Avincola v. Stinson
| Decision Date | 09 July 1999 |
| Docket Number | No. 97 CIV 1132(SAS).,97 CIV 1132(SAS). |
| Citation | 60 F.Supp.2d 133 |
| Parties | Luis AVINCOLA, Petitioner, v. James STINSON, Superintendent, Great Meadow Correctional Facility, Respondent. |
| Court | U.S. District Court — Southern District of New York |
Luis Avincola, Comstock, NY, pro se.
Richard Nahas, Asst. District Atty., New York City, for Respondent.
I have duly considered petitioner's Objections, dated May 17, 1999, to the Report and Recommendation of United States Magistrate Judge Andrew J. Peck, dated March 19, 1999, and have found them to be without merit. Accordingly, I hereby accept and adopt the thoughtful and extremely thorough Report and Recommendation in full and dismiss the above-referenced habeas petition. The Clerk of the Court is directed to close this case.
SO ORDERED.
REPORT AND RECOMMENDATION
Petitioner Luis Avincola seeks a writ of habeas corpus from his 1986 conviction of murder in the second degree, for which he was sentenced to twenty-five years to life imprisonment. (See Pet. ¶¶ 1-4.) Avincola raises numerous grounds in his petition. One of his grounds, that the trial court improperly omitted a circumstantial evidence charge from the jury instructions (Pet.¶ 12(F)), was denied by the state court on a state procedural ground. Therefore, this denial rested on an adequate and independent state law ground and federal habeas review of this claim is barred. The federal nature of one of Avincola's grounds, that the trial court improperly admitted evidence of uncharged crimes (Pet.¶ 12(B)) was not fairly presented to the state court. Because Avincola may no longer raise it in state court, this claim is deemed exhausted; however, his procedural default bars federal habeas review of this claim. Additionally, two parts of his prosecutorial misconduct claim (Pet. ¶ 12(E)) have never been presented to any state court. Avincola is now procedurally barred from raising these claims in state court, so they are deemed exhausted, but his procedural default also bars federal habeas review of these claims. Avincola's remaining grounds — (1) improper admission of hearsay evidence (Pet.¶ 12(F)), (2) violation of his Fifth Amendment rights based on the improper admission of statements he made while in custody (Pet. ¶ 12(A)), (3) violation of his confrontation rights under the Sixth Amendment (Pet. ¶ 12(C)), (4) the remaining prosecutorial misconduct claims (Pet.¶ 12(D)-(E)), (5) ineffective assistance of trial counsel (Pet. ¶ 12(G)), and (6) ineffective assistance of appellate counsel (Pet.¶ 12(G)) — are all exhausted, but lack merit. Accordingly, for the reasons set forth below, the Court should deny Avincola's habeas petition.1
At approximately 6:00 p.m. on December 30, 1985, Luis Avincola, also known as "Columbia," shot and killed Rudolpho Garcia, also known as "San Martin." Soon after the shooting, Avincola told San Martin's girlfriend, Nilda Ortiz Rivera, also known as "Flaca," that he had just killed her "old man."
At the crime scene, Rivera reported to the police that a man named "Columbia" had just approached her and told her that he had shot San Martin. (6/30/96 Suppression Hearing Tr. [hereinafter, "S."] 99,122-23; see also Ex. B:2 7/14/86 Trial Ct. Opinion at 2-4.) Based on that information, the police arrested Avincola later that night. (S. 14-15; see Ex. B: 7/14/86 Trial Ct. Op. at 3.) When Avincola was brought to the precinct, he appeared to the police to be "stoned," that is, under the influence of cocaine, as his pupils were dilated and he was in a "very hyper" state. (S. 78-79, 89-90; see Ex. B: 7/14/86 Trial Ct. Op. at 5.) However, his speech was not slurred and he appeared to know where he was. (S.90-92.)
Detective Palma read Avincola his Miranda rights in English, but Avincola indicated in Spanish that he did not understand. (S. 34, 40-41, 69-70, 91-92; see Ex. B: 7/14/86 Trial Ct. Op. at 4-5.) Detective Palma, who is bilingual, read Avincola a Spanish version of the Miranda rights, which Avincola indicated he understood. (S. 34, 40-41, 41-43, 45, 91-93; see Ex. B: 7/14/86 Trial Ct. Op. at 5.) Telling the police that he had nothing to hide, Avincola answered subsequent questioning by police after he ate some food and had slept for around four hours. (S. 45, 79, 82-83; see Ex. B: 7/14/86 Trial Ct. Op. at 5-6.) Avincola told the police that (S. 55; see Ex. B: 7/14/86 Trial Ct. Op. at 6-7.) The police prepared a written version of this statement, but Avincola did not sign it. (S. 55-56; see Ex. B: 7/14/86 Trial Ct. Op. at 6.)
Prior to trial, Avincola filed a motion to suppress, inter alia, his statements to the police. (See Ex. B: 7/14/86 Trial Ct. Op. at 8.) A suppression hearing was held prior to trial. At the hearing, Detective Palma testified as to the reading of the Miranda warning:
[DETECTIVE PALMA]: When I read him his rights in English he stated he didn't understand it. When I read them in Spanish, he responded yes to all the questions. So therefore, I realized this individual understood what I was telling him.
...
Q Did you have to repeat any of the rights?
A No.
Q Did he ask you to repeat any of the rights?
A No.
Q Did he ask you to repeat any of them?
A No Q Did he answer yes right after you completed asking the rights in Spanish?
A Yes.
Q No hesitation?
A No, no hesitation whatsoever.
(S.91-93.) Additionally, the trial court asked Detective Palma to state in Spanish the Miranda warnings that he gave to Avincola, which were translated as follows:
THE COURT: I want to hear from the detective now what he said and I want the [official court] interpreter to listen to it. Say what you said in Spanish to him.
(Whereupon the witness read from a document in Spanish.)
THE COURT: Will you interpret that?
....
(S.44-45.) The trial court denied Avincola's suppression motion, finding that Avincola "was fully and properly advised of his Miranda rights in Spanish by Detective Palma and knowingly and intelligently waived those rights." (Ex. B: 7/14/86 Trial Ct. Op. at 8.)
In his opening statement at trial, the prosecutor told the jury about a witness to the shooting:
And as I indicated the incident happened sometime around 7 o'clock that evening.
The evidence will come from a witness named Luis Alvarado who was present in the apartment on the third floor, whose attention was drawn to an argument between the deceased and defendant on the third floor landing immediately outside the door....
Evidence will show that [Alvarado] was watching a Spanish soap opera on TV. After initially going to the peephole in the inside of his apartment, he then walked away. Within moments he heard a single gunshot.
He went back to the peephole and saw the defendant with a sawed-off rifle running down the stairs from the third floor down to the second floor. He lost sight of him.
(T. 27.) When the prosecution was unable to produce Alvarado as a witness at trial, Avincola's counsel moved for a mistrial. (T. 855-56.)
In response, the prosecutor stated that he had intended to call Alvarado as a witness at trial, and had met with Alvarado in his office on the morning of July 7, 1986, a few days before the trial was scheduled to commence. (T. 856-57.) At that meeting, the prosecutor informed Alvarado that "the case was going to proceed to trial" and that he probably would testify on July 11. (T. 857-58.) On July 11, Alvarado did not appear at the prosecutor's office as his subpoena had directed and the prosecutor sent a detective to find Alvarado. (T. 861.) That same day, the prosecutor gave his opening statement referring to Alvarado's potential testimony. (Id.) Upon returning to his office at the end of the day, the prosecutor learned that Alvarado's girlfriend had left her job and got some indication that Alvarado may have fled, and "through later investigation," including "rumor and innuendo," the prosecutor learned that "the word in the street [was] that he had fled to Santo Domingo." (Id.) The trial court denied the mistrial motion. (T. 865.)
During his summation, Avincola's attorney used Alvarado's absence to Avincola's advantage:
I need not elaborate on the obvious fact that there is no witness who came into this court and gave evidence before you that he or she saw Luis Avincola shoot San Martin.
What you do have is someone who flew the coop, Tony. Luis Alvarado who lived right here.... It's got these two doors. Both to his apartment, I think you heard Nilda say that. And the stairway, the top of the stairs is where the shooting occurred.
That's where Tony lived. Tony who used to deal drug deals with San Martin and...
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