Giuca v. Lee
MEMORANDUM AND ORDER: Petitioner Giucas § 2254 petition is denied. As he has not made a substantial showing of a denial of his constitutional rights, a certificate of appealability will not issue. Ordered by Judge Frederic Block on 5/14/2013. (Innelli, Michael)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM AND ORDER
Case No. 12-CV-02059 (FB)
-againstWILLIAM LEE, WARDEN, Greenhaven
For the Petitioner:
LLOYD EPSTEIN, ESQ.
Epstein & Weil LLC
225 Broadway, Suite 1203
New York, NY 10007
For the Respondent:
CHARLES J. HYNES, ESQ.
District Attorney Kings County
BY: DIANE R. EISNER, ESQ.
Assistant District Attorney
Kings County District Attorney’s Office
350 Jay Street
Brooklyn, NY 11201
BLOCK, Senior District Judge:
Petitioner John Giuca (“Giuca”) seeks a writ of habeas corpus pursuant to 28
U.S.C. § 2254 (“§ 2254”). The petition is denied.
Following a jury trial, Giuca was convicted of second-degree murder, firstdegree robbery, and second-degree criminal possession of a weapon.1 On October 19, 2005,
he was sentenced by the Supreme Court, Kings County (Marrus, J.) to concurrent terms of
imprisonment totaling twenty-five years to life. Giuca appealed, claiming improper
The convictions stemmed from the robbery and murder of a college student named Mark
Fisher. Giuca and friend Antonio Russo (“Russo”) were charged with the murder and
related crimes. The two were tried jointly before separate juries, and Russo was also
convicted of second-degree murder and first-degree robbery. People v. Russo, 81 A.D.3d 666
(2d Dep’t 2011). The Government’s position was that Russo shot Fisher at Giuca’s behest.
admission of evidence, prosecutorial misconduct, error in the court’s jury instructions, and
ineffective assistance of counsel. On January 20, 2009, the Appellate Division unanimously
affirmed the judgment of conviction on the merits, concluding that “there was
overwhelming evidence of defendant’s guilt.” People v. Giuca, 58 A.D.3d 750, 751 (2d Dep’t
2009). The New York Court of Appeals denied leave to appeal. See People v. Giuca, 12
N.Y.3d 915 (2009).
While Giuca’s direct appeal was pending, he filed a § 440.10 motion to vacate
his convictions.2 The motion was premised upon Giuca’s claim that he had recently
learned of juror misconduct occurring during the course of his trial. On April 1, 2009,
Justice Marrus denied the motion without an evidentiary hearing. See People v. Giuca, 23
Misc.3d 1104(A) (Sup. Ct. Kings Co. 2009). The Appellate Division affirmed, see People v.
Giuca, 78 A.D.3d 729 (2d Dep’t 2010), and the New York Court of Appeals denied leave to
appeal. People v. Giuca, 16 N.Y.3d 859 (2011). On April 26, 2012, Giuca timely filed this
§ 2254 petition. In it he essentially makes the same arguments of juror misconduct he
unsuccessfully advanced in his § 440.10 motion in the courts below, and once again asks
for an evidentiary hearing.3
Given the thoroughness and correctness of Justice Marrus’ decision, the
Giuca filed the motion pursuant to § 440.10(f) and (h), which permit a defendant to move
before the court of conviction at any time to vacate a judgment on the grounds that it was
obtained in violation of his constitutional rights, § 440.10(f), or where “[i]mproper and
prejudicial conduct not appearing in the record occurred during a trial resulting in the
judgment which conduct, if it had appeared in the record, would have required a reversal
of the judgment upon an appeal therefrom,” N.Y. CRIM. PROC. LAW §§ 440.10(1)(h) (2012).
Oral argument was held on March 15, 2013.
merit-based affirmance by the Appellate Division, and the strictures of federal habeas
review under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), Giuca’s
habeas petition must be denied. The case is remarkable, however, not for any legal
complexities, but because of the sensational nature of Giuca’s mother’s clandestine efforts
to vindicate her son. As Justice Marrus recounted, two years after the trial Doreen Giuliano
(“Giuliano”)—Giuca’s mother—contacted one of the jurors “without information that [the]
juror had done anything improper, lied to him about who she was and why she was
speaking to him, engaged in a long-term, quasi-romantic relationship with the juror during
which she repeatedly manipulated their conversations to get him to speak about this case,
and surreptitiously recorded some of their conversations.” 23 Misc. 3d 1104(A), at *1.
Giuca’s mother’s extraordinary exploits received wide media attention, as
exemplified by a lengthy magazine article in Vanity Fair, titled “Mother Justice.” It
recounted that she seized upon this particular juror, Jason Allo (“Allo”), juror number 8,
simply because a friend of her son’s, who had attended the trial, later realized that the juror
was someone from the neighborhood. It explained how she went to extraordinary lengths
to transform herself into a sex-bomb, furnished a rented apartment as a “playgirl’s pen,”
created a fake ID and secret cell-phone account, and “went to an espionage-supply store
in Manhattan and bought the most expensive kind of hidden recording device she could
find.” Christopher Ketcham, Mother Justice, VANITY FAIR, Jan. 2009.
Giuliano’s secret recordings of her conversations with Allo, after she was able
to surreptitiously meet and befriend him, together with some itinerant affidavits, were the
foci of the motion before Justice Marrus. There, as well as in his habeas petition, Giuca
contends that the recordings, in particular, demonstrate that Allo intentionally concealed,
both before and during the trial, personal knowledge of some of the central issues and
people involved in his case, and that Allo violated instructions not to read or listen to
media coverage of the case during the trial.
In his decision, Justice Marrus gave three reasons for rejecting Giuca’s motion
without the need for an evidentiary hearing: (1) the affidavits submitted by Giuca were
“rank hearsay”; (2) the audio recordings could not be relied upon due to concerns about
their completeness, authenticity and reliability; and (3) substantively, the recordings did
not establish juror misconduct. In affirming, the Appellate Division agreed, stating that
“[t]he affidavits submitted by the defendant contained only hearsay allegations concerning
the conduct of the subject juror and therefore were insufficient to support the motion,” and
that the defendant’s submissions “failed to establish the accuracy or authenticity of [the]
recordings, and the oral statements contained therein did not constitute ‘evidentiary facts.’”
78 A.D.3d at 730. The appellate court further held that “the recorded statements attributed
to the subject juror upon which the defendant relied in support of his motion, even if true,
would not entitle the defendant to vacatur of the judgment of conviction.” Id. at 729-30.
Under AEDPA—which governs a federal district court’s power to grant a
writ of habeas corpus to a state prisoner for an invalid conviction in a state court
proceeding—if a state court rendering a final determination rules on the merits of a claim,
that ruling can only be reversed by the district court if it was: (1)“contrary to, or involved
an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States”; or (2)“based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d);
see also Williams v. Taylor, 529 U.S. 362, 402-11 (2000) (explaining deference required by
AEDPA).4 Plainly, the state courts’ decisions here do not fall within either of those
conscripts, but even in the absence of AEDPA, they are correct. Giuca’s mother’s inventive
and passionate, but misguided, efforts to come to her son’s aid do not, and cannot, trump
the stark reality that under the law there is no basis to tamper with her son’s convictions.
“[A] trial court is required to conduct a post-verdict evidentiary hearing on
the issue of juror misconduct only when ‘there is clear, strong, substantial and
incontrovertible evidence . . . that a specific, nonspeculative impropriety has occurred
which could have prejudiced the trial of a defendant.’” Williams v. Artus, 691 F. Supp. 2d
515, 526 (S.D.N.Y. 2010) (quoting United States v. Sun Myung Moon, 718 F.2d 1210, 1234 (2d
Cir. 1983) (finding that post-trial hearings should not be held to “afford a convicted
defendant the opportunity to conduct a fishing expedition”)); see also United States v.
Ianniello, 866 F.2d 540, 543 (2d Cir. 1989) (“The duty to investigate arises only when the
party alleging misconduct makes an adequate showing of extrinsic influence to overcome
the presumption of jury impartiality.”). The Second Circuit has explained:
[H]earings such as the one that [petitioner] request[s] should
be avoided whenever possible. We are always reluctant to
haul jurors in after they have reached a verdict in order to
In assessing the propriety of a final state court determination, a federal district court may
draw upon a lower state court’s treatment of the issue. See Washington v. Goord, 2010 WL
2594310, at *2 (S.D.N.Y. June 22, 2010) (stating that on habeas, “considerable deference” is
granted to the “state courts’ prior determinations of both law and fact”) (citing Uttecht v.
Brown, 551 U.S. 1, 9–10 (2007)).
probe for potential instances of bias, misconduct or extraneous
influences. As we have said before, post-verdict inquiries may
lead to evil consequences: subjecting juries to harassment,
inhibiting juryroom deliberation, burdening courts with
meritless applications, increasing temptation for jury
tampering and creating uncertainty in jury verdicts.
Ianniello, 866 F.2d at 543 (citation and internal quotation marks omitted). “[An] inquiry
should end whenever it becomes apparent to the trial judge that reasonable grounds to
suspect prejudicial impropriety do not exist.” United States v. Stewart, 433 F.3d 273, 303 (2d
Cir. 2006) (citation and internal quotation marks omitted).
As for affidavits, a post-verdict evidentiary hearing is warranted only where
they contain “assertions of fact that [the affiant] is in a position to establish by competent
evidence.” United States v. Aiello, 814 F.2d 109, 113-14 (2d Cir. 1987). “Airy generalities,
conclusory assertions and hearsay statements will not suffice because none of these would
be admissible evidence at a hearing.” Id.; see also D’Ercole v. United States, 361 F.2d 211, 212
(2d Cir. 1966) (affidavit containing hearsay statements could not support habeas petition);
Hayden v. United States, 814 F.2d 888, 892 (2d Cir. 1987) (hearsay statements regarding juror
bribery did not warrant evidentiary hearing: “A standard that would entitle a petitioner,
based solely on hearsay information . . . to a full evidentiary hearing [regarding juror
corruption] would too easily lend itself to abuse, because such hearsay is too easily
manufactured.”); Taus v. Senkowski, 293 F. Supp. 2d 238, 250 (E.D.N.Y. 2003) (failure to
submit affidavit containing personal knowledge of essential facts was proper ground for
denying motion to set aside verdict based upon alleged juror misconduct).
The affidavits which Giuca submitted in support of his motion were from
Giuliano, two private investigators, and an attorney. Giuliano’s affidavit recounts alleged
conversations she had with Allo allegedly telling her that he spoke to his cousin during the
trial who told him that she knew members of the defendant’s gang, that the defendant was
a “big shot” known to her as “Slim,” and that she overheard “guys” who “hung out” with
the defendant say that “they didn’t believe it happened but in a sense they knew it did
happen because of the way they are.” Petr’s Br. Ex. K (Giuliano Aff.) ¶ 9. Giuliano also
states in her affidavit that Allo told her that he disobeyed court instructions not to read
newspaper accounts during the trial; moreover, he told her that he would have been
disqualified if he disclosed that he knew some members of the defendant’s gang —the
“Ghetto Mafia”—including brothers Jesse and William “Billy” Wenzel, and that his cousin
used to date a third brother, Wayne Wenzel. Id. ¶¶ 9-10. The affidavit from one of the
private investigators, Elizabeth Ghormley, relates a conversation she had with Billy Wenzel
basically reiterating what was contained in Giuliano’s affidavit. The other investigator’s
affidavit, as well as the affidavit of the attorney, merely state that neither Allo nor his
cousin would speak to them.
The state courts were correct in viewing the alleged conversations of Giuliano
with Allo and Ghormley with Billy Wenzel as inadmissible hearsay. As such, the cases
relied on by Giuca are inapposite because they each entail affidavits by jurors or other
witnesses who could testify about juror misconduct that they had directly witnessed. See
United States v. Colombo, 869 F.2d 149, 150-51 (2d Cir. 1989) (affidavit from alternate juror);
Remmer v. United States, 350 U.S. 377, 380-81 (1956) (juror told trial judge about
inappropriate communications); United States v. Vitale, 459 F.3d 190, 194 (2d Cir. 2006)
(letter from prosecutor who had firsthand knowledge); Williams v. Price, 343 F.3d 223, 22627 (3d Cir. 2003) (affidavit from juror).
In any event, Giuca claims that the veracity of the conversations referenced
by Giuliano in her affidavit, and in his attorney’s briefs, are corroborated by the recorded
conversations Giuliano had with Allo. Even assuming that Giuca could overcome the
hearsay issues inherent in these recordings, see United States v. Cruz, 894 F.2d 41, 44 (2d Cir.
1990) (“Each hearsay statement within multiple hearsay statements must have a hearsay
exception in order to be admissible”), the state courts were also correct in ruling,
nonetheless, that the recordings were inadmissible. Specifically, as Justice Marrus noted,
Giuca did not submit any affidavit stating that the recordings represented a “complete and
accurate reproduction of the conversations between Giuliano and [Allo],” or that they had
not been altered in any way. 23 Misc.3d 1104(A), at *3. Justice Marrus also correctly
pointed out that Giuca’s attorney had “no way of knowing the genuineness, accuracy and
chain of custody of these tapes because he did not oversee or participate in their
compilation,” and that counsel’s submission of additional recorded conversations
subsequent to the filing of the motion cast further doubt on their completeness and
accuracy. Id. Finally, Justice Marrus correctly discerned that when listening to the
recordings—which the Court has also done—it was “evident that they randomly begin and
end, are not date or time stamped,  contain gaps in the conversations, [and] are also not
completely audible or decipherable.” Id. at *4; see United States v. Morrison, 153 F.3d 34, 3637 (2d Cir. 1998) (requiring “clear and convincing evidence of authenticity for admission
of recordings,” such as expert testimony that there was no indication recordings had been
In addition, when listening to the recordings the Court heard that a number
of them contain introductions by Giuliano with editorial comments of her conversations
with Allo. See Stapleton v. Greiner, 2000 WL 1207259, at *8 (E.D.N.Y. July 10, 2000) (audio
recording excluded where “conversation had not been recorded continuously” and
recordings began with “an introduction by petitioner’s wife outlining what would
follow.”). Further, although Giuca asserts that Giuliano’s affidavit authenticated the
recordings by swearing that the audio recordings “accurately reflect” her conversations
with Allo, Petr’s Br. at 17, this is not the case; Giuliano’s affidavit states only that
submissions accompanying Giuca’s motion contained “draft transcripts of the pertinent
portions of the [recorded] conversations.” Giuliano Aff. ¶ 8.
Although the state courts need not have addressed the substantive contents
of the recordings, it was prudent to do so to dispel the notion that there may have been any
substantive indicia of juror misconduct, given the sensational nature of the means by which
Giuliano ensnared Allo into her spider’s web. The Court has similarly substantively
analyzed the information contained in the recordings and agrees with the state courts’
conclusions. Curiously, in a number of respects, the recorded conversations are at a
variance with what Giuliano relates in her affidavit, as well as in Giuca’s lawyer’s briefs.
A. Concealment of Information During Voir Dire
Tracking the claims of his mother’s affidavit, Giuca first asserts that Allo
committed juror misconduct because he purportedly failed to report to the trial court
during voir dire that he recognized Jesse and Billy Wenzels’ names when read from the list
of potential witnesses,5 and that Allo improperly concealed his personal knowledge of
Giuca during jury selection.
“A party alleging unfairness based on undisclosed juror bias must
demonstrate first, that the juror’s voir dire response was false and second, that the correct
response would have provided a valid basis for a challenge for cause.” United States v.
Stewart, 433 F.3d 273, 303 (2d Cir. 2006) (citing McDonough Power Equip., Inc. v. Greenwood,
464 U.S. 554, 556 (1984)).
The recordings do not reflect that Allo recognized either Jesse or Billy
Wenzels’ names. To the contrary, Allo tells Giuliano that when the court read the witness
list, he “didn’t know any of their names.” Recording dated Oct. 2007; see also Recording
dated Nov. 2007 (stating that he didn’t know Ghetto Mafia gang members). Neither do the
recordings reflect that Allo ever recognized Giuca’s name or had any prior personal
knowledge of him. Quite the opposite, Allo can be heard telling Giuliano that prior to the
trial he did not know Giuca and had never met him. Recording dated Dec. 2007 (“I didn’t
know [Giuca] . . . I never even heard of him.”); Recording dated Nov. 2007 (“No I didn’t
know [Giuca] . . . I never seen the kid.”). Consequently, Giuca has not satisfied the first
prong of the McDonough standard.
See McDonough, 464 U.S. at 556 (requiring
Wayne Wenzel was not included on the list of potential trial witnesses.
demonstration that juror’s voir dire response was false); United States v. Shaoul, 41 F.3d 811,
816 (2d Cir. 1994) (“[T]hreshold requirement of the McDonough test . . . [is] juror
Moreover, Allo’s own statements cast doubt that any arguable failure to
report could have prejudiced the trial. Neither Jesse nor Billy Wenzel appeared as
witnesses during Giuca’s trial. Likewise, in the recordings Allo repeatedly states his belief
that the prosecution had proven its case, and that “the evidence was all there.” Recording
dated Oct. 2007; see also Recording dated Nov. 2007 (same).
B. Improper Discussion of Case During Trial
Giuca next contends that Allo had a conversation during the trial with his
cousin who told him that she was “real tight” with Giuca’s fellow gang members, and had
overheard some of them discussing the murder and their belief that Giuca was responsible.
Giuca claims that this must have unduly influenced Allo. However, once again, the
recordings are not apposite.
Tracking his mother’s affidavit, Allo is heard on the recordings telling
Giuliano that his cousin overheard Ghetto Mafia members saying “that they didn’t believe
that it [the murder] happened but in the same sense they knew that it did happen because
of the way they are.” Recording dated Nov. 2007. However, Giuca is not identified as the
perpetrator, nor is it clear who the last “they” refers to. Tellingly, Allo indicates to Giuliano
that he had not spoken with his cousin about the case during the trial: “When I was on trial
I didn’t really speak, I wasn’t really speaking with my cousin like that.” Recording dated
C. Reading Newspapers During Trial
Giuca also asserts that he was prejudiced by Allo’s having read newspaper
articles that contained information heard only by the jury in co-defendant Russo’s trial.
These articles purportedly discuss Russo’s out-of-court statements to his ex-girlfriend
implicating Giuca as the shooter—statements that were “inadmissible against Giuca.”
Giuca claims that Allo read these newspaper articles during the trial, and that they unduly
influenced his verdict. In support, Giuca identifies a New York Post article describing
Russo’s ex-girlfriend’s testimony that Russo “gave her a series of flip-flopping accounts of
what happened,” first “admi[tting] that he was the shooter,” then “adjust[ing] his story to
say ‘John [Giuca] shot [the victim].’” Zach Haberman, Slay Teen’s Sick Blame Game- Ex Tells
of Grid-Shoot Suspect’s Crazed Call, N.Y. POST, Sept. 20, 2005 at 17. Aside from this article,
Giuca does not identify any other newspaper article that Allo allegedly read during the
Initially, nothing in the record reflects that Allo read this New York Post
article. And while the recordings contain a single statement by Allo that he “read
[newspaper(s)],” Recording dated Nov. 2007, there is no indication as to which newspapers
he read, or more importantly, when this occurred. Regardless, Giuca cannot demonstrate
prejudice because he was convicted of felony murder—a crime which did not depend upon
whether or not he was the actual shooter. Furthermore, the recordings reflect that Allo
believed Russo was the shooter—Allo repeatedly tells Giuliano that Giuca “ordered
[Russo] to kill,” and that “the shooter got” a different sentence than “the kid,” a nickname
that Allo often used to refer to Giuca. Recording dated Oct. 2007. In any event, as Justice
Marrus correctly explained, “mere exposure to accounts in newspapers pertaining to a
defendant and his conduct, without more, is insufficient to rebut the presumption of a
juror’s impartiality and to warrant disqualification.” Giuca, 23 Misc.3d 1104(A), at *6
(quoting People v. Costello, 104 A.D.2d 947, 948 (2d Dep’t 1984)).
D. Religious Bias and Employer’s Comments
Finally, Giuca contends that the recordings reflect that Allo was biased
against him because he was Jewish, and that Allo’s employer told him that he wanted
Giuca “to fry.” Neither of these claims were raised in Giuca’s motion; accordingly the
Appellate Division, where they were raised for the first time, refused to consider them.
Giuca, 78 A.D.3d at 730.
Where a claim has not been exhausted in state court, AEDPA permits a
district court to deny the claim on the merits if it is “patently frivolous.” See 28 U.S.C.
§ 2254(b)(2); see also Pacheco v. Artuz, 193 F. Supp. 2d 756, 761 (S.D.N.Y. 2002) (recognizing
that district courts are permitted to deny a § 2254 petition on the merits where unexhausted
claims are “patently frivolous”). The Court finds that both of these unexhausted juror
misconduct claims may be denied on their merits. First, the record does not clearly reflect
that Allo’s employer said he wanted Giuca “to fry”: after discussing the employer’s
reluctance that Allo miss work because of jury duty, Giuliano asks Allo, “what was [your
boss’s] opinion [of the case]?” Allo then responds: “(inaudible) He wanted to see that
fucking kid fry.” Recording dated Nov. 2007. Even accepting that Allo’s employer told
Allo that he wanted Giuca “to fry,” there is no information in the recordings as to when the
employer supposedly made this statement. Furthermore, the recordings do not reflect that
Allo agreed with this alleged statement or otherwise took it into account in reaching his
Likewise, the recordings do not establish that Allo harbored anti-Semitic
sentiments—rather, Allo discusses reasons given by jurors that would excuse them from
service: “The number one excuse: ‘I’m prejudiced. I hate Jews.’ That’s how most people
get out.” Recording dated Nov. 2007. Finally, even assuming Allo knew of Giuca’s religion
during the trial, Giuca has not provided any basis to conclude that this awareness played
any role in Allo’s verdict.
Giuca’s § 2254 petition is denied. As he has not made a substantial showing
of a denial of his constitutional rights, a certificate of appealability will not issue. See 28
U.S.C. § 2253.
Senior United States District Judge
Brooklyn, New York
May 14, 2013
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