Arce v. Smith

• Citation: 710 F. Supp. 920
• Decision Date: 17 March 1989
• Docket Number: No. 83 CIV 0135 (KC).,83 CIV 0135 (KC).
• Parties: George ARCE, Petitioner, v. Harold J. SMITH, Respondent.
• Court: United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York

710 F. Supp. 920

George ARCE, Petitioner, v. Harold J. SMITH, Respondent.

No. 83 CIV 0135 (KC).

United States District Court, S.D. New York.

March 17, 1989.

Colleen P. Cassidy, Legal Aid Soc., Federal Defender Services Unit, New York City, for petitioner.

Sandra Holt, Asst. Dist. Atty., New City, N.Y., for respondent.

MEMORANDUM OPINION AND ORDER

CONBOY, District Judge:

The Court, having received the Report and Recommendation ("Report") of Magistrate Grubin, and the objections thereto of petitioner, and having conducted a de novo review of the record, accepts and adopts the Magistrate's Report.

The application for a writ is denied. The Clerk of the Court is directed to enter judgment dismissing the Petition with prejudice. A certificate of probable cause is granted.

SO ORDERED.

REPORT AND RECOMMENDATION TO THE HONORABLE KENNETH CONBOY

SHARON E. GRUBIN, United States Magistrate:

Petitioner George Arce seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his convictions after a jury trial in the County Court of Rockland County of two counts of murder in the second degree (N.Y. Penal Law § 125.25) and one count of conspiracy in the first degree (N.Y. Penal Law § 105.15). He was sentenced to concurrent terms of incarceration of 25 years to life on the murder counts and 5 to 15 years on the conspiracy count. The Second Department Appellate Division affirmed the convictions without opinion over one justice's dissent. People v. Arce, 51 A.D.2d 1043, 381 N.Y.S.2d 328 (2d Dep't 1976). The New York Court of Appeals also affirmed the convictions in a unanimous opinion written by Judge Fuchsberg. People v. Arce, 42 N.Y.2d 179, 397 N.Y.S.2d 619, 366 N.E.2d 279 (1977). Petitioner then filed a petition for a writ of habeas corpus in this court which was denied by Judge Sweet. Arce v. Henderson, 477 F.Supp. 71 (S.D.N.Y.1979), aff'd 636 F.2d 1200 (2d Cir.), cert. denied, 451 U.S. 914, 101 S.Ct. 1989, 68 L.Ed.2d 305 (1980). Thereafter, petitioner apparently filed at least four post-conviction motions pursuant to Article 440 of the New York Criminal Procedure Law. Petitioner's co-defendant at trial, Efrain Camara, also filed a habeas petition in this court which was denied by Judge Carter in 1985. Camara v. Scully, 624 F.Supp. 106 (S.D.N.Y.1985).¹

FACTUAL BACKGROUND

The facts adduced by the prosecution at the trial of petitioner and co-defendant Efrain Camara disclosed an uncomplicated scheme of murder for hire. According to Rafael Perez, who pled guilty to first degree manslaughter, he first met petitioner on the night of April 29, 1973 in the Bronx where Camara, Perez' neighbor, introduced them. Perez testified that at petitioner's request, he agreed to use his car to drive Camara to a diner in Rockland County the following morning where they would meet petitioner. Camara informed Perez that petitioner was going to pay Camara $10,000 "to eliminate somebody," and Camara, in turn, would give Perez $4,000 for driving the getaway car. The following morning between 6:00 and 7:00 a.m., Perez and Camara arrived at the diner where they found petitioner, and shortly thereafter petitioner indicated the driver of a blue Ford Mustang as the intended victim. Perez and Camara followed the Mustang, leaving petitioner at the diner, and Perez rammed the Mustang in the rear with his automobile at Camara's direction. As the driver, John Morales, was inspecting the damage to his car, Camara shot him. Fleeing the scene, Manuel Carrero, who had been a passenger in Morales' car, was shot by Perez at Camara's direction with a gun that Camara had given to him just before the collision.

Camara took the witness stand on his own behalf and testified to a different version of events. He stated that he was in Perez' car that morning because Perez had offered to drive him to a factory in Rockland County where he hoped to find a job. He testified that Perez had been speeding and collided into the rear of Morales' car which had suddenly slowed in front of them. In the course of an argument that ensued between Perez and Morales after the collision, Morales had drawn a gun and when Perez struggled with him, the gun went off "two or three times." Perez then also shot the passenger of Morales' car. Camara denied that he ever met petitioner until after they were arrested, and his version of the story thus did not implicate petitioner at all. The unanimous opinion of the New York Court of Appeals affirming the convictions of petitioner and Camara noted some inherent difficulties with Camara's story and succinctly set forth a good summary of the remainder of the relevant evidence:

In short, according to Camara, he had possessed no gun, planned no murder, shot no one and the episode, so far as he was concerned, was a completely unexpected event for which he was blameless. His defense consisted solely of his testimony. He offered no explanation of why, if the shooting had indeed been precipitated by Morales' resort to a gun, Perez, who had already involved Arce and obtained the District Attorney's consent to his plea to a lesser offense, should have found it necessary not only to implicate Camara but to relate a false version contrary to his own self-interest.

Be that as it may, Camara's main difficulty was that, aside from any inherent improbabilities in his story, there was overwhelming proof to contradict it. For one thing, Henry Goldman, a motorist in the immediate vicinity of the events, testified that he observed that Morales was not engaged in a fight but merely inspecting the rear of his car when a shot rang out and Morales' body convulsed "as if hit by gunfire." Another and equally disinterested motorist, Rocco Marino, provided confirmatory testimony. Two witnesses other than Perez testified that they too had seen Camara with Arce the evening before the homicides. One of them, Feliz Burgos, a friend of Arce's for about 10 years, related that he had seen Arce, Perez and Camara together the night before, as had his fiancee, Minerva Cuadros, an employee at the fast food place where the three men went to purchase chicken. Burgos had driven to the fast food place to take her home from work that night. The car in which Camara was seen by them, a Chevelle Malibu, was later identified as a vehicle rented by Arce.

42 N.Y.2d at 184-85, 397 N.Y.S.2d at 622-23, 366 N.E.2d at 282.

In addition, Feliz Burgos testified that petitioner had told him several months before the shootings that he was "going to get" Morales. The prosecution also presented proof from a firearms company and from an acquaintance of petitioner who lived in Maryland that the gun with which Morales had been shot had been purchased by petitioner and delivered to him through the friend's address in Maryland.

PETITIONER'S CLAIMS

Petitioner originally submitted this case pro se, presenting nine grounds for relief: (1) ineffective assistance of counsel at trial; (2) ineffective assistance of counsel on appeal; (3) the prosecution instructed its key witness, Perez, to solicit information and to fabricate his testimony; (4) the prosecution procured fabricated testimony of Minerva Cuadro and allowed it to stand uncorrected even though she swore in an affidavit after the trial that her testimony had been false; (5) the prosecution shifted its burden of proof to petitioner during cross-examination of petitioner's co-defendant Camara; (6) denial of the right to testify before the grand jury; (7) denial of the right to a speedy trial; (8) the trial court's instructions shifted the prosecution's burden of proof to petitioner on the element of intent; (9) denial of due process because petitioner never reviewed his presentence report which contained fabricated information.

After this petition was filed, the Legal Aid Society was appointed to represent petitioner herein, and in a memorandum of law submitted in support of the petition, counsel pursued only the first, second and fourth claims listed above. Thereafter, petitioner pro se sought a stay which was granted by Judge Weinfeld to pursue a post-conviction proceeding in the state courts in order to exhaust certain claims. Thereafter, the Legal Aid Society submitted an "Amended Petition" which is in reality a supplemental pleading raising additional allegations (which I have, for the sake of clarity, continued to number consecutively): (10) ineffective assistance of counsel at sentencing, and (11) sentencing by the trial court on the basis of a presentence report containing erroneous information. In addition, further memoranda of law submitted by petitioner pro se allege (12) insufficiency of the evidence of the conspiracy, (13) denial of a fair trial stemming from joinder of his case with that of co-defendant Camara, and (14) again, the court's instructions on the element of intent shifted the prosecution's burden of proof.

DISCUSSION

In order to exhaust his state remedies with respect to claims (1) through (8) listed above, petitioner brought a motion on those grounds to vacate the judgment of conviction pursuant to N.Y.Crim.Proc.Law § 440.10 which was denied by the New York Supreme Court by decision and order of March 15, 1982. The state court ruled that all but the eighth claim could have been raised by petitioner on his direct appeal and therefore could not be relitigated collaterally. The court held that petitioner had already had the opportunity to litigate Claim (8), concerning the trial court's intent instruction, in the habeas corpus petition filed in this court before Judge Sweet (see footnote 1, supra). See Exhibit N to petitioner's first memorandum of law (docket entry # 8). As a consequence, before this court can consider issues (1) through (7), petitioner must demonstrate both that cause existed for his state court procedural defaults and that prejudice resulted therefrom. See Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 2648, 91 L.Ed.2d 397 (1986); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53...