Conroy v. Racette
Filing
12
MEMORANDUM AND OPINION: For the foregoing reasons (PLEASE SEE ORDER FOR FURTHER DETAILS), petitioner has demonstrated no basis for relief under 28 U.S.C. § 2254. Accordingly, the instant petition is denied. Because petitioner has failed to make a substantial showing of a denial of a constitutional right, no certificate of appealability shall issue. See 28 U.S.C. § 2253(c)(2). The Court further certifies pursuant to 28 U.S.C. §1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of the Court shall enter judgment accordingly and close this case. So Ordered by Judge Joan M. Azrack on 7/6/2017. (c/m to pro se) (Ortiz, Grisel)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JEFFREY CONROY,
For Online Publication Only
Petitioner,
v.MEMORANDUM AND
ORDER
14-cv-5832 (JMA)
STEVEN RACETTE, SUPERINTENDENT OF
CLINTON CORRECTIONAL FACILITY,
Respondent.
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APPEARANCES:
Jeffrey Conroy
Clinton Correctional Facility - P.O. Box 2001
Dannemora, NY 12929
Pro se petitioner
FILED
CLERK
7/6/2017 4:59 pm
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
Glenn D. Green
Suffolk County District Attorney’s Office
200 Center Drive
Riverhead, NY 11901
Attorney for respondent
AZRACK, United States District Judge:
On April 19, 2010, Jeffrey Conroy was convicted in Suffolk County Supreme Court of
manslaughter in the first degree as a hate crime, gang assault in the first degree, conspiracy in the
fourth degree, and three counts of attempted assault in the second degree as a hate crime. 1 On
May 26, 2010, Conroy was sentenced to a determinate period of imprisonment of twenty-five
years with two and one-half years of post-release supervision on the manslaughter count and to
lesser sentences on the other charges, with all sentences to run concurrently.
1
In determining the precise crimes for which Conroy was convicted, the Court relies on the portion of the trial
transcript in which the jury read its verdict. (See Trial Transcript 3969–3971.) To the extent that Conroy’s account
of his convictions in his petition conflicts with the trial court record, the Court disregards Conroy’s account as
erroneous. (See, e.g., Pet. 1.)
1
Before the Court is Conroy’s petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. (See Petition for Writ of Habeas Corpus (“Pet.”), ECF No. 1.) The petition advances a
number of arguments, all of which were exhausted and adjudicated on the merits on direct appeal
in state court. For the reasons below, the Court finds that the state court’s decisions were not
contrary to clearly established federal law, did not involve an unreasonable application of clearly
established federal law, and were not based on an unreasonable determination of the facts. The
Court thus denies the instant petition in its entirety.
BACKGROUND
A. Factual Background
Petitioner was charged under two separate indictments along with six co-defendants:
Jordan Dasch, Anthony Hartford, Nicholas Hausch, Christopher Overton, Jose Pacheco, and
Kevin Shea. Each of petitioner’s co-defendants pleaded guilty, and Hausch testified against
petitioner at trial.
The indictments charging petitioner concerned two distinct incidents, and the Court sets
out the facts underlying each of those indictments separately.
1. November 3, 2008
The first incident occurred on November 3, 2008, when Octavio Cordovo and Adrian
Costillo were attacked near a gas station in Medford, New York. (See Trial Transcript (“Tr.”)
2537–2545, ECF Nos. 10-7–10-13.) As Cordovo and Costillo were walking towards the gas
station, they passed two young men—a white man wearing a white t-shirt, and a black man
wearing a gray sweatshirt. (Id. at 2541.) The two young men asked Cordovo and Costillo if they
had cigarettes, and Costillo told them that they did not. (Id. at 2543.) The two young men then
attacked Cordovo and Costillo, and the “white guy” ultimately rendered Cordovo unconscious.
(Id. at 2544.)
2
Shortly thereafter, Vincent Martino, a bystander, found Cordovo laying in the street near
the gas station. (Id. at 2562.) Martino observed a “white male and a black Hispanic male”
standing over Cordovo. (Id. at 2512–15, 2563.) Martino approached and called out to the two
young men, at which time they ran away. (Id. at 2563–64.) Martino pursued the two young men
and eventually caught up to them at the same time that a police patrol car arrived. (Id. at 2564–
67.) Martino grabbed the young men and pushed them against the car. (Id. at 2567, 2574.) The
police detained the two young men and identified them as petitioner and Jose Pacheco, a codefendant. (Id. at 2515–21.) While the officers were questioning petitioner, Pacheco, Cordovo,
and Martino, four young women approached and began “screaming” at the officers, saying that
petitioner and Pacheco “didn’t do it.” (Id. at 2516.) When it became clear that Cordovo was
refusing either to cooperate or to press changes, the police released both petitioner and Pacheco.
(Id. at 2521–22.)
2. November 8, 2008
The second incident occurred on November 8, 2008. On that evening, petitioner met a
large group of acquaintances at the Medford train station. (Id. at 3223.) Jason Moran, an uncharged member of the group, testified that the group discussed the fact that “someone jumped a
Mexican earlier that day.” 2 (Id. at 1638.) The group later travelled to Southaven Park in
Medford, where Moran testified that petitioner and other members of the group planned to “beat
a Mexican” in Patchogue later that evening. (Id. at 1645–48.)
There is some evidence that petitioner did not want to go to Patchogue with the group
because he did not want to get into trouble, and that he instead wanted either to go to a party or
to go home. (Id. at 2471–74.) Petitioner did not, however, go home; instead, the group drove to
2
This comment referred to an earlier incident involving certain co-defendants. Petitioner was not involved in that
earlier incident and was not charged with any crimes arising from it.
3
Patchogue where they encountered Hector Sierra walking on the side of the road. (Id. at 2983–
84, 2303–04.) Some of the members of the group—apparently including petitioner—exited the
vehicle to chase Sierra, but Sierra escaped without sustaining any serious physical injuries. (Id. at
2304–05, 2883). The group then returned to the vehicle and drove away. (Id. at 2306–07.)
After the group parked their vehicle, they walked onto Railroad Avenue and encountered
Angel Loja and Marcelo Lucero, two Hispanic men. (Id. at 2308–09.) The group began
shouting racial epithets at Loja and Lucero, although there is some ambiguity concerning
precisely which epithets were shouted. Co-defendant Nicholas Hausch testified that the group
was “calling them names like ‘beaners,’ [and] ‘Mexicans.’” (Id. at 2310–11.) At trial, Loja
testified that the group called him and Lucero “fuckin’ niggers,” “fuckin’ Mexicans,” “fuckin’
illegals,” and “[f]ucking Spics.” (Id. at 2010.) In his prior written statement, however, Loja had
stated that the group had called him and Lucero “niggers and fuckin’ niggers,” with no mention
of the other epithets. (See id. at 2044.) In any event, the evidence at trial indicated that the
group used at least some racial epithets and that a fight ensued.
Hausch testified that Kevin Shea, another co-defendant, punched one of the men in the
mouth and then began backing away. (Id. at 2311–12.) However, Loja testified that the group
knocked Lucero to the ground and hit, punched, and kicked him. (Id. at 2013–14.) According to
Loja, Lucero stood up, removed his jacket and belt, and then began waving the belt “around
him,” which caused the group to step back. (Id. at 2014–15.)
Petitioner’s own statements concerning the event are inconsistent. In a written statement
made after he was arrested, petitioner said that, after Lucero began swinging the belt, petitioner
ran “toward[s] him and stabbed him once in either his shoulder or chest.” (Id. at 2837.)
Thereafter, he turned to Hausch and said, “Oh shit. I’m fucked. I stabbed him.” (Id.) At trial,
4
however, petitioner testified that this written statement contained false information, and that codefendant Christopher Overton—rather than petitioner—had stabbed Lucero. (Id. at 3251.)
According to petitioner’s testimony, Overton told him to take the blame because Overton did not
want this incident to be used against him at his sentencing on a separate murder case from the
previous year. (Id. at 3251–52.) Petitioner also testified that Overton assured him that he only
had “nicked” Lucero in the shoulder and that Lucero was not seriously injured. (Id.)
Hausch testified that he saw petitioner holding a bloody knife after the group left the
scene of the altercation. (Id. at 2318.) Hausch further testified that the group told petitioner to
throw the knife away, but petitioner did not do so and instead told the group that he had washed
it off in a puddle. (Id.)
At approximately midnight, a police officer arrived on the scene where Lucero had been
stabbed and found Lucero lying on the ground in a pool of blood. (Id. at 1694–98.) Lucero’s
breathing was rapid and labored, and he was unable to communicate. (Id. at 1698–99.) The
officer called for an ambulance and applied pressure to the hole in the side of Lucero’s chest
until emergency responders arrived. (Id. at 1513, 1697, 1700.) Despite their efforts, Lucero died
at the hospital. (Id. at 2795.)
Shortly after the incident, the group was stopped by another police officer. (Id. at 1769–
72.) The officer had received a broadcast description of possible suspects of the stabbing and so
conducted a line-up of the members of the group, directing several police officers to pat them
down. (Id. at 1773–74.) Loja was brought to the scene and identified the group members, who
were then placed into custody. (Id. at 1774–76).
When petitioner was handcuffed, he informed the police that he was carrying a knife.
(Id. at 1804–05.) A police officer removed a black object from petitioner’s underwear waistband
5
and opened it to confirm that it was a folding pocket knife. (Id. at 1806.) The officer testified
that he observed blood on the blade of the knife and that petitioner said “I stabbed him.” (Id. at
1807.) While in custody, petitioner told the police that he had found this black knife in a hotel
room and had stabbed Lucero with it. (Id. at 2819.)
On April 19, 2010, a jury found petitioner guilty of manslaughter in the first degree as a
hate crime, gang assault in the first degree, conspiracy in the fourth degree, and three counts of
attempted assault in the second degree as a hate crime. (Tr. 3969–71.) On May 26, 2010,
petitioner was sentenced to a determinate period of imprisonment of twenty-five years with a
period of two and one-half years of post-release supervision on the manslaughter count, an
indeterminate period of imprisonment of one and one-third to four years on the conspiracy count,
and an indeterminate period of imprisonment of two and one-third to seven years on each of the
remaining counts. (Sentencing Transcript 93–95, ECF No. 10-14.) All of Conroy’s sentences
were to run concurrently. (Id.)
B. Procedural Background
Petitioner appealed his conviction and sentence to the Second Judicial Department of the
Appellate Division, raising 11 separate arguments. (See Pet. 2.) On January 30, 2013, the
Second Department affirmed petitioner’s conviction, finding his arguments meritless.
See
People v. Conroy, 102 A.D.3d 979 (App Div. 2d Dep’t 2013). Petitioner applied for leave to
appeal to the New York State Court of Appeals, and his application was denied on July 16, 2013.
See People v. Conroy, 21 N.Y.3d 1014 (N.Y. 2013). Petitioner’s direct appeal became final on
October 11, 2013, when his 90-day period within which to seek a writ of certiorari from the
United States Supreme Court expired. See Williams v. Artuz, 237 F.3d 147, 151 (2d Cir. 2001).
Conroy has not pursued post-conviction collateral relief at the state level.
6
C. The Instant Petition
On September 12, 2014, petitioner, now proceeding pro se, timely moved on nine
separate grounds for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. All nine grounds had
been raised and ruled upon in petitioner’s direct appeal. Those grounds are as follows:
(1) That the trial court failed to respond meaningfully to a juror note requesting a
read back of the cross-examination of Detective McLeer, one of the prosecution’s
key witnesses;
(2) That the trial court precluded petitioner from calling two detectives to explain
the circumstances surrounding the creation of Loja’s pre-trial statements;
(3) That the trial court denied defense counsel’s application to redact “propensity
evidence” contained in petitioner’s written statement;
(4) That the prosecution elicited testimony that had been specifically precluded by
the trial court, and the trial court denied defense counsel’s motion to strike that
prohibited testimony;
(5) That the trial court permitted black bunting to remain draped around defense
table during a portion of the jury selection, while no similar bunting was draped
around the prosecution table;
(6) That the trial court refused to charge the jury with the lesser included offenses
of criminally negligent homicide and gang assault in the second degree;
(7) That the trial court improperly joined the two separate indictments against
petitioner for trial;
(8) That the trial court precluded the jury from considering petitioner’s
descriptions of certain out-of-court statements by co-defendant Christopher
Overton—who did not testify—for the truth of the matter asserted; and
(9) That the evidence presented to the jury was insufficient, as a matter of law, to
convict petitioner beyond a reasonable doubt of every element of the crimes
charged.
(Pet. 7-17; see also Affirmation and Memorandum of Law in Support of Petition for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2254 (“Pet. Mem.”), ECF No. 2.) Respondent opposed
petitioner’s application on November 7, 2014. (Respondent’s Memorandum of Law, ECF No.
10-2.) The Court has fully considered all submissions of the parties.
7
DISCUSSION
A. Standards of Review
Congress enacted the Antiterrorism and Effective Death Penalty Act (“AEDPA”), Pub. L.
No. 104–132, 110 Stat. 1214 (1996), to restrict “the power of federal courts to grant writs of
habeas corpus to state prisoners.” Williams v. Taylor, 529 U.S. 362, 399 (2000) (O’Connor, J.,
concurring). Under AEDPA, a district court will “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.” 28 U.S.C. § 2254(a). To make that showing, the petitioner must satisfy three hurdles:
(1) the exhaustion of state remedies, (2) the absence of a procedural bar, and (3) the satisfaction
of AEDPA’s deferential review of state court decisions. See 28 U.S.C. § 2254.
1. Exhaustion
A court cannot review a habeas petition unless a petitioner “has exhausted the remedies
available” in state courts. 28 U.S.C. § 2254(b)(1)(A). The exhaustion requirement is designed to
provide state courts with 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)). Therefore, a petitioner must show that he fairly
presented his federal claim to the “highest state court capable of reviewing” that claim. Jackson
v. Conway, 763 F.3d 115, 151 (2d Cir. 2014) (quoting Rosa v. McCray, 396 F.3d 210, 217 (2d
Cir. 2005); see also Daye v. Att’y Gen. of N.Y., 696 F.2d 186, 190 n.3 (2d Cir. 1982) (en banc).
Although the petitioner need not “‘cite chapter and verse of the Constitution in order to satisfy
this requirement,’ he must tender his claim ‘in terms that are likely to alert the state courts to the
claim’s federal nature.’” Jackson, 763 F.3d at 133 (quoting Carvajal v. Artus, 633 F.3d 95, 104
(2d Cir. 2011)).
8
Here, petitioner raised the arguments underlying all nine of his proffered grounds for
habeas relief on direct appeal to the Second Department and requested leave to appeal that
decision to the Court of Appeals. (See Pet. 2–4; see also People v. Conroy, 102 A.D.3d 979
(App Div. 2d Dep’t 2013); People v. Conroy, 21 N.Y.3d 1014 (N.Y. 2013).) Petitioner has thus
satisfied the exhaustion requirement with respect to all of his grounds for relief.
2. Procedural Default
A federal court cannot review 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)). For this reason, under the doctrine of procedural default, a federal court will
not review “the merits of claims, including constitutional claims, that a state court declined to
hear because the petitioner failed to abide by a state procedural rule.” Martinez v. Ryan, 566 U.S.
1, 9 (2012). Rather, a federal habeas court can only review a state court decision if it qualifies as
an adjudication on the merits. “‘Adjudicated on the merits’ has a well settled meaning: a
decision finally resolving the parties’ claims, with res judicata effect, that is based on the
substance of the claim advanced, rather than on a procedural, or other, ground.” Whitehead v.
Haggett, No. 12-cv-04946, 2017 WL 491651, at *10 (E.D.N.Y. Feb. 6, 2017) (quoting Sellan v.
Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001)). In order to constitute an “adjudication on the
merits,” however, a state court decision need not “explain[] its reasoning process.” Acosta v.
Artuz, 575 F.3d 177, 189 n.5 (2d Cir. 2009) (quoting Sellan, 261 F.3d at 311). Rather, “when a
state court fails to articulate the rationale underlying its rejection of a petitioner’s claim, and
when that rejection is on the merits, the federal court will focus its review on whether the state
court’s ultimate decision was an ‘unreasonable application’ of clearly established Supreme Court
9
precedent.” Sellan, 261 F.3d at 311–12. Thus, “a federal habeas court must defer in the manner
prescribed by 28 U.S.C. § 2254(d)(1) to the state court’s decision on the federal claim—even if
the state court does not explicitly refer to either the federal claim or to relevant federal case law.”
Sellan, 261 F.3d at 312.
Here, the Second Department adjudicated all of petitioner’s claims on the merits by (a)
providing an explicit rationale for its denial of petitioner’s appeal based on the arguments for his
first, second, sixth, seventh, and ninth grounds and (b) finding that petitioner’s “remaining
contentions”—which included the arguments for his third, fourth, fifth, and eighth grounds—
“were without merit.” See People v. Conroy, 102 A.D.3d 979 (App. Div. 2d Dep’t 2013). The
Court of Appeals denied petitioner leave to appeal from that decision. The Second Department’s
decisions thus qualify as an “adjudication on the merits” and none of petitioner’s grounds are
procedurally barred.
3. AEDPA Standard of Review
Where a claim is both exhausted and not subject to a procedural bar, a federal court may
review the merits of the state court decision on that issue, subject to the deferential standard set
out by AEDPA. Under that standard, a federal court may grant a writ of habeas corpus only
where the state court’s adjudication of the claim either:
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, 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). The Supreme Court has construed AEDPA “to give independent meaning
to ‘contrary [to]’ and ‘unreasonable.’” Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000).
10
A state court’s decision is “contrary to” clearly established federal law if “the state court
arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if
the state court decides a case differently than [the Supreme Court] has on a set of materially
indistinguishable facts.” Williams, 529 U.S. at 412–13 (O’Connor, J., concurring). A decision
involves “an unreasonable application” of clearly established federal law when a state court
“identifies the correct governing legal principle from [the Supreme Court’s] decisions but
unreasonably applies that principle to the facts of [a] prisoner’s case.” Id. at 413. This standard
does not require that all reasonable jurists agree that the state court was wrong. Id. at 409–10.
Rather, the standard “falls somewhere between ‘merely erroneous and unreasonable to all
reasonable jurists.’” Jones, 229 F.3d at 119 (quoting Francis S. v. Stone, 221 F.3d 100, 109 (2d
Cir. 2000)).
AEDPA “imposes a highly deferential standard for evaluating state-court rulings and
demands that state-court decisions be given the benefit of the doubt.” Jones v. Murphy, 694 F.3d
225, 234 (2d Cir. 2012) (quoting Hardy v. Cross, 565 U.S. 65, 66 (2011) (per curiam)). This
standard is “difficult to meet.” White v. Woodall, 134 S. Ct. 1697, 1702 (2014) (quoting Metrish
v. Lancaster, 133 S. Ct. 1781, 1786 (2013)), reh’g denied, 134 S. Ct. 2835 (2014). A petitioner
must show that the “state court’s ruling . . . was so lacking in justification that there was an error
well understood and comprehended in existing law beyond any possibility for fairminded
disagreement.” Id. at 1702.
A state court’s determinations of factual issues are “presumed to be correct,” and the
petitioner bears “the burden of rebutting the presumption of correctness by clear and convincing
evidence.” 28 U.S.C. § 2254(e)(1); see also Lynn v. Bliden, 443 F.3d 238, 246 (2d Cir. 2006).
A state court’s findings of fact will be upheld “unless objectively unreasonable in light of the
11
evidence presented in the state court proceeding.” Lynn, 443 F.3d at 246–47 (quoting Miller-El
v. Cockrell, 537 U.S. 322, 340 (2003)). Thus, a federal court may overrule a state court’s
judgment only if, “after the closest examination of the state-court judgment, a federal court is
firmly convinced that a federal constitutional right has been violated.” Williams, 529 U.S. at 389.
4. Pro Se Status
Petitioner “bears the burden of proving by a preponderance of the evidence that his
constitutional rights have been violated.” Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997). In
light of petitioner’s pro se status, however, the Court construes his submissions liberally and
interprets them “to raise the strongest arguments that they suggest.” Kirkland v. Cablevision
Sys., 760 F.3d 223, 224 (2d Cir. 2014) (per curiam) (quoting Burgos v. Hopkins, 14 F.3d 787,
790 (2d Cir. 1994)). Petitioner is not, however, excused “from compliance with relevant rules of
procedural and substantive law.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir.
2006) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).
B. Petitioner’s Claims for Relief
1. First Ground
As his first ground for relief, petitioner argues that the trial court failed to respond
meaningfully to a juror note requesting a read back of the cross-examination of Detective
McLeer, a prosecution witness. Petitioner argues that the trial court erred in denying his request
that the court also conduct a read back of re-cross and re-re-cross. (Tr. 3953.)
As an initial matter, petitioner does not explicitly argue that the trial court’s decision
violated any federal right. Instead, petitioner argues that the trial court’s response to the juror
note violated New York Criminal Procedure Law § 310.30, which requires that, in response to a
jury request for information, the court “must give such requested information or instruction as
12
the court deems proper.” (See Pet. Mem at 14–17.) It is well established that “it is not the
province of a federal habeas court to reexamine state-court determinations of state-law questions.”
Davis v. Strack, 270 F.3d 111, 123 (2d Cir. 2001); see also Council v. Connell, No. 08-cv-11357,
2010 WL 1140879, at *7 (S.D.N.Y. Mar. 25, 2010) (report and recommendation), adopted by,
No. 08-cv-11357, 2010 WL 2884746 (S.D.N.Y. July 20, 2010) (adopting the magistrate judge’s
finding that a violation of CPL § 310.30 did “not implicate the Constitution, laws or treaties of
the United States, [and therefore] is not amenable to federal habeas corpus review”). Even
assuming that petitioner had demonstrated a violation of state law—and it does not appear that
he has done so—petitioner’s first ground therefore cannot form the basis for habeas relief.
Even if the Court liberally construes plaintiff’s first ground as arguing that he was denied
his federal due process right to a fair trial, petitioner is still not entitled to his requested relief. 3
On appeal, the Second Department found that “the trial court properly denied the defense
counsel’s request for a reading of additional testimony, since the court had no obligation ‘to
direct the reading of testimony beyond that requested.’” People v. Conroy, 102 A.D.3d at 981
(quoting People v. Murray, 258 A.D.2d 936, 936 (App Div. 4th Dep’t 1999)).
A trial court’s response to a juror note may constitute grounds for habeas relief only
where the deficient response “so infected the entire trial that the resulting conviction violates due
process.” Corines v. Superintendent, Otisville Corr. Facility, 621 F. Supp. 2d 26, 38 (E.D.N.Y.
2008) (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)). For the reasons that follow, the
trial court’s response was not such that the resulting conviction violated due process.
3
Petitioner’s brief on direct appeal included a brief note that the trial court’s response to the juror note “denied
appellant his right to a fair trial,” citing the Fifth and Fourteenth Amendments with no further discussion. (See
Appellant’s Brief 26, ECF No. 10-4.) The Court thus assumes that petitioner has exhausted the available state law
remedies for this argument.
13
Here, the jury specifically requested a read back of the cross-examination of Detective
McLeer, and the court provided such a read back. (Tr. 3951.) Petitioner’s attorney requested
that the court also read the witness’s re-cross and re-re-cross, arguing that the jury did not “know
the terminology of re-cross and re-re-cross.” (Id. at 3952.) There is no indication in the record
that the jury was dissatisfied or confused with the read back, and the jury did not request any
additional testimony from Detective McLeer.
Since the jury had previously asked for
clarification on certain on the trial court’s legal instructions, it appears that the jury was aware
that it was authorized to make additional requests for clarification. (See id. at 3957). The fact
that it made no additional requests with respect to Detective McLeer’s testimony therefore
indicates that it was satisfied with the trial court’s initial response.
Even assuming that the trial court’s response was deficient, however, petitioner was not
subject to any resulting prejudice. First, the jury had already listened to that testimony in full at
trial. Next, although petitioner argues that Detective McLeer’s re-cross and re-re-cross revealed
that petitioner had “passed on the ready opportunity to assault a Mexican national,” that
argument is unavailing. (Pet. Mem. 17.)
Indeed, the record already contained substantial
evidence that petitioner targeted Hispanics for attacks, including petitioner’s own statements.
In short, the Second Department’s determination that the trial court’s response did not
violate due process was neither contrary to nor an unreasonable application of clearly established
federal law and was not based on an unreasonable determination of the facts. Petitioner is
therefore not entitled to habeas relief on this ground.
2. Second Ground
Next, plaintiff argues that he was denied his due process right to a fair trial when the trial
court precluded him from calling the detectives who had taken Loja’s written statement
14
immediately following the incident on November 8, 2008. At trial, Loja testified that the group
called out certain derogatory names, including names specifically targeting Hispanic immigrants.
(Tr. 2057.)
In his prior written statement, however, Loja did not mention the epithets
specifically targeting Hispanic immigrants. (Id.) When asked about the inconsistencies on cross,
Loja responded: “From the very beginning, I told them how everything happened, what was said.
If they didn’t write it down, I don’t know why.” (Id.) Defense counsel then moved to call the
detectives who had taken Loja’s statements in order to explain the circumstances surrounding the
creation of those pre-trial statements, but the trial court denied the motion, reasoning that the
intended examination was “merely a collateral attack with respect to credibility.” (Id. at 29612962.) Petitioner argues that this decision violated his due process right. On appeal, the Second
Department found that “the admission of extrinsic evidence of these prior statements would have
been cumulative” and, therefore, that the trial court “providently exercised its discretion in
precluding the defendant from presenting” such extrinsic evidence. People v. Conroy, 102
A.D.3d at 980–81.
The Supreme Court has held that, “[w]ithin limits, the judge may . . . refuse to allow
cumulative, repetitive, or irrelevant testimony.” Geders v. United States, 425 U.S. 80, 86–7
(1976). For the reasons that follow, the Second Department’s affirmation of the state court’s
decision to preclude the proffered testimony was neither contrary to nor an unreasonable
application of clearly established federal law and was not based on an unreasonable
determination of the facts.
First, defense counsel was able to cross-examine Loja effectively, drawing attention to
the inconsistencies between his testimony on direct examination and his prior statements. (Tr.
2044–2049.) Second, Hausch testified both that the group used epithets not mentioned by Loja
15
and that the group did not use certain epithets that Loja claims were used. (Id. at 2310.)
Hausch’s testimony thus further contradicted Loja.
Third, the record contained ample
testimony—including testimony both from petitioner and from Detective McLeer—that
contradicted Loja’s trial testimony concerning the use of epithets specifically targeting Hispanic
immigrants. (See, e.g., id at 2892 (McLeer testified that, when he interviewed Loja shortly after
the attack, Loja told him that the only “racial comments” used by the attackers were “niggers”
and “fucking niggers,” and not “fuckin’ Mexicans, Spics, anything like that”); 3241 (petitioner
testified that the attackers “were yelling like, ‘You assholes, you niggers and you mother fuckers,’
and I think Nicky Hausch said, ‘beaners.’”) Thus, the record was more than sufficient to
impeach Loja’s credibility concerning the specific racial epithets used.
Further, even if the proffered testimony would have led the jury to discredit Loja’s trial
testimony concerning the specific racial epithets used, there was ample evidence of petitioner’s
intent to attack Loja and Lucero based on his belief or perception regarding their race, color,
ethnicity, or national origin. For instance, Moran testified that he heard petitioner and other
members of the group discussing plans to carry out an attack on a person of Mexican descent.
(Id. at 1646–48.) Likewise, petitioner’s written statement indicated that “[t]here have been times
in the past when I have been with other groups and we would go ‘Mexican hopping,’ which is
looking for Spanish people to beat up.” (Id. at 3379–80). And, in any event, the detectives’
testimony could not have disproved petitioner’s intent because Loja’s written statement still
indicated that petitioner used certain racial slurs, which is highly probative of race-bias.
Therefore, the Second Department’s decision was neither contrary to nor an unreasonable
application of clearly established federal law and was not based on an unreasonable
determination of the facts, and petitioner is not entitled to habeas relief on this ground.
16
3. Third Ground
Petitioner argues that he was denied his due process right to a fair trial when the trial
court denied defense counsel’s application to redact “propensity evidence” contained in
petitioner’s written statement. On appeal, the Second Department found that “evidence of
uncharged crimes committed by the defendant and his codefendants, and prior statements or acts
of animosity or hostility, were properly admitted under the circumstances of this case, to
complete the narrative of the events, provide background material, and as evidence of motive or
state of mind with respect to the crimes charged.” People v. Conroy, 102 A.D.3d at 980. For the
reasons set forth below, the state court’s decision was neither contrary to nor an unreasonable
application of clearly established federal law and was not based on an unreasonable
determination of the facts.
“[F]ederal habeas corpus does not lie for errors of state law. . . . In conducting habeas
review, a federal court is limited to deciding whether a conviction violated the Constitution, laws,
or treaties of the United States.” Forino v. Lee, No. 10-cv-5980, 2016 WL 7350583, at *6
(E.D.N.Y. Dec. 19, 2016) (quoting Estelle v. McGuire, 502 U.S. 62, 68 (1991)).
“Since
generally, habeas relief does not lie for errors of state law, ‘[e]rroneous evidentiary rulings rarely
rise to the level’ of a due process violation.” Taylor v. Connelly, 18 F. Supp. 3d 242, 258
(E.D.N.Y. 2014) (quoting Washington v. Schriver, 255 F.3d 45, 56 (2d Cir. 2001)); see also
Taylor v. Curry, 708 F.2d 886, 891 (2d Cir. 1983) (“[e]rroneous evidentiary rulings do not
automatically rise to the level of constitutional error sufficient to warrant issuance of a writ of
habeas corpus”). In order for petitioner to prevail on a claim regarding an evidentiary error, he
must demonstrate that the error deprived him of his right to “a fundamentally fair trial.” Taylor v.
Curry, 708 F.2d at 891; see also Zarvela v. Artuz, 364 F.3d 415, 418 (2d Cir. 2004) (“Even
17
erroneous evidentiary rulings warrant a writ of habeas corpus only where the petitioner ‘can
show that the error deprived [him] of a fundamentally fair trial.’”) (quoting Rosario v. Kuhlman,
839 F.2d 918, 925 (2d Cir. 1988))).
In determining whether a state court’s alleged evidentiary error deprived a petitioner of a
fundamentally fair trial, federal courts engage in a two-part analysis. First, courts consider
whether the trial court’s evidentiary ruling was erroneous under state law. Second, if an error
was made, courts consider whether the error amounted to a denial of the constitutional right to a
fundamentally fair trial. See Wade v. Mantello, 333 F.3d 51, 59–60 & n.7 (2d Cir. 2003).
i. Admissibility Under New York State Law
Under New York law, “[a] trial court may admit into evidence uncharged crimes when
the evidence is relevant to a pertinent issue in the case other than a defendant’s criminal
propensity to commit the crime charged.” People v. Till, 87 N.Y.2d 835, 836 (N.Y. 1995).
However, “such evidence is admissible only upon a trial court finding that its probative value for
the jury outweighs the risk of undue prejudice to the defendant.” Id. (citations omitted). In
People v. Molineux, the New York Court of Appeals stated:
Generally speaking, evidence of other crimes is competent to prove
the specific crime charged when it tends to establish (1) motive;
(2) intent; (3) the absence of mistake or accident; (4) a common
scheme or plan embracing the commission of two or more crimes
so related to each other that proof of one tends to establish the
others; (5) the identity of the person charged with the commission
of the crime on trial.
168 N.Y. 264, 293 (N.Y. 1901). This list is “illustrative and not exhaustive,” People v. Rojas, 97
N.Y.2d 32, 37 (N.Y. 2001), and evidence of uncharged crimes that is necessary to provide
“background material” or to “complete the narrative of the episode” may also be admissible. Till,
87 N.Y.2d at 837 (internal citations omitted).
18
The contested evidence of petitioner’s prior misconduct was admissible under New York
law. In relevant part, petitioner’s written statement stated: “There have been times in the past
when I have been with other groups and we would go ‘Mexican hopping,’ which is looking for
Spanish people to beat up.” (Tr. 2838.) This evidence was properly admitted to provide
necessary background concerning both the nature of the attacks and petitioner’s state of mind
and intent. Specifically, petitioner’s written statement helped to show that he targeted Lucero,
Loja, Cordovo, Costillo, and Sierra on the basis of his perceptions or beliefs about their race,
color, ethnicity, or national origin, which is a necessary element of the charged hate crimes. The
probative value of this evidence thus outweighed its potential prejudicial effect and the evidence
of petitioner’s prior misconduct was admissible under New York law. As such, petitioner is not
entitled to habeas relief on this ground and the Court need not inquire into whether he was
deprived of his right to a fundamentally fair trial. See Wade, 333 F.3d at 59.
ii. Deprivation of Fair Trial or Due Process Right
Even assuming that the trial court had erred, however, petitioner was not deprived of his
right to a fair trial. “As applied to a criminal trial, denial of due process is the failure to observe
that fundamental fairness essential to the very concept of justice.” Lisenba v. California, 314
U.S. 219, 236 (1941). To amount to a violation of due process, wrongfully admitted evidence
must be “so extremely unfair that its admission violates ‘fundamental conceptions of justice.’”
Dowling v. United States, 493 U.S. 342, 352 (1990) (quoting United States v. Lovasco, 431 U.S.
783, 790 (1977)). Further, even if a constitutional error occurred, it “will merit habeas corpus
relief only if it had a ‘substantial and injurious effect or influence in determining the jury’s
verdict.’” Sierra v. Burge, No. 06-cv-14432, 2007 WL 4218926, *6 (S.D.N.Y. Nov. 30, 2007)
(quoting Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)).
19
This standard is not met here. The evidence of prior misconduct was not “so extremely
unfair that its admission violates ‘fundamental conceptions of justice.’” Dowling, 493 U.S. at
352.
Indeed, the jury was presented with overwhelming evidence that petitioner targeted
individuals based on his perception of their race, color, ethnicity, or national origin.
In any event, under the deferential AEDPA standard of review, petitioner must show that
the state court’s resolution of this issue was contrary to or an unreasonable application of clearly
established federal law. The Supreme Court has never held that a criminal defendant’s due
process right is violated by the introduction of prior bad acts or uncharged crimes. See, e.g.,
Huddleston v. United States, 485 U.S. 681, 685 (1988) (noting that prior bad acts may be
allowed to show motive, opportunity, or knowledge); see also Parker v. Woughter, No. 09-cv3843, 2009 WL 1616000, at *2 (S.D.N.Y. June 9, 2009) (“[P]etitioner cites no Supreme Court
case, and the Court is aware of none, holding that the admission of evidence of uncharged crimes
violates the Due Process Clause of the Fourteenth Amendment.”). This is especially true where,
as here, the prior bad acts are directly relevant to an element of the charged crime.
The state court’s decision was therefore neither contrary to, nor an unreasonable
application of, clearly established federal law and was not based on an unreasonable
determination of the facts. Petitioner’s third ground thus does not form a basis for habeas relief.
4. Fourth Ground
Petitioner argues that he was denied his due process right to a fair trial when the
prosecutor elicited testimony that the trial court had previously precluded, and when the trial
court subsequently denied defense counsel’s motion to strike that prohibited testimony. (Pet.
Mem 24–25.) In particular, petitioner argues that Moran’s testimony that certain members of the
group had discussed the fact that “someone jumped a Mexican earlier that day” was evidence of
20
petitioner’s “guilt by association” and petitioner’s propensity to commit the crimes charged in
the indictments. (Id. (quoting Tr. at 1638).) The Second Department found this argument to be
“without merit.” People v. Conroy, 102 A.D.3d at 981. For the reasons set forth below, the
Court finds that the state court’s decision was neither contrary to nor an unreasonable application
of clearly established federal law and was not based on an unreasonable determination of the
facts.
As stated above, courts considering habeas petitions based on an allegedly erroneous
evidentiary ruling first consider whether the ruling was actually erroneous under state law and, if
it was erroneous, then consider whether the error amounted to the denial of the constitutional
right to a fundamentally fair trial. See Wade, 333 F.3d at 59-60 & n.7.
Under New York law, evidence of uncharged crimes that is necessary to provide
“background material” or to “complete the narrative of the episode” may be admissible. Till, 87
N.Y.2d at 837 (internal citations omitted). Thus, Moran’s testimony was properly admitted under
New York law to provide the necessary background to the jury to understand the events leading
up to the attack on the night of November 8, 2008, as well as the group’s motive and intent.
Specifically, it showed that the group had the intention of assaulting individuals of Mexican
descent, which was a necessary element of the hate crimes with which petitioner had been
charged. Even were the decision to admit the evidence erroneous under New York law, however,
such error did not deprive petitioner of his due process right to a fair trial given the
overwhelming evidence against him.
Therefore, the trial court’s decision to admit Moran’s testimony is not a viable ground for
petitioner’s requested habeas relief.
21
5. Fifth Ground
Petitioner argues that he was denied his right to a fair trial when the trial court permitted
black bunting to remain draped around the defense table during a portion of the jury selection,
while no similar bunting was draped around the prosecutor’s table.
Petitioner’s argument
appears to be that the presence of such bunting unnecessarily obscured his hands and feet during
jury selection and may have caused jurors to assume, incorrectly, that he was shackled. The
Second Department found this argument to be “without merit.” People v. Conroy, 102 A.D.3d at
981.
The use of visible shackles, or the use of some obscuring technique to hide such shackles
from the jury, may implicate a defendant’s due process rights. See Deck v. Missouri, 544 U.S.
622, 626, 633 (2005), abrogated on other grounds, Fry v. Pliler, 551 U.S. 112 (2007). As an
initial matter, visible shackling undermines the basic premise that defendants are presumed
innocent until proven guilty. Id. at 630. If a defendant is shackled before a jury, it can suggest to
the jury that “the justice system itself sees a need to separate a defendant from the community at
large.” Id. The use of shackles can also impede a defendant’s right to counsel by interfering
with the defendant’s “ability to communicate with his lawyer.” Id. at 631. Similarly, shackles
may interfere with a defendant’s ability to participate in his own defense by preventing him from
taking the witness stand. Id. Finally, the use of shackles may constitute an “affront [to] the
dignity and decorum of judicial proceedings.” Id.
When table bunting is placed around the defense table and not the prosecutor’s table, a
jury may become aware of the potential out-of-sight use of shackles. See, e.g., People v. Cruz,
17 N.Y.3d 941, 944-45 (N.Y. 2011). A defendant’s due process rights may be implicated in
22
situations where a jury might infer that a defendant was shackled, even if it did not see the
shackles directly. See id. at 944.
Here, however, the black bunting was present only for a portion of jury selection and was
removed shortly after defense counsel objected to its presence. (Tr. 1190.) Thus, for almost the
entire trial, the jury was able to observe for themselves that petitioner was neither shackled nor
restrained. And, because petitioner was, in fact, unshackled, there was no negative impact on his
ability to communicate with his lawyer or to take the witness stand.
The brief presence of the black bunting around the defense table during a portion of jury
selection therefore did not unduly prejudice petitioner. The state court’s decision to that effect
was neither contrary to, nor an unreasonable application of, clearly established federal law and
was not based on an unreasonable determination of the facts. This argument thus forms no basis
for habeas relief.
6. Sixth Ground
At trial, the court refused defendant’s request to charge the jury concerning criminally
negligent homicide, a lesser included offense of manslaughter in the first degree as a hate crime.
The trial court did, however, grant plaintiff’s alternative request to instruct the jury with respect
to manslaughter in the second degree as a lesser included offense. The trial court also denied
defendant’s requested charge concerning gang assault in the second degree, a lesser included
offense of gang assault in the first degree.
The jury ultimately convicted plaintiff of
manslaughter in the first degree as a hate crime and gang assault in the first degree, as charged in
the indictment. Petitioner argues that the trial court’s denial of his requested charges violated his
due process rights.
23
On direct appeal, the Second Department found that the trial court’s refusal to instruct
the jury concerning these lesser included offenses “does not warrant reversal.” People v. Conroy,
102 A.D.3d at 981. Specifically, the Second Department found that “review of the trial court’s
refusal to charge the remote lesser-included offense of criminally negligent homicide is
foreclosed” because “the jury convicted the defendant of manslaughter in the first degree as a
hate crime, as charged.” Id. (citing People v. Green, 5 N.Y.3d 538, 545 (N.Y. 2005) (“[w]here a
court charges the next lesser included offense of the crime alleged in the indictment, but refuses
to charge lesser degrees than that . . . the defendant’s conviction of the crime alleged in the
indictment forecloses a challenge to the court’s refusal to charge the remote lesser included
offenses”)).
The Second Department also found that the trial court’s refusal to instruct the jury on
“gang assault in the second degree as a lesser-included offense to gang assault in the first degree
also does not warrant reversal” because, “by convicting the defendant of manslaughter in the first
degree as a hate crime, the jury found that the defendant intended to inflict serious physical
injury on the victim,” a finding that precludes the applicability of the requested lesser-included
offense. People v. Conroy, 102 A.D.3d at 981. The Second Department explained that, under
New York law, even where a trial court’s failure to give a requested charge amounts to error,
such error is harmless where the jury’s findings on other counts indicate that the jury would not
have reached a different conclusion even had the requested charge been given. See, e.g., People
v. Rodriguez, 16 N.Y.3d 341 (N.Y. 2011).
“Neither the Supreme Court nor [the Second Circuit] has decided whether the failure to
instruct the jury on lesser included offenses in noncapital cases is a constitutional issue that may
be considered on a habeas petition.” Knapp v. Leonardo, 46 F.3d 170, 179 (2d Cir. 1995) (citing
24
Rice v. Hoke, 846 F.2d 160, 164–65 (2d Cir. 1988)); see also Platt v. Ercole, No. 06-cv-2072,
2010 WL 3852042, at *3 (E.D.N.Y. Sept. 27, 2010). Given the unsettled nature of federal law in
this area, a claim that a trial court erred in failing to instruct the jury on a lesser-included offense
in a non-capital case is not cognizable in a habeas corpus proceeding. See Bonilla v. Lee, 35 F.
Supp. 3d 551, 569 (S.D.N.Y. 2014) (citing Jones v. Hoffman, 86 F.3d 46, 48 (2nd Cir. 1996)).
Thus, petitioner’s sixth ground cannot form a basis for habeas relief.
7. Seventh Ground
Petitioner argues that he was denied his right to a fair trial when the trial court joined the
two indictments against him for trial.
Indictment 3032A-2008 charged petitioner with the
following crimes stemming from the incident on November 8, 2008: (1) murder in the second
degree of Lucero as a hate crime; (2) manslaughter in the first degree of Lucero as a hate crime;
(3) gang assault in the first degree of Lucero; (4) conspiracy in the fourth degree; (5) attempted
assault in the second degree of Loja as a hate crime; and (6) attempted assault in the second
degree of Sierra as a hate crime. (Tr. 30-36). Indictment 236A-2009 charged petitioner with
attempted assault in the second degree of Cordovo as a hate crime stemming from the incident on
November 3, 2008. (Id. at 36.)
Petitioner argues that the joinder was improper because there was a high likelihood that
the jury would evaluate the evidence of the two incidents cumulatively, rather than separately.
(Pet. Mem. 35–39.) On appeal, the Second Department found that the indictments were properly
joined for trial because “inter alia, . . . proof of each offense was material and admissible as
evidence in chief of the other offenses.” People v. Conroy, 102 A.D.3d at 981 (citing C.P.L.
200.20(2)).
25
“Improper joinder of charges against a defendant does not, in itself, amount to a
constitutional violation.” McKinnon v. Superintendent, Great Meadow Corr. Facility, 422 F.
App’x 69, 72 (2d Cir. 2011) (citing United States v. Lane, 474 U.S. 438, 446 n. 8 (1986)).
Rather, joinder of offenses “rises to the level of a constitutional violation only if it ‘actually
render[s] petitioner’s state trial fundamentally unfair and hence, violative of due process.’”
Herring v. Meachum, 11 F.3d 374, 377 (2d Cir. 1993) (quoting Tribbitt v. Wainwright, 540 F.2d
840, 841 (5th Cir. 1976)). To determine whether joinder renders a trial fundamentally unfair, “it
is only the consequences of joinder, over which the trial judge has much control, and not the
joinder itself,” that may be considered. Id. The Second Circuit has recognized that, when
indictments are joined, there is a danger that a jury may consider evidence cumulatively or
“regard with a more jaundiced eye a person charged with two crimes than a person charged with
one.” Id. The Circuit, however, has also held that a jury can be expected to follow the judge’s
limiting instructions and that the state has a valid interest in judicial convenience. Id. In order to
succeed on a claim of improper joinder, therefore, a defendant must “prove that actual prejudice
resulted from the events as they unfolded during the joint trial.” Id. at 377–78.
Petitioner argues that “by joining these two indictments, the People were able to present
an unflattering picture of [petitioner], portraying him as someone who associated with violent
racists and bigots and therefore, was one himself.” (Pet. Mem. 39.) Petitioner’s argument is
without merit. Because petitioner was charged with hate crimes, evidence that he attacked
individuals based on his beliefs or perceptions about their race, color, ethnicity, or national origin
was admissible whether the indictments were tried separately or together. As such, the jury
would have learned of the facts underlying both indictments even if joinder had not been granted.
26
Because petitioner has not shown that the joinder prejudiced him, the state court’s
decision was neither contrary to nor an unreasonable application of clearly established federal
law and was not based on an unreasonable determination of the facts. Petitioner’s seventh
ground therefore does not form a basis for habeas relief.
8. Eighth Ground
Petitioner argues that it was error for the trial court to instruct the jury to consider the outof-court statements of co-defendant Overton—who did not testify at trial—only as state-of-mind
evidence, rather than for the truth of the matter asserted. Petitioner had testified about Overton’s
out-of-court statements as follows:
[Overton] said, “Jeff, I think I just stabbed the guy in the shoulder.
I really cannot get in trouble with this. Can you please take the
knife. I only nicked him and I promise you he’s not hurt.” And
then, after that, I’m like, “Why can't you get in trouble for this?”
He says, “Because I already told you that I was involved in a
murder case last year and I still haven’t gotten sentenced and I’ll
be screwed if I get caught. So can you please take the knife.” And
then he's like, “Look back. He’s even walking away.” I looked
back and the guy was walking away.
(Tr. 3251–52.) The trial court denied petitioner’s request to instruct the jury that they could
consider Overton’s purported statements for the truth of the matter asserted, instead instructing
the jury that they could consider those statements only as state-of-mind evidence. (Tr. 3213–14.)
Petitioner argued on appeal that the trial court’s decision was erroneous, but the Second
Department found that petitioner’s argument was “without merit.”
People v. Conroy, 102
A.D.3d at 981.
As noted above, a trial court’s evidentiary rulings—even where erroneous—“warrant a
writ of habeas corpus only where the petitioner ‘can show that the error deprived [him] of a
fundamentally fair trial.’” Zarvela v. Artuz, 364 F.3d 415, 418 (2d Cir. 2004) (quoting Rosario v.
27
Kuhlman, 839 F.2d 918, 925 (2d Cir. 1988)). Under New York law, hearsay may be admissible
as “a declaration against the maker’s penal interest” where the following conditions are met:
“first, the declarant must be unavailable as a witness at trial;
second, when the statement was made the declarant must be aware
that it was adverse to his penal interest;
third, the declarant must have competent knowledge of the facts
underlying the statement; and,
fourth, and most important, supporting circumstances independent
of the statement itself must be present to attest to its
trustworthiness and reliability.”
People v. Settles, 46 N.Y.2d 154, 166–167 (N.Y. 1978).
Here, the “fourth, and most important” element is lacking: there are no supporting
circumstances to attest to the trustworthiness and reliability of Overton’s purported statement.
There was no evidence that Overton had a knife on his person on the night of November 8, 2008,
or that he was the one who stabbed Lucero. Further, no witness had seen Overton give the knife
to petitioner. Petitioner argues that Overton habitually carried a knife on his person and had
previously been involved “in a home invasion/murder,” concluding that Overton “was no
stranger to situations that resulted in a killing.” (Pet. Mem. 42.) This is mere speculation,
however, and is insufficient to demonstrate the required trustworthiness and reliability.
The Second Department’s decision that petitioner’s argument was “without merit” was
therefore neither contrary to nor an unreasonable application of clearly established federal law
and was not based on an unreasonable determination of the facts. As such, petitioner’s eighth
ground does not warrant habeas relief.
28
9. Ninth Ground
As his final ground for relief, petitioner argues that his guilt has not been proven beyond
a reasonable doubt and that the verdict was against the weight of the evidence. Specifically, he
argues that the evidence at trial failed to establish proof of:
(1) intent to inflict serious physical injury, as required to convict on the charges of
manslaughter in the first degree as a hate crime and gang assault in the first
degree;
(2) the elements of attempted assault in the second degree as a hate crime as to
Loja;
(3) the elements of attempted assault in the second degree as a hate crime as to
Cordovo; and
(4) the elements of attempted assault in the second degree as a hate crime as to
Sierra. 4
On direct appeal, the Second Department found that the evidence, when viewed in “the
light most favorable to the prosecution,” was “legally sufficient to establish the defendant’s guilt
of the crimes charged beyond a reasonable doubt.” People v. Conroy, 102 A.D.3d at 980. In so
concluding, the Second Department “conduct[ed] an independent review of the weight of the
evidence” but “accord[ed] great deference to the jury’s opportunity to view the witnesses, hear
the testimony, and observe demeanor.” Id.
A petitioner “bears a very heavy burden” when challenging the legal sufficiency of the
evidence in an application for a writ of habeas corpus. Einaugler v. Supreme Court of the State
of N.Y., 109 F.3d 836, 840 (2d Cir. 1997) (quoting Quirama v. Michele, 983 F.2d 12, 14 (2d Cir.
1993)). A criminal conviction in state court will not be reversed if, “after viewing the evidence
in the light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,
4
Petitioner has not argued that his conspiracy conviction was against the weight of the evidence.
29
319 (1979) (emphasis in original); see also Policano v. Herbert, 507 F.3d 111, 115–16 (2d Cir.
2007) (stating that “[i]n a challenge to a state criminal conviction brought under 28 U.S.C. §
2254 . . . the applicant is entitled to habeas corpus relief if it is found that upon the record
evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a
reasonable doubt”) (quoting Jackson, 443 U.S. at 324)); Ponnapula v. Spitzer, 297 F.3d 172, 179
(2d Cir. 2002) (“[W]e review the evidence in the light most favorable to the State and the
applicant is entitled to habeas corpus relief only if no rational trier of fact could find proof of
guilt beyond a reasonable doubt based on the evidence adduced at trial.”). A criminal conviction
will stand so long as “a reasonable mind ‘might fairly conclude guilt beyond a reasonable doubt.’”
United States v. Strauss, 999 F.2d 692, 696 (2d Cir. 1993) (quoting United States v. Mariani, 725
F.2d 862, 865 (2d Cir. 1984)).
It is axiomatic that “[w]here there are conflicts in the testimony, [a federal court] must
defer to the jury’s resolution of the weight of the evidence and the credibility of the witnesses.”
United States v. Ware, 577 F.3d 442, 447 (2d Cir. 2009). This is because the task of assessing
witness credibility rests solely with the jury, and “the jury is free to believe part and disbelieve
part of any witness’s testimony.” Id. (citing United States v. Josephberg, 562 F.3d 478, 487 (2d
Cir. 2009)). This rule applies whether the evidence being weighed is direct or circumstantial. Id.
When considering the sufficiency of the evidence of a state conviction, “[a] federal court
must look to state law to determine the elements of the crime.” Quartararo v. Hanslmaier, 186
F.3d 91, 97 (2d Cir. 1999). Having considered each of the crimes of which petitioner was
convicted, the Court concludes that the Second Department’s decision was neither contrary to
nor an unreasonable application of clearly established federal law and was not based on an
unreasonable determination of the facts.
30
i. Manslaughter in the First Degree as a Hate Crime and Gang Assault in the First
Degree
Under New York law, “[a] person is guilty of manslaughter in the first degree when, with
intent to cause serious physical injury to another person, he causes the death of such person or of
a third person.” N.Y. Penal Law § 125.20(1). “A person is guilty of gang assault in the first
degree when, with intent to cause serious physical injury to another person and when aided by
two or more other persons actually present, he causes serious physical injury to such person or to
a third person.” Id. § 120.07. Both crimes require proof of an intent to cause “serious physical
injury,” which “means physical injury which creates a substantial risk of death, or which causes
death or serious and protracted disfigurement, protracted impairment of health or protracted loss
or impairment of the function of any bodily organ.” Id. § 10.00(10).
Petitioner claims that the evidence at trial failed to establish intent to inflict serious
physical injury. 5 Petitioner relies on the inconsistencies between his testimony, Loja’s testimony,
and Hausch’s testimony regarding the November 8 attack as showing he had not intended to
cause serious physical injury. (Pet. Mem. 46–49.) First, petitioner states that there was no
physical evidence to corroborate Loja’s testimony that he and Lucero had been the subject of
sustained attacks intended to cause serious physical harm. Petitioner points to the relative lack of
evidence that either Loja or Lucero had sustained any injuries beyond the fatal stab wound and a
number of minor abrasions. (See id. at 46–47 (citing Tr. 2757–61).) Petitioner also relies on
Hausch’s testimony that Shea punched Lucero only once in the face before the group, including
petitioner, began to walk away. (Id. at 47.) Second, petitioner argues that, since the group
withdrew from Lucero “immediately after the stabbing” when Lucero “was, by all appearance,
5
Petitioner has argued only that the evidence was insufficient to prove the intent element of these charges; he has
not addressed, and the Court therefore does not consider, whether the evidence was sufficient to prove the remaining
elements of each charge.
31
largely unaffected by the stab wound,” the evidence indicated that “the stabbing was a means to
end an altercation without regard to any intent to inflict serious physical injury.” (Id. at 48.)
Although there was conflicting testimony regarding the details of the attack, it is the
province of the jury to determine issues of witness credibility. Ware, 577 F.3d at 447. Indeed,
there was more than sufficient evidence that would allow a rational trier of fact to find that
petitioner intended to cause serious physical injury to Lucero, including petitioner’s written
statement that he intentionally stabbed Lucero with a knife. (Tr. 2826; 2834–39.) In relevant
part, that statement read:
The Spanish guy continued to swing his belt and when we didn’t
back down he swung the belt at Nicky and I went toward him with
my knife in my right hand extended outward. His back was to me
and as I ran toward him he turned to face me. He was about four
or five feet from me. I continued to run toward him and stabbed
him once in either his shoulder or chest. The physical altercation
ended when I stabbed the guy.
(Id. at 2837.) From this statement, a rational trier of fact could infer that petitioner intended to
cause serious physical injury when he stabbed Lucero in his shoulder or chest. See, e.g., People
v. Dasney, 126 A.D.3d 521, 521 (App. Div. 1st Dep’t 2015) (finding that trial evidence was
sufficient to establish intent to cause serious physical injury where defendant stabbed victim in
the chest), leave to appeal denied, 25 N.Y.3d 1071 (N.Y. 2015); People v. Natal, 100 A.D.3d 509
(App. Div. 1st Dep’t 2012) (same).
The Second Department’s determination that the evidence was sufficient to convict
petitioner was thus neither contrary to, nor an unreasonable application of, clearly established
federal law, nor was it an unreasonable determination of the facts in light of the entire record.
ii. Attempted Assault in the Second Degree as a Hate Crime
Under New York law, “[a] person is guilty of assault in the second degree when with
intent to cause serious physical injury to another person, he causes such injury to such person or
32
to a third person.” N.Y. Penal Law § 120.05. In order for a defendant’s commission of an
offense to constitute a “hate crime,” the defendant must either have
intentionally select[ed] the person against whom the offense is
committed or intended to be committed in whole or in substantial
part because of a belief or perception regarding the race, color,
national origin, ancestry, gender, religion, religious practice, age,
disability or sexual orientation of a person, regardless of whether
the belief or perception is correct, or intentionally commit[ed] the
act or acts constituting the offense in whole or in substantial part
because of a belief or perception regarding the race, color, national
origin, ancestry, gender, religion, religious practice, age,
disability or sexual orientation of a person, regardless of whether
the belief or perception is correct.
Id. § 485.05. “A person is guilty of an attempt to commit a crime when, with intent to commit a
crime, he engages in conduct which tends to effect the commission of such crime.” Id. § 110.00.
Petitioner was convicted of three counts of attempted assault in the second degree as a
hate crime: one in connection with the attack on Loja, one in connection with the attack on
Cordovo, and one in connection with the attack on Sierra. For the reasons that follow, the state
court’s determination that the evidence at trial was sufficient to support each conviction was
neither contrary to, nor an unreasonable application of, clearly established federal law, nor was it
an unreasonable determination of the facts in light of the entire record.
a. The Attack on Loja
Petitioner claims that the evidence at trial failed to establish the requisite proof of intent
to inflict serious physical injury for the charge of attempted assault in the second degree as a hate
crime as to Loja. He relies on his own written statement to show Shea punched Loja once in the
face, causing only a bloody nose. (Pet. Mem. 49.) He also relies on Hausch’s testimony to argue
that he did not intend to inflict serious injury because the group immediately withdrew after Shea
punched Loja. (Id. at 49–50.)
33
There was more than sufficient evidence for a rational trier of fact to find petitioner guilty
of attempted assault in the second degree as a hate crime as to Loja. Throughout trial, the
testimony of numerous witnesses confirmed that the men who attacked Loja and Lucero on
November 8, 2008, had the intent to inflict serious injury to any Hispanic men they might find
that night. (See, e.g., id. at 1584–87, 1646–49, 2298, 2470–73, 2544, 2838, 3231–35.)
The ambiguities concerning whether Loja ever actually suffered a serious physical injury
are beside the point—the evidence was sufficient for a rational jury to find that petitioner
intended to cause serious physical injury to Loja, engaged in conduct which tended to cause such
serious physical injury, and targeted Loja because of a belief or perception concerning his race,
color, ethnicity, or national origin.
The state court’s determination that the evidence was
sufficient to convict petitioner was therefore neither contrary to, nor an unreasonable application
of, clearly established federal law, nor was it an unreasonable determination of the facts.
b. The Attack on Cordovo
Petitioner next claims that the evidence at trial failed to establish that he was present for
the assault on Cordovo on November 3, 2008. 6 He specifically relies on his own “ambiguous”
written statement and Cordovo’s testimony in an attempt to show that his presence during this
incident was not proven beyond a reasonable doubt. (Pet. Mem. 50.)
Contrary to petitioner’s position, there was more than sufficient evidence for a rational
trier of fact to find that petitioner participated in the attack on Cordovo. Specifically, Vincent
Martino testified that he had stopped two young men after pursuing them from the scene of the
attack on Cordovo. (Tr. 2574.) The officer who identified the two young men testified at trial
that petitioner was one of the men. (Id. at 2512-2515.) Additionally, in his written statement,
6
With respect to the attack on Cordovo, petitioner does argue that, even if he were present, there is insufficient
evidence to prove that he had the intent to cause serious physical injury. That argument is therefore not before the
Court.
34
petitioner stated that, “[a]bout a week ago, I was with Kuvan, Anthony, and Jose and we snuffed
a Mexican on Jamaica near my house. We knocked him out cold.” (Id. at 2838.)
Although the officer also testified that four young women had stated that petitioner was
not the one who attacked Cordovo, (id. at 2516), and Cordovo himself never made an in-court
identification of petitioner, a rational trier of fact could have afforded more weight to the
testimony affirmatively identifying petitioner as one of the attackers. The jury could also infer
that petitioner’s written admission that he had knocked a “Mexican . . . out cold” referred to the
attack against Cordovo, which occurred about a week prior to the Lucero incident.
The record is thus sufficient for a reasonable jury to find that petitioner intended to cause
serious physical injury to Cordovo, engaged in conduct which tended to cause such serious
physical injury, and targeted Cordovo because of a belief or perception concerning his race,
color, ethnicity, or national origin.
The state court’s determination that the evidence was
sufficient to convict petitioner was therefore neither contrary to, nor an unreasonable application
of, clearly established federal law, nor was it an unreasonable determination of the facts in light
of the entire record.
c. The Attack on Sierra
Petitioner argues that the evidence at trial failed to show that he was one of Sierra’s
attackers and, therefore, that the evidence was insufficient to support his conviction in
connection with that incident.
Petitioner also argues that the evidence was insufficient to
establish the requisite proof of intent to inflict serious physical injury. Petitioner relies on
Sierra’s vague testimony and his failure to provide an in-court identification of petitioner as one
of the assailants. (Pet. Mem. 52.)
There was, however, more than sufficient evidence for a rational trier of fact to find
35
petitioner guilty of attempted assault in the second degree as a hate crime as to Sierra. Hausch
testified that petitioner was one of the assailants who attempted to attack Sierra, and Sierra
testified that “maybe the tallest ones” had chased him, which would include petitioner. (Tr. 1931,
2304–05.) Although petitioner testified that he did not chase Sierra (id. at 3304), a rational trier
of fact could have discredited that self-serving testimony.
With respect to the intent to cause serious physical injury, the evidence at trial indicated
that the attack occurred after the group had specifically planned to attack individuals of Mexican
descent. (See, e.g., id. at 3399–400.) When coupled with evidence that petitioner and other
members of the group had previously targeted individuals for violent attacks on the basis of their
race, color, ethnicity, or national origin, a rational jury could find that petitioner possessed the
requisite intent with respect to the attack on Sierra.
The state court’s determination that the evidence was sufficient to convict petitioner was
therefore neither contrary to, nor an unreasonable application of, clearly established federal law,
nor was it an unreasonable determination of the facts in light of the entire record.
36
CONCLUSION
For the foregoing reasons, petitioner has demonstrated no basis for relief under
28 U.S.C. § 2254. Accordingly, the instant petition is denied. Because petitioner has failed to
make a substantial showing of a denial of a constitutional right, no certificate of appealability
shall issue. See 28 U.S.C. § 2253(c)(2). The Court further certifies pursuant to 28 U.S.C.
§1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in
forma pauperis status is denied for the purpose of any appeal. See Coppedge v. United States,
369 U.S. 438, 444–45 (1962).
The Clerk of the Court shall enter judgment accordingly and close this case.
SO ORDERED.
Date: July 6, 2017
Central Islip, New York
_____/s/ (JMA)___________
Joan M. Azrack
United States District Judge
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