Bessaha v. Rock
| Decision Date | 27 April 2012 |
| Docket Number | NO 09-CV-3581 (JFB),09-CV-3581 (JFB) |
| Parties | ALI BESSAHA, Petitioner, v. DAVID ROCK, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
Ali Bessaha (hereinafter "Ali" or "petitioner") petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction entered on March 19, 2002, in County Court of the State of New York, County of Nassau (the "trial court"), for murder in the second degree (N.Y Penal Law § 125.25(1)). Petitioner was sentenced to a term of imprisonment of twenty-five years to life.
Petitioner challenges his conviction on the following grounds: (1) the evidence was insufficient to support a finding of guilt beyond a reasonable doubt; (2) the trial court erred by permitting the prosecution to introduce evidence of prior bad acts; (3) the cumulative effect of the prosecutor's misconduct denied him a fair trial; (4) successive prosecution; (5) judicial misconduct; (6) selective prosecution; and (7) ineffective assistance of counsel.
For the reasons set forth below, the Court finds that petitioner's claims of ineffective assistance of counsel, improper admission of prior bad acts evidence, prosecutorial misconduct, selective prosecution, and judicial misconduct are procedurally barred. In any event, the Court has examined all of the petitioner's claims on the merits and concludes that there is no basis for habeas relief.
The following facts were adduced from the petition and documents attached thereto, as well as from the state court trial and appellate record.
On January 30, 1999, petitioner's wife Ourida Bessaha ("Ourida") was found murdered in her home in Hicksville, New York. (Tr.1 at 677.) Petitioner and Ourida had two children, Alex Bessaha ("Alex") and Nora Bessaha ("Nora"). (Id.) Alex testified that he found his mother (Id.) According to the evidence presented by the prosecution at trial, Ourida was killed between the hours of 6:30 am and 9:30 a.m. (Id. at 898.)
Officer Frank Geluso ("Geluso") received a 911 phone call from Alex and arrived at the crime scene at approximately 2:30 p.m. (Id. at 778-79.) Geluso saw Alex standing in the driveway and walked into the house with them. (Id. at 779.) Geluso entered the house and saw the victim unclothed, laying on her back with her face bashed in and a "couple of holes" in the head. (Id.) Geluso walked around the perimeter of the house to check if anyone had broken in and found that all the windows and doors were secured. (Id. at 780.)
Detective Bruce Schurmann ("Schurmann") arrived at the scene at approximately 4:20 p.m. (Id. at 785-87.) Shurmann collected various types of evidence, including serological evidence and trace evidence. (Id. at 801.) After walking around the crime scene, Schurmann concluded that the window was not used as a point of entry because both the interior and exterior part of the window seemed undisturbed; there were cobwebs in various locations on the window; the book case was in place and had not been moved or pushed aside; the window was locked; and there was a television with antennas on the inside" of the window which would have been knocked over if someone had entered. (Id. at 796-800.)
In the evening of January 30, 1999, at approximately 9:00 p.m., Detective Richard Lane ("Lane") went to petitioner's apartment to inform him of his wife's death. (Id. at 1116, 1119.) Petitioner went with Lane to the Nassau County Police headquarters for further questioning. (Id. at 1121-22.)
At the headquarters, petitioner was taken into an interview room for questioning. (Id. at 1122-23.) Petitioner was first questioned as to his background information. (Id. at 1124.) Petitioner told the officers he was Algerian, had lived in the United States for thirty years, had worked as a cab driver, owned a restaurant, and was partners with his brother in ownership of an apartment building. (Id. at 1124-25.) Petitioner also told the officers that he was in the midst of a divorce and that he had been ordered in 1996 to vacate the property in Hicksville where his wife lived. (Id. at 1137.)
Petitioner was also questioned about his whereabouts during the day on Friday, January 29, 1999. (Id. at 1128.) Petitioner told the officers he had gone to his attorney's office who was representing him in the divorce action. (Id.)
Shortly thereafter, petitioner told the officers where had been on the night of his wife's murder. (Id. at 1131.) According to Lane, petitioner told the officers he had gone to a restaurant called "Meli Melo," which was located in Manhattan, and was there from 11:30 p.m. to 5:00 a.m. (Id.) Petitioner claimed that he had been playing backgammon with Bernard Ros ("Ros"),who was the owner of the restaurant, and his friend George Courgnaud ("Courgnaud"), who later gave him a ride home. (Id. at 1131.) Petitioner told the officers that he had arrived home at approximately 5:15 a.m. and went to sleep at 5:30 a.m. (Id. at 1132.)
Petitioner told the officers he had woken up on Saturday morning at 10:15 and went to the bank to deposit a check. (Id. at 1134.) However, because the bank was closed, he went to the New Post Diner before going back home. (Id. at 1135.) Petitioner then had a conversation with a tenant named Lucy until approximately 11:00 a.m. (Id. at 1136.)
Petitioner told the officers that he did not have a key to the back door of the house connecting the laundry room with the garage. (Id. at 1140-41.) In addition, petitioner told the officers that the last time he had been to the house was in 1996, id. at 1137), and the last time he had driven past the house was in 1997. (Id. at 1141.) However, petitioner had previously given a statement that he had driven past the house six months prior with a car he rented and saw a Mercedes parked in the driveway. (Id. at 1142.) Lane testified that he questioned petitioner about this previous statement. (Id.)
Although Ros confirmed that petitioner was at his restaurant on Friday night and that they played backgammon together, Ros also testified that petitioner left with Courgnaud sometime between 3:00 a.m. and 3:45 a.m. and that the restaurant closed at 4:00 a.m. (Id. at 1175.) Similarly, Courgnaud testified that he was with petitioner that night and that they left around 3:30 a.m., though he stated it was "definitely before 4:00 a.m. because the restaurant closes at 4:00 a.m." (Id. at 1180.) Courgnaud also stated that he gave petitioner a ride home that night and that it took approximately twenty to twenty-five minutes. (Id. at 1180-81.)
Furthermore, petitioner's neighbor Hikim Serkane ("Serkane") testified that he overheard petitioner talking outside with a tenant between 7:00 and 7:30 a.m. (Id. at 1188-89.)
During the time surrounding the death of petitioner's wife, petitioner and his wife were in the midst of a divorce, after 30 years of marriage. (Id. at 672.) The issue left to be resolved in the divorce action was the division of property. (Id. at 1350-59.) According to Ourida's attorney Martha Wisel ("Wisel"), petitioner never disclosed the existence of other bank accounts located in France during the divorce proceedings. (Id. at 1349.) Wisel testified that petitioner had told Ourida "I have $900,000 and you'll never see any of it." (Id. at 1364.) Furthermore, according to Alex's testimony, petitioner was willing to give Ourida only $50,000.00. (Id.) In addition, petitioner failed to comply with court orders requiring him to make maintenance payments.2 (Id. at 1225.) As a result, the court appointed a receiver, Charles Mirotznik ("Mirotznik), to collect the rent from twenty-four of petitioner's apartment buildings to make the assets available to pay the court order. (Id. at 1271, 1354.) After various unsuccessful attempts by Mirotznik to collect the rent, it was decided that the apartment buildingswere to be sold, and petitioner agreed to vacate the buildings. (Id. at 1271-73.) The parties were to appear in court on February 1, 1999 to execute the contracts for the sale of the properties. (Id. at 1274.)
On Wednesday, January 27, 1999, Alex had a conversation with petitioner about the divorce settlement and the contract petitioner was to sign. (Id. at 683-84.) According to Alex's testimony, petitioner became agitated and stated, "you know what she needs, what she needs is a bullet in the head." (Id. at 685.) In response, Alex told petitioner that he would end up in jail if he did anything. (Id.) Petitioner responded by saying, (Id.)
Subsequently, on January 29, 1999, petitioner called Alex and asked him if he would come to court on February 1, 1999 to testify that his mother was willing to settle for less. (Id. at 687.) However, Alex informed petitioner that she was unwilling to settle for less. (Id. at 688.) Petitioner then responded, "[o]kay, you don't have to come on Monday" and hung up. (Id. at 688.)
Barton Epstein ("Epstein"), a blood splatter specialist, examined the blood stains found at the murder scene and found there were a number of blows to the victim's head and forehead. (Id. at 858.)
Dr. Mella Leiderman ("Dr. Leiderman"), a forensic pathologist, examined two exhibits of the victim's brain and skull and the number of blows applied to the head to determine the "rage of the individual who killed [the victim]". (Id. 909-910.) The photo demonstrated the damage to the brain as a result of those blows. (Id. at 909.) Dr. Leiderman observed, (Id. at 907.) Dr. Leiderman concluded that "a punch is not able to do it." (Id. at 924.) On re-direct, Dr. Liederman stated that...
To continue reading
Request your trial