Martinez v. Capra
Filing
28
-CLERK TO FOLLOW UP- DECISION AND ORDER denying the petition for a writ of habeas corpus and dismissing the petition. (Clerk to close case.) Copy of Decision and Order sent by first class mail to Petitioner. Signed by Hon. Michael A. Telesca on 5/9/16. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ERIC X. MARTINEZ,
Petitioner,
No. 6:14-cv-06222-MAT
DECISION AND ORDER
-vsMICHAEL CAPRA, Superintendent, Sing
Sing Correctional Facility,
Respondent.
I.
Introduction
Pro se petitioner Eric X. Martinez (“Petitioner”) seeks a writ
of habeas corpus pursuant to 28 U.S.C. § 2254 on the basis that he
is being detained in Respondent’s custody in violation of his
federal constitutional rights. Petitioner is incarcerated as the
result
of
a
judgment
of
conviction
entered
against
him
on
September 7, 2011, in the County Court of Ontario County, New York
(Reed, A.J.), following a guilty plea to one count of first-degree
rape (N.Y. Penal Law (“P.L.”) § 130.35(1)) and two counts of
forcible touching (P.L. § 130.52). Petitioner is currently serving
an aggregate determinate prison term of 8½ years plus 18 years of
post-release supervision.
II.
Factual Background and Procedural History
In the spring of 2011, an Ontario County grand jury returned
a 14-count indictment charging Petitioner with various crimes
related
to
his
sexual
violation
of
S.J.O.,
his
girlfriend’s
daughter; and S.H., a relative of S.J.O. The first three counts of
the indictment pertained to his rape of S.J.O. on November 22,
2010, and the fourth and fifth counts related to his commission of
sexually abusive acts, including forcible touching, against S.J.O.
between August 31, 2010, and November 22, 2010. The remaining nine
counts
related
to
sexually
abusive
acts,
including
forcible
touching, perpetrated against S.H. between October 1, 2010, and
November 30, 2010.
On September 7, 2011, Petitioner entered a plea, under North
Carolina v. Alford, 400 U.S. 25 (1970) (“Alford plea”), to the
first,
fourth,
and
sixth
counts
of
the
indictment,
which
respectively alleged the rape of S.J.O. on November 22, 2010, the
forcible touching of S.J.O. on August 31, 2010, and the forcible
touching of the other victim. In exchange for Petitioner’s Alford
plea, the prosecution recommended concurrent, determinate sentences
of 8½ years for the rape conviction and 1 year for each forcible
touching
conviction,
along
with
18
years
of
post-release
supervision.
During
the
proceedings,
the
prosecutor
mentioned
that
Petitioner also was required to waive his appellate rights. Defense
counsel went off the record to discuss the matter with Petitioner
and, when the proceedings resumed, informed the trial court that
Petitioner was “agreeable to” waiving his right to appeal. P.3–4.
-2-
During the plea colloquy,1 the prosecutor reviewed the distinct
appeal waiver but the trial court did not address the matter
directly, saying instead, “We have a waiver of the right to appeal.
We can talk about that at sentenc[ing][.]” P.16.
Petitioner reappeared later that same day for sentencing, at
which time the trial court imposed the sentence that the prosecutor
had recommended. When the trial court asked whether Petitioner had
waived his right to appeal, the prosecutor indicated that “he did
this morning[.]” S.4.2
Through counsel, Petitioner pursued a direct appeal of his
conviction
to
the
Appellate
Division,
Fourth
Department,
of
New York State Supreme Court. Petitioner’s appellate counsel raised
the
following
claims:
(1)
Petitioner
did
not
knowingly
and
intelligently waive his right to appeal; (2) the trial court abused
its
§
discretion
200.20(3)(a)
indictment;
(3)
under
in
N.Y.
denying
the
trial
Criminal
Procedure
Petitioner’s
court’s
Law
motion
finding
to
that
(“C.P.L.”)
sever
the
Petitioner
understood the Miranda warnings, on which it relied in finding his
statement to police admissible, was inherently inconsistent with
the decision to obtain courtroom interpreter for Petitioner; and
1
Petitioner does not challenge the voluntariness of his guilty plea.
2
Respondent indicates that he has been unable to obtain a copy of the
written appeal waiver mentioned in the plea and sentencing transcripts.
-3-
(4) the sentence was harsh and excessive and should be reduced in
the interest of justice.
The Fourth Department unanimously affirmed the conviction on
April 26, 2013. People v. Martinez, 105 A.D.3d 1458, 963 N.Y.S.2d
916 (Mem) (4th Dep’t 2013). The New York Court of Appeals denied
leave to appeal on December 11, 2013. People v. Martinez, 22 N.Y.3d
1042 (2013).
This timely habeas petition followed, in which Petitioner
raises the same claims asserted by appellate counsel in his brief
on
appeal
to
the
Fourth
Department.
Respondent
answered
the
petition and successfully moved to have the state court records
filed
under
seal.
Petitioner
has
submitted
a
response
to
Respondent’s opposition to the petition. For the reasons discussed
below, the Court finds that Petitioner is not entitled to a writ of
habeas corpus.
III. Merits of the Petition
A.
Invalid Waiver of Appellate Rights
Petitioner asserts that he is entitled to habeas relief
because he did not knowingly and intelligently waive his right to
appeal. In his appellate brief, Petitioner relied on New York State
caselaw, in particular, People v. Lopez, 6 N.Y.3d 248 (2006). Lopez
stated that “[w]hen a trial court characterizes an appeal as one of
the many rights automatically extinguished upon entry of a guilty
plea, a reviewing court cannot be certain that the defendant
-4-
comprehended the nature of the waiver of appellate rights.” Id. at
256. Therefore,“[t]he record must establish that the defendant
understood that the right to appeal is separate and distinct from
those rights automatically forfeited upon a plea of guilty—the
right to remain silent, the right to confront one's accusers and
the right to a jury trial, for example.” Id.
On direct appeal, the
Fourth Department agreed with Petitioner that the trial court erred
in failing to specifically address the appellate rights waiver with
Petitioner and thus failed to take measures to ensure that he
understood and validly waived his right to appeal. Martinez, 105
A.D.3d at 1458 (citations omitted). However, the Fourth Department
concluded, all of Petitioner’s substantive claims lacked merit or
had been forfeited by his guilty plea. Id.
As Respondent argues, by determining that the waiver was
invalid and then considering his substantive appellate claims, the
Fourth Department granted Petitioner the only relief to which he
was entitled. There is no further relief that this Court could
grant to Petitioner. Accordingly, his claim based on the invalid
appellate rights waiver is moot. See, e.g., In re Kurtzman, 194
F.3d 54, 58 (2d Cir. 1999) (explaining that a claim becomes moot
“when it is impossible for the [federal] court to grant any
effectual
relief
whatever
to
a
prevailing
citations and quotation marks omitted).
-5-
party”)
(internal
B.
Denial of Severance
Petitioner asserts entitlement to habeas relief based on the
trial court’s denial of his motion to sever the indictment pursuant
to C.P.L. § 200.20(3)(a) and obtain three separate trials—one for
the first three counts concerning S.J.O.’s rape on November 22,
2010; one for the fourth and fifth counts concerning the sexual
abuse of S.J.O.; and one for the sixth through eleventh counts
concerning the sexual abuse of S.H. Petitioner argued that because
there was significantly more evidence in support of the rape charge
and
less
evidence
of
the
other
charges,
there
was
a
strong
possibility that jury would convict him based on the cumulative
effect of the evidence. The trial judge rejected this argument and
denied
severance,
finding
that
the
jurors
would
be
able
to
segregate the relatively uncomplicated evidence in accordance with
the his instructions. On direct appeal, the Fourth Department
declined to consider the merits of the severance claim on the
ground that Petitioner had forfeited appellate review of it by
pleading guilty.
“Federal habeas relief is available to state prisoners only
after they have exhausted their claims in state court.” O’Sullivan
v. Boerckel, 526 U.S. 838 (1999)
(citing 28 U.S.C. §§ 2254(b)(1),
(c)). The Court finds that the denial of severance claim is
unexhausted but must be deemed exhausted and found procedurally
defaulted
because
Petitioner
did
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not
exhaust
his
State-court
remedies
as
Petitioner
required
did
not
by
the
present
habeas
his
statute.
severance
claim
Specifically,
as
a
Federal
constitutional claim but simply relied on New York State law when
he raised it on direct appeal. See, e.g., Aparicio v. Artuz, 269
F.3d 78, 89–90 (2d Cir. 2001) (“To satisfy [28 U.S.C.] § 2254’s
exhaustion requirement, a petitioner must present the substance of
the same federal constitutional claims that he now urges upon the
federal courts to the highest court in the pertinent state.”)
(internal quotation marks and citation omitted).
An
unexhausted
claim
will
be
“deemed
exhausted”
when
a
petitioner has no available method of exhausting it in State court.
Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) (citing, inter alia,
Castille v. Peoples, 489 U.S. 346, 351 (1989) (finding that “[t]he
requisite exhaustion may nonetheless exist, of course, if it is
clear that respondent’s claims [that were not fairly presented] are
now
procedurally
barred
under
[the
state’s]
law”)).
Here,
New York’s procedural rules bar Petitioner from attempting to raise
the denial of severance claim before the New York Court of Appeals,
since he already has used the one direct appeal to which he is
entitled. E.g., Cunningham v. Conway, 717 F. Supp.2d 339, 365
(W.D.N.Y. 2010) (citing N.Y. R. CT. § 500.20(a)(2), (d); other
citations omitted). Collateral review of this record-based claim on
a motion to vacate the judgment also is barred. See N.Y. CRIM. PROC.
LAW § 440.10(2)(c) (barring collateral review if a claim could have
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been raised on direct appeal of the conviction). Accordingly, the
denial of severance claim must be deemed exhausted. Grey, 933 F.2d
at 120-21. However, the State rule that leads to the claim’s
constructive exhaustion also creates a procedural bar to this
Court’s review. Id. at 121 (citations omitted).
To overcome the procedural default of the denial of severance
claim, Petitioner “must show cause for the default and prejudice,
or demonstrate that failure to consider the claim will result in a
miscarriage
of
justice
(i.e.,
the
petitioner
is
actually
innocent).” Aparicio, 269 F.3d at 90 (citing Coleman v. Thompson,
501 U.S. 722, 748-50 (1991)). Petitioner has not attempted to
fulfill this burden, and the Court see no basis on the present
record
upon
which
to
find
cause
and
prejudice,
or
that
a
fundamental miscarriage of justice would occur if it declines to
consider the claim. The denial of severance claim accordingly is
dismissed as subject to an unexcused procedural default.
C.
Erroneous Admission of Confession
Petitioner claims, as he did on direct appeal, that the trial
court erred in refusing to suppress his statement to the police,
which was given without the assistance of an Spanish-language
interpreter. Petitioner argues that much in the record suggests
that he did not understand English at a level that would eliminate
any doubt that, when he waived his rights, he fully understood what
he was doing.
-8-
1.
Background
During the police investigation of S.J.O.’s rape, Petitioner
was interrogated on November 22, 2010, by Investigator Jacqueline
C. Falkey (“Inv. Falkey”) of the Ontario County Sheriff’s Office.
By signing the “Voluntary Statement” form (SR.1-4), Petitioner
agreed that he had been warned by Inv. Falkey of his Miranda
rights.3 Relevant portions of his statement to Inv. Falkey are
excerpted below:
Q
A
Q
A
Q
A
So [redacted] accused you of touching
Where did she say you touched her?
In the toto.
What is toto?
[T]oto is the vagina, the private part.
Did you touch [S.J.O.’s] vaginal area.
I think I did, I was watching a movie.
[S.J.O.]
. . .
(SR.2). Petitioner explained that on the day he was accused of
raping S.J.O., he had been cooking in the kitchen when S.J.O.
returned home. He was wearing a shirt and boxers. (SR.2–3). After
using the restroom, Petitioner went into S.J.O.’s bedroom, and the
“next thing [he] remember[ed,] she was saying [his] name, [E]ric,
[E]ric.” (SR.3). Petitioner claimed that, although he remembered
S.J.O. being on top of him, he did not know how she got there
3
The form states in pertinent part, “I have been duly warned . . . that I
have the right to remain silent and don’t have to say anything if I don’t want
to; that anything I say can be used against me in a court of law; that I have the
right to talk to a lawyer before making any statements and to have him here with
me; that if I can’t pay for a lawyer, one will be given to me before I make any
statement, if I wish.” (SR.1).
-9-
because he was focused on her face. (SR.3). Asked if he “forced
himself” on S.J.O., Petitioner replied, “No, if someone forced
themselves on someone they would yell[,] scream. That didn’t
happen.” (SR.3). When asked what happened next, Petitioner said,
“When I woke up I was sitting by the computer. [S.J.O.] was crying.
I asked her what happened. She said she was cheating [sic].4 I
asked her who she was cheating [sic] with. She didn’t say anything.
I took her to her mother in Seneca Falls she was working. [S.J.O.]
then said she was bored, so I took her to her grandparents and I
went home. . . .” (SR.3). When asked how many times had he and
S.J.O. had kissed, Petitioner replied, “[A] lot of kisses.” (Id.).
When asked if he had told his girlfriend (S.J.O.’s mother) that
S.J.O. has a crush on him, Petitioner asserted that “everyone has
told her that” and that she “has told [S.J.O.] to stay away from
[him].” (Id.). Finally, Inv. Falkey asked him if he had ever had
sex with S.J.O., and Petitioner responded, “That’s what happened.”
(Id.). Petitioner stated that he dropped out of school in ninth
grade and could read and write English “[a] little bit.” (Id.).
Petitioner signed the written statement.
At the suppression hearing, Inv. Falkey testified that she was
asked
to
interview
Petitioner
based
on
some
incriminating
statements he had made earlier to Deputy Swartout; Deputy Swartout
4
Based on the context, it is likely that Petitioner said that S.J.O. was
“chatting” on the computer, rather than “cheating” on the computer.
-10-
had encountered Petitioner at the hospital where S.J.O. was being
examined based on her rape complaint. Inv. Falkey testified that
Petitioner had told Deputy Swartout that “he had done something and
that he needed help.” (H.6). Inv. Falkey indicated that Petitioner
had no problem understanding her when she spoke in English, and
that he responded appropriately to her questions. (H.7). She
admitted that she did not verify Petitioner could read English by
asking him to read something out loud. However, Inv. Falkey pointed
out, while he was reading the statement silently to himself,
“[w]hen he reached page two and got to the tutu [sic] part,” he
“started laughing” and said, “‘I didn’t know you were going to put
that part in there.’” (H.11-12, 20). Based on that, Inv. Falkey
commented, Petitioner “obviously could read the [sic] English.”
(H.20).
In support of the suppression motion, defense counsel argued
that
Petitioner
had
“a
language
barrier”
that
precluded
an
effectual waiver of his constitutional rights. (H.24-25). Defense
counsel asked the trial court to take judicial notice of the fact
that Petitioner had an interpreter for every one of his court
appearances. (H.24). Defense counsel argued that this language
barrier obligated Inv. Falkey to call upon the Spanish-speaking
deputy at the Sheriff’s Office who they routinely used as an
interpreter. (H.24–25).
-11-
The trial court issued a ruling on the record, denying the
suppression motion. The trial court found, as a fact, that Inv.
Falkey appropriately issued the Miranda warnings to Petitioner,
that she
“spoke
with
[petitioner]
in
English,”
and
that “he
responded appropriately in English[.]” (H.27). The trial court
stated that even assuming that Petitioner was in custody, he “was
properly advised
of
his
Miranda
rights
before what
could be
construed as a custodial interrogation” and that the prosecution
had “establish[ed] beyond a reasonable doubt that the statement was
lawfully obtained within the confines of the testimony here.”
(H.28). The trial court found Inv. Falkey’s “statements and details
therein to be credible.” (Id.).
On direct appeal, the Fourth Department rejected Petitioner’s
Miranda
claim,
holding
that
“[t]he
[suppression]
court’s
determination is entitled to deference and will not be disturbed
where it is supported by the record.” Martinez, 105 A.D.3d at
1458-59
(alteration
in
original).
This
ruling
constitutes
an
adjudication on the merits for purposes of the Anti–Terrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), which governs
Petitioner’s application for a writ of habeas corpus.
2.
Two
of
Analysis
AEDPA’s
provisions,
28
U.S.C.
§
2254(d)(2)
and
28 U.S.C. § 2254(e)(1), deal with factual determinations by state
courts. Relief is warranted under § 2254(d)(2) if the state court’s
-12-
“adjudication of the claim . . . resulted in a decision that was
based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d)(2). Section 2254(e)(1) provides that a state court’s
factual findings are presumed to be correct, unless the petitioner
rebuts
them
with
clear
and
convincing
evidence.
28
U.S.C.
§ 2254(e)(1).
The
Supreme
Court
has
“not
yet
‘defined
the
precise
relationship between § 2254(d)(2) and § 2254(e)(1)[.]’”
Brumfield v. Cain, 135 S. Ct. 2269, 2277 (2015)(quoting Burt v.
Titlow, 571 U.S. ––––, ––––, 134 S. Ct. 10, 15, (2013)). Of the
two,
Section
2254(e)(1)
is
“the
arguably
more
deferential
standard[.]” Wood v. Allen, 558 U.S. 290, 301 (2010). Even applying
the arguably less deferential standard in Section 2254(d)(2),
habeas relief is not warranted, as discussed further below.
Petitioner’s claim regarding the invalidity of his Miranda
waiver is based solely on what he characterizes as an “inherent
inconsistency” between the trial court’s factual finding that he
could understand English well enough to effectively waive his
rights, and the fact that a Spanish-language interpreter was used
at every court appearance. Courts have found that the subsequent
utilization of a foreign language interpreter at pre-trial and
trial proceedings does not vitiate a findings that a defendant
understood his rights and knowingly and intelligently waived them.
-13-
In United States v. Abou–Saada, 785 F.2d 1 (1st Cir.), cert.
denied, 477 U.S. 908 (1986), for example, the court rejected the
defendant’s
argument
that
the
very
fact
he
was
provided
an
interpreter showed he possessed an inadequate knowledge of the
English language to comprehend the Miranda warnings. Id. at 10; see
also United States v. Bernard S., 795 F.2d 749, 752 (9th Cir. 1986)
(holding that juvenile’s language difficulties, which necessitated
use of interpreter at trial, did not preclude finding that he
understood his constitutional rights and voluntarily waived them
where he stated that he understood his rights and spoke mostly in
English with government agent, although he occasionally spoke
Apache with his mother and an officer to clarify some items);
Campaneria v. Reid, 891 F.2d 1014 (2d Cir. 1989) (transcript of
recorded interview showed that while petitioner spoke in broken
English with an accent and occasionally lapsed into Spanish, his
“command of English was sufficient for him to have understood the
Miranda warnings given to him”), cert. denied, 499 U.S. 949 (1991).
The Court finds that the use of the interpreter during Petitioner’s
court appearances, in and of itself, does not undermine the trial
court’s finding that Petitioner’s English-language skills were
sufficient.
Petitioner also points to his answer to a question about
whether he was being treated for mental health; he replied, “I only
have problems when I have to fill in papers.” (P.8). He argues that
-14-
this does not square with Inv. Falkey’s testimony that Petitioner
read and understood his written statement. As the prosecutor argued
at the suppression hearing, while Petitioner was reading over his
statement, he “got a chuckle out of” Inv. Falkey using the word
slang term “toto.” When she asked him why he was laughing, he said
to her, “‘I didn’t know you were going to put that part in there.’”
(H.11-12, 20). A reasonable jurist could conclude that this showed
Petitioner could sufficiently comprehend written and spoken English
to knowingly waive his constitutional rights. Likewise, Petitioner
sometimes answered questions himself, in English. For instance, at
the plea hearing, the following exchange occurred:
THE COURT: I need to give her some time to do that, so
Monday will be the sentencing day.
DEFENDANT MARTINEZ: Okay, perfecto.
THE COURT: I need you to stay out of trouble between now
and then. Have you had any disciplinary write-ups at the
county jail?
DEFENDANT MARTINEZ: Five of them.
. . .
(P.13). A reasonable jurist likewise could conclude, based on the
foregoing,
that
Petitioner’s
ability
to
speak
and
understand
English was adequate.
In explaining the “substantial deference” owed to State-court
factual determinations under Section 2254(d)(2), the Supreme Court
has stated that “[i]f ‘“[r]easonable minds reviewing the record
might disagree” about the finding in question, “on habeas review
that does not suffice to supersede the trial court’s . . .
determination.”’” Brumfield, 135 S. Ct. at 2276 (quoting Wood, 558
-15-
U.S. at 301 (quoting Rice v. Collins, 546 U.S. 333, 341–42 (2006);
second alteration and ellipsis in original; emphases supplied).
Here, even assuming for the sake of argument that reasonable minds
reviewing the record might possibly disagree about the trial
court’s factual finding, that is plainly insufficient to allow this
Court to overturn it and grant relief under Section 2254(d)(2).
Petitioner’s Miranda claim therefore is denied as without merit.
D.
Abuse of Discretion in Sentencing
As he did on direct appeal, Petitioner argues that trial court
imposed an unduly harsh and severe sentence in light of the facts
and
circumstances
of
his
case.
Petitioner
urged
the
Fourth
Department should exercise its unique discretionary authority under
State law to reduce his sentence in the interest of justice.
“In conducting habeas review, a federal court is limited to
deciding whether a conviction violated the Constitution, laws, or
treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 68
(1991) (citations omitted).
Petitioner’s claim that his sentence
was harsh and excessive does not set forth a Federal constitutional
claim
cognizable
on
habeas
review,
because
his
sentence
was
substantially less than the maximum provided for by New York State
law. Klosin v. Conway, 501 F. Supp. 2d 429, 444-45 (W.D.N.Y. 2007)
(citing Dorsey v. Irvin, 56 F.3d 425, 427 (2d Cir. 1995) (denying
claim that the sentencing court violated due process by considering
defendant’s arrest record during sentencing) (citing White v.
-16-
Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) (per curiam)).
“No
federal constitutional issue is presented where, as here, the
sentence is within the range prescribed by state law.” White, 969
F.2d at 1383 (citation omitted). The Court therefore dismisses
Petitioner’s sentencing claim as not cognizable on habeas review.
IV.
Conclusion
For the reasons stated above, petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 is denied, and the petition is
dismissed. Because Petitioner 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.
SO ORDERED.
S/Michael A. Telesca
___________________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
Dated:
May 9, 2016
Rochester, New York.
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