Almonte v. Lee
| Decision Date | 20 May 2015 |
| Docket Number | 13 Civ. 6187 (CM) (JCF) |
| Parties | PABLO ALMONTE, Petitioner, v. WILLIAM LEE, Green Haven C.F. Superintendent, Respondent. |
| Court | U.S. District Court — Southern District of New York |
REPORT AND RECOMMENDATION
Petitioner Pablo Almonte, proceeding pro se, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction for felony-murder. Now represented by counsel, he seeks relief on two primary grounds. He contends that (1) he was denied his right to a speedy trial when, after presenting an essentially completed case to the grand jury, the State allowed the case against him to lapse for ten years; and (2) he was denied effective assistance of counsel when his defense attorney failed to object to a number of constitutional violations at trial.1 I recommend denying the petition.
Mr. Almonte was convicted in connection with the killing of a police officer, which occurred while the petitioner, his co-defendant Jose Fernandez, and another person were fleeing from police after relieving a drug dealer of an amount of cocaine. Because the story of this crime, its participants, and its aftermath is somewhat complex, I will begin by outlining (in a light favorable to the prosecution) some relevant facts and introducing some critical players before addressing the details.3
On October 18, 1988, Mr. Almonte, Mr. Fernandez, Luis Jose Alvarez Salazar, Daniel Mirambeaux, Marcos Jacquez, and Freddie Parra hatched a plan to steal cocaine from Hector Paulino. The scheme involved Mr. Alvarez returning to Mr. Paulino's apartment building to purchase drugs that he had, earlier in the day, refused to buy because of their poor quality. After Hector Paulino's nephew Rafael Paulino (who, along with his cousin, Robinson Paulino, assisted Hector Paulino in his drug trade) took the cocaine from the safe in which it was kept, Mr. Almonte, Mr. Fernandez, and Mr. Mirambeaux, who had his gun drawn, entered theapartment, tied up Mr. Alvarez and others in the apartment, put the drugs in a bag, and left.
On their way out of the building, however, Mr. Almonte and Mr. Mirambeaux were spotted by two police officers, Michael Buczek and Joseph Barbato, who followed them onto the street and ordered them, unsuccessfully, to stop. The officers nevertheless caught up to them and grabbed Mr. Almonte and Mr. Mirambeaux. Mr. Mirambeaux drew his gun and shot Officer Buczek, fatally wounding him. Officer Barbato returned fire, and in the melee Mr. Almonte was hit in the shoulder. Mr. Almonte and Mr. Mirambeaux were able to escape, although Mr. Almonte left his jacket behind. Meanwhile, Mr. Fernandez, who had possession of the bag of drugs, dropped it between two cars about a block away from Mr. Paulino's apartment.
The next day, after receiving some treatment for his wound courtesy of a doctor known to Mr. Parra's friend Diogenes Hernandez, Mr. Almonte and his wife flew from New York City to the Dominican Republic. A few days later, Mr. Fernandez, Mr. Mirambeaux, and Mr. Parra also decamped to Santo Domingo.
A grand jury was convened in January 1989 to investigate Officer Buczek's death. The grand jury took evidence from twenty-five witnesses and received over thirty exhibits related to both Mr. Mirambeaux and Mr. Almonte; however, on March 30, 1989, the prosecutor asked the grand jury to consider charges as to Mr. Mirambeaux only. Almonte I, 190 Misc. 2d at 764, 740 N.Y.S.2d at 784-85. He was indicted on charges of robbery and of murder ofvarying types and degrees. Id. at 785, 740 N.Y.S.2d at 764. Although the grand jury twice extended its term, it was never asked to indict Mr. Almonte. Id.
The investigation and prosecution of Mr. Almonte lapsed until police received new evidence, including information from Mr. Alvarez that differed from information he had given when interviewed soon after the shooting. Id. at 791, 740 N.Y.S.2d at 769; Almonte II, 90 A.D.3d at 579, 935 N.Y.S.2d at 294. In October 1998, after hearing from eleven witnesses, eight of whom had testified in 1989, a second grand jury indicted Mr. Almonte on one count of felony-murder. Almonte I, 190 Misc. 2d at 785, 740 N.Y.S.2d at 764. He was arrested by Dominican authorities in November 2000 and extradited to the United States in 2001.
The petitioner filed an omnibus motion that sought, among other things, to dismiss the indictment on grounds of unauthorized withdrawal (a state law claim) and pre-indictment delay (a state and federal due process claim). Id. The trial court dismissed the indictment on state law grounds ( Mr. Almonte's due process argument) but granted leave to re-present the case to a third grand jury. Id. at 788-89, 792-93, 740 N.Y.S.2d at 767, 770. The third grand jury again indicted Mr. Almonte for felony-murder.
On the afternoon of October 18, 1988, Mr. Alvarez, a/k/a Radames Matos (Trial Transcript ("Tr.") at 477), visited Hector Paulino at his fourth floor apartment in a building near the corner of Broadway and West 161st Street in Manhattan to pick up akilogram of cocaine, which he would pay for later, presumably after he had sold it. (Tr. at 86-87, 256-57, 395, 480-81, 489, 535). Mr. Paulino, from whom Mr. Alvarez had previously procured drugs to sell in the Bronx, kept his inventory in a bedroom of an apartment on a different floor of the same building. (Tr. at 481-83, 534). There were five or six kilograms of cocaine in the downstairs apartment but, having been taken to see it, Mr. Alvarez decided against purchasing the poor quality product. (Tr. at 481, 537-38). He then returned to the spot where he sold drugs in the Bronx. (Tr. at 482-83, 541-42).
Once there, he saw Mr. Almonte (whom he knew as "Emelio"), Mr. Fernandez, Mr. Mirambeaux, Mr. Jacquez, and Mr. Parra, and informed them of Mr. Paulino's stock of cocaine. (Tr. at 483-86). They hatched a scheme to take the drugs that involved Mr. Alvarez returning to Mr. Paulino to say that he had changed his mind about the purchase. (Tr. at 486-89, 575-77). Mr Alvarez did so, and was taken to the downstairs apartment by one or both of Mr. Paulino's nephews, Rafael Paulino and Robinson Paulino. (Tr. at 90-91, 399, 490-91, 580). After Rafael Paulino had retrieved the cocaine, he opened the apartment's front door, either in response to a knock or because he and Mr. Alvarez were planning to leave the apartment. (Tr. at 402-03, 492, 583-84). Mr. Mirambeaux, who was armed with a gun, Mr. Fernandez, and Mr. Almonte entered and proceeded to tie up Mr. Alvarez and the Paulino nephews. (Tr. at 91-93, 436, 492-95, 583-84). During the incident, Viola Medrano and two of her relatives, who lived in the portions of the downstairs apartmentnot used by Mr. Paulino, entered the building, passing two police officers in the lobby. (Tr. at 188-89). Ms. Medrano was pulled into the apartment after she opened the door; eventually, she and her relatives were also tied up. (Tr. at 189). Ms. Medrano informed the three intruders about the police officers in the building. (Tr. at 192, 410). Hearing this news, Mr. Fernandez, Mr. Mirambeaux, and Mr. Almonte put the drugs in a black bag and rushed from the apartment. (Tr. at 410-11, 448-49). There is conflicting testimony about the amount of cocaine in the bag; it was variously estimated at one and one-half pounds, one kilogram, and five kilograms (Tr. at 451, 978, 2507).
The two police officers spotted by Ms. Medrano were Officer Buczek and Officer Barbato, who had responded to an unrelated medical call in Mr. Paulino's building. (Tr. at 249-50). They determined that police presence was unnecessary and, as they were leaving the building, stopped to talk with Emergency Medical Services personnel who were then entering. (Tr. at 253, 358-60). While Officers Buczek and Barbato and the EMS personnel were chatting, they saw two men come down the stairs and cross the lobby to exit the building. (Tr. at 253-54, 361-62). The officers, believing that the two men were behaving suspiciously, followed them outside and ordered them to stop. (Tr. at 254-56, 360-62). The men did not comply, but the officers caught up with them on Broadway less than one block from Mr. Paulino's apartment building. (Tr. at 256-59). Officer Buczek grabbed one of the two, who attempted to struggle out of his jacket. (Tr. at 259, 263). Theother man began firing his gun. (Tr. at 264). Officer Barbato returned fire as the two men ran away, but then turned his attention to Officer Buczek, wounded by a gunshot to the left side of his chest. (Tr. at 266-67, 269).
While this fracas was occurring, Anthony Jorge, who was selling drugs on West 160th Street, heard the shots and saw a group of people walking quickly east on the block, followed by a cohort of three men. (Tr. at 999-1000). Two of the three -- identified as Mr. Mirambeaux and Mr. Almonte, who was bleeding from his left shoulder -- fell behind, while one continued on, dropped a black garbage bag near the curb, and walked away. (Tr. at 1000-02, 1005, 1007-1010). Mr. Almonte and Mr. Mirambeaux were driven uptown in a cab. (Tr. at 1006-07). According to Mr. Jorge, the bag contained drugs and money, all of which were taken by passersby. (Tr. at 1011-12).
Meanwhile, Detective Patrick Streffacio responded to the scene of the shooting and recovered a short down jacket at the corner of West 160th Street and Broadway. (Tr. at 767-68). Having accompanied Officers Barbato and Buczek to the hospital, Detective Streffacio handed off the jacket to Detective Edward Stano. (Tr. at 771, 812). The jacket held a gun and a key ring with several keys. (Tr. at 769, 813). There were several holes in the jacket and it had blood on it that, when tested some years later, matched Mr. Almonte's DNA profile, as well as the DNA profile of blood samples that were recovered from the area of the shooting. (Tr. at 813, 1264-69, 1469-1504; Memorandum of Law and Answer in Support ofAnswer...
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