Hernandez v. Lempke

Filing 23

MEMORANDUM AND ORDER - For the reasons set forth above, Petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DENIED. Because there can be no debate among reasonable jurists that Petitioner was entitled to hab eas relief, the Court does not issue a Certificate of Appealability; Certificate of Appealability Denied Re: 1 Petition for Writ of Habeas Corpus. The Clerk of the Court is directed to mail a copy of this Memorandum and Order to the pro se Petitioner and to mark this matter CLOSED. So Ordered by Judge Joanna Seybert on 7/2/2014. C/M; C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
MARCO HERNANDEZ,
Petitioner,
-against-

MEMORANDUM & ORDER
10-CV-1791(JS)

JOHN LEMPKE, Superintendent of
Orleans Correctional Facility,
Respondent.
----------------------------------X
APPEARANCES
For Petitioner:
Marco Hernandez, pro se
07-A-1806
Orleans Correctional Facility
3531 Gaines Basin Road
Albion, NY 14411
For Respondent:

Jason Richards, Esq.
Nassau County District Attorney’s Office
262 Old Country Road
Mineola, NY 11501

SEYBERT, District Judge:
Marco

Hernandez

(“Petitioner”)

petitions

this

Court

pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
For the following reasons, his Petition is DENIED.
BACKGROUND
I.

Factual Background
On

approached
walking

on

March

Julio
a

11,

2006,

Apolinar

neighborhood

as

Petitioner

Apolinar
street

in

and

and

Jose

his

Westbury,

Arevalo

mother

were

New

York.

(Resp’t’s Br., Docket Entry 9, at 1; see also Trial Tr. 679:14-

682:18.)

After Apolinar told his mother to go home, Petitioner

and Arevalo “proceeded to terrorize and humiliate [Apolinar].”
(Resp’t’s Br. at 1.)

Arevalo had a beer bottle in his hand;

Petitioner had a knife in his hand.
Petitioner

“yanked”

Apolinar’s

(Trial Tr. 687:11-20.)

(Trial Tr. 684:19-25.)

neck-chains

off

of

Apolinar.

Apolinar’s sister’s boyfriend, Francisco

Roque, saw Petitioner and Arevalo confronting Apolinar at the
same time.

(Trial Tr. 951:10-954:13.)
After

stealing

Apolinar’s

chains

and

shirt,

they

returned to the restaurant from where they had first appeared.
(Trial Tr. 689:13-21.)

Apolinar went home and, upon arriving,

saw his sister calling the police.
803:15-17.)
area.

(Trial Tr. 689:25-690:25;

The police arrived and took Apolinar to canvass the

(Trial Tr. 691:7-23.)
After Apolinar identified Arevalo standing in front of

a

nearby

Petitioner
696:18.)

deli,
in

the

the

The

police

deli’s
police

Petitioner’s back pocket.

officers

parking

arrested

lot.

recovered

(Trial

Apolinar’s

Arevalo
Tr.

692:15-

chains

(Trial Tr. 533:13-21.)

and

from

Petitioner

and Arevalo were then taken to a Nassau County police station,
where

Detective

Luis

Salazar

acted

as

a

Spanish

language

interpreter during the custodial questioning of both suspects.
(Hr’g Tr. 60:19-61:14.)

Detective Salazar read Petitioner his

Miranda rights and Petitioner signed the Miranda card.
2

Salazar

then began to ask Petitioner questions, in Spanish, related to
the robbery.

Salazar prepared a written

(Hr’g Tr. 61:15-23.)1

statement based upon Petitioner’s oral statements.

(Hr’g Tr.

63:20-22.)

statement,

Salazar

Petitioner

told

read

Salazar

Petitioner
the

the

statement

Petitioner signed the statement.

written
was

accurate,

and

(Hr’g Tr. 65:20-66:8.)

In

that statement, “[P]etitioner admitted that he and Arevalo had
used a knife to rob Apolinar.

Arevalo likewise told [Salazar]

that he and [Petitioner] had committed the robbery.”

(Resp’t’s

Br. at 2.)
II.

Legal Background
Petitioner and Arevalo were each charged with Robbery

in

the

First

§ 160.15(3)),
§ 160.10(1)),

Degree
Robbery

Grand

(New
in

Larceny

York
the
in

Penal
Second

the

Fourth

Law

(“N.Y.P.L.”)

Degree
Degree

(N.Y.P.L.
(N.Y.P.L.

§ 155.30(5)), and Criminal Possession of Stolen Property in the
Fifth Degree (N.Y.P.L. § 165.40).
317:18.)

(See, e.g., Trial Tr. 316:22-

Petitioner and Arevalo were tried jointly.

(See,

e.g., Trial Tr. 14-22.)
After a pre-trial suppression hearing, the trial court
held that Petitioner knowingly, intelligently, and voluntarily
After Petitioner informed Salazar that he did not read Spanish
well, Salazar read the Miranda card “word by word, line by line
in Spanish.” (Hr’g Tr. 62:19-63:3.) Petitioner did not
indicate to Salazar that he had a problem understanding this
recitation of his Miranda rights. (Hr’g Tr. 63:17-19.)
1

3

waived his Miranda rights as to his written statements.
Amended

Order,

Docket

Entry

9-4,

at

2.)

The

(See

court

held,

therefore, that the written statements were admissible during
trial.

(See Amended Order at 2.)
On

October

17,

2006,

at

the

conclusion

of

a

jury

trial, Petitioner and Arevalo were each found guilty of Robbery
in the Second Degree, Grand Larceny in the Fourth Degree, and
Criminal
(Trial

Possession
Tr.

follows:

of

Stolen

Property

(1)

for

the

the

Petitioner

1159:11-1160:18.)

in

was

robbery

conviction,

Fifth

Degree.

sentenced
eight

as

years

imprisonment and five years of post-release supervision; (2) for
the

grand

larceny

imprisonment;

and

conviction,
(3)

for

one-and-one-third-to-four

the

criminal

possession

property conviction, one year of imprisonment.
Appellate Br., Ex. A, Docket Entry 1-2, at 1.2)
were to run concurrently.
Petitioner

stolen

(See Pet’r’s
These sentences

(See Pet’r’s Appellate Br. at 1.)

appealed

the

conviction

Appellate Division, Second Department.
Appellate Br.)

of

years

to

the

New

York

(See generally Pet’r’s

Petitioner argued that: (1) the trial court

Petitioner did not file a supporting memorandum with his
Petition. The Petition refers, however, to Petitioner’s state
appellate brief, which was attached the Petition. (See Pet.,
Ex. A). Petitioner filed two additional briefs: a brief
regarding a “Supplemental Argument” as to Petitioner’s Miranda
claims (Docket Entry 7) and a Reply to Respondent’s Opposition
to the Petition (Docket Entry 12). The Court has reviewed all
briefs.
2

4

erred in denying Petitioner’s motion to sever the trial; (2)
Petitioner’s

Miranda

intelligently,

and

waiver

was

voluntarily;

not

(3)

the

made
jury’s

knowingly,
verdict

was

insufficiently supported by law; (4) the trial court erred by
not

giving

a

Petitioner’s

missing

witness

sentence

was

charge

harsh

and

to

the

jury;

excessive.

and

(See,

(5)

e.g.,

Pet’r’s Appellate Br. at 39-65.)
On November 10, 2009, the Appellate Division affirmed
the judgment.

People v. Hernandez, 67 A.D.3d 820, 889 N.Y.S.2d

218 (N.Y. App. Div. 2d Dep’t 2009).

The court held that: (1)

the trial court did not err in denying Petitioner’s severance
motion; (2) the court had no basis to disturb the trial court’s
Miranda

holding;

establish

(3)

the

Petitioner’s

Petitioner’s

missing

evidence

was

legally

guilt

beyond

a

witness

charge

claim

sufficient

reasonable
was

doubt;

untimely

to
(4)

and,

substantively, the trial court’s ruling was not improper; and
(5) Petitioner’s sentence was not excessive.

Hernandez, 67 A.D.

3d 821.
Petitioner applied for leave to appeal to the New York
Court of Appeals.

Petitioner’s application included three of

the five claims that were in his Appellate Division appeal.
These claims regarded the trial court’s denial of Petitioner’s:
(1)

severance

motion;

(2)

pre-trial

motion

to

exclude

Petitioner’s custodial statements (Miranda); and (3) motion for
5

a missing witness charge.

(See Pet’r’s Nov. 17, 2009 Letter

Appl., Docket Entry 9-23.)

The New York Court of Appeals denied

Petitioner’s

application

on

January

15,

2010.

People

v.

Hernandez, 13 N.Y.3d 939, 922 N.E.2d 918, 895 N.Y.S.2d 329 (N.Y.
2010).
On

December

9,

2009,

Petitioner

filed

a

motion

vacate judgment in the County Court of Nassau County.
Motion to Vacate J., Docket Entry 9-26).

to

(See

Petitioner argued that

the trial court: (1) should have granted Petitioner’s motion to
sever and (2) violated Petitioner’s Confrontation Clause rights
by relying on a letter from the district attorney and a Nassau
County Probation Department report.

(See Affidavit in Support

of Motion to Vacate J., Docket Entry 9-26, at 9, 11.)

The

County Court denied Petitioner’s motion because, the court held,
the motion was procedurally barred.

(See March 8, 2010 Order of

the

Docket

County

Appellate

Court

(“March

Division

Order”),

denied

County Court’s holding.

Petitioner’s

Entry

leave

to

9-29.)
appeal

The
the

(See August 5, 2010 Decision & Order

(“August 2010 Order”), Docket Entry 13, at 2.)
III.

The Petition
Petitioner

asserts

the

following

grounds:

(1)

the

trial court erred in denying Petitioner’s motion to sever the
trial; (2) Petitioner’s Miranda waiver was not made knowingly,
intelligently,

and

voluntarily;
6

(3)

the

jury’s

verdict

was

insufficiently supported as a matter of law; (4) the trial court
erred by not giving a missing witness charge to the jury; (5)
Petitioner’s

Confrontation

Clause

right

was

denied

as

to

Arevalo’s trial statements; and (6) Petitioner’s Confrontation
Clause right was denied as to the district attorney’s letter and
the Nassau County Probation Department report.

(See Pet. ¶ 13.)

DISCUSSION
The

Court

will

first

address

the

applicable

legal

standard before turning to the merits of the Petition.
I.

Legal Standard
“The

writ

of

habeas

corpus

stands

as

a

safeguard

against imprisonment of those held in violation of the law.”
Harrington v. Richter, --- U.S. ----, 131 S. Ct. 770, 780, 178
L. Ed. 2d 624 (2011).
The Supreme Court, a Justice thereof, a
circuit judge, or a district court shall
entertain an application for a writ of
habeas corpus [on] behalf of a person in
custody pursuant to the judgment of a State
court only on the ground that he is in
custody in violation of the Constitution or
laws or treaties of the United States.
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
28 U.S.C. § 2254(a).
A federal court may grant a writ of habeas corpus to a
state prisoner when prior state adjudication of the prisoner’s
case “resulted in a decision that was contrary to, or involved

7

an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States.”
at § 2254(d)(1).

Id.

“This is a ‘difficult to meet,’ and ‘highly

deferential standard for evaluating state-court rulings, which
demands that state-court decisions be given the benefit of the
doubt.’”

Cullen v. Pinholster, --- U.S. ----, 131 S. Ct. 1388,

1398, 179 L. Ed. 2d 557 (2011).
During a review of a petition for a writ of habeas
corpus, federal courts presume that the state court’s factual
determinations are correct.
A.

See 28 U.S.C. § 2254(e)(1).

Exhaustion
A state prisoner seeking federal habeas review of his

state

conviction

is

required

to

available to him in state court.

first

exhaust

all

remedies

See 28 U.S.C. § 2254(b)(1)(A).

“Exhaustion requires a petitioner fairly to present the federal
claim in state court.”
Cir. 2003).

Jones v. Keane, 329 F.3d 290, 294 (2d

Presentation means a petitioner “has informed the

state court of both the factual and the legal premises of the
claim

he

asserts

in

federal

court.”

Id.

at

295

quotation marks and citations omitted).
B.

Procedural Default
In all cases in which a state prisoner has
defaulted his federal claims in state court
pursuant to an independent and adequate
state procedural rule, federal habeas review
of the claims is barred unless the prisoner
8

(internal

can demonstrate cause for the default and
actual prejudice as a result of the alleged
violation of federal law, or demonstrate
that failure to consider the claims will
result in a fundamental miscarriage of
justice.
Coleman v. Thompson, 501 U.S. 722, 750, 111 S. Ct. 2546, 2565,
115 L. Ed. 2d 640 (1991).
The

Second

Circuit

“has

held

that

‘federal

habeas

review is foreclosed when a state court has expressly relied on
a

procedural

ground,

even

default
where

as

the

an

independent

state

court

and

has

adequate

also

ruled

state
in

alternative on the merits of the federal claim.’”

the

Glenn v.

Bartlett, 98 F.3d 721, 724 (2d Cir. 1996) (quoting Velasquez v.
Leonardo, 898

F.2d

7,

9

(2d

Cir.

1990);

citing

Harris

v.

Reed, 489 U.S. 255, 264 n.10, 109 S. Ct. 1038, 1044 n.10, 103 L.
Ed. 2d 308 (1989); Wedra v. Lefevre, 988 F.2d 334, 338-39 (2d
Cir. 1993)).
II.

Ground One: Motion to Sever
Petitioner

maintains

that

the

trial

court

erred

denying his motion to sever his trial from Arevalo’s.
Pet’r’s Appellate Br. at 39-46.)

by

(See

Petitioner’s trial counsel,

Kenneth Ross (“Ross”), made two motions for severance.

First,

Ross

became

noted

unavailable

that
to

Arevalo’s
represent

original
Arevalo.

trial
(Trial

attorney
Tr.

3:15-20.)

Arevalo’s new counsel, Ross argued, was unfamiliar with how the

9

two attorneys prepared to argue the cases.
(“[Arevalo’s
together.

original

counsel]

and

I

We did hearings together.

(Trial Tr. 4:7-17

discussed

the

case

Current co-counsel has

not, to my knowledge, spoken to [the original counsel] or myself
to discuss the case.

I believe there are inconsistent defense

that current co-counsel and I now have, which I do not believe
existed when [Arevalo’s original counsel] was counsel on the
case.”).)

Ross was concerned about how the physical appearance

of Arevalo’s new counsel (specifically, his stained clothing)
would

affect

experience.

Petitioner

as

well

as

new

(Trial Tr. 4:18-23; 5:6-18.)

counsel’s

8:1-9:17.).

The

trial

court

motion without prejudice for renewal.
Petitioner
recommenced.

renewed

the

After

reviewing

the

Petitioner’s motion to sever.
A.

denied

(Trial Tr.
Petitioner’s

(Trial Tr. 9:25-10:13.)
motion

when

proceedings

Petitioner argued that the co-defendants would be

presenting conflicting defenses.
10.)

of

Arevalo’s new counsel

opposed Petitioner’s motion as did the prosecution.
6:1-7:17;

lack

(See, e.g., Trial Tr. 61:8-

matter,

the

trial

court

denied

(Trial Tr. 68:23-69:4.)

Standard
“[J]oinder of offenses has long been recognized as a

constitutionally

acceptable

right to a fair trial.”
(2d Cir. 1993).

accommodation

of

the

defendant’s

Herring v. Meachum, 11 F.3d 374, 377

“The decision whether to grant a severance
10

motion is committed to the sound discretion of the trial court.”
New York v. Hendrickson Bros., Inc., 840 F.2d 1065, 1082 (2d
Cir. 1988)).
“Joinder
constitutional
petitioner’s

of

offenses

violation
state

trial

violative of due process.’”

only

rises
if

it

fundamentally

to

the

level

‘actually
unfair

of

a

render[s]
and

hence,

Herring, 11 F.3d at 377 (alteration

in original) (quoting Tribbitt v. Wainwright, 540 F.2d 840, 841
(5th Cir. 1976); citing United States v. Lane, 474 U.S. 438, 446
n.8, 106 S. Ct. 725, 730 n.8, 88 L. Ed. 2d 814 (1986)).

“In

considering whether a violation of due process has occurred, the
emphasis must be on the word ‘actually’; for, viewed clearly, it
is only the consequences of joinder, over which the trial judge
has much control, and not the joinder itself, which may render
the trial ‘fundamentally unfair.’”

Id. (citing United States ex

rel. Evans v. Follette, 364 F.2d 305, 306 (2d Cir. 1966)).
“[W]here

a

defendant

is

claiming

a

due

process

violation based upon joinder of offenses, he must, to succeed,
go beyond the potential for prejudice and prove that actual
prejudice resulted from the events as they unfolded during the
joint trial.”

Id. at 377-78 (citing Tribbitt, 540 F.2d at 841

(emphasis in original); Opper v. United States, 348 U.S. 84, 9495, 75 S. Ct. 158, 165, 99 L. Ed. 101 (1954)).

11

B.

Analysis
The Appellate Division held that “[t]he trial court

did

not

err

in

denying

[Petitioner’s]

Hernandez, 67 A.D. 3d at 821.
[did]

not

reveal

an

motion

to

sever[.]”

The court held that “the record

irreconcilable

conflict

[Petitioner’s] defense and [Arevalo’s] defense.”

between

Id.

Petitioner fails to show how joinder, in the present
case,

‘actually

fundamentally

unfair

render[ed]
and

Herring, 11 F.3d at 377.

hence,

petitioner’s
violative

of

state
due

trial

process.’”

As discussed supra and infra, Apolinar

testified that Petitioner robbed him; Roque testified that he
saw Petitioner confront Apolinar at the time of the commission
of the crimes; Officer Iovino testified that he found Apolinar’s
chains on Petitioner’s person during Petitioner’s arrest; and
Petitioner admitted he committed the crimes in a statement to
Detective

Salazar.

Severance

would

not

have

changed

this

testimony or the admission of Petitioner’s written statement.
Moreover, as Respondent argues, “the joint trial presented an
essentially

unified

defense”

regarding

the

co-defendants’

argument that the event was a drunken encounter, not a robbery,
as well as the co-defendants’ claim that the police contrived
the written admissions.

(Resp’t’s Br. at 8-10.)

received the benefit of that unified defense.

12

Petitioner

“Petitioner has not demonstrated how joinder actually
prejudiced his trial, especially in light of the overwhelming
evidence of guilt of all crimes charged.”

Willis v. Duncan, No.

00–CV–4171, 2003 WL 21845664, at *6 (E.D.N.Y. August 4, 2003)
(citing Brecht v. Abrahamson, 507 U.S. 619, 113 S. Ct. 1710, 123
L. Ed. 2d 353 (1993)).

The Appellate Division’s holding on this

issue was not contrary to clearly established Federal law.
28

U.S.C.

§

2254(d)(1).

Accordingly,

Petitioner’s

See

claim

on

ground one is DENIED.
III.

Ground Two: Miranda Waiver
Petitioner argues that his intoxication at the time of

his custodial interview made his statements inadmissible.
Pet’r’s Appellate Br. at 47-49.)

(See

He additionally asserts, that

the statements should have been inadmissible because Petitioner
is “uneducated and mentally limited.”
49-50.)

Petitioner

argues

that

(Pet’r’s Appellate Br. at
the

combination

circumstances makes his statements inadmissible.

of

these

(See Pet’r’s

Appellate Br. at 51.)
A.

Standard
“[A]n

individual

held

for

interrogation

must

be

clearly informed that he has the right to consult with a lawyer
and to have the lawyer with him during interrogation.”

Miranda

v. Arizona, 384 U.S. 436, 471, 86 S. Ct. 1602, 1626, 16 L. Ed.
2d 694 (1966).

“[T]his warning is an absolute prerequisite to
13

interrogation.

No amount of circumstantial evidence that the

person may have been aware of this right will suffice to stand
in its stead.”

Id. at 471-72.

“A statement made by the accused ‘during a custodial
interrogation is inadmissible at trial unless the prosecution
can establish that the accused in fact knowingly and voluntarily
waived

Miranda rights

States

v.

Taylor,

when
745

making
F.3d

the
15,

statement.’”
23

(2d

United

Cir.

2014)3

(quoting Berghuis v. Thompkins, 560 U.S. 370, 382, 130 S. Ct.
2250, 176 L. Ed. 2d 1098 (2010)).
The Court “look[s] at the totality of circumstances
surrounding a Miranda waiver and any subsequent statements to
determine knowledge and voluntariness.”

Id. (citing Oregon v.

Elstad, 470 U.S. 298, 309, 105 S. Ct. 1285, 84 L. Ed. 2d 222
(1985)).

“In that context, ‘knowing’ means with full awareness

of the nature of the right being abandoned and the consequences
of abandoning it, and ‘voluntary’ means by deliberate choice
free

from

intimidation,

(citing United
2011)).

States

v.

coercion,
Plugh, 648

or
F.3d

deception.”
118,

127

(2d

Id.
Cir.

“In general, a suspect who reads, acknowledges, and

signs an ‘advice of rights’ form before making a statement has

This decision of the Second Circuit Court of Appeals superseded
its early decision.
See United States v. Taylor, 736 F.3d 661
(2d Cir. 2013).
3

14

knowingly and voluntarily waived Miranda rights.”

Id. (citing

Plugh, 648 F.3d at 127–28).
“It is difficult to determine whether a confession is
voluntary; case law ‘yield[s] no talismanic definition’ for the
term.

[]

It

is

clear,

however,

that

when

‘a

person

is

unconscious or drugged or otherwise lacks capacity for conscious
choice,’

a

confession

cannot

be

voluntary.”

Id.

at

24

(citing Schneckloth v. Bustamonte, 412 U.S. 218, 224, 93 S. Ct.
2041, 36 L. Ed. 2d 854 (1973)); see also Mincey v. Arizona, 437
U.S. 385, 401, 98 S. Ct. 2408, 2418, 57 L. Ed. 2d 290 (1978)
(statements

were

involuntarily

made

by

“seriously

and

painfully wounded man on the edge of consciousness.”)
“[E]vidence of a defendant’s intoxication with alcohol
or

a

controlled

substance

does

not

preclude

a

finding

of

a

knowing and intelligent waiver provided that they appreciate the
nature of the waiver.”

Alvarez v. Keane, 92 F. Supp. 2d 137,

150 (E.D.N.Y. 2000) (citing Avincola v. Stinson, 60 F. Supp. 2d
133, 160 (S.D.N.Y. 1999); United States v. DiLorenzo, No. 94–CR–
0303,

1995

WL

366377,

at

*8–9

(S.D.N.Y.

June

19,

1995)).

Further, “Defendants with limited cognitive abilities or below
average I.Q. levels may . . . be capable of a knowing and
intelligent Miranda waiver.”

Id.

(citing

United

Murgas, 967 F. Supp. 695, 707–08 (N.D.N.Y. 1997)).

15

States

v.

“‘Absent

clear

and

convincing

evidence

to

the

contrary . . . the state court’s decision that petitioner’s
degree of intoxication was not so great as to render him unable
to execute a valid waiver of rights will be presumed to be
correct.’”
*6

Oakes v. Conway, No. 10–CV–0318, 2011 WL 3236201, at

(W.D.N.Y.

Shields

v.

July

28,

Duncan, No.

2011)

(ellipsis

02–CV–6713,

in

2003

original)

WL

(quoting

22957008,

at

*14

(E.D.N.Y. Oct. 20, 2003)).
Moreover, “an inability to read or write does not, by
itself, establish that the suspect is incapable of making a
voluntary and intelligent decision . . . In this case, defendant
has

not

alleged

impairment

or

that

that

his
his

understand his rights.”

illiteracy
impairment

stems

from

renders

him

a

cognitive
unable

to

United States v. Gaines, 295 F.3d 293,

299 (2d Cir. 2002) (internal citations omitted).
B.

Analysis
The Appellate Division held that there was “no basis

to disturb the [trial] court’s determination that [Petitioner]
knowingly,
rights.”

voluntarily,

and

intelligently

waived

his

Miranda

Hernandez, 67 A.D.3d at 820.
The Court presumes, to begin its analysis, that the

waiver was knowing and voluntary because Petitioner signed the
written statement.

See Taylor, 2014 WL 814861, at *5.

Further,

as reviewed supra, Nassau County Detective Luis Salazar spoke to
16

Petitioner,

in

Spanish,

during

the

custodial

interrogation.

After Petitioner said he did not read or write Spanish well,
Salazar read the Miranda card “word by word, line by line in
Spanish.”

(Hr’g Tr. 62:19-63:3.)4

Petitioner indicated, in

Spanish, that he understood his rights.
111:4-11.)
written
(Hr’g

After

statement
Tr.

questioning
based

63:20-22.)

Petitioner,

upon

(Hr’g Tr. 110:9-23;
Salazar

Petitioner’s

Salazar

read

oral

Petitioner

prepared

a

statements.
the

written

statement, Petitioner told Salazar the statement was accurate,
and Petitioner signed the statement.

(Hr’g Tr. 65:20-66:8.)

The Appellate Division’s holding on this issue was not
contrary to clearly established Federal law.
§ 2254(d)(1).
and slowly.

See 28 U.S.C.

Petitioner was read his Miranda rights clearly
Petitioner signed the Miranda card and signed the

written statement prepared by Salazar.
The
record
of
the
suppression
hearing
established that, while petitioner appeared
to
be
intoxicated .
.
.
[P]etitioner
appeared to be coherent, responsive to
questions, and showed no signs of slurred
speech. [] Furthermore, [P]etitioner never
indicated to the police that he was having
difficulty understanding the conversation or
functioning because of intoxication. []
Based on this evidence, the state courts
properly
concluded
that
[P]etitioner’s
intoxication did
not
prohibit
him
from
knowingly, voluntarily, and intelligently
waiving
his
Miranda
rights,
and
Petitioner did tell Salazar that he could read and write
Spanish at some level. (See, e.g., Hr’g Tr. 102:2-8.)
4

17

[P]etitioner has presented no evidence to
the contrary. Therefore, the state court’s
factual findings on this issue must be
presumed
to
be
correct
on
federal
habeas review.
Oakes,

2011

WL

3236201,

§ 2254(e)(1); Shields

v.

at

*6

Duncan, No.

(citing

28

02–CV–6713,

U.S.C.
2003

WL

22957008, at *14 (E.D.N.Y. Oct. 20, 2003)).
Petitioner’s physical illness and intoxication do not
rise

to

a

sufficient

level:

there

was

no

evidence

Petitioner stood on “the edge of consciousness.”
U.S. at 401.

that

Mincey, 437

As to cognition, Petitioner does argue, that he is

“uneducated and mentally limited.”
12, at 7.)

(Pet’r’s Reply, Docket Entry

Generally, however, there was no evidence about

Petitioner’s alleged cognitive issues.

Moreover, there was no

evidence that Petitioner lacked the mental capacity to knowingly
waive his Miranda rights.

Petitioner told Salazar he could read

and write Spanish, though not well.
write

does

incapable

not,

of

by

making

itself,
a

Gaines, 295 F.3d at 299.
enough,

especially

since

rights line by line.

“[A]n inability to read or

establish

voluntary

and

that

the

intelligent

suspect

is

decision.”

Petitioner’s alleged illiteracy is not
Salazar

read

Petitioner

his

Miranda

Accordingly, Petitioner’s claim on ground

two is DENIED.

18

IV.

Ground Three: Sufficiency of Evidence
Petitioner

inconsistencies

in

[D]iscrepancies

argues
the

that

testimony
could

fabricating testimony.”
A.

that

only

“there

of

the

were

various

signify

that

numerous

witnesses[.]
someone

was

(Pet’r’s Appellate Br. at 52-53.)

Standard
“A person is guilty of robbery in the second degree

when he forcibly steals property and when . . . [h]e is aided by
another person actually present[.]”

(N.Y.P.L. § 160.10(1).)

“A

person is guilty of grand larceny in the fourth degree when he
steals property and when . . . [t]he property, regardless of its
nature

and

(N.Y.P.L.

§

possession
knowingly

value,

of

is

taken

155.30(5).)
stolen

possesses

from

“A

person

person

property

stolen

the

in

is

the

property,

guilty

fifth

with

of

another[.]”
of

degree

intent

to

criminal
when

he

benefit

himself or a person other than an owner thereof or to impede the
recovery by an owner thereof.”

(N.Y.P.L. § 165.40.)

The Court “review[s] the decision of the state court
under the federal sufficiency standard set forth by the Supreme
Court in

Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61

L. Ed. 2d 560 (1979).”

Gutierrez v. Smith, 702 F.3d 103, 113

(2d Cir. 2012) (citing Epps v. Poole, 687 F.3d 46, 50 (2d Cir.
2012)).

“The relevant question under Jackson is whether, ‘after
19

viewing

the

evidence

in

the

prosecution, any rational

light

trier

of

most

fact

favorable

could

the

found

have

to

the

essential elements of the crime beyond a reasonable doubt.’”
Id.

(emphasis

319).

in

original)

(citing

Jackson, 443

U.S.

at

“When considering the sufficiency of the evidence of such

a state conviction, a federal court ‘must consider the evidence
in the light most favorable to the prosecution and make all
inferences in its favor,’ and, in doing this, ‘must look to
state law to determine the elements of the crime.’”
Fama

v.

Comm'r

of

Corr.

Servs., 235

F.3d

804,

Id. (citing

811

(2d

Cir.

noting

the

2000)).
B.

Analysis
The

Appellate

Division

held,

after

deference it must give to the jury’s observations during the
trial, that it was “satisfied that the verdict of guilt was not
against the weight of the evidence.”

Hernandez, 67 A.D.3d at

821.
As

noted

supra,

Apolinar

testified

approached him with a knife in his hand.
Petitioner
(Trial

Tr.

“yanked”

Apolinar’s

687:11-20.)

Roque

Apolinar at the same time.
his

sister

standing

in

called
front

the
of

a

Petitioner

(Trial Tr. 684:11-25.)

neck-chains
saw

that

off

Petitioner

of

Apolinar.

standing

(Trial Tr. 951:10-952:12.)

police,
nearby
20

Apolinar
deli

and

identified
the

police

near
After

Arevalo
officers

arrested
(Trial

Arevalo

Tr.

recovered

and

Petitioner

692:15-696:15.)
Apolinar’s

the

Office

chains

(Trial Tr. 533:13-21.)

in

from

deli’s

Iovino

parking

testified

Petitioner’s

lot.

that

back

he

pocket.

The testimonies of Apolinar, Officer

Iovino, and Roque as well as Petitioner’s own admissions are
sufficient

to

establish

his

guilt

of

the

above-referenced

crimes.
Petitioner’s argument as to inconsistencies does not
overrule the weight of the evidence, most especially his written
statements of admission.
finds

a

rational

After viewing the evidence, the Court

fact-finder

could

have

found

elements were proven beyond a reasonable doubt.
702 F.3d at 113.

the

essential

See Gutierrez,

Accordingly, Petitioner’s claim on ground

three is DENIED.
V.

Ground Four: Missing Witness Jury Charge
Petitioner

argues

that

the

trial

court

should

have

given the jury a missing witness charge as to Apolinar’s mother.
“There’s been various testimony [that] . . . she was there at
the time of the commission of the alleged offense.

Maybe she

saw

different

something,

maybe

she

didn’t.

She

[witnessed]

people who were or were not talking to the police.”
974:1-7.)

21

(Trial Tr.

A.

Standard
“‘Whether a missing witness charge should be given

lies in the sound discretion of the trial court.’”
Senkowski, 961

F.2d

374,

377

(2d

Cir.

Reid v.

1992) (citing

United

States v. Torres, 845 F.2d 1165, 1170-71 (2d Cir. 1988); United
States v. Saa, 859 F.2d 1067, 1076 (2d Cir. 1988)).
“Habeas corpus relief is not available to set aside a
conviction on the basis of erroneous jury instruction or for
failure to deliver a [jury] charge unless the trial was rendered
so fundamentally unfair thereby, amounting to a denial of due
process.”
1991)

Smithwick v. Walker, 758 F. Supp. 178, 187 (S.D.N.Y.

(citing

Shepherd

v.

Nelson, 432

F.2d

1045

(9th

Cir.

1970)).
B.

Analysis
As

Respondent

notes,

“the

uncalled

witness,

[Apolinar’s] mother, was not present during the robbery because
he had sent her away just before it happened[].

At most, [she]

could have identified [Petitioner and Arevalo] as the men who
confronted

her

son,

but

such

testimony

cumulative and of limited materiality.”

would

have

been

(Resp’t’s Br. at 17

(citing Trial Tr. 682:23-683:12).)
As she was not present during the commission of the
crime or at the time of arrest, her testimony as to the identity
of

the

perpetrators

would,

indeed,
22

have

been

cumulative.

Moreover, as Petitioner admitted that he committed the crime,
he, by definition, admitted to being at the scene of the crime.
As Petitioner was not denied due process regarding the missing
witness charge, Petitioner’s fourth claim is DENIED.
VI.

Ground Five and Six: Confrontation Clause Violations
Petitioner argues his Confrontation Clause rights were

violated when: (i) jurors heard Arevalo’s trial testimony even
though Petitioner did not have the opportunity to cross-examine
Arevalo;
County

and

(ii)

Probation

the

sentencing

Department’s

court

report

letter before imposing sentence.

and

reviewed
District

the

Nassau

Attorney’s

(See Affidavit in Support of

Motion to Vacate J.)
Petitioner failed to directly appeal these issues, and
did not raise them until his Motion to Vacate Judgment.

As

noted supra, the County Court held that Petitioner’s motion was
procedurally barred.

(See March Order.)

The County Court held

that “[w]here, as here, sufficient facts appear on the record to
permit adequate review of the claims raised by the defendant in
his motion to vacate judgment
determined

and the claims were raised and

on appeal, or [Petitioner] unjustifiably failed to

raise them on appeal; the denial of the motion is mandatory.”
(March Order (citation omitted).)
be used as a substitute

A motion to vacate “may not

for direct appeal of claims or as a

method for a second appeal.”

(March Order (citation omitted).)
23

The Appellate Division denied Petitioner’s leave to appeal the
County Court’s holding.
The

State

(See August 2010 Order, at 2.)

courts

expressly

relied

on

a

procedural

default to deny the motion, thus habeas review of the claim is
foreclosed.

See Glenn, 98 F.3d at 724.

Petitioner fails to

“demonstrate cause for the default and actual prejudice as a
result of the alleged violation of federal law, or demonstrate
that failure to consider the claims will result in a fundamental
miscarriage

of

justice.”

Coleman,

501

U.S.

at

750.

Accordingly, the Petition on these grounds is DENIED.
CONCLUSION
For

the

reasons

set

forth

above,

Petitioner’s

application for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254

is

DENIED.

reasonable

jurists

Because
that

there

Petitioner

can
was

be

no

debate

entitled

to

among
habeas

relief, the Court does not issue a Certificate of Appealability.
28 U.S.C. § 2253(c); see also Middleton v. Att’ys Gen., 396 F.3d
207, 209 (2d Cir. 2005).
The Clerk of the Court is directed to mail a copy of
this Memorandum and Order to the pro se Petitioner and to mark
this matter CLOSED.
SO ORDERED.
Dated:

July
2 , 2014
Central Islip, NY

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
24