Carrasquillo v. Graham
Filing
12
DECISION AND ORDER denying petition for writ of habeas corpus and dismissing the petition. Signed by Hon. Michael A. Telesca on 7/26/11. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
ANGEL CARRASQUILLO,
Petitioner,
DECISION AND ORDER
No. 10-CV-0197T
-vsHAROLD GRAHAM,
SUPERINTENDENT
Respondent.
________________________________
I.
Introduction
Pro se Petitioner Angel Carrasquillo(“Petitioner”) has filed
a timely petition for a writ of habeas corpus under 28 U.S.C.
§ 2254 challenging the constitutionality of his custody pursuant to
a judgment entered June 23, 2004, in New York State, Supreme Court,
Monroe County (Hon. Stephen R. Sirkin), convicting him, after a
jury trial, of Murder in the First Degree (Penal Law § 125.27
[1][a]), two counts of Murder in the Second Degree (Penal Law
§ 125.25 [1], [3]), two counts of Robbery in the First Degree
(Penal Law § 160.15 [4]), and Attempted Murder in the Second Degree
(Penal Law §§ 110.00, 125.25 [1]).
Petitioner was sentenced to an
aggregate term of imprisonment of life without parole.
For the reasons stated below, habeas relief is denied and the
petition is dismissed.
II.
Factual Background and Procedural History
The
charges
arise
from
an
incident
that
occurred
on
December 30, 2002, in the driveway of 23 Avenue C in the City of
Rochester, wherein eighteen-year-old Petitioner killed Roshawn
Marble (“Marble”) and injured Orado Graham (“Graham”) in the course
of a robbery.
On the date of the incident, at approximately 8:40 p.m.,
Marble was talking with his friend, Graham, outside 23 Avenue C
when Petitioner and a group of men approached carrying guns. Trial
Trans. [T.T.] 223-225, 237-238, 279, 311-314. Petitioner walked up
to Marble, pointed a gun at him, forced him back up the driveway,
and stated, “[y]ou know the routine so do it.”
T.T. 238, 315.
Marble complied, and positioned himself face-down on his stomach in
the driveway while Petitioner and several other men searched
Marble’s pockets.
T.T. 241, 336.
Graham could see the men taking
Marble’s money and other items from his pockets.
T.T. 242, 336.
As Marble was being robbed on the ground, several of the other men
in the group focused their attention on Graham.
One held a gun to
the back of Graham’s neck and another held a gun to his side.
T.T.
243. The men searched Graham’s pockets, removing his wallet, cash,
social security card and other personal identification.
243,
335-336.
At
some
point
shortly
thereafter,
directed his attention away from Marble and to Graham.
T.T. 242Petitioner
T.T. 244.
Petitioner stated, “[t]ell him to shut the F up” and took a swing
-2-
at Graham, but missed.
T.T. 244.
Petitioner then turned back to
Marble, who was on the ground pleading with Petitioner not to rob
him.
T.T. 244-245.
Graham then heard gunshots and turned to see
Petitioner firing at Marble.
T.T. 247-248, 254.
Graham tried to
escape while Petitioner fired at Marble, but Petitioner then turned
the gun on Graham.
T.T. 248, 337-338.
the back as he tried to run away.
Petitioner shot Graham in
T.T. 248, 338-339.
Sergeant Mark Mariano of the Rochester Police Department
(“RPD”) was one block away from 23 Avenue C when he received the
dispatch for a person shot at that address.
T.T. 166-167.
Upon
arrival, he saw Graham standing near the sidewalk with blood on his
shirt.
T.T. 167.
Graham lifted his shirt for Sgt. Mariano,
exposing a gunshot wound.
T.T. 168.
Marble
in
lying
motionless
the
Sgt. Mariano then observed
driveway.
T.T.
167-168.
Sgt. Mariano checked for Marble’s pulse, but Marble was, in his
opinion, already dead.
T.T. 168.
Sgt. Mariano observed shell
casings and a projectile in the driveway near Marble’s body.
T.T.
178.
Graham was treated at the scene and transported to Rochester
General Hospital by ambulance.
T.T. 260.
On January 9, 2003,
Graham underwent surgery to have the bullet removed from his back.
T.T. 576-577.
Marble died as a result of his injuries.
T.T. 551.
An
autopsy revealed that the bullet had entered through the right side
-3-
of Marble’s back, passed through both of his lungs and his heart,
and exited through the left side of Marble’s chest.
Officer
Technician
Unit
processed the crime scene the night of December 30, 2002.
T.T.
590-592.
Dominick
Perrone
of
the
RPD’s
T.T. 548-549.
He collected three spent .380 caliber cartridge casings
and one fired projectile from the driveway at 23 Avenue C.
591-592.
T.T.
John Clark, a Firearms Examiner for the Monroe County
Public Safety Laboratory, examined the three .380 caliber cartridge
cases and two .380 caliber bullets recovered from the crime scene.
T.T. 361.
He determined that each of the items had all been fired
from the same firearm.
T.T. 365-368.
On April 23, 2003, Petitioner was convicted of Criminal
Possession of a Weapon in the Third Degree, in an unrelated matter,
and sentenced to serve a one-year term of imprisonment.
Mins. [H.M.] 70-71.
Hearing
On June 14, 2003, while serving this sentence
in the Monroe County jail, Petitioner had a conversation with
inmate Jose Benitez (“Benitez” or “the informant”), who was acting
as
a
confidential
informant
for
the
police.
During
his
conversation with Benitez, Petitioner confessed that he had shot
and killed someone during the course of a robbery on Avenue C in
December of 2002.
H.M. 70-71;
App. A at 16-40, 144-147.
was recorded.
T.T. 484-488;
see also Resp’t
Benitz was wired and his conversation
T.T. 486.
-4-
On June 20, 2003, Investigator Randy Benjamin (“Investigator
Benjamin”) of the RPD went to the Monroe County jail to interview
Petitioner about the instant crimes.
H.M. 50-55.
Investigator
Benjamin advised Petitioner of his Miranda rights, Petitioner
indicated that he understood his rights, and waived them. H.M. 5559.
Petitioner denied any involvement in the homicide/robbery at
23 Avenue C and provided only pedigree information, including his
date of birth.
H.M. 55; T.T. 618-619.
When Investigator Benjamin
informed Petitioner that his name had surfaced in connection with
the murder of Marble and that he had been fingered as the shooter,
Petitioner
requested
an
terminated the interview.
attorney
and
Investigator
Benjamin
See Resp’t App. A at 41.
Prior to trial, Petitioner moved to suppress, inter alia, the
statements he made to Benitez and to Investigator Benjamin.
Resp’t App. A at 144.
See
After conducting a Huntley hearing, the
county court denied Petitioner’s motion to suppress his statements.
With respect to Petitioner’s statements to Benitez, the suppression
court
determined
that
said
statements
were
not
obtained
in
violation of Petitioner’s right to counsel because his right to
counsel had not yet attached.
See Resp’t App. A at 150-151.
With
respect to Petitioner’s statements to Investigator Benjamin, the
suppression court determined that: Petitioner voluntarily waived
his
Miranda
attorney;
rights
and
initially
agreed
to
speak
without
an
that when Petitioner requested an attorney, the police
-5-
ceased speaking with him; and that Petitioner’s statements were not
coerced.
See Resp’t App. A at 151-152.
At the close of his jury trial, Petitioner was found guilty of
first degree murder, two counts of second degree murder, two counts
of first degree robbery, and second degree attempted murder.
694.
T.T.
He was sentenced to life without parole for the first degree
murder conviction, twenty-five years to life for both counts of
second degree murder, twenty-five years for both counts of first
degree robbery, and twenty-five years for attempted second degree
murder.
Sentencing Mins. [S.M.] 12-13.
The three murder and two
robbery sentences were set to run concurrently with each other but
consecutively with the attempted murder sentence.
S.M. 13.
On April 25, 2008, the Appellate Division, Fourth Department
unanimously affirmed Petitioner’s conviction, and leave to appeal
was denied.
People v. Carrasquillo, 50 A.D.3d 1547 (4th Dep’t
2008); lv. denied, 11 N.Y.3d 735 (2008).
On or about March 27, 2009, Petitioner filed an application
for a writ of error coram nobis in the Appellate Division, Fourth
Department, which was summarily denied. People v. Carrasquillo, 63
A.D.3d 1670 (4th Dep’t 2009).
Leave to appeal was denied.
People
v. Carrasquillo, 13 N.Y.3d 742 (2009).
This habeas corpus petition followed, wherein Petitioner seeks
relief on the following grounds: (1) ineffective assistance of
trial counsel; (2) ineffective assistance of appellate counsel;
-6-
(3) the trial court improperly denied his motion to suppress his
statements to Benitez; and (4) the trial court improperly denied
his motion to suppress his statement to Investigator Benjamin. See
Pet. ¶12, Grounds One-Four (Dkt. No. 1);
Reply (Dkt. No. 11).
Petitioner’s claims are exhausted and properly before this Court.
III. General Principles Applicable to Habeas Review
A.
The AEDPA Standard of Review
Under the Anti-Terrorism and Effective Death Penalty Act
(“AEDPA”), a federal court may grant habeas relief to a state
prisoner only if a claim that was “adjudicated on the merits” in
state court “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,” 28 U.S.C. § 2254(d)(1), or if it “was based on an
unreasonable determination of the facts in light of the evidence
presented in the state court proceeding.” § 2254(d)(2).
A state
court 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.”
362, 413 (2000).
Williams v. Taylor, 529 U.S.
The phrase, “clearly established Federal law, as
determined by the Supreme Court of the United States,” limits the
law governing a habeas petitioner’s claims to the holdings (not
-7-
dicta) of the Supreme Court existing at the time of the relevant
state-court decision.
Williams, 529 U.S. at 412;
accord Sevencan
v. Herbert, 342 F.3d 69, 73-74 (2d Cir. 2002), cert. denied, 540
U.S. 1197 (2004).
A
state
court
decision
is
based
on
an
“unreasonable
application” of Supreme Court precedent if it correctly identified
the governing legal rule, but applied it in an unreasonable manner
to the facts of a particular case.
also id. at 408-10.
Williams, 529 U.S. at 413;
see
“[A] federal habeas court is not empowered to
grant the writ just because, in its independent judgment, it would
have decided the federal law question differently.”
Artuz, 269 F.3d 78, 94 (2d Cir. 2001).
Aparicio v.
Rather, “[t]he state
court’s application must reflect some additional increment of
incorrectness such that it may be said to be unreasonable.”
Id.
This 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.” Francis S. v. Stone, 221 F.3d 100,
111 (2d Cir. 2000) (internal quotation marks omitted).
Under AEDPA, “a determination of a factual issue made by a
State court shall be presumed to be correct.
The [petitioner]
shall have the burden of rebutting the presumption of correctness
by clear and convincing evidence.”
28 U.S.C. § 2254(e)(1);
see
also Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir. 2003) (“The
presumption of correctness is particularly important when reviewing
-8-
the trial court’s assessment of witness credibility.”), cert.
denied sub nom. Parsad v. Fischer, 540 U.S. 1091 (2003).
A state
court’s findings “will not be overturned on factual grounds unless
objectively unreasonable in light of the evidence presented in the
state-court proceeding.”
Miller-El v. Cockrell, 537 U.S. 322, 340
(2003).
B.
Exhaustion Requirement
“An application for a writ of habeas corpus on behalf of a
person in custody pursuant to a judgment of a State court shall not
be granted unless it appears that . . . the applicant has exhausted
the remedies available in the courts of the State. . . .” 28 U.S.C.
§ 2254(b)(1)(A);
843-44 (1999);
see, e.g., O’Sullivan v. Boerckel, 526 U.S. 838,
accord, e.g., Bossett v. Walker, 41 F.3d 825, 828
(2d Cir.1994), cert. denied, 514 U.S. 1054 (1995). “The exhaustion
requirement is not satisfied unless the federal claim has been
‘fairly presented’ to the state courts.” Daye v. Attorney General,
696 F.2d 186, 191 (2d Cir. 1982) (en banc), cert. denied, 464 U.S.
1048 (1984).
IV.
Petitioner’s Claims
1.
Ineffective Assistance of Trial Counsel
Petitioner contends, as he did on direct appeal, that he was
deprived
of
his
right
to
effective
assistance
of
counsel.
Specifically, he alleges that: (1) counsel failed to raise factual
allegations to support a claim that his right to counsel attached
-9-
before he made statements to the informant; (2) counsel failed to
request submission to the jury of the issue of the voluntariness of
his statements to the informant; and (3) the trial court failed to
give trial counsel adequate time to prepare a defense.
¶12, Ground One; Reply, Points One-Two.
Fourth
Department
rejected
this
See Pet.
The Appellate Division,
claim
on
the
merits.
See
Carrasquillo, 50 A.D.3d at 1548. As discussed below, this claim is
meritless.
To establish that he was deprived of his Sixth Amendment right
to the effective assistance of trial counsel, a petitioner must
show that (1) his attorney’s performance was deficient, and that
(2) this deficient performance prejudiced his defense.
Strickland
v. Washington, 466 U.S. 668, 687 (1984). Deficiency is measured by
an
objective
standard
of
reasonableness,
and
prejudice
is
demonstrated by a showing of a “reasonable probability” that, but
for counsel’s unprofessional errors, the result of the trial would
have been different.
Id. at 694.
“A reasonable probability is a
probability sufficient to undermine confidence in the outcome of
the
proceeding.”
Id.
To
succeed,
a
petitioner
challenging
counsel’s representation must overcome a “strong presumption that
[his attorney’s] conduct falls within the wide range of reasonable
professional assistance.”
Id. at 689.
A reviewing court “must
judge the reasonableness of counsel’s challenged conduct on the
-10-
facts of the particular case, viewed as of the time of counsel’s
conduct.”
First,
Id.
Petitioner
contends
that
he
received
ineffective
assistance of counsel because counsel failed to raise factual
allegations to support a claim that his right to counsel attached
before he made statements to the informant.
One at 6(i)-6(ii).
See Pet. ¶12, Ground
As discussed above, the suppression court,
after conducting a pre-trial hearing on this matter, concluded that
Petitioner’s statement to Benitez was not obtained in violation of
Petitioner’s right to counsel because his right to counsel had not
yet attached.
See Resp’t App. A at 150-151.
This conclusion was
based upon the following facts that were established at the pretrial hearing:
that, on June 14, 2003, while in jail on an
unrelated conviction, Petitioner had a conversation with Benitez,
who was acting as a confidential informant; that, during that
conversation, Petitioner made incriminating statements about the
instant homicide/robbery; and that Petitioner was not represented
by counsel at that time and had not been questioned about or
charged with the instant crimes.
See Resp’t App. C at 146.
Trial
counsel could not have raised allegations of fact that did not
exist, and counsel cannot therefore be faulted for failing to do
so.
Next,
Petitioner
contends
that
he
received
ineffective
assistance of counsel based on counsel’s failure to request the
-11-
issue of the voluntariness of Petitioner’s statements to Benitez be
submitted to the jury.
See Pet. ¶12, Ground One at 6(i)-6(ii).
A
review of the record reveals that the evidence adduced at trial did
not support a request for the voluntariness charge.
To this
extent, counsel cannot be faulted for failing to make a request on
that basis.
Moreover, Petitioner has failed to demonstrate that
counsel’s failure to pursue the voluntariness issue was anything
other than a strategic decision.
The record reflects that counsel
argued that the tape of the conversation between Petitioner and the
informant was “irrelevant” because it was in Spanish and the
English translation was not necessarily reliable.
T.T. 641.
Counsel argued further that the admissions in the translations did
not match the other evidence of the crime, and therefore, failed to
link Petitioner to the crime.
T.T. 641-642.
This approach to the
taped conversation would have, as Respondent correctly points out,
been undercut or diluted by a claim (especially with no facts to
support it) that Petitioner was coerced into making the admissions
to Benitez.
See Resp’t Mem. of Law 8-9.
Accordingly, it was not
unreasonable for counsel to forego seeking submission of the issue
of voluntariness of Petitioner’s statements to Benitez to the jury.
Finally,
Petitioner
argues
that
he
received
ineffective
assistance of counsel because “the trial court failed to give trial
counsel adequate time to prepare a defense.”
One at 6(i)-6(ii).
See Pet. ¶12, Ground
The record reflects that, based upon what he
-12-
perceived as disclosure violations under state and federal law that
prevented him from adequately preparing a defense, trial counsel
requested an adjournment in the middle of the trial.
389.
T.T. 387,
Trial counsel’s request was denied by the trial court and the
trial proceeded. The trial court’s denial of counsel’s request for
an
adjournment
does
not
render
his
counsel’s
assistance
ineffective.
In sum, Petitioner has failed to demonstrate that counsel’s
performance fell below an objective standard of reasonableness.
Moreover, he has also failed to demonstrate that, but for counsel’s
alleged errors, there is a reasonable probability that the outcome
of
his
trial
would
have
been
different.
The
evidence
of
Petitioner’s guilt was overwhelming: he was identified as the
shooter by the surviving victim (Graham) and he was recorded giving
an admission of his involvement in the crimes charged to an
informant. See Strickland, 466 U.S. at 693 (even serious errors by
defense counsel do not warrant granting federal habeas relief where
the conviction is supported by overwhelming evidence of guilt).
Accordingly, the state court’s determination of this claim was
neither contrary to nor an unreasonable application of settled
Supreme Court law.
Petitioner’s ineffective assistance of trial
counsel claim is therefore dismissed in its entirety.
-13-
2.
Ineffective Assistance of Appellate Counsel
Petitioner contends that he received ineffective assistance of
appellate counsel based upon counsel’s decision to raise three weak
suppression issues on direct appeal, while foregoing raising an
allegedly meritorious Batson claim.1
Reply, Points Three-Four.
See Pet. ¶12, Ground Two;
Petitioner raised this claim in his
coram nobis application, which was summarily denied by the Fourth
Department.
See Carrasquillo, 63 A.D.3d at 1670;
see Sellan v.
Kuhlman, 261 F.3d 303 (2nd Cir. 2001) (holding that a summary
denial constitutes an adjudication on the merits).
As discussed
below, this claim is meritless.
It is well established in both civil and criminal law that
while conducting voir dire, an attorney may not use peremptory
challenges in a manner that would discriminate against otherwise
unbiased prospective jurors based solely on their race.
Powers v.
Ohio, 499 U.S. 400 (1991) (citing Batson v. Kentucky, 476 U.S. 79,
84 (1986)).
Every defendant has a right “to be tried by a jury
whose members are selected pursuant to nondiscriminatory criteria.”
Batson, 476 U.S. at 85-86 (citing Martin v. Texas, 200 U.S. 316,
1
At the outset, the Court points out that this claim appears to be
at odds with Petitioner’s other habeas claims, particularly ground three of
the petition in which Petitioner seeks relief on the basis that the trial
court improperly denied his motion to suppress his statements to Benitez (see
section IV, 3 below). In support of his ineffective assistance of appellate
counsel claim, Petitioner asserts that it was unreasonable for appellate
counsel to raise a suppression issue with respect to his statements to Benitez
because the suppression court correctly decided this issue. See Reply at 6.
The Court further notes that, in his Reply, Petitioner acknowledges the
conflicting nature of these arguments (see Reply at 6-7).
-14-
321 (1906)). In Batson, the Supreme Court established a three-step
process for evaluating claims that a prosecutor used peremptory
challenges in a racially discriminatory manner.
See Batson, 476
U.S. at 96-98.
First, the defendant must establish a prima
facie case of discrimination. Second, the
prosecutor must offer an explanation for the
strike that is, on its face, race-neutral.
Third, the trial court must determine whether
the defendant has carried her burden of
proving that the government’s proffered reason
was pretextual, and that the strike was indeed
motivated by purposeful discrimination.
Id. (citing United States v. Brown, 352 F.3d 654, 660 (2d. Cir.
2003)).
Here, the record reflects that trial counsel first raised a
Batson challenge when the prosecutor used a peremptory challenge on
one of two black female prospective jurors.
T.T. 83-84.
The trial
court denied that challenge on the ground that defense had not
established a pattern. T.T. 83. Subsequently, the prosecutor used
peremptory
challenges
on
two
of
the
next
three
black
female
prospective jurors (jurors 15, 20 and 21), and trial counsel then
raised a Batson challenge.
T.T. 83-84.
At that point, the trial
court did not explicitly rule on whether the exercise of the
peremptory
challenges
on
three
out
of
the
five
black
female
prospective jurors established a pattern, but instead proceeded to
ask the prosecutor his reason for the peremptory challenges.
84.
T.T.
The prosecutor explained that he had challenged prospective
-15-
juror 15 because she had visited a correctional institution and
said she was familiar with people “who were afraid to come to court
and that’s what usually happens, words to that effect.”
85,
62.
The
prosecutor
further
stated
that
he
T.T. 84challenged
prospective juror 20 because she visited a correctional institution
and had a nephew who was a police officer.
Finally, he explained
that he challenged prospective juror 21 because she knew someone
who was “framed for a DWI.”
T.T. 85, 31.
The court then
determined that “[b]ased upon those reasons, [it would] allow 21
but . . . disallow 15 and 20.”
T.T. 85-86.
Petitioner does not challenge the first two steps of the
Batson inquiry.
See Pet. ¶12, Ground Two at 7(ii).
Rather, he
contends that “that the trial court did not perform the final step
in the Batson procedure in that it did not invite argument, and
made
no
finding,
as
to
whether
the
reasons
offered
by
the
prosecutor, although facially neutral, were pretextual and not the
genuine reason for the challenges.”
meritless.
Id.
This contention is
Contrary to Petitioner’s contention,
the trial court
clearly ruled on whether the prosecution’s justifications were
pretextual.
With respect to Petitioner’s Batson challenges to
jurors 15, 20 and 21, the trial court heard the prosecution’s
explanations for the peremptory strikes.
After this exchange, the
trial court judge stated, “[b]ased upon those reasons, I’ll allow
21 but I’m going to disallow 15 and 20.”
-16-
T.T. 86.
While the court
did
not
explain
its
reasoning
for
each
of
its
credibility
determinations, it had no requirement to do so under established
Supreme Court law.
See McKinney v. Artuz, 326 F.3d 87, 99 (2d Cir.
2003) (“We note that the court made clear its reasoning for this
decision, although we are aware of no controlling Supreme Court
precedent that required it to do so.”); see e.g., Messiah v.
Duncan, 99 Civ. 12178 (RCC) (HBP), 2004 U.S. Dist. LEXIS 17271, *11
(S.D.N.Y. Aug. 27, 2004) (“The trial court dismissed Petitioner’s
claim of pretext when it directed defense counsel to ‘stop that
nonsense.’ Although an explicit factual determination by the trial
judge would have established a clearer record, this Court does not
find that such an explicit determination is required.”); Moxley v.
Bennett, 291 F.Supp.2d 212, 228 (W.D.N.Y. 2003) (“While the trial
court’s consideration of the third element of the Batson test was
performed in fairly summary fashion, the court finds taken as a
whole upon this record it was sufficient to meet the Batson
requirement.”) (Report and Recommendation adopted, 291 F.Supp.2d
212). Here, the Court finds that the trial court judge’s statement
that “[b]ased upon those reasons, I’ll allow 21 but I’m going to
disallow 15 and 20” was sufficient to meet the third requirement of
the Batson inquiry, despite his failure to provide express reasons
for his factual determinations.
Accordingly, a Batson claim would likely not have succeeded on
direct appeal, and appellate counsel cannot therefore be faulted
-17-
for not raising such a claim.
Moreover, Petitioner cannot show
that, but for appellate counsel’s decision to forego raising the
Batson claim while pursuing three suppression issues, there is a
reasonable probability that the outcome of his appeal would have
been different.
Thus, the state court’s determination of this
claim did not contravene or unreasonably apply settled Supreme
Court law.
3.
The claim is dismissed in its entirety.
The Trial Court Improperly Denied Petitioner’s Motion to
Suppress his Statements to the Informant
Petitioner argues, as he did on direct appeal, that the trial
court improperly denied his motion to suppress his statement to
Benitez.
See Pet. ¶12, Ground Three.
In support of this claim,
Petitioner asserts that: “[the] Supreme Court should not have
admitted Petitioner’s statement into evidence.
Informant Jose
Benitez was acting as an agent of law enforcement when he taped
conversation
with
Petitioner.”
Id.
at
9(i).
The
Appellate
Division, Fourth Department rejected this claim on the merits. See
Carrasquillo, 50 A.D.3d at 1548.
This claim is meritless.
The Supreme Court has stated that “Miranda forbids coercion,
not mere strategic deception by taking advantage of a suspect’s
misplaced trust” in another.
Illinois v. Perkins, 496 U.S. 292,
297 (1990), accord United States v. Holmes, 44 F.3d 1150 (2d Cir.
1995) (relying on Illinois v. Perkins in rejecting defendant’s
challenge to government’s use of a third-party to tape record
incriminating
conversations).
“Strategic
-18-
deception”
includes
“[p]loys to mislead a suspect or lull him into a false sense of
security that do not rise to the level of compulsion or coercion .
. . are not within Miranda’s concerns."
Perkins, 496 U.S. at 297.
Here, Petitioner voluntarily spoke with Benitez while Petitioner
was in the Monroe County jail on an unrelated matter, no charges in
the
instant
case
were
pending
against
represented by counsel at that time.
him,
and
he
was
not
There is no evidence before
this Court that Benitez coerced or threatened Petitioner during
their
conversation.
Thus,
the
taped
oral
statement
was
not
obtained in violation of Petitioner’s Fifth Amendment privilege
against self incrimination.
Accordingly,
Petitioner’s
affirmance
the
statement
thereof,
did
state
to
court’s
Benitez,
not
refusal
and
contravene
the
or
to
appellate
suppress
court’s
unreasonably
apply
settled Supreme Court law. The claim is therefore dismissed in its
entirety.
4.
The Trial Court Improperly Denied Petitioner’s Motion to
Suppress his Statements to Investigator Benjamin
Petitioner contends, as he did on direct appeal, that the
trial court improperly denied his motion to suppress his statements
to
Investigator
Benjamin.
See
Pet.
¶12,
Ground
Four.
The
Appellate Division, Fourth Department rejected this claim on the
merits.
See Carrasquillo, 50 A.D.3d at 1548.
this claim is meritless.
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As discussed below,
Here, even assuming arguendo that Petitioner’s statements to
Investigator Benjamin should have been suppressed -- a finding this
Court does not make -- Petitioner still cannot prevail on this
claim.
In order to obtain relief on habeas corpus, a petitioner
must demonstrate that the relevant error “had a substantial and
injurious effect or influence in determining the jury’s verdict.”
See Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (under the
harmless error standard, habeas petitioners may obtain plenary
review of their constitutional claims, but they are not entitled to
habeas relief based on trial error unless they can establish that
it resulted in actual prejudice) (internal quotations and citations
omitted).
The
Petitioner cannot meet this burden.
record
reflects
that
Petitioner’s
statement
to
Investigator Benjamin was never offered in evidence by the People.
To this extent, his statements could not have bore directly on the
People’s
proof
against
him,
and
Petitioner
cannot
therefore
establish that his statements had a substantial and injurious
effect on the jury’s verdict.
Thus, any error in admitting the
statements was harmless and does not entitle petitioner to habeas
relief.
Accordingly, the state court’s determination of this claim did
not contravene or unreasonably apply settled Supreme Court law.
The claim is therefore dismissed in its entirety.
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V.
Conclusion
For the reasons stated above, the petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 (Dkt. No. 1) is denied,
and the petition is dismissed.
Because Petitioner has failed to
make “a substantial showing of a denial of a constitutional right,”
28 U.S.C. § 2253(c)(2), the Court declines to issue a certificate
of appealability. See, e.g., Lucidore v. New York State Div. of
Parole, 209 F.3d 107, 111-113 (2d Cir. 2000).
The Court also
hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any
appeal from this judgment would not be taken in good faith and
therefore denies leave to appeal as a poor person.
Coppedge v.
United States, 369 U.S. 438 (1962).
Petitioner must file any notice of appeal with the Clerk’s
Office, United States District Court, Western District of New York,
within thirty (30) days of the date of judgment in this action.
Requests to proceed on appeal as a poor person must be filed with
United States Court of Appeals for the Second Circuit in accordance
with the requirements of Rule 24 of the Federal Rules of Appellate
Procedure.
IT IS SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
July 26, 2011
Rochester, New York
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