Gonzalez v. Martuscello et al
Filing
9
DECISION AND ORDER denying petition for a writ of habeas corpus and dismissing the petition. Signed by Hon. Michael A. Telesca on 6/28/11. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_____________________________________
JESUS GONZALEZ,
DECISION AND ORDER
No. 10-CV-6025(MAT)
Petitioner,
-vsDAVID MARTUSCELLO,
Respondent.
_____________________________________
I. Introduction
Pro se petitioner Jesus Gonzalez (“Petitioner”) challenges the
constitutionality of his State custody by way of a petition for a
writ
of
habeas
corpus
under
28
U.S.C.
§
2254.
Gonzalez
was
convicted after a non-jury of, inter alia, attempted sodomy in the
first degree, attempted sodomy in the second degree, and attempted
sexual abuse in the first degree, for sexually assaulting an
elderly woman with advanced dementia while he worked as an aide at
a
residential
facility
for
persons
with
Alzheimer's
disease.
Gonzalez is currently serving concurrent maximum sentences on all
charges, the longest of which if fifteen years, to be followed by
a five-year term of post-release supervision.
II.
General Legal Principles
Federal review of a State court conviction is limited to
errors of Federal constitutional magnitude that denied a criminal
defendant the right to a fundamentally fair trial. See Cupp v.
Naughton,
414
U.S.
141
(1973).
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Under
the
Antiterrorism
and
Effective Death Penalty Act of 1996 (“AEDPA”), which applies to
Gonzalez’s petition, a Federal court may grant habeas relief on a
claim that was “adjudicated on the merits” in state court if it
resulted in a decision that either was “contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States” or was “based
on an unreasonable determination of the facts in light of the
evidence presented . . . .” 28 U.S.C. § 2254(d)(1), (2).
III. Discussion
A.
Ground One: Ineffective Assistance of Trial Counsel
Petitioner contends that he was denied effective assistance of
counsel because counsel (1) failed to call as witnesses certain
co-workers to testify as to bias and motive to lie on the part of
an eyewitness; (2) failed to object to bolstering and hearsay;
(3) failed to effectively cross-examine the senior administrative
staff; (4) failed to ask prosecution witnesses why they did not
report prior incidents; (5) failed to move for sanctions for an
alleged disclosure violation; (6) failed to call an expert witness
on the issue of the victim’s inability to consent; (7) failed to
renew a motion for a trial order of dismissal at the close of all
proof; and (8) failed to ensure that Petitioner was present at all
sidebar conferences.
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1.
Exhaustion
“[A] federal court must consider whether a habeas petitioner
adequately exhausted state remedies by fairly presenting both the
factual and legal premises for his federal claim to the appropriate
state courts.” Acosta v. Artuz, 575 F.3d 177, 185 (2d Cir. 2009)
(citations omitted). Petitioner’s main brief before the Appellate
Division addressed (6) and (7) as alleged bases for a claim of
ineffective
remaining
assistance.
grounds
However,
petitioner
now
as
Respondent
raises
for
argues,
his
claim
the
of
ineffective assistance were never presented in state court. Thus,
as to those grounds, Petitioner has failed to exhaust his state
remedies. Caballero v. Keane, 42 F.3d 738, 740-41 (2d Cir. 1994)
(all of the allegations supporting an ineffective assistance of
trial counsel claim must have been presented to the state courts,
allowing them the opportunity to consider all the circumstances and
cumulative effect of the claims as a whole).
Petitioner’s remaining claims of ineffective assistance of
trial counsel (claims (1) through (5) and (8)) should be “deemed
exhausted” but procedurally defaulted.
“[W]hen ‘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,’”
federal
habeas
courts
also
must
deem
the
claims
procedurally defaulted.” Aparicio v. Artuz, 269 F.3d 78, 90 (2d
-3-
Cir. 2001)(citing Coleman v. Thompson, 501 U.S. 722, 735 n.1
(1991).
Petitioner cannot return to State court to exhaust these
claims because he has already made the one request for leave to
appeal to which he is entitled. See N.Y. Court Rules § 500.20(a)(2)
(providing in relevant part that “only one application is available
[for leave to appeal to the Court of Appeals in a criminal case]”).
If he were to raise it in a motion to vacate, it would be
mandatorily dismissed under C.P.L. § 440.10(2)(c) because the
claims could have been raised on direct appeal. It is true that
“New York courts have held that some ineffective assistance claims
are ‘not demonstrable on the main record’ and are more appropriate
for collateral or post-conviction attack, which can develop the
necessary evidentiary record.” Sweet v. Bennett, 353 F.3d 135, 139
(2d Cir.1983) (quotation and citation omitted)). However, these
claims–such as the failure to cross-examine and the failure to
ensure Petitioner’s presence at sidebars–all pertain to matters
that are readily discernable on the trial record and could have
been raised on direct appeal. Furthermore, appellate counsel did
raise an argument concerning trial counsel’s performance on direct
appeal but did not include these specific claims.
The procedural bar that results in the constructive exhaustion
of the claims also creates a procedural default. See Grey v. Hoke,
933 F.2d 117, 120-21 (2d Cir. 1991). Courts will not review the
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merits of procedurally defaulted claims unless the petitioner can
show (1) cause for the default and actual prejudice resulting
therefrom; or (2) that failure to consider the claim will result in
a fundamental miscarriage of justice. Aparicio, 269 F.3d at 91.
Gonzalez cannot avoid such a default because he is unable to show
cause for the default and prejudice resulting therefrom, or that
this
Court's
refusal
to
hear
the
claim
would
result
in
a
fundamental miscarriage of justice. Accordingly, these claims are
dismissed.
2.
Merits of the Exhausted Ineffectiveness Claims
To establish deficient performance, a person challenging a
conviction must show that counsel's representation fell below an
objective standard of reasonableness. Harrington v. Richeter, 131
S. Ct. 770, 787 (2011) (citing Strickland v. Washington, 466 U.S.
686, 687-88 (1984)). With respect to prejudice, the defendant must
demonstrate
a
reasonable
probability
that,
but
for
counsel's
unprofessional errors, the result of the proceeding would have been
different. Id. (citation omitted). Strickland permits counsel to
“make a reasonable decision that makes particular investigations
unnecessary.” 466 U.S. at 691. Counsel was “entitled to formulate
a strategy that was reasonable at the time and to balance limited
resources in accord with effective trial tactics and strategies.”
Harrington, 131 S. Ct. at 789 (citations omitted).
-5-
a.
Failure to Call an Expert Witness
With respect to the decision not to call an expert on the
victim’s inability to consent, Petitioner has not demonstrated that
trial counsel’s strategy had any effect on the trial’s outcome.
The evidence was overwhelming that the elderly victim, who had been
a patient at the residential facility since 1998, was incapable of
consent. Due to her advancing Alzheimer’s disease, her dementia had
progressed over five years to the point that she had become mute.
The victim did not appear to recognize her husband, and she would
generally wander aimlessly or simply “stare out into space.”
Caretakers described the victim as “pliable” and said she had lost
her sense of personal space. By the time of the assault, she had
been non-verbal for three to three and a half years, and was also
unable to communicate non-verbally. In light of this proof that the
victim was manifestly incapable of consenting to sexual contact, an
expert witness–assuming one could have been found to testify to the
contrary–would not have changed the outcome of trial.
b.
Failure to Renew a Motion for a Trial Order of
Dismissal
Petitioner contends that trial counsel was ineffective in
failing to renew his motion for a trial order of dismissal after
presenting evidence on Petitioner’s behalf. Notwithstanding the
lack of preservation, the Appellate Division reviewed the merits of
Petitioner’s sufficiency-of-the-evidence claims on direct appeal
and found them to be without merit. In particular, the evidence,
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viewed in the light most favorable to the prosecution, was legally
sufficient to establish the disputed elements of the crimes. First,
there was no consent because the victim was “physically helpless”
(i.e, she had advanced Alzheimer's disease and was “physically
unable to communicate unwillingness to an act[,]” N.Y. Penal Law
§ 130.00(7)).
Second, there was legally sufficient evidence of
intent to commit sodomy provided by the resident aide supervisor,
who unlocked the victim's door and caught Petitioner in the act.
This witness provided graphic and specific testimony concerning
Petitioner’s sexual contact with the victim, thus establishing that
Petitioner “engage[d] in conduct which tend[ed] to effect the
commission[,]” N.Y. Penal Law § 110.00, of the crime.
Petitioner cannot demonstrate that he suffered prejudice as a
result of trial counsel's omission since
the Appellate Division
reviewed the merits of Petitioner's legal-insufficiency argument
despite the lack of a timely objection by counsel. Accord, e.g.,
Cimino v. Conway, No. 08-CV-6318 (MAT), 2011 WL 815677, at *13
(W.D.N.Y. Mar. 2, 2011) (citing Swail v. Hunt, ___ F. Supp.2d ___,
2010 WL 3965696, at *7 (W.D.N.Y. Oct. 12, 2010)).
B.
Ground Two: Verdict Against the Weight of the Evidence
and Unsupported by Legally Sufficient Evidence
Petitioner’s contention that the verdict was against the
weight of the evidence is not cognizable on Federal habeas corpus
review
because
it
does
not
present
-7-
a
Federal
constitutional
question. E.g., Nevins v. Giambruno, 596 F. Supp. 2d 728, 742-43
(W.D.N.Y. 2009) (collecting cases).
Petitioner’s
challenge
to
the
legal
sufficiency
of
the
evidence was found by the Appellate Division to be unpreserved for
appellate review. “[T]here can be no doubt that New York case law
requires that a sufficiency objection be specifically made to the
trial court in the form of a motion to dismiss at trial.” Donaldson
v. Ercole, No. 06-5781-pr, 2009 WL 82716, at *1 (2d Cir. Jan. 14,
2009) (unpublished opn.) (citing People v. Hines, 97 N.Y.2d 56, 762
N.E.2d 329, 333 (N.Y. 2001) (“[W]e have repeatedly held that an
indictment may be dismissed due to insufficient evidence only where
the sufficiency issues pursued on appeal were preserved by a motion
to dismiss at trial. Indeed, even where a motion to dismiss for
insufficient
evidence
was
made,
the
preservation
requirement
compels that the argument be specifically directed at the alleged
error.”)
(citations
and
internal
quotation
marks
omitted
in
original)). Here, defense counsel failed to renew his motion for a
trial order of dismissal, thereby failing to preserve the legalinsufficiency
claim.
Accordingly,
as
Respondent
argues,
the
Appellate Division's decision denying the claim based upon the lack
of a specific, contemporaneous objection rested upon a state law
ground that was “independent of the federal question and adequate
to support the judgment[,]” Coleman v. Thompson, 501 U.S. 722, 729
(1991). Accord Donaldson, 2009 WL 82716, at *3.
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Because of the independent and adequate state procedural bar,
the Court cannot review the sufficiency of the evidence claim
unless Gonzalez can show cause and prejudice, or that a fundamental
miscarriage of justice would occur should this Court decline to
consider the claim. Gonzalez has not adduced cause, prejudice, or
facts to support the miscarriage of justice exception. Therefore,
the claim is dismissed.
C.
Ground Three: Erroneous Admission of Uncharged Bad Acts
On appeal, the Appellate Division held that witnesses were
properly allowed to testify with respect to prior incidents in
which Petitioner was found in the presence of patients with his
pants undone. Petitioner had told the police that his pants had
fallen down in the presence of the victim when the button on his
pants “suddenly broke,” and the evidence of the prior incidents was
thus relevant to establish the absence of mistake or accident, as
well as intent. People v. Gonzalez, 62 A.D.3d 1263, 1265 (App. Div.
4th Div. 2009) (citing People v. Molineux, 168 N.Y. 264, 263-64
(N.Y. 1901)).
A
decision
to
admit
evidence
of
a
criminal
defendant’s
uncharged crimes or bad acts under People v. Molineux is an
evidentiary ruling based in State law. E.g., Roldan v. Artuz, 78 F.
Supp.2d 260, 276-77 (S.D.N.Y. 2000) (citations omitted). Challenges
to a State court’s evidentiary rulings are generally not cognizable
on habeas review. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). An
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evidentiary error raises a question of constitutional dimension and
becomes
a
proper
subject
for
habeas
review
only
where
the
Petitioner can show that “the introduction of the challenged
evidence, [or] the jury instruction as to its use, ‘so infused the
trial with unfairness as to deny due process of law.’” Id.
at 75
(quoting Lisenba v. California, 314 U.S. 219, 228 (1941)); see also
Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998).
Here, the Appellate Division’s ruling was correct as a matter
of New York State evidentiary law. E.g., People v. Brown, 57 A.D.3d
1461, 1463 (App. Div. 4th Dept. 2008) (evidence that defendant
previously damaged another apartment after receiving an eviction
notice from the landlord was admissible to establish intent and the
absence of mistake or accident, particularly in view of defendant's
theory at trial that the fire was the result of an accident and was
not intentionally started).
Whether a Molineux ruling can ever violate due process has
been explicitly left undecided by the Supreme Court. See Estelle v.
McGuire, 502 U.S. at 75 n. 5 (“[W]e express no opinion on whether
a state law would violate the Due Process Clause if it permitted
the use of ‘prior crimes’ evidence to show propensity to commit a
charged crime.”). Accordingly, the Appellate Division’s rejection
of Petitioner’s challenge to the Molineux ruling here cannot be
contrary to or an unreasonable application of clearly established
Supreme Court law. See Ponce v. Felker, 606 F.3d 596, 604 (9th Cir.
-10-
2010) (“If Supreme Court cases ‘give no clear answer to the
question presented,’ the state court's decision cannot be an
unreasonable application of clearly established federal law.”)
(quoting Wright v. Van Patten, 552 U.S. 120, 126 (2008) (per
curiam); citing Carey v. Musladin, 549 U.S. 70, 77 (2006)) see also
Ponce, 606 F.3d at 606.
IV.
Conclusion
For the reasons stated above, Jesus Gonzalez’s petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied, and
the petition is dismissed. Because Gonzalez has failed to make a
substantial showing of a denial of a constitutional right, the
Court
declines
to
issue
a
certificate
of
appealability.
See
28 U.S.C. § 2253(c)(2). The Court 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 in
forma pauperis.
SO ORDERED.
S/Michael A. Telesca
___________________________________
MICHAEL A. TELESCA
United States District Judge
DATED:
June 28, 2011
Rochester, New York
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