Gonzalez v. Bradt
Filing
10
-CLERK TO FOLLOW UP- DECISION AND ORDER denying with prejudice 5 Motion to Appoint Counsel and dismissing the petition. (Clerk to close case.). Signed by Hon. Michael A. Telesca on 4/7/14. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
HECTOR GONZALEZ,
Petitioner,
-vs-
No. 6:13-CV-6574(MAT)
DECISION AND ORDER
MARK BRADT,
Respondent,
I.
Introduction
Petitioner pro se Hector Gonzalez (“Petitioner”) seeks a writ
of habeas corpus pursuant to 28 U.S.C. § 2254 on the basis that he
is being held in Respondent’s custody in violation of his federal
constitutional rights. Petitioner is incarcerated as the result of
a judgment entered on April 29, 2010, in Erie County Court (Amico,
J.) of New York State, following a non-jury trial convicting him of
one count of second degree murder (N.Y. Penal Law § 125.25(1)) and
one count of second degree criminal possession of a weapon (id.,
§ 265.03(3)).
II.
Factual Background and Procedural History
A.
Summary of the Trial Testimony
Wanda Santana (“Santana”) had two children with the decedent,
Edwin Lasalle (“Lasalle”). During the spring of 2009, she began a
four-month-long intimate relationship with Petitioner, whom she
knew only as “Indio”. Lasalle was aware of the former relationship
between Sanatana and Petitioner; it was a source of contention
among the three individuals.
On July 31, 2009, Lasalle drove Santana and her two-year-old
son to Children’s Hospital in the City of Buffalo to visit her
stepbrother, Victor. After Victor was discharged a few hours later,
Santana and several of her friends and family-members took a cab
back to her neighborhood.
Santana stopped into the corner store to buy some chips and
soda for her son, and then began walking towards Petitioner’s home
at 109 Auburn Avenue. She explained that the purpose of her visit
was to attempt to resolve the tensions between Petitioner and
Lasalle.
approached
Before Santana reached Petitioner’s address, Lasalle
her
in
his
vehicle
and
began
to
argue
with
her,
demanding that she get into the car. Lasalle turned his car around
and drove the wrong way down Auburn, a one-way street, so that he
could follow Santana. The two continued to argue.
As Santana passed 109 Auburn, she overheard Petitioner say in
Spanish, “[G]ive me a gun!”
Lasalle got out of his car, grabbed
Santana’s cell phone, punched her in the face, and threw her to the
ground. Yaritza Acevedo-Rivera (“Rivera”), who had been at the
hospital with Santana, witnessed the confrontation with Lasalle.
Rivera, armed with a bat, began to argue with Lasalle. While
Santana was on the sidewalk and Lasalle standing was next to his
car, Petitioner, accompanied by several individuals, arrived and
began arguing with Lasalle. Petitioner shot Lasalle in the head
-2-
with a handgun from a range of about four to five feet. He and his
companions then fled towards 109 Auburn.
Additional eyewitnesses observed the shooting. Briana Tirado
(“Tirado”) was living at 122 Auburn on the date of the incident. At
around 4:00 p.m., she heard an argument outside followed by a loud
noise that
at
first
sounded
like fireworks.
Tirado
then saw
Petitioner, whom she knew lived at 109 Auburn, running towards his
house and putting something in his waistband.
Lolitha Wright (“Wright”), who lived at 130 Auburn, heard an
argument outside her house at about 4:00 p.m. on July 31, 2009. She
saw a man and a woman, whom she did not recognize, arguing. As she
turned to say something to her grandson, she heard a gun shot.
Wright then saw Petitioner run towards West Street holding a shiny
object in his hand.
Barbara Winslow (“Winslow”) resided at 71 Dewitt Street. On
July 31, 2009, at around 4:00 p.m., she heard a commotion outside
her house. Looking outside, Winslow saw an argument between a man
and a woman standing near a car parked facing in the wrong
direction on Auburn Street. A second woman was nearby holding a
baseball bat. Winslow saw two men approach the group, one of whom
wrestled with the man who was arguing. As the man in the argument
tried to get up, Winslow heard a gun shot. The man who had been
arguing fell to the ground. Winslow, who could not identify the
-3-
shooter, recognized the two men as being from the neighborhood; she
had seen them before at 109 and 116 Auburn.
Rivera,
the
woman
whom
several
witnesses
saw
holding
a
baseball bat, testified for Petitioner, her uncle. On July 31,
2009, she was staying with him at 109 Auburn. As she was walking
back to 109 Auburn with Santana, they were approached by Lasalle in
his car. Lasalle tried to hit them with his car and proceeded to
beat Santana by striking her repeatedly and then kicking her while
she was on the ground. Lasalle threatened to kill Santana and
Petitioner.
According
to
Rivera,
upon
seeing
Lasalle
attack
Santana, Petitioner locked himself inside of 109 Auburn, did not
come out to help Santana, and instructed Rivera to mind her own
business. Rivera recalled that while Santana was on the ground,
four to five individuals whom she did not know appeared on the
scene, shot Lasalle, and then fled. Had Lasalle attacked her, she
would have gone after him with a bat, which, according to her, she
did not have at the time of the incident.
Samuel Mercedes (“Mercedes”) was called as a defense witness
and testified that on July 31, 2009, he lived at 33 Dewitt.
Mercedes saw a man drive the wrong way down Auburn and get into a
confrontation with two women, one of whom had a bat. He recalled
hearing a gun shot but could not see the shooting or any of the
participants in the altercation that preceded it. At the time,
Mercedes believed the shooter was a woman.
-4-
As the result of complications from the gun shot wound to his
right temple, Lasalle died on August 6, 2009. Santana gave a
statement to the police implicating Petitioner as the shooter.
During their investigation, the police were unable to locate
any shell casings, which suggested that the shooter had used a
revolver. When police attempted to apprehend Petitioner at his
Auburn Street residence, they could not find him. Buffalo Police
Department
Detective
Brendon
Kiefer
obtained
information
from
Petitioner’s uncle that he was in Puerto Rico. Petitioner was
arrested in Humanco, Puerto Rico on August 22, 2009, and returned
to the United States.
Following his arrest, Petitioner phoned Santana numerous times
and repeatedly urged her to contact his attorney, telling her that
“him
coming
out
[of
jail]
was
in
‘[her]
hands.’”
T.128-31.1
Petitioner ordered Santana not to date anyone else while he was
away.
Abner Garcia (“Garcia”), who had a history of multiple felony
convictions, was arrested for his involvement in a home invasion on
October 4, 2009, and placed in the Erie County Holding Center.
While there, Garcia ran into Petitioner, whom he had known for 15
years. When Garcia asked Petitioner why he had photos of Lasalle’s
girlfriend,
Petitioner
replied
that
“she
was
his”.
T.349.
1
Numerals preceded by “T.” refer to pages from the transcript of
Petitioner’s trial.
-5-
Petitioner confided to Garcia that he was in jail for murdering
Lasalle. According to Garcia, Petitioner told him that Lasalle had
pulled up to Santana on a one-way street and had gotten into an
argument with her. Petitioner approached and shot Lasalle in the
back of the head with a .38 caliber revolver and then ran towards
West Street. Petitioner said that Santana was going to contact his
attorney and change her statement to exonerate him. Petitioner
explained that he had fled to Humanco, Puerto Rico, but one of his
cousins had “ratted him out” to the police. T.351. Some time later,
Garcia saw Petitioner in the holding area at the courthouse, and
Petitioner stated, “[T]hese crackers ain’t got shit on me, I’m
going to beat this body.” T.353.
Judge Amico returned a verdict finding Petitioner guilty as
charged in the indictment. He sentenced Petitioner to an aggregate
term of 22 years to life in prison.
The Appellate Division, Fourth Department, of New York State
Supreme Court
unanimously
affirmed
Petitioner’s
conviction on
direct appeal. People v. Gonzalez, 89 A.D.3d 1443 (4th Dep’t 2011),
lv. denied, 19 N.Y.3d 973 (2012), reconsideration denied, 20 N.Y.3d
932 (2012).
This timely habeas petition followed, in which Petitioner
asserts the following grounds for relief: (1) the identification
procedure was unduly suggestive; (2) Garcia was a government agent
and should not have been permitted to testify as to Petitioner’s
-6-
jailhouse statements made to him; (3) the evidence is legally
insufficient making Petitioner’s conviction violative of the Due
Process Clause; and (4) the prosecution committed a violated their
obligations under Brady v. Maryland, 373 U.S. 83 (1963).
For the reasons that follow, Petitioner’s request for writ of
habeas corpus is denied, and the petition is dismissed.
III. Merits of the Petition
A.
Suggestive Identification
On the first day of trial, a Wade2 hearing was conducted
regarding
a
photo
array
identification
of
Petitioner.
W.15.3
Detective Mario Pratts (“Pratts”) testified that his first contact
with the identifying witness, Tirado, was on February 23, 2010,
less than one month before the trial was scheduled to begin. W.13.
After taking Tirado’s statement regarding the incident, he showed
her an array which contained photos of six Hispanic men of “varying
complexions” ranging from “[m]edium to dark”. W.13, 15-16. Tirado
told Pratts, when she selected the photograph of Petitioner, that
the shooter was the “dark one from 109 Auburn”. W.20-21.
2
United States v. Wade, 388 U.S. 218 (1967).
3
Numerals preceded by “W.” refer to pages from the transcript
of the Wade hearing held on March 22, 2010.
-7-
Petitioner argued on appeal that “a cursory review of the
photo
array4
demonstrates
that
the
photograph
directly
above
[Petitioner]’s depicts a man with the fairest complexion of all six
photographs”, and therefore Petitioner’s photograph “stood out ‘as
markedly different from’ the photograph directly above it which
considerably increased the likelihood of a misidentification.”
Petitioner’s Appellate Brief (“Pet’r App. Br.”) at 5 (quoting
People v. Gee, 99 N.Y.2d 158, 163 (2002)). According to Petitioner,
based on Tirado’s “inclination to select the photograph of a man
with a dark complexion”, the photo array with a lighter-complected
individual
directly
impermissibly
likelihood
above
suggestive
of
Petitioner’s
as
irreparable
to
give
photo
rise
to
made
the
misidentification[.]’”
it
“‘so
substantial
Id.
(quoting
Simmons v. United States, 390 U.S. 377, 384 (1968)).
On direct appeal, the Appellate Division held that the County
Court
properly
refused
to
suppress
Tirado’s
identification
testimony on the ground that the photo array presented to her was
unduly suggestive, because “the subjects depicted in the photo
array
[were]
sufficiently
similar
in
appearance
so
that
the
viewer’s attention [was] not drawn to any one photograph in such a
way as to indicate that the police were urging a particular
4
The Court notes that the photo array has not been provided by
Petitioner or Respondent as part of the record.
-8-
selection[.]” People v. Gonzalez, 89 A.D.3d at 144 (quotations
omitted; alteration in original).
This factual determination by
the state court is presumed to be correct, and may only be rebutted
by “clear and convincing evidence,” 28 U.S.C. § 2254(e)(1). See,
e.g., Jamison v. Girdich, No. 03 Civ.4826 HB, 2005 WL 2338660, at
*5 (S.D.N.Y. Sept. 26, 2005) (state court’s conclusions that
petitioner’s scar was “barely visible” and that the fillers in the
photo array and lineup were sufficiently similar in appearance to
petitioner were factual determinations presumed to be correct under
28 U.S.C. § 2254(e)(1)). Here, Petitioner has failed to rebut this
presumption of correctness with any evidence, much less the “clear
and convincing” evidence demanded by 28 U.S.C. Section 2254(e)(1),
and habeas relief therefore is not warranted on his claim that the
photo array was unduly suggestive. See, e.g., Jamison, 2005 WL
2338660, at *5.
B.
Failure to Exclude Testimony by Jailhouse Informant
1.
Background
Plaintiff alleged that Garcia was an agent of the government
and, therefore, his testimony should be barred as having been
solicited in violation of Petitioner’s Sixth Amendment right to
counsel. Prior to Garcia being permitted to take the stand, a
hearing pursuant to People v. Cardona, 41 N.Y.2d 333 (1977), was
held to determine if he had been acting as an agent of the state
when Petitioner made certain inculpatory statements to him.
-9-
Garcia was arrested on October 4, 2009, on charges of robbery
in the first degree, burglary in the first degree, criminal use of
a firearm in the first degree, and criminal possession of a weapon
in the second degree. Almost immediately, Garcia sought out Buffalo
police detectives regarding a 1998 homicide about which he had
knowledge. Garcia testified that he asked to speak with police
about the 1998 homicide because he wanted to obtain some kind of
beneficial treatment in connection with his current arrest.
Garcia met with Detective Patrick Judge and Sergeant Jonathan
Walton on the morning of October 5, 2009, in an interview room in
the Buffalo Police Department about the 1998 homicide, which was
not
related
conversation,
to
Petitioner’s
Garcia
never
case
in
mentioned
any
way.
Petitioner.
During
The
that
police
officers did not instruct Garcia to obtain information regarding
other homicides generally, or Petitioner’s case specifically, but
simply said that if he had information about any other homicides,
to contact them.
After his conversation with the police officers, Garcia was
placed in the cell above Petitioner’s at the holding center. Garcia
first encountered Petitioner at the holding center about a week
after his initial booking, at which time Petitioner talked about
his case. T.317. Garcia also ran into Petitioner some time later in
the
court
holding
area,
where
Petitioner
-10-
again
made
remarks
concerning his case. Garcia testified that he had known Petitioner
for over a decade; their siblings had dated each other previously.
On December 8, 2009, prior to his sentencing, Garcia met with
law enforcement and informed them about Petitioner’s statements.
T.318.
The trial court determined that “there really [was]n’t any
evidence”
of
“an
enduring
relationship
between
this
witness
[Garcia] and the People[.]” T.340. Furthermore, there “[was]n’t any
evidence that [Garcia] was instructed or coached by the police or
prosecutors to gain any information from [him].” T.340-41. Rather,
Garcia “freely volunteer[ed] the information” and “contacted the
District Attorney’s Office on his own initiative through contact
with
his
own
attorney.”
T.341.
Accordingly,
the
trial
court
concluded that Garcia was not an agent of the prosecution and could
testify. Id.
The Appellate Division held that the trial court “properly
determined that a witness who testified concerning inculpatory
statements
made
incarcerated
was
to
him
not
by
acting
defendant
as
an
while
agent
of
they
the
were
both
police
when
defendant made the statement[.]” Gonzalez, 89 A.D.3d at 1444
(citations omitted).
2.
In
New
Analysis
York
State
criminal
practice,
the
term
“Cardona
hearing” is typically used to refer to a hearing held pursuant to
-11-
Massiah v. United States, 377 U.S. 201 (1964). In Massiah, the
Supreme Court held that once a defendant’s Sixth Amendment right to
counsel attaches, the government may not “deliberately elicit[ ]”
inculpatory information from the defendant “in the absence of
counsel,” and explicitly applied this prohibition to the use of
undercover agents or government informants for the purposes of
obtaining such statements. 377 U.S. at 206–07. The Massiah rule
“covers
only
those
statements
obtained
as
a
result
of
an
intentional effort on the part of the government, so information
gotten before the inmates become agents/informants is not protected
by the rule.” United States v. Stevens, 83 F.3d 60, 64 (2d Cir.
1996). Massiah does not apply to exclude statements made completely
voluntarily by an accused. Id. (citation omitted).
In
Cardona,
the
New
York
Court
of
Appeals
reviewed
a
defendant’s claim that the trial court had erroneously held, after
a suppression hearing, that a fellow inmate’s statements were not
made in violation of the Massiah rule. Cardona, 41 N.Y.2d at 334.
Due to the procedural posture in Cardona, and the New York Court of
Appeals’ ability to decide only questions of law, the lower court’s
admission of the informants’ testimony was required to be upheld
unless it could be said, as a matter of law, “that the sole
inference
to
be
drawn
from
the
facts
.
.
.
is
that
the
inmate-witness was acting as an agent for the prosecution.” Id. at
334-35. Given that the lower courts had determined that the factual
-12-
predicates for a finding of agency were absent, the Court of
Appeals could not say that, based on the unreviewable factual
findings, the lower court’s ultimate conclusion was erroneous as a
matter of law. Id. at 335.
Here, the trial court made the following findings after the
Cardona hearing: there was no evidence that any promise was made to
Garcia by the police in exchange for any information he supplied;
he did freely volunteered the information to the police; Garcia
contacted the district attorney’s office regarding Petitioner’s
case on his own initiative; Garcia was not instructed or coached by
the
police
or
prosecutors
to
seek
out
any
information
from
Petitioner. T.340-41. These factual findings are entitled to a
presumption of correctness under 28 U.S.C. § 2254(e)(1), and can
only be overturned upon a showing of clear and convincing evidence
by Petitioner. Petitioner’s assertion that the witnesses were not
credible
is
plainly
insufficient
to
overcome
§
2254(e)(1)’s
presumption. In light of the trial court’s unreviewable factual
findings, this Court cannot say that Petitioner’s statements were
“obtained as a result of an intentional effort on the part of the
government[,]”
Stevens,
83
F.3d
at
64.
Therefore,
Garcia’s
testimony did not run afoul of the Massiah rule.
C.
On
Insufficiency of the Evidence
direct
appeal,
Petitioner
argued
at
length
that
the
conviction was against the weight of the credible evidence. His
-13-
argument regarding the legal insufficiency of the evidence did not
identify any particular elements on which the prosecution’s proof
allegedly was lacking; instead, he merely requested that the
Appellate Division “review this issue as a matter of discretion and
in the interests of justice[.]” Pet’r App. Br. at 18. The Appellate
Division concluded that the evidence against Petitioner, viewed in
the light most favorable to the prosecution, was legally sufficient
to support the conviction, and also not against the weight of the
evidence. Gonzalez, 89 A.D.3d at 1444 (citations omitted).
“[T]he Due Process Clause of the Fourteenth Amendment protects
a defendant in a criminal case against conviction ‘except upon
proof
beyond
constitute
a
the
reasonable
crime
with
doubt
which
of
he
every
is
fact
necessary
charged.’”
Jackson
to
v.
Virginia, 443 U.S. 307, 315 (1979) (quotation omitted). The only
“relevant question is whether, 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.” Id. at 318–19 (citations omitted; emphasis in
original).
Petitioner’s
arguments
concerning
the
sufficiency
of
the
evidence founder because they are based solely upon attacking the
credibility of the witnesses and the weight that should be accorded
their testimony. Questions of witness credibility belong to the
fact-finder,
and
the
arguments
Petitioner
-14-
makes
were
already
presented to, and resolved by the judge at his non-jury trial, and
then examined again by the Appellate Division pursuant to its
factual review powers. Accord, e.g., Garrett v. Perlman, 438 F.
Supp.2d 467, 470 (S.D.N.Y. 2006) (“Petitioner’s specific argument
in support of this claim, that King’s testimony was ‘incredible,’
is likewise not reviewable in habeas proceedings since credibility
determinations are the province of the jury.”) (citing Maldonado v.
Scully, 86 F.3d 32, 35 (2d Cir. 1996) (“[A]ssessments of the weight
of the evidence or the credibility of witnesses are for the jury
and not grounds for reversal on [habeas] appeal.”)).
Notably, the only specific arguments made on appeal regarding
the strength of the prosecution’s case were asserted in support of
his argument concerning the weight of the credible evidence.
Neither on direct appeal nor on federal habeas is a court reviewing
a sufficiency of the evidence claim permitted to revisit the
factfinder’s determinations as to the witnesses’ credibility and
veracity.
E.g., United
(2d
1993)
Cir.
States
(“[T]he
v.
Strauss, 999
jury
is
exclusively
F.2d
692, 696
responsible
for
determining a witness’ credibility.”) (citation omitted); Gruttola
v.
Hammock,
639
F.2d
922,
928
(2d
Cir.
1981)
(rejecting
insufficient evidence claim raised by habeas petitioner because
jury
was
entitled
to
believe
prosecution’s
witnesses
despite
inconsistencies in their testimony and prosecution’s evidence)).
The proof presented at Petitioner’s trial, recited above in this
-15-
Decision and Order, more than adequately satisfies the due process
standard set forth in
Jackson v. Virginia. Habeas relief is not
warranted on his legal-insufficiency claim.
D.
Brady Violation
1.
Background
On September 10, 2009, defense counsel served a discovery
demand pursuant to New York Criminal Procedure Law (“C.P.L.”)
§ 240.20-l(h), for disclosure of anything required to be disclosed
prior to trial by the prosecutor pursuant to the New York State and
United States Constitutions. In an affidavit sworn to on October
22, 2009, the prosecutor responded that she was not aware of any
evidence that tended to exculpate Petitioner.
On Mach 22, 2010, after three witnesses had testified for the
prosecution on the first day of trial, defense counsel advised the
trial court that the prosecutor had turned over that day, as part
of discovery material, a witness’s statement which identified that
shooter as a female. Defense counsel was referring to the statement
of Samuel Mercedes, who said that while standing on the porch at 17
Dewitt on July 31, 2009, he saw an argument and heard “a loud
bang”. See Court Exhibit (“Ex.”) 1, at 1-2}. He did not see the
shooting because his view was obstructed. Id., at 2. He saw a
blonde-haired woman swinging a long object which was not a gun. He
reached the conclusion that the shooter must have been a woman, not
a man.
-16-
Defense counsel argued that Mercedes’ statement constituted
Brady material that had been requested more than six months prior
to trial, and advised the court that if the information had been
provided previously, he would have interviewed him. Defense counsel
claimed
that
prosecutor’s
Mercedes’
theory,
version
because
his
of
events
statement
undermined
the
identified another
person as the shooter. The prosecutor disputed that the statement
constituted Brady material because the witness conceded he did not
see the actual shooting. T.188-90. She also noted that she had been
unable to find Mercedes but provided defense counsel with his
address
and
phone
number,
which
had
been
redacted
from
the
statement. At that point, the trial judge indicated that he would
look at the statement and advised that the prosecution would
“proceed at their own peril, if there is something that is clearly
Brady material.” T.189.
The next morning, the judge stated that his initial review of
the statement led him “to believe that maybe the police were
putting words in this witness’s mouth.” He said “[i]t would have
been nice to err on the side of caution [and] give [defense
counsel] this earlier on.” The judge noted that defense counsel
could “probably investigate it”, and he would be given whatever
time he needed. The judge concluded,
Now the other side of that thing is this may or may not
be Brady depending on how things go here. That’s a close
call on that statement but there might be some
-17-
information
in
there
[defense counsel]
use
for
impeachment depending on what witnesses testify here.
Defense stated that he intended to locate Mercedes, interview him,
and call him as a defense witness. If he were unable to locate
Mercedes at the close of the prosecution’s proof, he would request
a continuance. T.198. The prosecutor reiterated that Mercedes’
statement was not exculpatory or impeaching because, inasmuch as
his conclusion about the gender of the shooter was not based on his
direct, personal knowledge, it did not serve to impeach Santana’s
testimony by specifically contradicting it.
Defense was able to locate Mercedes after a continuance was
granted at the close of the prosecution’s proof. He called Mercedes
as a witness for the defense, but complained because he was not
able to utilize the information to cross-examine the prosecution’s
witnesses.
On direct appeal, the Appellate Division rejected Petitioner’s
claim that the prosecution failed to disclose Brady material in a
timely manner. The Appellate Division stated that even assuming
arguendo Mercedes’ statement was exculpatory, “reversal was not
required” because Petitioner received the statement as part of the
discovery material provided to him, and was given a “meaningful
opportunity to use the exculpatory evidence[.]” Gonzalez, 89 A.D.3d
at 1444 (quotation omitted).
-18-
2.
The
Analysis
Supreme
Court
has
explained that
there
are
“three
components of a true Brady violation: The evidence at issue must be
favorable to the accused, either because it is exculpatory, or
because it is impeaching; that evidence must have been suppressed
by the State, either willfully or inadvertently; and prejudice must
have ensued.” Strickler v. Greene, 527 U.S. 263, 281–82 (1999). As
the
Second
Circuit
has
noted,
the
Supreme
Court
has
not
“specif[ied] the extent or timing of disclosure Brady and its
progeny require, except in terms of the sufficiency, under the
circumstances, of the defense’s opportunity to use the evidence
when disclosure is made.” Leka v. Portuondo, 257 F.3d 89, 100 (2d
Cir. 2001) (citations omitted). Disclosure prior to trial thus is
not mandated; instead, the prosecution must disclose Brady material
in time for its effective use at trial. See Leka, 257 F.3d at 100;
United States v. Coppa, 267 F.3d 132, 144 (2d Cir. 2001) (“[T]here
is no Brady violation unless there is a reasonable probability that
earlier disclosure of the evidence would have produced a different
result at trial.”).
Here, the Appellate Division’s finding that defense counsel
had a “meaningful opportunity” to use the material in question
“mirrors the standard articulated by the federal courts regarding
whether
or
not
there
has
been
a
‘suppression’
of
favorable
evidence.” Torres v. Donnelly, 454 F. Supp.2d 75, 79 (W.D.N.Y.
-19-
2006) (citing Leka, 257 F.3d at 100). The Appellate Division’s
ultimate holding, therefore, was a correct application of clearly
established federal law. Id. This Court notes that even though the
trial court initially told defense counsel that he could have
whatever
time
was
needed
in
order
to
investigate
Mercedes’
statement, counsel chose not to ask for a continuance until after
all of the prosecution’s witnesses had testified. Thus, he should
not be heard to complain that he did not the opportunity to crossexamine the prosecution’s witnesses with Mercedes’ statement. In
any event, Petitioner cannot show that he was prejudiced by the
prosecution’s
belated
disclosure.
Contrary
to
Petitioner’s
contention, Mercedes’ testimony did not amount to convincing proof
that
a
woman
committed
the
murder,
since,
by
Mercedes’
own
admission, he did not actually see the shooting.
IV.
Petitioner’s Motion for Appointment of Counsel
As
discussed
above
in
this
Decision
and
Order,
none
of
Petitioner’s claims warrant habeas relief. Because Petitioner’s
habeas claims uniformly are without merit, the appointment of
counsel is moot. The Court notes that there are no complex factual
or legal issues in Petitioner’s case requiring the assistance of
counsel;
the
claims
were
resolvable
based
on
the
record.
Appointment of counsel in this matter therefore would be an abuse
of the Court’s discretion.
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V.
Conclusion
For the reasons discussed above, the petition for a writ of
habeas corpus is dismissed. Petitioner’s motion for appointment of
counsel (Dkt #5) is denied with prejudice. The Court declines to
issue a certificate of appealability because Petitioner has not
made a substantial showing of the denial of a constitutional right.
See 28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
April 7, 2014
Rochester, New York
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