Valdiviezo v. Shanley
Filing
16
MEMORANDUM DECISION, Valdiviezo has failed to show a basis for relief under 28 U.S.C. § 2254. Accordingly, his habeas petition is denied. Additionally, I decline to issue a certificate of appealability because Valdiviezo has not made a substanti al showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). Pursuant to 28 U.S.C. § 1915(a)(3), I certify that any appeal taken from this decision and order would not be taken in good faith. So Ordered by Circuit Judge VJ-Denny Chin on 3/26/2024. (TLH)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------x
MARIO VALDIVIEZO,
Petitioner,
MEMORANDUM DECISION
20-CV-6355 (DC)
-v-
RAYMOND SHANLEY, Superintendent,
Respondent.
------------------------------------x
APPEARANCES:
MARIO VALDIVIEZO
Petitioner Pro Se
#15-A-2295
Eastern Correctional Facility
P.O. Box338
N apanoch, NY 12458
ERIC GONZALEZ, Esq.
Kings County District Attorney
By:
Leonard Joblove, Esq.
Jean M. Joyce, Esq.
Assistant District Attorneys
350 Jay Street
Brooklyn, New York 11201
Attorney for Respondent
CHIN, Circuit Judge:
On April 30, 2015, following a jury trial, Petitioner Mario Valdiviezo was
convicted in the Supreme Court of the State of New York, Kings County (Del Giudice,
J.), of thirty-four counts, including two counts of use of a child in a sexual performance,
five counts of second-degree rape, five counts of second-degree criminal sexual act, nine
counts of third-degree rape, twelve counts of third-degree criminal sexual act, and
endangering the welfare of a child. The Appellate Division, Second Department,
affirmed his convictions, People v. Valdiviezo, 74 N.Y.S.3d 869 (2d Dep't 2018) ("Valdiviezo
I''), and the New York Court of Appeals denied his application for leave to appeal,
People v. Valdiviezo, 113 N.E.3d 957 (N.Y. 2018) (Stein, J.) ("Valdiviezo II'').
On December 18, 2020, Valdiviezo filed this petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 (the "Petition"). Dkt. 1. Respondent, represented by
the District Attorney of Kings County, filed its opposition to the Petition on April 23,
2021. Dkt. 6.
On October 25, 2023, the case was reassigned to the undersigned.
For the reasons that follow, the Petition is DENIED.
STATEMENT OF THE CASE
A. The Facts 1
In July of 2007, thirteen-year-old S.M. met Mario Valdiviezo, a twentynine-year-old father in her neighborhood -- first, when Valdiviezo brought his daughter
to a "girls' night" to which S.M. was also invited, and second, when Valdiviezo came to
a birthday party for S.M.'s mother. Dkt. 7 at 318-19. S.M.'s mother had previously
The facts are drawn from the People's brief on the direct appeal to the Appellate Division,
which was filed in this Court as part of Respondent's Opposition to the Petition and is
supported by detailed citations to the state court record. See Dkt. 7 at 764-89.
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worked with Valdiviezo, and she considered him a friend. At the birthday party,
Valdiviezo approached S.M. and asked if she would like to meet up with his daughter,
whom Valdiviezo had custody of on weekends. Id. at 320. S.M. agreed and gave
Valdiviezo her email address. Id. Valdiviezo and S.M. began emailing one another on a
daily basis, and Valdiviezo expressed interest in S.M.'s home and school life. Id. at 321.
Just before school started that fall (S.M. was entering sixth grade, id. at
323), S.M. received a cell phone, and the first person S.M. called was Valdiviezo. Id. at
321. Valdiviezo and S.M. began speaking regularly on the phone, and Valdiviezo
ultimately asked S.M. to come to his apartment. Id. at 322.2 The two made a plan that
S.M. would skip school on September 6, 2007. Id. S.M. did not tell her parents that she
was going to see Valdiviezo, and on September 6 she walked from her apartment to
Valdiviezo's. Id. When S.M. arrived, Valdiviezo was there alone and he made breakfast
for S.M. Id. at 325. S.M. felt nervous because Valdiviezo was much older, and she
worried that her parents would find out she skipped school. Id. at 324. After S.M.
finished breakfast, Valdiviezo and S.M. began kissing, and Valdiviezo engaged in
sexual intercourse and oral sexual conduct with S.M. Id. at 326. S.M. had never had sex
before, and the date and the incident remained vividly in her memory. Id. at 328.
Whenever S.M. spoke with Valdiviezo, they spoke in English, because S.M. did not speak or
understand Spanish. Dkt. 7 at 318.
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Valdiviezo removed all of his clothing, and his tattoos, including one depicting his
daughter's name in Sanskrit, were visible. Id. at 327.
Thereafter, Valdiviezo engaged in sexual intercourse and oral sexual
conduct with S.M. at his apartment a number of times -- once at some point between
September 7 and October 31, 2007, id. at 328, then at some point between November 1
and December 31, 2007, id. at 329, then another time between February 1 and March 31,
2008, id. at 330, and finally at some time between April 1 and May 31, 2008, id. at 330-31.
In June of 2008, S.M. went to live in Florida with her mother. Id. at 332.
She briefly kept in contact with Valdiviezo by phone, but they later stopped
communicating. Id. S.M. did not disclose her involvement with Valdiviezo to her
mother because she did not think that anyone would believe her. Id. at 333. In June of
2009, when S.M. was fifteen years old, she returned to live in Brooklyn with her father,
and reestablished contact with Valdiviezo. Id. at 334. S.M. often visited Valdiviezo in
the mornings and skipped school. Id. at 335. Valdiviezo engaged in sexual intercourse
and oral sexual conduct with S.M. at his apartment at some point between June 1 and
July 31, 2009. Id. at 334.
During this time, Valdiviezo began describing to S.M. his fantasies of
having "threesomes" with her and another person. Id. at 335. S.M. was hesitant but
eventually agreed, because she thought that if she did not take part in a "threesome,"
then Valdiviezo would leave her. Id. at 335-36.
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Between July 1, 2009 and July 31, 2009, on two separate occasions,
Valdiviezo and another man engaged in a "threesome" with S.M. at Valdiviezo's
apartment, in which they engaged in sexual intercourse and oral sexual conduct with
S.M. Id. at 337. Although S.M. did not know it at the time, Valdiviezo recorded one of
the incidents. Id. at 339. Valdiviezo had a video camera on top of his computer in his
bedroom. Id.
In September of 2009, S.M. started eighth grade at a school near
Valdiviezo's apartment. Id. at 344. On one day between September 1 and September 30,
2009, S.M. went to Valdiviezo's apartment; a woman answered the door and said that
Valdiviezo was not home. S.M. called Valdiviezo, who told her to leave. Id. at 344-45.
Instead, S.M. waited for Valdiviezo in the hallway, and when Valdiviezo arrived the
woman left. Id. at 345. Valdiviezo brought S.M. inside and choked her neck, while
yelling that she should have left. Id. Next, Valdiviezo brought S.M. into the bedroom
and forced her to have anal sex with him. Id. at 346. S.M. was crying and said nothing.
Id.
Afterward, S.M. stopped seeing Valdiviezo for a little while, but
eventually started seeing him again. Id. at 346. She blamed herself for his actions in
choking her and forcing anal sex upon her, believing at the time that Valdiviezo "did it
because [she] got him upset." Id. Valdiviezo thereafter engaged in sexual intercourse
and oral sexual conduct with S.M. at his apartment on several other occasions: between
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October 1 and November 30, 2009, id. at 347, between December 1, 2009 and January 31,
2010, id. at 348, between February 1 and March 31, 2010, id., and between April 1 and
May 31, 2010, id. at 349.
During her spring break, after S.M. turned sixteen, Valdiviezo urged S.M.
to participate in a sexual encounter with himself and several other men. Id. at 340-41.
S.M. did not want to do it, but Valdiviezo said, "if you love me, you'll do it for me.
You'll do anything for me. I really want this." Id. at 341. Valdiviezo also told S.M. that,
"if you don't do it for me, you don't love me." Id. S.M. agreed to participate. On the
day of this incident, S.M. arrived at Valdiviezo's apartment and the other men were
already there. Id. at 342. S.M. recognized one man as a participant in a prior
"threesome." Id. at 341. S.M. was nervous and told Valdiviezo that she did not want to
go forward, but Valdiviezo said that he would not leave her side. Id. at 342. S.M. felt "a
little more comfortable" and said "okay." Id. Valdiviezo and several other men engaged
in sexual intercourse and oral sexual conduct with S.M. and video-recorded it without
S.M.'s knowledge. Id. at 344.
Valdiviezo thereafter engaged in sexual intercourse and oral sexual
conduct with S.M. at his apartment between June 1 and July 31, 2010, id. at 350, between
August 1 and September 25, 2010, id. at 351, and between September 26 and October 15,
2010, id. at 352. In October of 2010, S.M. moved to Georgia to live with her godfather,
and did not ever return to Valdiviezo's apartment, id. at 353.
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In the fall of 2010, Valdiviezo met Delia Hernandez, who was S.M.'s
cousin, through Facebook. Id. at 440. Valdiviezo and Hernandez became involved and
moved in together. Id. In February of 2013, Hernandez and her two young daughters
were living with Valdiviezo at his apartment. Id. at 440-41. Hernandez found a bin
containing DVDs and VHS tapes in the apartment. Id. at 441. Hernandez played a
DVD marked with three "Xs" on it and saw a video of Valdiviezo having sex with a
female. Id. Hernandez kept watching the video, and recognized her cousin, S.M., in it.
Id. at 442. Hernandez was "in shock," and thought that S.M. could have been under
sixteen years old in the video, but she was not sure. Id. She left the DVD in the player
and went to pick up her daughter. Id. at 443. When Hernandez returned, Valdiviezo
was home but the DVD was gone. Id. Hernandez called S.M.'s mother. Id.
The next day, Hernandez confronted Valdiviezo about the DVD and
asked him how old S.M. was when the video was made. Id. at 446. Valdiviezo said that
S.M. was thirteen. Id. Valdiviezo admitted to Hernandez that he had intercourse with
S.M. Id. Valdiviezo threatened Hernandez with "child services" and eviction. Id. at 464.
For the next two weeks, Hernandez and Valdiviezo argued about the DVD. Id. at 456.
During this time, Hernandez kept looking for the DVD. Then, Hernandez found the
DVD in Valdiviezo's book-bag while he was in the shower. Id. at 446. She hid the DVD,
because she wanted to take it to the police. Id. at 447. Valdiviezo realized that
Hernandez had gone through his belongings, and he told Hernandez that he could use
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his gun on her. Id. Valdiviezo left the apartment, and about twenty minutes later,
Hernandez went to the police station, bringing the DVD and a hard drive that had been
attached to Valdiviezo's desktop computer with her. Id. at 448, 1079.
On February 28, 2013, Detective William Greer of the 66th Precinct
Detectives Squad met with Hernandez. Id. at 226. Hernandez reported that she had
argued with Valdiviezo, Valdiviezo pointed a handgun at her head, and threatened to
shoot her. Id. at 227. The argument concerned a DVD that contained a video of a sexual
encounter involving Hernandez's cousin, Valdiviezo, and several other men. Id. at 228.
Hernandez gave Detective Greer the DVD as well as the hard drive. Id. at 227.
Hernandez said that her cousin, S.M., was about thirteen or fourteen years old at the
time the video was made. Id. at 245. Detective Greer, Police Officer John Bolden, and
Hernandez then went to Valdiviezo's apartment. Id. at 228-29. Hernandez showed the
police where Valdiviezo had hidden the gun, under a mattress, and Detective Greer
recovered the gun. Id. at 229.
Later that day, Detective Greer returned to Valdiviezo's apartment with
Officer Bolden, Detective Solomon and Detective Talavera. Id. at 230. The police
knocked on Valdiviezo's door and opened it with the key given to them by Hernandez.
Id. at 231. One of the officers announced, "We're the police." Valdiviezo mumbled, "I
figured you guys were coming." Id. Valdiviezo went with the police to the precinct,
where he was placed in a conference room and one of his hands was handcuffed to a
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bar. Id. at 232. Valdiviezo asked to know why he was brought to the precinct.
Detective Greer said, "we'll talk about it," and then read Valdiviezo his Miranda
warnings in English, which Valdiviezo signed. Id. at 233, 1060. Valdiviezo agreed to
speak with him.
Valdiviezo and Detective Greer spoke in English and Valdiviezo did not
seem to have difficulty understanding the detective. Id. at 234. Nor did Valdiviezo ever
say that he did not understand the detective. Id. Detective Greer questioned Valdiviezo
about the argument involving Hernandez. Id. at 238. Detective Greer showed
Valdiviezo the DVD and described its content. Id. Valdiviezo said that the girl in the
video was S.M., that she was sixteen, and that the encounter was consensual and legal.
Id. at 238.
Detective Greer then met with Detective Kimberly Marshall of the
Brooklyn Special Victims Squad and turned over the DVD and hard drive to her. Id. at
239. Detective Marshall interviewed S.M., who was living in Florida, by telephone. Id.
at 258. Then, Detective Marshall and Police Officer Cruz interviewed Valdiviezo at the
precinct. Id. at 259.
When Detective Marshall interviewed Valdiviezo, he was sitting in the
interview room with one hand cuffed to a security bar. Id. at 260. She showed
Valdiviezo the Miranda warnings form that he previously signed and told him he still
had the same rights. Id. at 261. Valdiviezo indicated that he would speak with her and
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the two spoke in English. Id. Valdiviezo had no apparent difficulty communicating in
English. Id. Valdiviezo told Detective Marshall that he and S.M. used to "mess around."
Id. at 262. He stated that he had sex with S.M. when she was sixteen, approximately
two years earlier. Id. at 263. Valdiviezo told the detective that he had sex with S.M.
about four or five times, and that he videotaped some of these incidents. Id. Then,
Valdiviezo made a written statement in his own handwriting, in English. Valdiviezo
wrote: "I Mario, sorry. I Mario I'm sorry about all this. Sorry I videotape. Sorry I was
with her, but I never hurt her. I never forced her to do anything." Id. at 265.
Detective Marshall obtained a search warrant for the DVD and the hard
drive. Id. at 267. She then brought the DVD and the hard drive to the Computer
Crimes Squad to be examined. Id. Detective Joseph Garcia, who was then with the
Computer Crimes Squad, received the property. Id. at 299. Detective Garcia examined
the hard drive but found no graphic images or videos involving a minor on it. Id.
Detective Garcia next examined the DVD and found that it had four video files on it
that matched the criteria specified by Detective Marshall. Id. at 300. He also found it
was in a DVD-R format, which meant it could only be written once, and was not
rewritable. Id. Detective Garcia therefore copied these files onto a new DVD, along
with another file containing a report that showed the video file names as well as the
date and time stamps for these files. Id. at 301.
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Subsequently, Detective Marshall returned to the Computer Crimes Squad
to retrieve the property. Id. at 267-68. She retrieved the original DVD and hard drive,
as well as the copied DVD. Id. Gloria Esquiroz Blanco, an expert in the field of Spanish
language, interpretation, and translation, translated into English and transcribed the
audio recording on two files. Id. at 276. In her transcription, Blanco could not identify
each of the various male voices, because some voices were recorded off-camera, and at
some points the camera was covered. Id.
She noted, however, that in one of the videos, a male voice asked: "Do
you know what we are talking about?" and the female voice replied: "English." One of
the male voices commanded, "Suck my dick." Id. at 278-79. Subsequently, several male
voices were speaking, and a male voice asked, "Does she speak Spanish?", and another
male voice replied, "No." A male voice stated, "She doesn't speak shit." Id. at 281. A
male voice stated, "She understands a little bit" of Spanish. Id. Subsequently, a male
voice stated, "The tape is going to get ruined and then I won't be able to sell it." Id. at
282. A male voice stated, "This is better than being at the precinct giving explanations."
Id. A male voice asked, "Sweet[ie], how old are you?" Id. Another male voice replied,
"Sixteen," and then a male voice repeated, "Sixteen." Id. At a later point, male voices
stated that: "We have Jamarillo here," and "also Daniel Santos," and "Raul Ignacio,
Mickey ... and myself here." Id. at 283.
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In the other video, one male voice asked, "What's her name?" and another
male voice stated the first name of S.M. Id. at 284. Subsequently, a male voice urged,
"Okay, listen if we do it as we planned it, ... like we said, you know?" Id. at 286. Later,
another male voice stated, "This is going to be a good movie dude." Id. at 288. Still
later, a male voice asked, "Do you speak English, man?" and a male voice answered,
"Yeah." A male voice stated, "I was born in Ecuador, but I, I learned it at school here."
Id. at 289. Valdiviezo was born in Ecuador. Id. at 318. Later, a male voice said, "Let me
know you got home safe right?" and the female voice replied, "All right babe." Id. at
291. A male voice said, "Because she's not at school this week" and another male voice
replied, "Oh Spring break." Id. A male voice stated, "It's Easter week. That's why." Id.
B. Procedural History
a. State Court Proceedings
1. The Trial Court
Valdiviezo was charged in a one-hundred-and-seventy-four count
indictment, with two counts of use of a child in a sexual performance, two counts of
promoting, and two counts of possessing a sexual performance by a child, five counts of
second-degree rape, and thirteen counts of third-degree rape, ten counts of seconddegree criminal sexual act, and twenty-two counts of third-degree criminal sexual act,
fifty-eight counts of sexual misconduct, twelve counts of second-degree sexual abuse,
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and forty-six counts of third-degree sexual abuse, and one count each of third-degree
menacing and endangering the welfare of a child. Dkt. 6 at 2-3.
At trial, S.M. -- who by then was twenty years old -- testified about her
encounters with Valdiviezo and the other men he brought into their encounters. Dkt. 7
at 316-421. S.M.'s mother, Badillo, testified about the friendship she had with
Valdiviezo and S.M's teen years growing up between Brooklyn and Florida. Id. at 42531. Hernandez also testified, telling the jury about her relationship with Valdiviezo and
her experience finding the DVD. Id. at 438-74. Detectives Greer, Marshall, and Garcia
testified for the People as well, explaining their interactions with Valdiviezo once he
was brought into the precinct and their acquisition of the files on the DVD. See id. at
224-52, 255-70, 296-315. A copy of the DVD was admitted into evidence. Id. at 313.
Finally, Gloria Esquiroz Blanco, an expert in the field of the Spanish language,
transcribed what was said on the DVD and testified as to its contents. Id. at 271-91.
Only Valdiviezo testified for the defense. Id. at 485-545.
The jury convicted Valdiviezo on thirty-four counts: two counts of use of
a child in a sexual performance, five counts of second-degree rape, five counts of
second-degree criminal sexual act, nine counts of third-degree rape, twelve counts of
third-degree criminal sexual act and endangering the welfare of a child. Id. at 663-69.
The trial court then sentenced Valdiviezo to two fifteen-year terms on the
use of a child in a sexual performance counts, five seven-year terms on the second13
degree rape counts, five seven-year terms on the second-degree criminal sexual act
counts, nine four-year terms on the third-degree rape counts, twelve four-year terms on
the third-degree criminal sexual act counts, one year on the endangering the welfare of
a child count; plus consecutive terms of post-release supervision of fifteen years on the
counts of use of a child in a sexual performance, and ten years on each of the other
felony counts, all to run consecutively with each other, for a total term of incarceration
of 150 years. Id. at 684. The sentence was reduced by operation of law pursuant to
Penal Law§ 70.30(1)(e). See N.Y. Penal Law ("PL")§ 70.30(1)(e)(i) (providing that the
aggregate maximum term of consecutive sentences, which are determinate sentences,
and which are imposed for two or more crimes, "shall, if it exceeds twenty years, be
deemed to be twenty years."); see also People v. Valdiviezo, 74 N.Y.S.3d at 870; Dkt. 6 at 25.
2. The Direct Appeal
In April 2017, Valdiviezo, represented by counsel, appealed to the
Appellate Division, Second Department, arguing that: (1) the trial court erroneously
permitted the prosecutor to cross-examine Valdiviezo about his knowledge of English,
by confronting him with his prose legal papers; (2) the prosecutor's summation
deprived him of a fair trial; (3) the best evidence rule required the original DVD
depicting Valdiviezo's sexual exploitation of S.M. to be admitted in evidence, and not a
copy; (4) certain counts of the indictment were duplicitous; and (5) his sentence was
harsh and excessive. Id. at 688-755.
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On June 13, 2018, the Appellate Division affirmed Valdiviezo's convictions
and sentence. Valdiviezo I, 74 N.Y.S.3d at 869-70. The court held that Valdiviezo's
argument that he was deprived of a fair trial due to the admission, in violation of the
best evidence rule, of an authenticated copy of an original DVD was without merit. Id.
It also found that "[t]he sentence imposed .... was not excessive." Id. at 870. Finally, the
Appellate Division held that "remaining contentions either are unpreserved for
appellate review or do not require reversal." Id.
On October 15, 2018, the New York Court of Appeals denied Valdiviezo's
application for leave to appeal. Valdiviezo II, 113 N.E.3d 957 (Stein, J.).
a. State Collateral Review
On March 21, 2018, Valdiviezo moved, pro se, to vacate the judgment of
conviction pursuant to New York Criminal Procedure Law ("CPL")§ 440.10. Dkt. 7 at
854-984. Valdiviezo claimed that: (1) his trial attorney was ineffective; (2) the People
failed to disclose certain materials under Brady v. Maryland, 373 U.S. 83 (1963) ("Brady")
and People v. Rosario, 9 N.Y.2d 286 (1961) ("Rosario"); (3) his Fourth Amendment rights
were violated by the seizure of items from his apartment; (4) detectives manufactured
fraudulent evidence against him; (5) there was prosecutorial misconduct; (6) he is
actually innocent; (7) his right to a speedy trial was violated; and (8) he was incapable of
understanding or participating in the proceedings. Id.
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On July 6, 2018, Valdiviezo amended his motion to vacate and included:
(1) additional allegations of ineffective assistance of counsel; (2) lack of an arrest
warrant; (3) defects in the felony complaint; and (4) lack of subject matter jurisdiction.
Id. at 1107-48.
On February 5, 2019, the Kings County Supreme Court (Del Giudice, J.)
denied Valdiviezo's § 440.10 motion in all respects. The court held that the claims were
procedurally barred and meritless in any event. Id. at 1251-62.
On February 5, 2019, Valdiviezo sought leave to appeal the trial
court's§ 440.10 decision to the Appellate Division. Id. at 1264. By order dated
September 16, 2019, the Appellate Division (Brathwaite-Nelson, J.) denied the
application. People v. Valdiviezo, 2019 WL 4437725, No. 2019-06062 (2d Dep't Sept. 18,
2019).3
On January 10, 2020, proceeding prose, Valdiviezo filed a motion for a
writ of error, coram nobis in the Appellate Division alleging ineffective assistance of
appellate counsel. Dkt. 7 at 1285-93. On August 12, 2020, the Appellate Division denied
The claims in Valdiviezo's § 440.10 motion are therefore exhausted, because a§ 440.10
petitioner may not seek relief in the Court of Appeals if the Appellate Division has denied leave
to appeal under C.P.L. § 450.15(1). See Safran v. New York, No. 1:22-CV-3177 (NRM), 2023 WL
3306932, at *2 (E.D.N.Y. May 6, 2023) ("Because a denial by the Appellate Division for leave to
appeal a trial court's denial of an applicant's§ 440 motion 'is not reviewable by the New York
Court of Appeals,' the claims raised in a such a motion are considered exhausted.").
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the motion. People v. Valdiviezo, 126 N.Y.S.3d 685 (2d Dep't 2020). On September 9,
2020, Valdiviezo sought leave to appeal from the Court of Appeals, Dkt. 7 at 1348,
which the court denied on November 19, 2020. People v. Valdiviezo, 36 N.Y.3d 932 (N.Y.
2020).
b. Proceedings in this Court
On December 18, 2020, proceeding pro se, Valdiviezo filed the Petition,
arguing that: (1) the trial court permitted the admission of collateral, extrinsic and
prejudicial evidence; (2) the prosecutor deprived Valdiviezo of a fair trial by making
denigrating arguments in summation; (3) the court erroneously permitted the People to
admit into evidence copies of Valdiviezo's recorded sexual encounters with the victim,
instead of the original recordings violating the best evidence rule and denying
Valdiviezo his rights to due process and a fair trial; (4) certain counts of the indictment
were duplicitous and should be dismissed; (5) his sentence was excessive; (6) his trial
attorney was ineffective; (7) he is actually innocent; (8) he was incompetent to stand
trial; (9) certain evidence should have been disclosed to the defense under Brady and
Rosario; (10) his Fourth Amendment rights were violated by his arrest and the seizure of
evidence from his apartment; (11) detectives offered fraudulent evidence of Valdiviezo's
guilt; (12) there was prosecutorial misconduct outside of the prosecutor's arguments during
summation; (13) there were statutory defects in the felony complaint; and (14) the People
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violated his speedy trial rights by misrepresenting their readiness for trial within six
months. Dkt. 1.
On April 23, 2021, the District Attorney's Office filed its opposition to the
Petition. Dkt. 6. On May 20, 2021, Valdiviezo filed his reply. Dkt. 9. On August 23,
2021, Valdiviezo filed his supplemental reply. Dkt. 14.
On October 25, 2023, the case was reassigned to the undersigned.
DISCUSSION
A.
Federal Review of State Convictions
A federal court may not grant a habeas petition on a claim that was
adjudicated on the merits in state court unless that adjudication:
(1) resulted in a decision that was contrary to, or involved an
unreasonable application ot clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was 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 Harrington v. Richter, 562 U.S. 86, 97-98 (2011); Waiters v. Lee, 857
F.3d 466,477 (2d Cir. 2017). Hence, when a claim is adjudicated on the merits, the state
court's decision must be accorded "substantial deference." Fischer v. Smith, 780 F.3d 556,
560 (2d Cir. 2015) (citing Dolphy v. Mantella, 552 F.3d 236,238 (2d Cir. 2009)). "A federal
court may reverse a state court ruling only where it was 'so lacking in justification that
there was ... [no] possibility for fairminded disagreement."' Vega v. Walsh, 669 F.3d
18
123, 126 (2d Cir. 2012) (per curiam) (quoting Harrington, 562 U.S. at 103); see also Wetzel
v. Lambert, 565 U.S. 520,524 (2012) (per curiam) (quoting Harrington, 562 U.S. at 102).
A federal court cannot review a habeas petition unless the petitioner "has
exhausted the remedies available" in state courts. 28 U.S.C. § 2254(b)(l)(A). This
requirement affords state courts the "opportunity to pass upon and correct alleged
violations of its prisoners' federal rights." Jackson v. Edwards, 404 F.3d 612,619 (2d Cir.
2005) (quoting Picard v. Connor, 404 U.S. 270,275 (1971)). "This requires that the
prisoner 'fairly present' his constitutional claim to the state courts, which he
accomplishes 'by presenting the essential factual and legal premises of his federal
constitutional claim to the highest state court capable of reviewing it."' Jackson v.
Conway, 763 F.3d 115, 133 (2d Cir. 2014) (quoting Rosa v. McCray, 396 F.3d 210,217 (2d
Cir. 2005)).
Moreover, "federal courts will not review questions of federal law
presented in a habeas petition when the state court's decision rests upon a state-law
ground that 'is independent of the federal question and adequate to support the
judgment."' Cone v. Bell, 556 U.S. 449,465 (2009) (quoting Coleman v. Thompson, 501 U.S.
722, 729 (1991)). In other words, if the state court refused to consider an argument
because it was procedurally barred under state law, the argument is barred from federal
habeas review so long as the procedural bar is "adequate to support the judgment."
Murden v. Artuz, 497 F.3d 178, 191-92 (2d Cir. 2007) (quoting Jimenez v. Walker, 458 F.3d
19
130, 138 (2d Cir. 2006)). A petitioner's failure to comply with a state procedural rule
qualifies as such an adequate and independent state ground, provided that (1) the state
court actually "relied on the procedural bar as an independent basis for its disposition
of the case," Harris v. Reed, 489 U.S. 255, 261-62 (1989) (citation omitted), and (2) the state
procedural rule is "firmly established and regularly followed," James v. Kentucky, 466
U.S. 341,348 (1984).
The Second Circuit has "held repeatedly that the contemporaneous
objection rule" -- that state appellate courts will review only those errors of law that are
presented contemporaneously such that the trial court is "reasonably prompted" to
correct them -- "is a firmly established and regularly followed New York procedural
rule." Downs v. Lape, 657 F.3d 97, 103-04 (2d Cir. 2011) (collecting cases). Hence, the
Circuit has affirmed the denial of habeas relief based on the Appellate Division's ruling
that the failure of a petitioner to object at trial rendered a claim unpreserved for
appellate review. See, e.g., Garcia v. Lewis, 188 F.3d 71, 81-82 (2d Cir. 1999) (affirming the
denial of habeas relief where the petitioner's trial counsel failed to bring to trial court's
attention a claim that he later attempted to advance on appeal). If a claim is
procedurally barred pursuant to an independent and adequate state rule, a federal
habeas court may not review it on the merits, unless the petitioner demonstrates (1)
"cause for the default and actual prejudice as a result of the alleged violation of federal
20
law," or (2) "that failure to consider the claims will result in a fundamental miscarriage
of justice." Coleman, 501 U.S. at 750.
B.
Analysis
In the Petition, Valdiviezo contends that: (1) the trial court permitted the
admission of collateral, extrinsic and prejudicial evidence; (2) the prosecutor's
comments in summation deprived him of a fair trial; (3) the court violated the best
evidence rule when it admitted a copy of the DVD at issue into evidence; (4) certain
counts of the indictment were duplicitous; (5) his sentence was excessive; (6) that his
trial attorney was ineffective; (7) he is actually innocent; (8) he was incompetent to stand
trial; (9) certain evidence should have been disclosed to the defense under Brady and
Rosario; (10) his Fourth Amendment rights were violated by his arrest and the seizure of
evidence from his apartment; (11) detectives offered fraudulent evidence of Valdiviezo's
guilt;4 (12) the prosecutors committed misconduct at trial; (13) there were statutory defects
in the felony complaint; and (14) his speedy trial rights were violated. Dkt. 1.
a. The Admission of Collateral, Extrinsic, and Prejudicial Evidence
Valdiviezo argues that that he was denied a fair trial because the trial
court erroneously permitted the prosecutor to cross-examine him about his knowledge
of English by confronting him with his pro se legal papers, some of which pertained to a
This claim appears to relate to the claims of actual innocence and prosecutorial
misconduct. Accordingly, I do not address the fraudulent evidence claim as a standalone claim,
but rather as part of the actual innocence and prosecutorial misconduct claims.
4
21
civil suit he had brought against the case detectives, thus permitting extrinsic, collateral,
and prejudicial material to be put before the jury. Id. at 18-19.
The Appellate Division rejected this claim, finding that it was "either
unpreserved or d[id] not require reversal." Valdiviezo I, 74 N.Y.S.3d at 870. Regardless of
the ground on which the Appellate Division denied this claim, it fails here. As a
threshold matter, this claim is not cognizable on habeas review because it is not
grounded in federal law. See Rosario v. Kuhlman, 839 F.2d 918,924 (2d Cir. 1988)
("Erroneous evidentiary rulings do not automatically rise to the level of constitutional
error."). In any event, this argument fails on the merits, because the court's ruling was
not erroneous, and thus habeas relief is not warranted. Valdiviezo was charged with
two counts of use of a child in sexual performance, which requires a finding that the
"defendant, knowing the content and character of the sexual performance, employed,
authorized, or induced the [victim] to engage in a sexual performance." Roe v. Barad,
647 N.Y.S.2d 14 (2d Dep't 1996). At trial, Valdiviezo claimed that he did not speak
English well, and S.M., who only spoke English, did not fully understand him. See Dkt.
7 at 518 ("You would speak to [S.M.] in English; right?" "Whatever she understood from
me."). The trial court therefore reasonably found that the probative value of the
evidence outweighed its prejudicial effect, because it showed that Valdiviezo was lying
about a material element of the crime for which he was accused. Dkt. 7 at 521. This
claim accordingly fails.
22
b. The Prosecutor's Comments During Summation
Valdiviezo next argues that the prosecutor's comments during summation
deprived him of a fair trial by characterizing him as a liar, attempting to shift the burden of
proof, appealing to jury sympathy, exceeding the bounds of acceptable advocacy,
improperly vouching for S.M., denigrating him, and depriving him of due process. Dkt. 1
at 19-20.
"[A] criminal conviction is not to be lightly overturned on the basis of a
prosecutor's comments standing alone ... in an otherwise fair proceeding." United
States v. Young, 470 U.S. 1, 11 (1985). "[I]t 'is not enough that the prosecutors' remarks
were undesirable or even universally condemned."' Darden v. Wainwright, 477 U.S. 168,
181 (1986) (citation omitted). "In order to reach the level of a constitutional violation, a
prosecutor's remarks must 'so infect[] the trial with unfairness as to make the resulting
conviction a denial of due process."' Gonzalez v. Sullivan, 934 F.2d 419,424 (2d Cir. 1991)
(quoting Donnelly v. DeChristoforo, 416 U.S. 637,643 (1974)). "Whether a prosecutor's
improper remarks result in a denial of due process depends upon whether the remarks
caused 'substantial prejudice' to the defendant." United States v. Tutino, 883 F.2d 1125,
1136 (2d Cir. 1989) (citation omitted). To determine whether "substantial prejudice"
exists, the court "must assess how prejudicial the prosecutor's conduct was, what
measures, if any, the trial court used to cure the prejudice, and whether conviction was
certain absent the prejudicial conduct." Gonzalez, 934 F.2d at 424.
23
Valdiviezo argues that the prosecutor improperly (1) commented on his
civil lawsuit when she argued that he had "two million reasons to lie" to the jury and
was "using the system" to make money; (2) suggested that Valdiviezo wanted a
"keepsake" when he kept the DVD but got rid of his computer and camera; (3) argued
that if Valdiviezo was testifying truthfully, then the jury would have to discount S.M.'s
testimony; (4) argued that S.M. had nothing to gain by testifying against Valdiviezo
other than shame and humiliation in talking about what happened to her; and (5)
vouched for S.M. by arguing that if S.M. had invented a story "out of whole cloth" about
a three-year relationship with defendant, she could have made it simpler. Dkt. 1 at 1920.
The Appellate Division rejected this claim, finding that it was "either
unpreserved or d[id] not require reversal." Valdiviezo I, 74 N.Y.S.3d at 870. Regardless of
the ground on which the Appellate Division denied this claim, it fails here because none
of the prosecutor's statements were improper. First, the prosecutor was entitled to
argue that Valdiviezo was "using the system" to make money. See Portuondo v. Agard,
529 U.S. 61, 73 (2000) (a prosecutor may stress a defendant's interest in the outcome of
trial during summation). Second, the prosecution's argument as to why Valdiviezo
kept the DVD was in response to defense counsel's summation argument that "it [does
not] make any sense that he would hold that but get rid of the computer/ Dkt. 7 at 579
and was accordingly proper. See People v. Gillespie, 831 N.Y.S.2d 83, 84 (2d Dep't 2007)
24
(noting that statements during summation are permissible if they are "fair comment on
the evidence, permissible rhetorical comment, or responsive to the defense counsel's
summation"). Third, the prosecutor's comments as to S.M's testimony did not constitute
improper vouching, but rather constituted fair arguments as to why S.M. should be
believed, in response to defense counsel's summation insinuating that she could not get
her story straight, Dkt. 7 at 571; People v. Spivey, 759 N.Y.S.2d 456, 456 (1st Dep't 2003)
("Rather than asserting his personal belief in the credibility of his witnesses, the
prosecutor made fair arguments as to why these witnesses should be believed and as to
why defendant's attacks on their credibility should be rejected.")
In any event, even assuming arguendo that any of these comments were
improper, they were not so flagrant as to deny Valdiviezo a fair trial. Bentley v. Scully,
41 F.3d 818, 824-25 (2d Cir. 1994) (where evidence of guilt was "overwhelming,"
prosecutor's brief summation comments were harmless error). The evidence of guilt
here was overwhelming-- S.M. testified at length as to Valdiviezo's abuse, Hernandez
testified as to Valdiviezo's attempts to hide the DVD from her, the detectives testified as
to Valdiviezo's admissions he had sexual encounters with S.M., and the jury saw proof
of the abuse on the DVD. Accordingly, any error resulting from the prosecutor's
comments in summation was harmless. This claim therefore fails.
25
c. The Best Evidence Rule
Valdiviezo also contends that the court erroneously permitted the People to
admit into evidence copies of his recorded sexual encounters with S.M., instead of the
original recordings violating the best evidence rule and denying him his rights to due
process and a fair trial. Dkt. 1 at 20-21,, The Appellate Division rejected this claim on the
merits, finding that "[Valdiviezo's] contention that he was deprived of a fair trial due to
the admission, in violation of the best evidence rule, of an authenticated copy of an
original DVD on which the [Valdiviezo] had recorded videos of the victim, himself, and
other men engaging in sexual acts, is without merit." See Valdiviezo I, 74 N.Y.S.3d at 869.
This determination is entitled to "substantial deference," Fischer, 780 F.3d at 560, and
will not be overturned unless Valdiviezo can establish that the state court's conclusion
was "unreasonable," see 28 U.S.C. § 2254(d).
As a threshold matter, this claim is not cognizable on habeas review
because it is not grounded in federal law. See U.S. ex rel. Banks v. Henderson, 394 F.
Supp. 1316, 1318 (S.D.N.Y. 1974) (the best evidence rule is "not a topic for federal
habeas"). In any event, this argument fails on the merits. The best evidence rule
"simply requires the production of an original writing where its contents are in dispute
and sought to be proven." Schozer v. William Penn Life Ins. Co. of N. Y., 644 N.E.2d 1353,
1355 (N.Y. 1994). New York Civil Practice Law and Rule ("CPLR") 4539 provides,
however, "that copies of original documents made in the regular course of business, if
26
properly identified, are 'as admissible in evidence as the original."' People v. Roach, 649
N.Y.S.2d 607,610 (4th Dep't 1996). That section of the CPLR "recognizes the fact that the
modem business practice is to make photographic reproductions in the regular course
of business and that photographic reproductions so made are sufficiently trustworthy to
be treated as originals for the purpose of the best evidence rule." Id.
At trial, Detective Garcia testified that he copied the files from the original
DVD onto a new DVD so he would work with the original DVD as little as possible, so
that it would not get damaged. Detective Garcia testified that if "something happen[ ed]
to it, [or if it got] scratched, then it can't be used again. You won't be able to view
anything that's on it. We work with copies." Dkt. 7 at 301. Accordingly, copies of the
DVD were made in the regular course of business, and the best evidence rule was not
violated. This claim therefore fails.
d. The Counts in the Indictment
For Valdiviezo's next claim, he argues that the testimony of the
complainant did not relate to a single incident for each count, thus rendering certain
counts in the Indictment duplicitous. Dkt. 1 at 21-22. The Appellate Division rejected
this claim, finding that it was "either unpreserved or d[id] not require reversal." Valdiviezo
I, 74 N.Y.S.3d at 870. Regardless of the ground on which the Appellate Division denied
this claim, it fails here. As a preliminary matter, generally "the mere presence of
duplicitous charges cannot provide a basis for habeas relief." Santilus v. Heath, No. 1127
CV-5703 (ERK) (LB), 2014 WL 5343817, at *2 (E.D.N.Y. Oct. 20, 2014). Rather,
"[i]mpermissible duplicity" may rise to the level of a violation of the Sixth Amendment
where "where multiple distinct crimes are combined into one count of an indictment
and where that combination actually prejudices the defendant with regard to those
concerns." Id. "Even if a count is valid on its face, it is nonetheless duplicitous where
the evidence presented to the grand jury or at trial makes plain that multiple criminal
acts occurred during the relevant time period, rendering it nearly impossible to
determine the particular act upon which the jury reached its verdict." People v. Jean, 985
N.Y.S.2d 669, 671 (2d Dep't 2014). "[A] duplicitous indictment may impair a defendant's
federal 'rights to notice of the charges against him, to a unanimous verdict, to
appropriate sentencing and to protection against double jeopardy in a subsequent
prosecution."' Williams v. Lempke, No. 11-CV-2504 (PGG) (JLC), 2012 WL 2086955, at *20
(S.D.N.Y. June 1, 2012), report and recommendation adopted, No. 11-CV-2504 PGG, 2014
WL 5035219 (S.D.N.Y. Sept. 29, 2014).
Valdiviezo argues that S.M.'s testimony did not support proof of each
charged crime because each challenged count was premised upon a single act occurring
within a specified period of time, and S.M. conflated multiple instances of sexual assault
in her testimony, rendering the counts duplicitous. Dkt. 1 at 21-22. But S.M. provided
detailed testimony as to one sexual encounter with Valdiviezo during each of the
challenged time periods, and, accordingly, this claim fails. For example, the prosecutor
28
asked S.M. "on or about and between September 7 of 2007 and October 31st of 2007, did
anything happen between you and the defendant during that time period?" Dkt. 7 at
328. S.M. testified that "[m]e and him were having oral and vaginal sex." Id. In
response to the prosecutor's question about what she meant by "oral sex," she clarified:
"His penis went into my mouth. And my mouth went onto his penis." Id. While S.M.
used both past continuous tense and past tense during her testimony about the
September 2007 to October 2007 period, this testimony did not insinuate that Valdiviezo
and S.M. had multiple sexual encounters during that specific time period. People v.
Gannon, 104 N.Y.S.3d 770, 777 (3d Dept' 2019) (counts were not duplicitous because
testimony did not "make [] plain that multiple criminal acts occurred during the
relevant time period").
Indeed, the jury was instructed that each count pertained to a single
sexual encounter. See Dkt. 7 at 634 ("[o]ne, that on or about, or between, a certain period
of time, as designated in the verdict sheet, ... the defendant engaged in sexual
intercourse with [S.M.] ... and two, that on each occasion under consideration, the
defendant was 18 years of age or more and that [S.M.] was less than 15") (emphasis
added). See Turner v. Bell, No. 18-CV-2539 (ERK), 2021 WL 1565373, at *7 (E.D.N.Y. Apr.
21, 2021) (finding that an assertion of duplicity was "belied by the record [because] the
judge repeatedly instructed the jury that the charged counts related only to single,
specific acts of penetration."). This claim therefore fails.
29
e. The Excessiveness of the Sentence
Valdiviezo next claims that his sentence was excessive. Dkt. 1 at 22. This
claim also fails. The Appellate Division rejected this claim on the merits, finding that
the sentence imposed was not excessive. Valdiviezo I, 74 N.Y.S.3d at 870. The Appellate
Division's conclusion is entitled to "substantial deference," Fischer, 780 F.3d at 560: and
will not be overturned unless Valdiviezo can establish that the decision was
unreasonable, see 28 U.S.C. § 2254(d). Valdiviezo fails to meet this burden.
There is "[n]o federal constitutional issue ... presented where ... the
sentence is within the range prescribed by state law." White v. Keane, 969 F.2d 1381, 1383
(2d Cir. 1992). New York law provides that the aggregate maximum term of
consecutive sentences, which are determinate sentences, and which are imposed for two
or more crimes, "shall, if it exceeds twenty years, be deemed to be twenty years."
PL§ 70.30(1)(e)(i). Valdiviezo was sentenced to consecutive terms in prison as follows:
two fifteen-year terms on the use of a child in a sexual performance counts, five sevenyear terms on the second-degree rape counts, five seven-year terms on the seconddegree criminal sexual act counts, nine four-year terms on the third-degree rape counts,
twelve four-year terms on the third-degree criminal sexual act counts, one year on the
endangering the welfare of a child count; plus consecutive terms of post-release
supervision of fifteen years on the counts of use of a child in a sexual performance, and
ten years on each of the other felony counts. Dkt. 6 at 3. These terms were reduced,
30
however, pursuant to PL§ 70.30(1)(e)(i), and accordingly, Valdiviezo will serve no more
than twenty years in prison for his convictions in this case. Dkt. 6 at 25. This was
within the range prescribed by state law. Accordingly, Valdiviezo's sentence was not
unreasonable. Valdiviezo's excessiveness argument therefore fails.
f.
The Remaining Claims
Valdiviezo also argues a plethora of other claims: he received ineffective
assistance of trial counsel, he is actually innocent, he was incompetent to stand trial,
certain Brady and Rosario material should have been disclosed, his Fourth Amendment
rights were violated by his arrest and the seizure of evidence in his apartment, the
detectives handling his case offered fraudulent evidence of his guilt, the prosecutor
committed misconduct, there were defects in the felony complaint, and his speedy trial
rights were violated. Dkt. 1. The Kings County Supreme Court (Del Giudice, J.)
considered these claims in denying Valdiviezo's amended§ 440.10 motion and
concluded that they were procedurally barred pursuant to CPL§ 440.10(2)(a) and (c).
Dkt. 7 at 1254. The court further noted that Valdiviezo's contentions with respect to
these claims were without merit. Id.
Habeas relief is thus not available to Valdiviezo for these claims. For an
independent and adequate state ground to bar habeas relief, the state court rendering
the judgment must "clearly and expressly state that its judgment rests upon a state
procedural bar." Whitley v. Ercole, 642 F.3d 278,286 (2d Cir. 2011) (quoting Glenn v.
31
Bartlett, 98 F.3d 721,724 (2d Cir. 1996)). Here, the Kings County Supreme Court clearly
and expressly stated that each of these claims was procedurally barred. Dkt. 7 at 1254.
Moreover, Valdiviezo has failed to demonstrate that he is entitled to an
exception to the procedural default rule, because he has not shown either (1) cause and
actual prejudice or (2) that a fundamental miscarriage of justice would occur if the
merits of the federal claim were not considered. See Edwards v. Carpenter, 529 U.S. 446,
451 (2000) (citations omitted); Coleman, 501 U.S. at 748; Carvajal v. Artus, 633 F.3d 95, 104
(2d Cir. 2011). Even if these claims were not procedurally barred, as discussed below,
they still fail on the merits.
i. Ineffective Assistance of Counsel
In general, to prevail on a claim of ineffective assistance under federal law,
a petitioner must (1) show that counsel's performance was so deficient as to fall below
"an objective standard of reasonableness"; and (2) establish prejudice by demonstrating
"a reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." Strickland v. Washington, 466 U.S. 668,688,694
(1984). In the context of a habeas petition under 28 U.S.C. § 2254, "[e]stablishing that a
state court's application of Strickland was unreasonable ... is all the more difficult. The
standards created by Strickland and§ 2254(d) are both 'highly deferential,' ... and when
the two apply in tandem, review is 'doubly' so." Harrington, 562 U.S. at 105 (citations
omitted). Therefore, "[t]he operative question" when a federal court reviews a state
32
court's ineffective assistance of counsel ruling is "not whether [the] federal court
believes the state court's determination was incorrect, but rather whether that
determination was objectively unreasonable." Waiters, 857 F.3d at 478 (alterations
adopted) (quoting Schriro v. Landrigan, 550 U.S. 465,473 (2007)).
The standard to establish an ineffective-assistance-of-counsel claim under
New York law is lower than under federal law. See People v. Honghirun, 78 N.E.3d 804,
807 (N.Y. 2017). In New York, a defendant must show only "that counsel failed to
provide meaningful representation." People v. Alvarez, 125 N.E.3d 117, 120 (N.Y. 2019)
(citing People v. Stultz, 810 N.E.2d 883 (N.Y. 2004); People v. Baldi, 429 N.E.2d 400 (N.Y.
1981)). Unlike the federal standard, see Strickland, 466 U.S. at 694, under the state
standard, the defendant is not required to demonstrate that he was prejudiced by the
ineffective assistance. See Alvarez, 125 N.E.3d at 120.
Valdiviezo contends that his counsel was ineffective for a number of
reasons, including that his counsel was disinterested and unprepared and failed to call
certain witnesses. Dkt. 1 at 23-25. But Valdiviezo's ineffective assistance claims are
plainly meritless and contradicted by the record. As the state court held, "counsel's
performance at the hearings, pre-trial applications, during the trial and at sentencing"
contradict any claim that trial counsel was "disinterested" or failed to provide adequate
representation. Dkt. 7 at 1258. Indeed, Valdiviezo offers no evidence to overcome the
heavy burden that trial counsel's conduct constituted sound trial strategy. See Santana
33
v. Capra, 284 F. Supp. 3d 525,541 (S.D.N.Y. 2018) (quoting United States v. Best, 219 F.3d
192, 201 (2d Cir. 2000)) ("Actions or omissions by counsel that 'might be considered
sound trial strategy' do not constitute ineffective assistance."). Valdiviezo's ineffective
assistance claim accordingly fails.
ii. Actual Innocence
Valdiviezo next claims that he is actually innocent. Dkt. 1 at 37-38. This
claim is frivolous. To prevail on an actual innocence claim, a habeas petitioner must
present the court "with new reliable evidence." Schlup v. Delo, 513 U.S. 298, 324 (1995).
But Valdiviezo has not put forward any evidence of his innocence that was discovered
after trial. Rather, he argues that the detectives in his case procured false evidence
which was admitted against him at trial -- an allegation he fails to back up with any
proof. As the state court observed in rejecting this claim in Valdiviezo's § 440.10
motion, the evidence against Valdiviezo at trial was "overwhelming." Dkt. 7 at 1261.
Accordingly, this claim fails on the merits in any event.
iii. Valdiviezo's Competency to Stand Trial
Valdiviezo's claim that he was incompetent to stand trial is also meritless.
Valdiviezo argues that he was incompetent to stand trial and that the court should have
held a competency hearing because he was receiving mental health supervision while
incarcerated prior to trial. Dkt. 1 at 38-39. But "[t]he test of competency to stand trial is
concerned not so much with whether a defendant is afflicted with mental illness, per se,
34
but with whether he possesses sufficient present ability to consult with his lawyer with
a reasonable degree of rational understanding -- and whether he has a rational as well
as factual understanding of the proceedings against him." U.S. ex rel. Bornholdt v.
Ternullo, 402 F. Supp. 374,376 (S.D.N.Y. 1975) (internal quotation marks and citation
omitted). The record here is clear that Valdiviezo understood the proceedings against
him -- indeed, Valdiviezo testified at length about the crime for which he was accused.
As the state court observed in its decision on Valdiviezo's § 440.10 motion, "[t]his
allegation by the defendant is also belied by the record, as well as this Court's own
observations and interactions with the defendant on the record. This Court had ample
opportunity to observe the defendant. ... [and] [b]ased on the defendant's own
conduct, this Court has no reason to doubt the defendant's mental competence." Dkt. 7
at 1257. Valdiviezo's claim that he was incompetent to stand trial therefore fails.
iv. The Brady and Rosario Claims
Valdiviezo's claims that the prosecution failed to disclose Brady and
Rosario material to the defense, see Dkt. 1 at 25-26, also fail. As the state court noted, the
record here is clear that the disputed material was disclosed to the defense. Valdiviezo's
Brady and Rosario claims are therefore meritless.
v. The Fourth Amendment Claim
Valdiviezo also argues that his Fourth Amendment rights were violated
by his arrest and the seizure of evidence from his apartment. Dkt. 1 at 27, 35-36. But
35
"where the State has provided an opportunity for full and fair litigation of a Fourth
Amendment claim, a state prisoner may not be granted federal habeas corpus relief on
the ground that evidence obtained in an unconstitutional search or seizure was
introduced at his trial." Stone v. Powell, 428 U.S. 465, 494 (1976). A petitioner has not
received a full and fair opportunity to litigate his claims, and thus may obtain habeas
relief, only if he either establishes that "'the state has provided no corrective procedures
at all to redress the alleged [F]ourth [A]mendment violations,' or, 'if the state has
provided a corrective mechanism,' that the petitioner 'was precluded from using that
mechanism because of an unconscionable breakdown in the underlying process."'
Ethridge v. Bell, 49 F.4th 674,684 (2d Cir. 2022) (quoting Capellan v. Riley, 975 F.2d 67, 70
(2d Cir. 1992)).
Valdiviezo has had a full and fair opportunity to litigate his Fourth
Amendment claim -- indeed, in addition to trial and his direct appeal, he filed two post
judgment motions. Valdiviezo therefore cannot show that he did not receive a full and
fair opportunity to litigate his Fourth Amendment claim. See Capellan, 975 F.2d at 70.
The Second Circuit has long held that New York's procedure for litigating Fourth
Amendment claims is facially adequate. Id. at 70 n.l (collecting cases). Further, to
establish an unconscionable breakdown, Valdiviezo would have to show that the trial
court and the Appellate Division "failed to conduct a reasoned method of inquiry into
relevant questions of fact and law," Hicks, 43 F. Supp. 3d at 231, which is a "stringent
36
standard," Clanton v. LaClair, No. 14-CV-4551 (ER) (MHD), 2015 WL 13832649, at *11
(S.D.N.Y. Nov. 4, 2015), report and recommendation adopted, 2019 WL 4688725 (S.D.N.Y.
Sept. 25, 2019). Valdiviezo has made no such showing here. Accordingly, this claim
fails.
vi. Prosecutorial Misconduct
Nor does Valdiviezo's prosecutorial misconduct claim have merit. To
obtain habeas corpus relief on grounds of prosecutorial misconduct, petitioner must
demonstrate "that he suffered actual prejudice because the prosecutor's [conduct] had a
substantial and injurious effect or influence in determining the jury's verdict." Davis v.
Kelly, 2 F. Supp. 2d 362,367 (W.D.N.Y. 1998) (citing Bentley v. Scully, 41 F.3d 818,824 (2d
Cir. 1994)). Valdiviezo's prosecutorial misconduct claim, to the extent it is based on
conduct beyond the prosecutor's comments discussed above, is premised on his claim
that the detectives procured false evidence against him, and the prosecution offered that
evidence at trial. See Dkt. 1 at 33-34. Because there is no evidence that the detectives
procured or the prosecutors offered false evidence, this claim fails.
vii. Defects in the Felony Complaint
Valdiviezo's next argument -- that there were defects in the felony
complaint, Dkt. 1 at 39-42 -- also fails. "[W]hile a felony complaint serves as the basis
for the commencement of a criminal action.... that instrument is superseded, and thus
rendered legally irrelevant for purposes of challenging a subsequent conviction, by the
37
grand jury's decision to indict." Carmel v. Graham, No. 6:17-CV-6050 (CJS), 2020 WL
6505168, at *17 (W.D.N.Y. Nov. 5, 2020). Because the felony com.plaint here was
superseded by an indictment, Valdiviezo's claim regarding defaults in that complaint
has no merit.
viii. Speedy Trial
Finally, Valdiviezo's speedy trial arguments lack merit. He argues that
because the prosecution misrepresented its readiness for trial within six months, and
trial was delayed another ten months, his right to a speedy trial pursuant to CPL § 30.30
was violated. Dkt. 1 at 36. As the state court noted, Valdiviezo's argument that "the
prosecution was in violation of the defendant's speedy trial rights, pursuant to
CPL§ 30.30, [] fails as the statutory period for a timely prosecution did not lapse." Dkt.
7 at 1261. In any event, this is a state law claim that is not cognizable on habeas review.
See Singh v. Fischer, No. 03-CV-4128 (JG), 2004 WL 2999106, at *4 n.4 (E.D.N.Y. Dec. 29,
2004) (declining to review a speedy trial right claim under CPL§ 30.30 because
petitioner's "claim that the state court erred in its decision regarding his speedy trial
rights under New York state law is not cognizable on habeas review" (citing 28 U.S.C. §
2254(a))); Parrish v. Lee, No. 10-CV-8708, 2015 WL 7302762, at *11 (S.D.N.Y. Nov. 18,
2015) (noting that§ 30.30 is "purely a creature of New York state statute and does not
protect a federal constitutional right" and, "[t]herefore, a§ 30.30 claim is not cognizable
in a federal habeas case").
38
Valdiviezo's federal constitutional speedy trial claim also lacks merit. 5 In
determining whether a pre-trial delay violates the Sixth Amendment, courts look to the·
factors set forth in Barker v. Wingo, 407 U.S. 514, 530-32 (1971): "(1) the length of the
delay; (2) the reason for the delay; (3) the defendant's assertion of his right to a speedy
trial; and (4) the extent of prejudice to the defendant." United States v. Vassell, 970 F.2d
1162, 1164 (2d Cir. 1992) (quoting Barker, 407 U.S. at 530-32). Valdiviezo makes no effort
to explain how the Barker factors weigh in favor of a speedy trial violation here.
Valdiviezo's conclusory argument provides no detail and no support to show that the
delay violated his Sixth Amendment right to a speedy trial. This claim therefore fails.
CONCLUSION
Valdiviezo has failed to show a basis for relief under 28 U.S.C. § 2254.
Accordingly, his habeas petition is denied. Additionally, I decline to issue a certificate
of appealability because Valdiviezo has not made a substantial showing of the denial of
a constitutional right. See 28 U.S.C. § 2253(c)(2). Pursuant to 28 U.S.C. § 1915(a)(3), I
certify that any appeal taken from this decision and order would not be taken in good
faith.
Although the state court only analyzed the merits of Valdiviezo's statutory speedy trial claim,
see Dkt. 7 at 1261, Valdiviezo raised -- in a conclusory fashion -- a constitutional claim in his §
440 motion, see id. at 970. The court nevertheless held that the motion as a whole established
"no basis upon which the relief sought may be granted," id. at 1254, and therefore apparently
adjudicated the constitutional speedy trial claim as meritless.
5
39
The Clerk of the Court shall enter judgment accordingly and close this
case. The Clerk of Court shall also mail copies of this memorandum decision and the
judgment to Valdiviezo at the address set forth above.
SO ORDERED.
Dated:
New York, New York
March 27, 2024
DENNY CHIN
United States Circuit Judge
Sitting By Designation
40
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