Aponte v. La Manna
| Decision Date | 06 August 2020 |
| Docket Number | 19-CV-596(KAM) |
| Parties | FELIX APONTE, Petitioner, v. JAIME La MANNA, Superintendent, Green Haven Correctional Facility, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
On January 28, 2019, petitioner Felix Aponte ("petitioner") brought the above-captioned pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("Section 2254") challenging his conviction of criminal possession of a weapon in the fourth degree and robbery in the first degree. .) For the reasons discussed below, the petition is denied.
On November 3, 2010, forty-nine-year-old Mohammed Esa was in D.B. Smoke Shop, the candy, coffee and cigarette store he owned at 65 Fifth Avenue, in Brooklyn. (Transcript of State Trial ("Tr."), at 102-05,1 ECF No. 11-3.) At around 2:50 p.m. that day, Mr. Esa was alone in the store when a man entered. (Id. at 107.) The man was wearing a hat, but nothing was covering his face. (Id. at 110.) He walked toward the back of the store while looking around. (Id. at 107-08.) Mr. Esa told the man to come over to the register. (Id.) The man proceeded to enter behind the counter where Mr. Esa was standing near the register, and after asking Mr. Esa about cigarettes, the man announced multiple times that he was going to take money. (Id. at 108-11.) Mr. Esa started kicking the man to keep him away from the open register when he saw that the man had a knife. (Id. at 108, 110-12.) The man began swinging the knife at Mr. Esa and moving toward him. (Id. at 111.) The man was also trying to grab the money out of the open cash register. (Id. at 113.) Mr. Esa grabbed a steel bracket from one of the shelves which he used to keep the robber from stabbing him. (Id. at 113-14.) The robber started moving away from Mr. Esa, as Mr. Esa continued to try to deter the robber, picking up items and throwing them at him. (Id. at 115.) Finally, Mr. Esa picked up a "real weapon... a walking cane" and ran after the robber with it. (Id.) The robber grabbed some money from the register andran from the store. (Id. at 115-16.) Mr. Esa chased after the robber and ran out of the store, where he saw the driver's side door closing on a dark green pickup truck that was parked in the crosswalk next to the store on the same side of the street where Mr. Esa was standing. (Id. at 116.) The truck drove off in the direction of Flatbush Avenue. (Id. at 117.)
A store customer, Ala Fakhereddine, was with her husband in a car stopped in front of the store and behind the green truck, and was able to see and memorize the license plate number of the green truck. (Tr. at 217-18.) Ms. Fakhereddine told her husband the license plate number and he called the police, who arrived shortly thereafter. (Id. at 217.)
The following day on November 4, 2010, Mr. Esa went to the police station to identify the robber by viewing and selecting photographs. (Tr. at 171.) He chose a photo after stating that if he had to choose one picture "out of all the pictures" he viewed, his choice would be the closest. (Id. at 184.) The photograph he chose was not a photograph of the petitioner but of an individual incarcerated on the day of the robbery. (Id. at 431.) On March 10, 2011, Mr. Esa identified the petitioner, Mr. Aponte, from a double-blind lineup, despite not being "a hundred percent" sure. (Id. at 141-42, 183, 379.)
The police found the robber's getaway pickup truck on November 5, 2010, and swabbed the steering wheel, the gear shift handle, and the rear-view mirror to take a DNA sample, as those are the areas that "are the most frequently touched [by the driver] inside of a vehicle." (Tr. at 191-95.) The swabs were sent to the Office of the Chief Medical Examiner of the City of New York ("OCME") for analysis. (Id. at 195-96.) At some point in November 2010, analysts at the OCME tested the DNA swabs taken from the getaway vehicle. (Id. at 261.) On May 26, 2011, police obtained an oral DNA swab from petitioner. (Id. at 404-05.)
At trial, the prosecution presented evidence including a surveillance videotape from Mr. Esa's store showing the robbery; still photographs taken from the video footage showing petitioner's face in varying degrees of enlargement and also showing the knife in petitioner's hand; Mr. Esa's testimony regarding the robbery; and testimony from an OCME criminalist regarding the DNA match between the samples collected and petitioner's buccal (cheek) swab. (Tr. at 102-123, 270-357, 483-84.)
Because the OCME is "so big and so busy," no single analyst takes a case from inception to final report, withbatches of analysis randomly assigned. (Tr. at 287.) Though the OCME criminalist who testified for the prosecution, Joanna Schlesser-Perry, did not personally perform the DNA testing, she did interpret the results and report her findings that showed that the DNA sample collected from the robber's getaway truck matched only one male DNA profile, Felix Aponte. (Id. at 297.) Ms. Schlesser-Perry testified that that DNA profile could only be found in one person out of 6.8 trillion people. (Id. at 294.) In the opinion of Ms. Schlesser-Perry, petitioner was the source of the DNA on the vehicle swabs. (Id. at 297.)
A jury found petitioner guilty of robbery in the first degree and criminal possession of a weapon in the fourth degree. (Tr. at 551-53.) Petitioner was subsequently sentenced, as a persistent violent felony offender, to a term of imprisonment of twenty-four years to life. (Transcript of Petitioner's State Sentencing Proceeding ("Sentencing Tr."), at 15-16, ECF No. 11-4.) On April 26, 2017, the Appellate Division unanimously affirmed petitioner's conviction. People v. Aponte, 149 A.D.3d 1096 (2d Dep't 2017). On February 13, 2018, the New York Court of Appeals denied review. People v. Aponte, 30 N.Y.3d 1113 (2018).
On January 28, 2019, Mr. Aponte brought this petition for a writ of habeas corpus, with the same two claims petitionerpreviously raised before the Appellate Division: (i) that the People failed to prove his guilt beyond a reasonable doubt; and (ii) that the trial testimony given by Ms. Schlesser-Perry, the OCME DNA expert, improperly infringed upon petitioner's Sixth Amendment constitutional right to confront a witness testifying against him in a criminal action because she did not personally perform the DNA tests about which she offered testimony. (Pet. at 7-11.)
On June 28, 2019, the respondent filed an opposition to Mr. Aponte's petition for a writ of habeas corpus. (Memorandum of Law in Opposition to Petition for Writ of Habeas Corpus, ECF No. 11.) The court ordered petitioner to file any reply by July 29, 2019. See Scheduling Order filed onto ECF, June 13, 2019. Having received no reply from the petitioner, on May 19, 2020, the court ordered the respondent to confirm service on petitioner of ECF No. 11, and the respondent again served the petitioner on May 22, 2020. (Response to Order to Show Cause, ECF No. 13.) As petitioner has not filed a reply, nor has he requested an extension of time to file a reply or otherwise indicate that he intended to submit further briefing, the court deems Mr. Aponte's petition fully briefed and proceeds to address its merits.
A writ of habeas corpus filed by an individual in state custody is governed by, inter alia, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Section 2254 of AEDPA provides that a district court shall issue a writ of habeas corpus for an individual in state custody "only on the ground that he is in custody in violation of the Constitution or law or treaties of the United States." 28 U.S.C. § 2254(a). Section 2244 provides that a one-year statute of limitations applies to "an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court." 28 U.S.C. § 2244(d)(1); see generally 28 U.S.C. § 2244(d).
A district court may grant a writ of habeas corpus for claims that were adjudicated on the merits in state court and where the adjudication produced 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). "A state court 'adjudicate[s]' a state prisoner's federal claim on the merits when it (1) disposes of the claim 'on the merits,' and (2) reduces its disposition to judgment." Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001) (brackets in original) (citing 28 U.S.C. § 2254(d)(1)); see also Reznikov v. David, Nos. 05-CV-1006 (RRM), 05-CV-1008 (RRM), 2009 WL 424742, at *3 (E.D.N.Y. Feb. 20, 2009) (). "When a state court [adjudicates a federal claim on the merits], a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim, even if the state court does not explicitly refer to either the federal claim or to relevant federal case law." Sellan, 261 F.3d at 312.
Clearly established federal law is limited to the jurisprudence of the Supreme Court at the time of the relevant state court decision. Howard v. Walker, 406 F.3d 114, 122 (2d Cir. 2005). The "contrary to" and "unreasonable application" clauses are analyzed independently. Stultz v. Artus, No. 04-CV-3170 (RRM), 2013 WL 937830, at *5 (E.D.N.Y. Mar. 8, 2013). A state court's decision is "contrary to" 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...
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