defense
counsel explained that the reason for Daniels’ panic was that he did not have a “proper”
driver’s license. Tr. 18.
Daniels attempted to introduce evidence supporting his account on the final day of
his trial, December 17, 2012. Tr. at 270. After the defense had formally rested, the following
exchange occurred involving defense counsel, the trial court, and Daniels:
[Defense Counsel]: . . . [T]here is a piece of evidence, a Samsung phone that
was found at the scene in the car that Mr. Daniels was in. And according to
Mr. Daniels he believes it has some evidence on it in terms of phone calls . . . .
****
[Defense Counsel]: . . . [M]y client tells me it would indicate and show that he
was on the phone during the chase, right?
[Daniels]: I had incoming calls. I was on the phone at the time this happened,
your Honor, so it wasn’t no way I could be doing a robbery and on the phone at
the same time. My last 2 or 3 incoming calls were proof of the date and time.
****
[Defense Counsel]: . . . . Mr. Daniels is asking that the Court allow him to
reopen the case. He would like to put his girlfriend on to testify as to phone
calls that were made between him and her at the time of the alleged bank
robbery and that she would be able to testify as to this being his phone. And if
we could turn it on or have the ability to turn it on we would be able to see that
there were recent phone calls at that time, same exact time as the bank
robbery.
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****
[Defense Counsel]: . . . it would seem to spill over into the arena of alibi because
I think that [the] testimony that Mr. Daniels wants me to elicit from his
girlfriend is that they were engaged in dinner at the same exact time [as the
robbery] at a restaurant . . . . Your Honor, between Mr. Daniels and myself and
the Court I was only made aware of this defense as of last Tuesday [i.e.,
December 11, 2012, the first day of the bench trial] . . . . I knew that [his
girlfriend] existed I did not know that she would testify as to a dinner at the
same exact time as the bank robbery.
****
THE COURT: . . . . [I]f you think you are just going to call [Daniels’ girlfriend]
in here to say I was having dinner while this bank was being robbed, I don’t
think so, not at this stage of the game. But I might allow evidence of the fact
that she was on the phone with him or that phone calls were made . . . . She’s
not coming in, but I think [the phone] might have some value.
****
THE COURT: . . . . I’m going to allow you an opportunity to recharge that
[phone] and look at it and if there is something that should be called to my
attention I’m sure somebody will do so. Obviously, I want to review the
evidence. You have got until . . . tomorrow morning before I need to see it, okay?
Tr. at 272–274, 299. The following day, defense counsel provided the Court with an update
regarding the phone evidence. Counsel stated that he had spoken with Daniels’ girlfriend,
and that she had assured him she would search for Daniels’ charger so that the Court could
view the evidence of incoming calls. However, the girlfriend never called counsel back, and
counsel was unable to find an alternate charger despite his independent research with
“some local cell phone places.” Tr. at 301–302.
Thereafter, the trial court rendered a verdict of guilty as charged on two counts of
robbery in the second degree, one count of grand larceny, and one count of reckless driving.
Tr. at 302. Daniels was given a determinate sentence of fifteen years imprisonment and five
years of post-release supervision on the two robbery counts, an indeterminate sentence of
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between three and one-half years and seven years imprisonment on the larceny count, and
one year imprisonment on the reckless driving count.
Daniels appealed his conviction to the New York Supreme Court’s appellate division,
which “reject[ed] [his] contention that the evidence is legally insufficient to support the
robbery and grand larceny convictions.” People v. Daniels, 125 A.D.3d 1432 (N.Y. App. Div.
2015). Noting that the evidence “included the stolen GPS unit and prerecorded bait money
in defendant’s bag that he dropped when apprehended by police, clothing removed from the
defendant . . . which matched the bank employees’ descriptions, and the presence of
defendant’s DNA on clothing found in the middle of defendant’s route fleeing from the bank,”
the appellate division concluded that the trial court’s decision was based on “a valid line of
reasoning and permissible inferences that could lead the court in this nonjury trial to find
that defendant” was guilty as charged. 2 Id. at 1432–33. Daniels’ application for a certificate
granting leave to appeal to the New York Court of Appeals was denied.
At the trial court level, Daniels also filed two motions to vacate his judgment
pursuant to New York Criminal Procedure Law § 440.10. Daniel’s second § 440.10 motion,
filed in 2016, is most relevant to the present petition. In that motion, Daniels argued that
his conviction should be vacated on the grounds that his trial counsel was ineffective, as
evidenced by counsel’s failure to obtain and introduce into evidence Daniels’ cell phone
records from his service provider. These cell phone records, obtained by Daniels in 2016 and
submitted with his second § 440.10 motion, showed that he had two incoming calls on the
evening of the robbery at Evans Bank: one at 5:37 PM, and one at 5:38 PM. Daniels therefore
The appellate division did, however, reduce the sentence on the reckless driving count to 30-days
imprisonment in accordance with New York state law. Daniels, 125 A.D.3d at 1433.
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argued that a comparison of these times with the timestamps on the images from the bank
cameras proved that he was innocent because he could not have been on the phone and
robbing a bank at the same time. Noting that Daniels failed to offer proof that the clocks on
the cell phone and at the bank were in sync, the trial court concluded that Daniels had failed
to rebut the presumption of the regularity of proceedings with substantial evidence. The
trial court observed that Daniels “was not convicted as a result of counsel incompetency, but
because of the overwhelming evidence of his guilt.” Daniels was denied leave to appeal the
trial court’s orders regarding both of his § 440.10 motions.
On June 19, 2017, Daniels filed pro se the instant petition seeking a writ of habeas
corpus. The Court is in possession of, and has reviewed, the state record, including
transcripts of the trial, Daniels' direct appeal to the Appellate Division and the New York
Court of Appeals, and Daniels’ § 440.10 motions. Daniels has not challenged the record
below as inaccurate. Accordingly, the Court finds that an evidentiary hearing is not
necessary in this case.
LEGAL STANDARD
Daniels brings his habeas corpus petition pursuant to 28 U.S.C. § 2254. The general
legal principles applicable to such a claim are well-settled. Federal courts are obliged to give
deference to state courts’ decisions. See Chrysler v. Guiney, 806 F.3d 104, 117 (2d Cir. 2015)
(citing The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110
Stat. 1214). “First, the exhaustion requirement ensures that state prisoners present their
constitutional claims to the state courts in the first instance.” Jackson v. Conway, 763 F.3d
115, 132 (2d Cir. 2014). “Should the state court reject a federal claim on procedural grounds,
the procedural default doctrine bars further federal review of the claim, subject to certain
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well-established exceptions.” Id. (citing Wainwright v. Sykes, 433 U.S. 72, 82–84 (1977)).
For claims adjudicated on the merits in state court, a federal court may issue a writ of
habeas corpus only when the state-court adjudication “resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly established Federal law . . .
.” Chrysler, 806 F.3d at 117 (quoting 28 U.S.C. § 2254(d)(1)).
A principle is “clearly established Federal law” for § 2254 purposes when it is
embodied in a Supreme Court holding framed at the appropriate level of generality.
Washington v. Griffin, 876 F.3d 395, 403 (2d Cir. 2017) (quoting, inter alia, Thaler v. Haynes,
559 U.S. 43, 47 (2010)), cert. denied, 138 S. Ct. 2578. A state court decision is “contrary to”
such clearly established law when the state court either has arrived at a conclusion that is
the opposite of the conclusion reached by the Supreme Court on a question of law, or has
“decided a case differently than the Supreme Court has on a set of materially
indistinguishable facts.” Washington, 876 F.3d at 403 (quoting Williams v. Taylor, 529 U.S.
362, 412–13 (2000)). An “unreasonable application” of such clearly established law occurs
when the state court correctly identifies the governing legal principle but unreasonably
applies it to the facts of the particular case such that “the state court’s ruling on the claim .
. . was so lacking in justification that there was an error well understood and comprehended
in existing law beyond any possibility for fairminded disagreement.” Washington, 876 F.3d
at 403 (citation omitted).
DISCUSSION
Because Daniels is proceeding pro se, the Court has construed his submissions
liberally, “to raise the strongest arguments that they suggest.” Burgos v. Hopkins, 14 F.3d
787, 790 (2d Cir. 1994). In his petition, Daniels argues that his conviction violated his Sixth
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Amendment right to counsel because his trial counsel was ineffective. First, Daniels
maintains that his trial counsel was ineffective for failing to obtain and introduce his cell
phone records as evidence that would have exonerated him. Pet., 5, June 19, 2017, ECF No.
1. Second, Daniel maintains that his trial counsel was ineffective for failing to present
Daniels’ girlfriend as an alibi witness at trial. Pet. at 7. Respondent argues that Daniels’
claims lack merit. The Court agrees with Respondent.
Ineffective Assistance of Counsel
The Sixth Amendment guarantees a criminal defendant the right to “reasonably
effective assistance” of counsel. To establish ineffective assistance of counsel, a defendant
must satisfy the two-prong test outlined in Strickland v. Washington, 466 U.S. 668 (1984).
A defendant's failure to satisfy one prong of this two-pronged test relieves the court of any
requirement to consider the other prong. Strouse v. Leonardo, 928 F.2d 548, 556 (2d Cir.
1991).
First, the defendant must demonstrate that his attorney’s performance “fell below an
objective standard of reasonableness” under the “prevailing professional norms.” Vadas v.
U.S., 527 F.3d 16, 20 (2d Cir. 2007) (citing Strickland, 466 U.S. at 688). When applying this
first Strickland prong, courts must be mindful of the variety of approaches effective
attorneys might employ when dealing with a particular set of facts, and “indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” Parisi v. U.S., 529 F.3d 134, 141 (2d Cir. 2008) (quoting Strickland, 466 U.S. at
689). Hence, the Court must “consider the circumstances counsel faced at the time of the
relevant conduct and . . . evaluate the conduct from counsel’s point of view.” Davis v. Greiner,
428 F.3d 81, 88 (2d Cir. 2005) (quoting Strickland, 466 U.S. at 689).
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Second, the defendant must demonstrate he was prejudiced by the ineffective
conduct. Strickland at 687–88. That is, he must show there is a “reasonable probability”
that but for counsel’s error, the outcome of the proceeding would have been different.
Strickland at 694. “[T]he question is not whether a court can be certain counsel’s
performance had no effect on the outcome or whether it is possible a reasonable doubt might
have been established if counsel acted differently; instead, [t]he likelihood of a different
result must be substantial, not just conceivable.” Garner v. Lee, 908 F.3d 845, 862 (2d Cir.
2018) (quoting Harrington v. Richter, 562 U.S. 86, 111–12 (2011)) (internal quotation marks
omitted). Further, in evaluating prejudice, the reviewing court must look to the cumulative
effect of all of counsel’s unprofessional errors. Gersten v. Senkowski, 426 F.3d 588, 611 (2d
Cir. 2005). Therefore, “[t]he prejudice inquiry is . . . ineluctably tied to the strength of the
prosecution’s evidence.” Garner, 908 F.3d at 862. Indeed, the Second Circuit has stated that,
“where a conviction is ‘supported by overwhelming evidence of guilt,’ habeas relief on the
ground of ineffective assistance is generally not warranted.” Waiters v. Lee, 857 F.3d 466,
480 (2d Cir. 2017) (quoting Lindstadt v. Keane, 239 F.3d 191, 204 (2d Cir. 2001)).
Daniels’ Claims
Both of Daniels’ claims fail to satisfy either of the Strickland prongs. To put the
claims in context, the Court notes that it is apparent from the record in this case that
Daniels’ counsel had been appointed only a couple of months prior to trial, after Daniels
went through two other attorneys. See, e.g., Tr. 275 (the trial court noted, in the course of a
discussion regarding Daniels’ cell phone and alibi defense, that Daniels has “had three good
lawyers here”). Moreover, defense counsel stated on the record – and Daniels did not and
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does not deny – that Daniels did not inform counsel of a potential alibi defense based on
phone records until at or very near the start of the bench trial. Tr. 274.
Further, Daniels’ claim that his trial counsel was ineffective for failing to present
Daniels’ girlfriend as an alibi witness does not even appear to be factually accurate. As
indicated above, prior to summations, defense counsel notified the trial court that Daniels
wanted to re-open the case so that his girlfriend could testify that she was on the phone with
Daniels around the time of the robbery, and that the two of them were engaged in dinner
together around that time, as well. Tr. 273–74. The trial court’s response was a swift and
definite denial of the motion – “[s]he’s not coming in” – as was the trial court’s prerogative.
See N.Y.C.P.L. § 250.20 (“[i]f at the trial the defendant calls such an alibi witness without
having served the demanded notice of alibi . . . the court may exclude any testimony of such
witness relating to the alibi defense.”). In other words, counsel’s performance was not
deficient because he did raise the issue with the trial court, which swiftly denied his request.
In addition, the Court finds that Daniels has failed to demonstrate that counsel’s
performance was deficient based on counsel’s failure to obtain and introduce Plaintiff’s cell
phone records. Daniels rightly notes that “counsel has a duty to make reasonable
investigations or to make a reasonable decision that makes particular investigations
unnecessary.” Strickland, 466 U.S. at 691. However, the court deciding the ineffectiveness
claim “must judge the reasonableness of counsel’s challenged conduct on the facts of the
particular case . . . . keep[ing] in mind that counsel’s function, as elaborated in prevailing
professional norms, is to make the adversarial testing process work in the particular case.”
The record shows that defense counsel did “make the adversarial testing process work” in
this particular case: he was well-prepared for trial, he vigorously cross-examined the
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prosecution’s witnesses, he challenged the prosecution’s theory of the case with a credible
alternative theory based on the inability of the eye-witnesses to identify the robber (Tr. 18),
and he even made a last ditch effort to “do some independent research at some local cell
phone places to see if we could get a [phone] charger” (Tr. 301). In this context, the Court
declines to find that Daniel’s counsel’s performance was deficient. 3
Furthermore, even assuming that Daniels was able to satisfy the first Strickland
prong, his ineffective assistance claims must fail because he has not shown that counsel’s
purported errors prejudiced his case. Daniels bears the burden of showing prejudice.
Waiters, 857 F.3d at 479. That is, he has the burden of showing that it is “substantially
likely” that his trial would have resulted in a different verdict if his counsel had obtained
and introduced his cell phone records at trial as an alibi defense. Garner, 908 F.3d at 865.
As detailed above, the prosecution presented evidence that at the time of his apprehension,
Daniels was wearing pants and shoes that matched the description of those being worn by
the Evans Bank robber; that within minutes of the robbery, he was spotted by police, in the
area of the bank, in a car that matched the description of that used by the robber; that a
high-speed car chase ensued; that Daniels was seen throwing a hooded sweatshirt from his
vehicle during the chase that matched the description of the sweatshirt worn by the robber;
that police recovered a ski mask from the route of the chase that contained Daniels’ DNA;
and that at the conclusion of the chase Daniels was found to be in possession of a bag
Daniels’ papers indicate that he obtained his cell phone records by writing a letter to his service provider in
January of 2016. Ex. (Aff.), 35, June 19, 2017, ECF No. 1-1. He did not receive his records, however, until June
2016, approximately five months after his letter request. Id. Notably, at the time of trial, defense counsel had
been appointed for only approximately two months. It is therefore questionable whether Daniels’ counsel
would even have received the records in time for trial had Daniels informed him of their relevance immediately
upon appointment.
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containing the missing money from the bank and the bank’s GPS tracking device. In light
of such overwhelming evidence of his guilt, the Court finds that Daniels has failed to carry
his burden to demonstrate prejudice.
CONCLUSION
Based on the foregoing, the Court finds that Daniels has failed to show that his
conviction was “contrary to,” or involved an unreasonable application of, clearly established
Federal law. 28 U.S.C. § 2254(d)(1). Accordingly, Daniels’ application under 28 U.S.C. §
2254 [ECF No. 1] is denied. The Clerk of the Court is hereby ordered to close this case.
Pursuant to 28 U.S.C. § 2253, the Court declines to issue a certificate of appealability,
because Daniels has not made a substantial showing of the denial of a constitutional right.
The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this
Order would not be taken in good faith and leave to appeal to the Court of Appeals as a poor
person is denied. Coppedge v. United States, 369 U.S. 438 (1962). Further requests to
proceed on appeal in forma pauperis should be directed on motion to the United States Court
of Appeals for the Second Circuit in accordance with Rule 24 of the Federal Rules of
Appellate Procedure.
SO ORDERED.
Dated:
April 20, 2021
Rochester, New York
ENTER:
________________________
CHARLES J. SIRAGUSA
United States District Judge
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