Bonilla v. Griffin
Filing
15
MEMORANDUM AND OPINION. For the reasons stated herein, petitioner has demonstrated no basis for relief under 28 U.S.C. § 2254. Therefore, the petition for a writ of habeas corpus is denied. Because petitioner has failed to make a substantial sho wing of a denial of a constitutional right, no certificate of appealability shall issue. See 28 U.S.C. § 2253(c)(2). The Court 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 close this case.Ordered by Circuit Judge VJ-Joseph F Bianco on 8/15/2019. (Chill, Alana)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 16-CV-3676 (JFB)
_____________________
ULISES BONILLA,
Petitioner,
VERSUS
THOMAS GRIFFIN,
Respondent.
___________________
MEMORANDUM AND ORDER
August 15, 2019
___________________
JOSEPH F. BIANCO, Circuit Judge (sitting by
designation):
On June 24, 2016, Ulises Bonilla
(“petitioner” or “Bonilla”) petitioned this
Court for a writ of habeas corpus, pursuant to
28 U.S.C. § 2254, challenging his conviction
in New York State Court. (See Pet., ECF No.
1.)1 On December 20, 2011, following a jury
trial, petitioner was convicted of one count of
murder in the second degree, in violation of
N.Y. Penal Law § 120.25(1); one count of
rape in the first degree, in violation of N.Y.
Penal Law § 130.35(3); two counts of sexual
abuse in the first degree, in violation of N.Y.
Penal Law § 130.65(3); one count of
criminal possession of a weapon in the fourth
degree, in violation of N.Y. Penal Law
§ 265.01(2); and one count of endangering
the welfare of a child, in violation of N.Y.
Penal Law § 260.10(1). (T. 1332-33.) 2 On
June 15, 2012, petitioner was sentenced to an
indeterminate period of incarceration of
twenty-five years to life for the murder
charge, and a determinate seven and one-half
year period of incarceration for the rape
charge followed by twenty years of postrelease supervision.
(S. 19-20) 3 The
sentence for the rape conviction was
imposed to run consecutively to the sentence
imposed for the murder conviction. (S. at
20.) Regarding the remaining counts, the
court ordered concurrent sentences to the
indeterminate twenty-five years to life and
determinate seven and one-half year
sentences. (S. at 20-21.)
1
2
“T.” refers to the trial transcript. (ECF Nos. 10-2 and
10-3.
The Court uses the pagination assigned by the
electronic case filing system when citing to the
petition and its accompanying memoranda of law.
(ECF Nos. 1, 1-1, and 1-2.)
“S.” refers to the sentencing transcript. (ECF No.
10-4.)
3
1
In the instant habeas action, petitioner
challenges his conviction on the following
grounds: (1) “[t]he Appellate Division
rendered a decision that was an unreasonable
application of clearly established federal
law, when it found that it was legally
sufficient to establish petitioner’s guilt” for
the second-degree murder and first-degree
rape convictions; and (2) “[t]he Appellate
Division rendered a decision that was an
unreasonable
application
of
clearly
established federal law, when it found that
petitioner did not unequivocally request the
assistance of counsel before making
statements to law enforcement officials.”
(Pet. 5-7.) For the reasons discussed below,
the petition is denied in its entirety.
I.
from J.V. and often spent time at the house
across the street from J.V.’s. (T. at 433, 67073.)
Despite J.V.’s initial refusal, petitioner
lead J.V. to a handicapped stall in the ladies
restroom in the park where they started
kissing. (T. at 680-83.) Shortly thereafter,
petitioner began biting J.V.’s lip and
removing her skirt and underwear to digitally
and sexually penetrate her. (T. at 684-86.)
Uncomfortable and scared, J.V. pushed
petitioner off, left the bathroom, and began
walking to her home. (T. at 687-88.) I.A. and
S.D. saw J.V. and petitioner kissing, and then
walk into the bathroom, and observed her
hiking up her skirt when she exited the
bathroom followed by petitioner. (T. at 436,
455.) I.A. and S.D. then left the park and
headed to J.V.’s home and told J.V.’s parents
what they saw. (T. at 436-37, 455.) J.V.’s
father, Armando, immediately called the
police to report the incident and then left the
house in an upset state, heading to the nearby
deli. (T. at 516-17.)
BACKGROUND
A.
Facts
The following facts are adduced from the
underlying record and the instant petition.
During the summer of 2010, ten-year-old
Juvenile Victim (“J.V.”) lived with her
mother Susana V.4, her father Armando V.,
her sister N.V., and her brother O.V. at 180
Kinkel Street in Westbury, New York;
petitioner lived down the block. (T. at 50305, 670-71.) At the time, J.V. and petitioner
frequently saw each other and kissed. (T. at
674-75.)
This contact escalated and
petitioner would touch J.V.’s breasts, vagina,
and buttocks. (T. at 675.) On September 24,
2010, in the afternoon, ten-year-old J.V. was
playing in Bunkyreid Park in Westbury, New
York, with her two minor friends, ten-yearold I.A. and eleven-year-old S.D., when
petitioner approached them. (T. at 431-35,
673.)
J.V.’s two friends recognized
petitioner because he lived down the block
When J.V. arrived home, fearing she
would be punished, she did not tell her
family what happened in the park. (T. at
689-90.) P.O. Christopher Bendetto of the
Nassau
County
Police
Department
responded to the V. family home in response
to Armando’s 911 call. (T. at 466.) P.O.
Bendetto spoke with I.A., S.D., and J.V. (T.
at 467-68.) At this time, J.V. did not tell P.O.
Bendetto about what transpired in the park
and no arrests were made. (T. at 469, 690.)
Later that evening, Armando was still at
the nearby deli and his friend, Angel Leon
(“Leon”), spoke with him and observed him
to be visibly upset. (T. at 473-74.) While still
at the deli, Armando again called the police
“V.” is used in lieu of the victim and his family’s
complete last name in order to protect the identity of
the victim’s minor children involved in this incident.
4
2
to report the incident between petitioner and
his daughter. (T. at 493.)
Armando headed to his house with Leon and
a few others. (T. at 483-84.) Moments later,
petitioner, wearing a black do-rag and
holding a beer bottle, approached Armando’s
daughter N.V. and others who were seated
together in a car parked outside the V. family
home. (T. at 638-40.) Petitioner told them
he wanted to fight Armando and asked N.V.,
“Would it be okay if I kill your father?” (T.
at 640-41.)
Shortly thereafter, petitioner entered the
deli and confronted Armando about calling
the police. (T. at 476-78.) Petitioner told
Armando, “I want to fix this man-to-man.”
(Id.) A brief altercation between Armando
and petitioner ensued, but other patrons
intervened to stop the fight, and petitioner
left. (Id.) Approximately ten minutes later,
petitioner returned to the deli with a few
friends carrying bats and sticks, prompting
Armando to hide behind the counter. (T. at
478-79.)
Unable to locate Armando,
petitioner and his friends left the deli. (T. at
480.) Police then responded to the deli and,
with their escort, Armando returned home
where he informed Susana of the argument
with petitioner. (T. at 480-81, 517.) Two
days later, petitioner told Jocelyn Gonzalez
(“Gonzalez”), a friend of his, that Armando
jumped him at the deli and that he was going
to get revenge. (T. at 636-38.)
Thereafter, Armando arrived at his house
and petitioner and Armando began fighting.
(T. at 774-75.) N.V. saw petitioner strike
Armando with a “little metal pipe,” but
Armando took it from petitioner and struck
petitioner with the pipe before dropping it.
(T. at 775-76.) Armando and petitioner then
started punching each other repeatedly. (T.
at 776.) While they were fighting there were
multiple witnesses present and they
remarked that the two were fighting face-toface, so close to each other that at times it
looked like they were hugging. (T. at 48185.) Although it was dark outside, witnesses
observed petitioner punch Armando in the
left torso, side, and back multiple times. (T.
at 484-85.)
On
September
28,
2010,
at
approximately 5:00 p.m., petitioner’s friend
Misael Berrios (“Berrios”) and a third
individual (“John Doe”)5 went to the hospital
with petitioner as he had injured his hand at
work. (T. at 926-29.) After two hours at the
hospital, the group went to Westbury Deli
and purchased beers.
(T. at 929-31.)
Eventually, they proceeded to 169 Kinkel
Street, where they usually spent time, to
drink beer. 6 (T. at 932.)
At the outset of the fight, N.V. saw one
of petitioner’s friends, Johnny, strike
Armando in the leg with a stick. (T. at 77778.) N.V. tried to intervene in the fight, but
Johnny pushed her to the ground and held her
there. (T. at 646.) Momentarily, during the
fight, petitioner’s sister (Diana Bonilla) hit
Armando twice in the back with her hand.
(T. at 778-79.) Otherwise, the fight was
exclusively
between
petitioner
and
Armando. (T. at 485, 507, 646, 935.)
At approximately 10:00 p.m., still
drinking in the backyard at 169 Kinkel
Street, petitioner received a phone call
informing him that Armando was talking to
others about him. (T. at 933.) In response,
petitioner called Armando to tell him that he
wanted to fight him. (Id.) After the call,
Armando’s wife Susana, hearing noises
outside, noticed the fight and tried to
intervene, but Berrios took out a firearm,
5
6
The individual was only identified by a nickname at
trial. (T. at 928.)
The house at 169 Kinkel Street is across the street
from the V. family home. (T. at 932.)
3
shot it in the air, and declared that it was a
fight between petitioner and Armando only.
(T. at 486, 507-08, 805-06.) After the
gunshot, people began running away from
the scene. (T. at 646.)
abdomen. (T. at 899-902.) It was
determined that Armando’s cause of death
was “[m]ultiple stab wounds to [his] chest
and abdomen with perforation of heart,
stomach and pancreas.” (T. at 904.)
Petitioner, along with Berrios, fled
towards petitioner’s home. (T. at 939-40.)
Although no one saw petitioner wielding a
knife during the fight (T. at 485, 514, 82829), Berrios testified that petitioner said to
him, during their flight from the scene, “I
fucked up. I stabbed him. I got him . . . You
are good. I fucked up. I’m done.” (T. at 93945.) Subsequently, petitioner got into the
front passenger seat of an Acura that
belonged to his sister and immediately drove
off. (T. at 489-90, 513, 781-83.)
Members of the Nassau County Crime
Scene Unit investigated the scene that night
and discovered a black do-rag, metal pipes,
wooden sticks, and beer bottles. (T. at 56267.) In addition, a bloody knife was
discovered in the street in front of
petitioner’s home. (T. at 567-69.) Further,
Diana Bonilla’s Acura was parked in the
vicinity of the scene, and had bloodstains on
the rear passenger door, seatback, and
ceiling. (T. at 585-86.) Swabs of the blood
on both the knife and the Acura were taken
for DNA testing and a DNA mixture was
obtained, with the major contributor being
the deceased. (T. at 850-53.)
Meanwhile, Armando’s family and
friends noticed that Armando was bleeding
heavily from his torso. (T. at 487-89.) After
taking a few steps towards his house with his
wife’s aid, Armando collapsed unresponsive
on the front lawn. (T. at 484-89.)
On November 26, 2010, two months
after the incident, following a lengthy
investigation involving anonymous tips and
tracking petitioner’s online activity,
petitioner was apprehended at Pennsylvania
Station in New York City. (H. at 15-16.)7
The arresting officer, Detective James
Cereghino
(“Detective
Cereghino”),
apprehended petitioner and transported him
to the Nassau County Homicide Squad
(“Homicide Squad”) in Mineola, New York.
(H. at 16.) During the trip, petitioner told
Cereghino, “I wanted to be out for
Christmas.” (H. at 17.)
At approximately 10:27 p.m., P.O. James
Monroe of the Nassau County Police
Department, responded to 180 Kinkel Street
to find a street littered in debris, and
Armando lying unresponsive on the ground.
(T. at 538-42.) An ambulance was called and
Armando was transported to Nassau
University Medical Center. (T. at 553-58.)
During an autopsy performed on Armando,
it was discovered that Armando sustained
twelve stab wounds in the side of his neck,
chest, and abdomen during the incident. (T.
at 900-02.) Following an autopsy, the
Nassau County Deputy Medical Examiner
confirmed that the majority of the wounds
were on Armando’s left chest, torso, and
Once they arrived at the Homicide
Squad, Detective Cereghino took petitioner
to an interview room where he was read his
Miranda rights and then the following
exchange took place:
“H.” refers to the transcript of the suppression
hearing held before the trial court on August 17, 2011.
(ECF No. 10-1.)
7
4
B. Procedural History
Q: Okay. Now that I have advised
you of your rights, are you willing to
answer questions?
1. State Court Proceedings
a. Suppression Hearing
A: I don’t know if I could call a
lawyer or something.
On August 17, 2011, a suppression
hearing was held in Nassau County Supreme
Court, during which Detective Cereghino
testified regarding the circumstances
surrounding
petitioner’s
arrest
and
petitioner’s post-arrest statements. (H. at 670.) At the close of testimony, the hearing
court requested written submissions
regarding whether: (1) defendant knowingly,
intelligently, and voluntarily waived his right
to counsel before making statements to
Detective Cereghino and (2) defendant
should have been provided a Spanish
interpreter during his interactions with the
police. (H. at 71.)
Q: I’m sorry, could you speak up?
A: I don’t know if I could call
somebody to call me a lawyer or
something.
Q: That’s up to you, whatever it is
that you want to do.
A: I can’t make any phone calls
(inaudible)?
Q: Ultimately, yes, you’ll be able to
make a phone call, but I’m asking
you now if you want to speak to me
without a lawyer being present.
Ultimately, the court concluded that
petitioner did not make “an unequivocal
invocation of his right to counsel” during the
exchange with Detective Cereghino and that
petitioner speaks and understands English
“perfectly well.” (H. at 101.) Therefore, the
court concluded that the lack of an interpreter
was not problematic. (H. at 101.) The court
denied petitioner’s suppression motion and
his statements were deemed admissible.
(Id.)
A: I could speak to you.
Q: You will speak to me?
A: Yeah.
(Transcript of Post-Arrest Interview 6-7.) 8
Petitioner then spoke with the police and the
entire interview, including this exchange,
was recorded by video.
b. Trial and Sentencing
Petitioner was tried in Nassau County
Supreme Court starting on December 1,
2011. During the trial, the prosecution
presented evidence, including the following:
the testimony of J.V., eyewitnesses, and
members of Armando’s family; members of
the Nassau County Police Department; and
8
The transcript and DVD recording of the post-arrest
interview were not electronically filed on the docket
for this case, but have been provided to the Court.
5
expert witnesses
involved in
the
investigation. (T. at 430-1036.) In addition,
defense counsel presented a case, during
which petitioner’s sister Diana Bonilla
testified as an alibi witness, stating that on
September 24, 2010, petitioner was at home
by 4:30 p.m., then they went together to a
tattoo parlor where they stayed until
approximately 7:10 p.m., until they returned
home for the rest of the evening. (T. at 105770, 1095-98, 1100-09.) After both sides
rested, defense counsel moved for a trial
order of dismissal based on the sufficiency of
the evidence for “the murder and related
charges and the rape and related charges.”
(T. at 1166-68.) The court denied the
motion, but granted a motion to submit
manslaughter, as a lesser charge, to the jury.
(T. at 1167-68.)
On May 15, 2012, petitioner was
sentenced to an indeterminate term of
incarceration of twenty-five years to life for
the murder charge and a determinate term of
seven and one-half years of incarceration for
the rape charge followed by twenty years of
post-release supervision. (S. at 19-20.) The
sentence for the rape conviction was
imposed to run consecutively to the sentence
imposed for the murder conviction. (S. at
20.) Regarding the remaining counts, the
court ordered they be served concurrent to
the indeterminate twenty-five years to life
and determinate seven and one-half year
sentences. 9 (S. at 21.)
c. Appeals
On April 16, 2014, petitioner
appealed his conviction to the Second
Department of the New York State Appellate
Division, arguing that: (1) the evidence was
legally insufficient to find petitioner guilty of
murder in the second degree and the
weapons-related charge; (2) the prosecution
did not prove that petitioner committed rape
in the first degree beyond a reasonable doubt;
(3) the court erred in failing to sever the
sexual assault counts from the murder and
weapons-related counts; and (4) petitioner
did not receive a fair trial as the hearing court
erroneously denied the suppression of
petitioner’s post-arrest videotaped statement.
(See App. Div. Br. at 19-60, ECF No. 105.)10
Following deliberations, on December
20, 2011, the jury found petitioner guilty of
one count of murder in the second degree,
one count of rape in the first degree, two
counts of sexual abuse in the first degree, one
count of criminal possession of a weapon in
the fourth degree, and one count of
endangering the welfare of a child. (T. at
1132-33.) The jury acquitted petitioner of
one count of criminal possession of a weapon
in the fourth degree. (T. at 1333.) After the
jury was excused, defense counsel moved to
set aside the verdict pursuant to N.Y. Crim.
Pro. § 330.30. (T. at 1336-37.) The motion
was denied. (T. at 1337-38. )
9
The specifics of the imposed sentence are as follows:
(1) count of murder in the second degree, twenty-five
years of incarceration to life; (2) count of rape in the
first degree, seven and one-half years of incarceration
followed by twenty years of post-release supervision
to be served consecutively to the murder count; (3)
counts of sexual abuse in the first degree, four years
of incarceration followed by ten years of post-release
supervision to be served concurrently; (4) count of
criminal possession of a weapon in the fourth degree,
one year of incarceration to be served concurrently;
and (5) count of endangering the welfare of a child,
one year of incarceration to be served concurrently.
(S. at 19-21.)
10
The Court uses the pagination assigned by the
electronic case filing system when citing to
petitioner’s Appellate Division brief. (ECF No. 105.)
6
On April 15, 2015, the Second
Department affirmed petitioner’s conviction.
People v. Bonilla, 127 A.D.3d 985, 985
(N.Y. App. Div. 2d Dep’t 2015.) The
Second Department rejected petitioner’s
arguments regarding insufficiency of the
evidence for the conviction, emphasizing
that during their review of the underlying
record, they “accord[ed] great deference to
the jury’s opportunity to view the witnesses,
hear the testimony, and observe demeanor.”
Id. at 986.
In addition, the Second
Department found that the severance of
specific counts was not required as “the
nature of the proof for each of the offenses
was material and admissible as evidence
upon the trial of the other counts.” Id. at 98586. Finally, the Second Department rejected
petitioner’s
arguments
regarding
suppression of his statement as “the record
supports the . . . finding that the [petitioner]
did not unequivocally request the assistance
of counsel before making statements to law
enforcement.” Id. at 985. Petitioner sought
leave to appeal to the New York State Court
of Appeals, arguing that the Second
Department erred in affirming the hearing
court’s denial of petitioner’s motion to
suppress the statements. See People v.
Bonilla, 25 N.Y.2d 1198 (2015). The court
denied leave to appeal on July 29, 2015. Id.
established federal law, when it found that
petitioner did not unequivocally request the
assistance of counsel before making
statements to law enforcement officials.”
(Pet’r’s Memo. of Law, ECF No. 1-1.)
Respondent filed a response in opposition to
the petition on October 6, 2016. (Resp.’s Br.,
ECF No. 10.) Petitioner submitted a reply to
the opposition on June 23, 2016. (Pet’r’s
Reply, ECF No. 13.) The Court has fully
considered the submissions and arguments of
the parties, as well as the underlying record.
II.
STANDARD OF REVIEW
To determine whether a petitioner is
entitled to a writ of habeas corpus, a federal
court must apply the standard of review set
forth in 28 U.S.C. § 2254, as amended by the
Antiterrorism and Effective Death Penalty
Act (“AEDPA”), which provides, in relevant
part:
(d) An application for a writ of habeas
corpus on behalf of a person in custody
pursuant to the judgment of a State court
shall not be granted with respect to any
claim that was adjudicated on the merits
in State court proceedings unless the
adjudication of the claim –
(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. The Instant Petition
On June 24, 2016, petitioner moved
before this Court for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. (ECF No. 1.)
Petitioner raises two issues: (1) “[t]he
Appellate Division rendered a decision that
was an unreasonable application of clearly
established federal law, when it found that it
was legally sufficient to establish petitioner’s
guilt” for the second-degree murder and
first-degree rape convictions; and (2) “[t]he
Appellate Division rendered a decision that
was an unreasonable application of clearly
(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. § 2554. ‘“Clearly established
Federal law’ means ‘the holdings, as
opposed to the dicta, of [the Supreme]
Court’s decisions as of the time of the
7
relevant state-court decision.’” Green v.
Travis, 414 F.3d 288, 296 (2d Cir. 2005)
(quoting Williams v. Taylor, 529 U.S. 362,
412 (2000)).
Cir. 2009) (quoting Spears v. Greiner, 459
F.3d 200, 203 (2d Cir. 2006)).
A decision is “contrary to” clearly
established federal law, as determined by the
Supreme Court, “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 413. A decision is an
“unreasonable application” of clearly
established federal law if 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.
Petitioner argues that he is entitled to
habeas relief as the state court unreasonably
applied federal law in concluding that:
(1) the evidence at trial was sufficient to
establish his guilt of murder in the second
degree and rape in the first degree; and
(2) petitioner did not unequivocally request
assistance of counsel before making
statements to law enforcement officers. (Pet.
at 5-7.) For the reasons discussed below, the
Court denies petitioner’s request for habeas
relief. Petitioner’s insufficiency of the
evidence claim is procedurally barred, and,
in any event, the Court concludes that it lacks
merit. The suppression of evidence claim,
though adequately exhausted, fails on the
merits.
III.
AEDPA establishes a deferential
standard of review: ‘“a federal habeas court
may not issue the writ simply because that
court concludes in its independent judgment
that the relevant state-court decision applied
clearly established federal law erroneously
or incorrectly. Rather, that application must
also be unreasonable.’” Gilchrist v. O’Keefe,
260 F.3d 87, 93 (2d Cir. 2001) (quoting
Williams, 529 U.S. at 411). The Second
Circuit added that, while ‘“[s]ome increment
of incorrectness beyond error is required . . .
the increment need not be great; otherwise,
habeas relief would be limited to state court
decisions so far off the mark as to suggest
judicial incompetence.’” Id. (quoting
Francis S. v. Stone, 221 F.3d 100, 111 (2d
Cir. 2000)). Finally, “if the federal claim
was not adjudicated on the merits, ‘AEDPA
deference is not required, and conclusions of
law and mixed findings of fact and
conclusions of law are reviewed de novo.’”
Dolphy v. Mantello, 552 F.3d 236, 238 (2d
DISCUSSION
A. Procedural Requirements
1. Exhaustion
As a threshold matter, a district court
shall not review a habeas petition unless “the
applicant has exhausted the remedies
available in the courts of the State.” 28
U.S.C. § 2254(b)(1)(A). Although a state
prisoner need not petition for certiorari to the
United States Supreme Court to exhaust his
claims, see Lawrence v. Florida, 549 U.S.
327, 333 (2007), he still must fairly present
his federal constitutional claims to the
highest state court having jurisdiction over
them, see Daye v. Attorney Gen. of N.Y., 696
F.2d 186, 191 n.3 (2d Cir. 1982) (en banc).
Exhaustion of state remedies requires that a
petitioner ‘“fairly presen[t]’ federal claims to
the state courts in order to give the State the
‘opportunity to pass upon and correct’
alleged violations of its prisoners’ federal
rights.” Duncan v. Henry, 513 U.S. 364, 365
8
(1995) (alteration in original) (quoting
Picard v. Connor, 404 U.S. 270, 275 (1971)).
Thompson, 501 U.S. 722, 731-32 (1991).
“[A] claim is procedurally defaulted for the
purposes of federal habeas review where ‘the
petitioner failed to exhaust state remedies
and the court to which the petitioner would
be required to present his claims in order to
meet the exhaustion requirement would now
find the claims procedurally barred.’” Reyes
v. Keane, 118 F.3d 136, 140 (2d Cir. 1997)
(emphasis omitted) (quoting Coleman, 501
U.S. at 735).
However, “it is not sufficient merely that
the federal habeas applicant has been
through the state courts.” Picard, 404 U.S.
at 275-76. To provide the State with the
necessary “opportunity,” the prisoner must
“fairly present” his claims in each
appropriate state court (including a state
supreme court with powers of discretionary
review), alerting that court to the federal
nature of the claim and “giv[ing] the state
courts one full opportunity to resolve any
constitutional issues by invoking one
complete round of the State’s established
appellate review process.” O’Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999); see also
Duncan, 513 U.S. at 365-66. “A petitioner
has ‘fairly presented’ his claim only if he has
‘informed the state court of both the factual
and the legal premises of the claim he asserts
in federal court.’” Jones v. Keane, 329 F.3d
290, 294-95 (2d Cir. 2003) (quoting Dorsey
v. Kelly, 112 F.3d 50, 52 (2d Cir. 1997)).
“Specifically, [petitioner] must have set forth
in state court all of the essential factual
allegations asserted in his federal petition.”
Daye, 696 F.2d at 191-92 (first citing Picard,
404 U.S. at 276; then citing United States ex
rel. Cleveland v. Casscles, 479 F.2d 15, 1920 (2d Cir. 1973)). To that end, “[t]he chief
purposes of the exhaustion doctrine would be
frustrated if the federal habeas court were to
rule on a claim whose fundamental legal
basis was substantially different from that
asserted in state court.” Id. at 192 (footnote
omitted).
Where the petitioner “can no longer
obtain state-court review of his present
claims on account of his procedural default,
those claims are now to be deemed
exhausted.” DiGuglielmo v. Smith, 366 F.3d
130, 135 (2d Cir. 2004) (first citing Harris v.
Reed, 489 U.S. 255, 263 n.9 (1989); then
citing Grey v. Hoke, 933 F.2d 117, 120 (2d
Cir. 1991)). Therefore, “[f]or exhaustion
purposes, ‘a federal habeas court need not
require that a federal claim be presented to a
state court if it is clear that the state court
would hold the claim procedurally barred.’”
Reyes, 118 F.3d at 139 (quoting Grey, 933
F.2d at 120).
However, “exhaustion in this sense does
not automatically entitle the habeas
petitioner to litigate his or her claims in
federal court. Instead, if the petitioner
procedurally defaulted [on] those claims, the
prisoner generally is barred from asserting
those claims in a federal habeas proceeding.”
Woodford v. Ngo, 548 U.S. 81, 93 (2006)
(first citing Gray v. Netherland, 518 U.S.
152, 162 (1996); then citing Coleman, 501
U.S. at 744-51).
2. Procedural Bar
The procedural bar rule in the review of
applications for writs of habeas corpus is
based on the comity and respect that state
judgments must be accorded. See House v.
Bell, 547 U.S. 518, 536 (2006). Petitioner’s
federal claims also may be procedurally
Like the failure to exhaust a claim, the
failure to satisfy the state’s procedural
requirements deprives the state courts of an
opportunity to address the federal
constitutional or statutory issues in a
petitioner’s claims.
See Coleman v.
9
barred from habeas corpus review if they
were decided at the state level on adequate
and independent grounds. See Coleman, 501
U.S. at 729-33.
exhausted his claims when his letter seeking
leave to appeal included no substantive
issues and simply attached his Appellate
Division brief to the submission instead.
Meatley, 886 F. Supp. at 1013-14. However,
the instant matter is distinguishable because
petitioner did submit an issue in his letter
application to the Court of Appeals.
Therefore, by presenting only the motion to
suppress claim in his application to the Court
of Appeals, petitioner abandoned the other
issues, including the insufficiency of the
evidence claims. See Galdamez v. Keane,
394 F.3d 68, 74 (2d Cir. 2005); Grey v. Hoke,
933 F.2d 117, 120 (2d Cir. 1991) (“The fair
import of petitioner’s submission to the
Court of Appeals, consisting of his brief to
the Appellate Division that raised three
claims and a letter to the Court of Appeals
arguing only one of them, was that the other
two had been abandoned.”)
Because
petitioner did not fairly present this claim to
the appropriate state courts “in order to give
the state the ‘opportunity to pass upon and
correct’ alleged violations of its prisoners’
federal rights,” this claim is unexhausted.
Duncan, 513 U.S. at 365 (quoting Picard,
404 U.S. at 275).
Once it is determined that a claim is
procedurally barred under state rules, a
federal court may still review such a claim on
its merits if the petitioner can demonstrate
both cause for the default and prejudice
resulting therefrom, or if he can demonstrate
that the failure to consider the claim will
result in a miscarriage of justice. Id. at 750
(citations omitted). A miscarriage of justice
is demonstrated in extraordinary cases, such
as where a constitutional violation results in
the conviction of an individual who is
actually innocent. Murray v. Carrier, 477
U.S. 478, 496 (1986).
3. Application
First, as to petitioner’s claim that the
hearing court erroneously found petitioner’s
statements admissible even though he
invoked his right to counsel, the Court finds
this claim adequately exhausted. This claim
appeared in petitioner’s direct appeal and in
his brief seeking leave to appeal to the New
York State Court of Appeals. Further, the
Second Department denied this claim on the
merits. Accordingly, this Court will address
the substance of this claim, applying AEDPA
deference.
Here, petitioner no longer has any state
court remedies available to him because of
New York State’s procedural rules, and so
the insufficiency of the evidence claim is
deemed procedurally defaulted. See Moss v.
New York, 10-CV-5840 (SJF), 2014 WL
585928, at *9 (E.D.N.Y. Feb. 12, 2014). In
addition, petitioner is unable to overcome
this procedural bar as he has not
demonstrated cause or prejudice resulting
from the default, nor a miscarriage of justice
if
this
claim
is
not
reviewed.
Notwithstanding the aforementioned, the
Court, in an abundance of caution, will
proceed to address the merits of this claim.
Next, as to petitioner’s insufficiency of
the evidence claim, the Court finds that this
claim was not adequately exhausted as
petitioner failed to include this claim in his
brief seeking leave to appeal to the New
York State Court of Appeals. In his reply
brief, petitioner argues that Meatley v. Artuz,
886 F. Supp. 1009, 1014 (E.D.N.Y. 1995)
permits his claim to be deemed exhausted.
(See Pet’r’s Reply Br. at 1.) In Meatley, it
was determined that a petitioner adequately
10
sufficiency claim unless the record is ‘so
totally devoid of evidentiary support that a
due process issue is raised.’” Sanford v.
Burge, 334 F. Supp. 2d 289, 303 (E.D.N.Y.
2004) (quoting Bossett v. Walker, 41 F.3d
825, 830 (2d Cir. 1994)). 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).
B. Merits
1. Insufficiency of the Evidence
Petitioner argues that there was
insufficient evidence to support his
convictions for murder in the second degree
and rape in the first degree. (See Pet’r’s
Memo. of Law at 1-14.) This claim is
without merit.
A petitioner ‘bears a very heavy burden’
when challenging evidentiary sufficiency in
a writ of habeas corpus. Einaugler v.
Supreme Court of New York, 109 F.3d 836,
840 (2d Cir. 1997) (internal quotation marks
omitted) (quoting Quirama v. Michele, 983
F.2d 12, 14 (2d Cir. 1993)). A criminal
conviction in state court will not be
overturned 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, 319 (1979); see
also Policano v. Herbert, 507 F.3d 111, 11516 (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” (internal quotation marks
omitted) (quoting Jackson, 443 U.S. at
324)). Even when ‘faced with a record of
historical facts that supports conflicting
inferences [a court] must presume—even if
it does not affirmatively appear in the
record—that the trier of fact resolved any
such conflicts in favor of the prosecution,
and must defer to that resolution.’ Wheel v.
Robinson, 34 F.3d 60, 66 (2d Cir.
1994) (internal quotation marks omitted)
(quoting Jackson, 443 U.S. at 326). Thus,
“[a] habeas court will not grant relief on a
a.
Second Degree Murder
Petitioner claims that the evidence
presented at trial was legally insufficient to
support his conviction of second degree
murder because (1) no direct evidence –
whether physical evidence or testimonial
evidence – conclusively linked him to the
murder weapon (i.e., the knife); (2) the
government’s witness, Berrios, was not
credible, as evidenced by his inconsistent
statements and receipt of immunity from
prosecution; and (3) there is no explanation
for why, although petitioner was seen in the
front seat of his sister’s car, his blood was not
found in the backseat where the victim’s
blood was discovered. (See Pet’r’s Memo.
of Law at 1-8.)
In New York, “[a] person is guilty of
murder in the second degree when, with
intent to cause the death of another, he causes
the death of such person . . . .” N.Y. Penal
Law § 125.25[1]. The New York Court of
Appeals has consistently held that the intent
to kill can be inferred from both the
defendant’s conduct and surrounding
circumstances. See People v. Bracey, 41
N.Y.2d 296, 301 (1977); see also Bossett, 41
F.3d at 830 (“[A] conviction may be based
upon circumstantial evidence and inferences
based upon the evidence, and the jury is
exclusively responsible for determining a
witness’ credibility.”)
11
finding that petitioner was the individual
who repeatedly stabbed Armando, causing
his death. See Bossett, 41 F.3d at 830.
Viewing the facts in the light most
favorable to the prosecution, the Court
concludes that, based on the evidence in the
underlying record, a rational trier of fact
could have certainly found proof beyond a
reasonable doubt that petitioner was guilty of
murder in the second degree. In particular,
the Court finds that the following evidence
adduced at trial rationally supports the jury’s
decision to find petitioner guilty and the
Appellate Division’s affirmation of that
finding: J.V. testified that petitioner had
sexual relations with her, which (upon her
father learning about such relations)
provoked an altercation between her father
and petitioner at the Westbury Deli days
before the fatal fight (T. at 476-78, 635-38,
517); between the time of the altercation at
the deli and the fatal fight, petitioner told
people he wanted to fight Armando (T. at
481-82, 638, 772, 933); immediately prior to
the fatal fight, petitioner asked Armando’s
daughter, N.V., if she would mind if he killed
her father (T. at 640, 652); multiple
witnesses testified that the fatal fight was
exclusively between petitioner and Armando
(T. at 485, 646-47, 506-07, 935); petitioner
was seen repeatedly striking Armando in the
left torso, side, and back (T. at 484-85, 644,
776-77); the twelve fatal stab wounds
sustained by Armando, according to medical
testimony, corroborates witness testimony
that petitioner struck Armando on the left
side of his chest and abdomen (T. at 484-85,
644, 776-77, 900-02); following the fight,
petitioner said to Berrios, “I fucked up. I
stabbed him. I got him. You are good. I
fucked up. I’m done.” (T. at 939).
The Court likewise rejects petitioner’s
claim that there was insufficient evidence to
establish his guilt of second-degree murder
because Berrios was not a credible witness.
Regarding the evaluation of witness
testimony, “[a]ll issues of credibility,
including the credibility of a cooperating
witness, must be resolved in favor of the
jury’s verdict.” United States v. Riggi, 541
F.3d 94, 108 (2d Cir. 2008).
Petitioner refers to People v. Garafolo,
44 A.D.2d 86 (N.Y. App. Div. 2d Dep’t
1974) to argue that Berrios’ testimony was
not credible, entitling him to relief. (Pet’r’s
Mem. of Law at 4-6.) In Garafolo, a police
officer testified that he observed unlawful
untaxed cigarettes through a bag, which the
court observed was not possible. Id. at 8889. The court found that this testimony was
patently incredible and necessary to support
the conviction; therefore, the Second
Department reversed the conviction. Id. By
contrast, here, the jury heard an abundance
of evidence aside from Berrios’ alleged
inconsistent statements, to conclude
petitioner was guilty of the crimes. See
United States v. Diaz, 176 F.3d 52, 107 (2d
Cir. 1999) (although cooperating witness for
the prosecution was suspected of perjury, the
court found “there was an abundance of
evidence that corroborated [the witness’s]
description of these events”). Moreover,
petitioner’s defense counsel thoroughly
questioned Berrios regarding his inconsistent
statements about seeing petitioner get in the
car and petitioner’s statements. (T. at 95253.)
Further, Berrios’ cooperation
agreement was made known to the jury prior
to the People’s direct examination. (T. at
921-24.) Accordingly, because there was an
abundance of independent evidence to
Therefore, although no one testified that
they saw petitioner wield a knife, the
surrounding circumstances, the fact that the
murder weapon was recovered outside
petitioner’s residence, and petitioner’s
statements, rationally support the jury’s
12
convict petitioner of murder in the second
degree and the jury had adequate opportunity
to decide whether Berrios was a credible
witness, the Court rejects petitioner’s claim
that there was insufficient evidence to find
him guilty of murder in the second degree.
questions by the prosecutor that arguably
mischaracterized J.V.’s prior testimony, and
(2) Dr. Pompey testified that the only
abnormal finding in J.V.’s examination was
a “V-shaped cleft at the 5 o’clock position”
which could be consistent with both digital
penetration or partial penile penetration. (Id.
at 10-13). For the reasons set forth below,
the Court finds petitioner’s arguments to be
without merit.11
Finally, petitioner’s contention that there
was insufficient evidence of guilt because
petitioner’s blood was not found in the car he
entered following the fatal incident also fails.
First, the Court notes that, although
petitioner’s blood was not discovered in the
aforementioned car, Armando’s blood was.
(T. at 869-70.) In any event, as discussed
supra, given the totality of the evidence
presented to the jury, the absence of
petitioner’s blood in the car certainly does
not lead to a determination that no “rational
trier of fact could have found the essential
elements of the crime beyond a reasonable
doubt.” Jackson, 443 U.S. at 319.
In New York, “[a] person is guilty of rape
in the first degree when he or she engages in
sexual intercourse with another person . . .
[w]ho is less than eleven years old.” N.Y.
Penal Law § 130.35(3). The New York State
Court of Appeals has held that “[s]exual
intercourse ‘has its ordinary meaning and
occurs upon any penetration, however
slight.’” People v. Carroll, 95 N.Y.2d 375,
383 (2000) (citing N.Y. Penal Law
§ 130.00(1)). Moreover, “the testimony of a
child victim alone is sufficient” to establish
rape in the first degree. Id. (stating that
corroboration is only required when victim is
deemed unable to consent due to mental
defect or mental incapacity).
b. First Degree Rape
Petitioner also asserts that the Appellate
Division unreasonably applied federal law in
affirming that there was sufficient evidence
to establish petitioner’s guilt of rape in the
first degree, arguing that the evidence was
insufficient because there was “questionable
witness testimony” and “equivocal medical
evidence in support thereof.” (Pet’r’s Mem.
of Law at 9.) Specifically, petitioner claims
that the evidence adduced at trial was
insufficient to support a finding of rape in the
first degree because (1) J.V. only testified to
penile penetration in response to leading
Here, after careful review of the record,
the Court concludes that J.V.’s testimony (T.
at 684-87) was sufficient for a rational trier
of fact to find that the requisite elements of
rape in the first degree were proven beyond
a reasonable doubt. See People v. Wyre, 97
A.D.3d 976, 977 (N.Y. App. Div. 3d Dep’t
2012) (rejecting a defendant’s arguments
that though a victim stated that sexual
intercourse took place, without a specific
11
The Court notes that respondent urges the Court to
characterize petitioner’s arguments regarding the
evidence surrounding the rape in the first degree
conviction as a weight of the evidence claim. To the
extent that petitioner makes a weight of the evidence
claim, such a claim is not cognizable on habeas corpus
review as it exclusively implicates issues of state law.
See Pitre v. Griffin, No. 16 CIV 6258 (BMC), 2016
WL 7442653, at *12 (E.D.N.Y. Dec. 26, 2016);
Correa v. Duncan, 172 F. Supp. 2d 378, 281
(E.D.N.Y. 2001) (stating that a weight of the evidence
claim “is a pure state law claim grounded in New
York Criminal Procedure Law § 470.15(5), whereas a
legal sufficiency claim is based on federal due process
principles . . . Accordingly, the Court is precluded
from considering the claim.”). The Court, due to
petitioner’s pro se status, liberally construes this claim
as a legal sufficiency claim.
13
statement that penetration occurred and a
lack of physical evidence, a conviction
should be overturned). In addition to J.V.’s
testimony, the medical testimony that J.V.’s
injuries could be consistent with partial
penile penetration (T. at 754) further
corroborates J.V.’s testimony. See People v.
Green, 239 A.D.2d 248, 249 (N.Y. App. Div.
1st Dep’t 1997) (finding that, though there
was not conclusive medical evidence of rape,
it did not negate the credible testimony of a
child victim, where victim’s testimony was
consistent
with
slight
penetration).
Moreover, to the extent petitioner questions
J.V.’s credibility, as noted above, “a habeas
court ‘must defer to the jury’s assessment of
the credibility of witnesses.’” Martin v.
Smith, No. 09-CV-5515 (SLT), 2013 WL
420102, at *10 (E.D.N.Y. Feb. 1, 2013)
(quoting Taylor v. Napoli, No. 09-CV-2511
(NGG), 2011 WL 3648228, at *6 (E.D.N.Y.
Aug. 16, 2011)).
Before police question a suspect in police
custody, the suspect must first be advised of
certain rights, which include the right not to
be questioned without an attorney. Miranda
v. Arizona, 384 U.S. 436 (1966). If this right
is invoked, police officers must immediately
discontinue questioning the suspect. Davis
v. United States, 512 U.S. 452, 457-58
(1994). However, the suspect invoking the
right to counsel “must at a minimum make
‘some statement that can reasonably be
construed to be an expression of a desire for
the assistance of an attorney in dealing with
custodial interrogation.’” United States v.
Oehne, 698 F.3d 119, 122-23 (2d Cir. 2012)
(quoting McNeil v. Wisconsin, 501 U.S. 171,
178 (1991)). In other words, “[i]f the
suspect’s statement is not an unambiguous or
unequivocal request for counsel, the officers
have no obligation to stop questioning him.”
Davis, 512 U.S. at 461-62. Accordingly,
officers are not required to cease questioning
a suspect who only “makes a reference to an
attorney that is ambiguous or equivocal in
that a reasonable officer in light of the
circumstances would have understood only
that the suspect might be invoking the right
to counsel.” Id. at 459. Of particular
relevance here, the bare reference to a lawyer
is not sufficient to invoke the right to
counsel. Id. at 462 (“[m]aybe I should talk
to a lawyer” was “not a request for counsel”).
In sum, the Court finds that petitioner’s
sufficiency of the evidence claim (as to both
the murder and rape convictions) is without
merit, and thus, the state court’s ruling was
not contrary to, or an unreasonable
application of, clearly established federal
law.
2. Request for Counsel
Petitioner also claims that the Second
Department “rendered a decision that was an
unreasonable
application
of
clearly
established federal law, when it found that
petitioner did not unequivocally request the
assistance of counsel before making
statements to law enforcement.” (Pet’r’s
Memo. of Law at 15.)
In response,
respondent argues that the state court’s
decision was correct and, even if statements
should have been suppressed, any error
would be harmless as they were never
introduced at trial. (Resp’s Br. at 16-23.)
In the instant matter, petitioner was read
his Miranda rights by Detective Cereghino
and responded with “I don’t know if I could
call a lawyer or something?” and “I don’t
know if I could call somebody to call a
lawyer or something.” (H. at 60-62; Pet’r’s
Memo. of Law at 18.) Detective Cereghino
informed petitioner that it was up to him, and
petitioner proceeded to ask “I can’t make any
phone calls?” (H. at 60-62; Pet’r’s Mem. of
Law at 18.) Detective Cereghino told
petitioner that ultimately he could make a
phone call and asked if he was still willing to
14
speak to him without a lawyer present and
petitioner proceeded to do so.12 (H. at 60-62;
Pet’r’s Memo. of Law at 18.)
inside Rochester General Hospital, he
invoked his right to counsel, when he asked
[the officer], ‘if he would be able to call an
attorney.’ The Court finds that this inquiry
on the part of the defendant amounted only
to an equivocal assertion of the right to
counsel, which did not require cessation of
questioning.
The defendant’s question
lacked the clear implication of a present
desire to consult with counsel.”); United
States v. Jesus Abarca, No. 1:05CR175 JCH,
2006 WL 1300604, at *15 (E.D. Mo. 2006)
(“Considering the question in context, it is
not clear that Wilkinson was actually
requesting the presence of an attorney when
he asked ‘Could I call my lawyer?’ . . . [The
officer] could have reasonably believed in
these circumstances that Wilkinson was
merely inquiring whether he had the right to
call a lawyer, rather than believing that
Wilkinson
was
actually
requesting
counsel.”).
After conducting a hearing, the state
court found that, although petitioner may
have questioned whether he could have a
lawyer present, he did not unequivocally
invoke his right to counsel, and Detective
Cereghino was under no duty to discontinue
questioning as a result of petitioner’s
statements.
Numerous federal courts,
including the Second Circuit, have reached
the same conclusion under similar
circumstances. For example, in Dormire v.
Wilkinson, 249 F.3d 801, 805 (8th Cir.
2001), the Eighth Circuit held: “We conclude
that the state court was not unreasonable in
determining that Wilkinson’s question
‘Could I call my lawyer?’ was not an
unambiguous request for counsel.” See also
Diaz v. Senkowski, 76 F.3d 61, 64-65 (2d Cir.
1996) (“Do you think I need a lawyer?” was
not a “clear statement” of suspect’s desire to
invoke counsel); accord United States v.
Zamora, 222 F.3d 756, 766 (10th Cir. 2000)
(statement that “I might want to talk to an
attorney” was not “an unequivocal request
for counsel”); United States v. Doe, 170 F.3d
1162, 1166 (9th Cir. 1999) (defendant’s
question “What time will I see a lawyer?”
was not a clear invocation of right to counsel
and did not require questioning to cease);
United States v. Degaule, 797 F. Supp. 2d
1332, 1381 n.56 (N.D. Ga. 2011) (asking
“Do I call my attorney now?” at end of
interview was insufficient to invoke right to
counsel); United States v. Cook, No. 07-CR6195 CJS, 2008 WL 728883, at *14
(W.D.N.Y. Mar. 17, 2008) (“The Court also
rejects the defendant’s argument that any
statements he made to [the law enforcement
officer] must be suppressed, since prior to
making any such statements, while still
In sum, the question of whether
petitioner’s statements invoked his right to
counsel was thoroughly presented to the
hearing court and petitioner has not shown
that the state court’s decision to uphold the
admissibility of the statement was contrary
to, or an unreasonable application of, federal
law, nor was it an unreasonable
determination of the facts in light of the
evidence presented.
In any event, because the post-arrest
statement was not presented at trial, any error
was harmless. See, e.g., Gordon v. Mantello,
155 F. App’x 562, 565 (2d Cir. 2005)
(“Preliminarily, we observe that, because
these initial statements were not introduced
into evidence at Gordon’s trial, any error in
the trial court’s judgment that the statements
were not custodial was necessarily
harmless.)
12
The Court has reviewed the relevant portions of
the DVD and transcript.
15
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