Camarano v. Irvin

• Decision Date: 09 December 1994
• Docket Number: No. 90 Civ. 6821 (RPP).,90 Civ. 6821 (RPP).
• Citation: 902 F. Supp. 358
• Parties: Robert CAMARANO, Petitioner, v. Frank IRVIN, Superintendent Wende Correctional Facility, Respondent.
• Court: U.S. District Court — Southern District of New York

902 F. Supp. 358

Robert CAMARANO, Petitioner, v. Frank IRVIN, Superintendent Wende Correctional Facility, Respondent.

No. 90 Civ. 6821 (RPP).

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

December 9, 1994.

Robert Camarano, Stormville, New York, Robert M. Morgenthau, District Attorney of County of New York, Marc Frazier Scholl, Asst. Dist. Atty., New York City, for plaintiff.

ORDER ACCEPTING MAGISTRATE'S REPORT AND RECOMMENDATION

ROBERT P. PATTERSON, District Judge.

This Court has received and reviewed the Report and Recommendation (the "Report") issued by Magistrate Judge Sharon E. Grubin on October 19, 1994, the objections to the Report and Recommendation from Petitioner dated October 31, 1994, and a letter dated November 4, 1994 from Marc Frazier Scholl, Assistant District Attorney, Magistrate Judge Grubin's order of November 10, 1994, and a second letter from the Petitioner dated November 17, 1994 in the above-captioned action. The Court finds it is in agreement with the Report and Recommendation. Accordingly, it is hereby

ORDERED that the Report and Recommendation issued by Magistrate Judge Grubin on October 19, 1994, is accepted in accordance with 28 U.S.C. § 636(b). Accordingly, it is further

ORDERED that Petitioner's writ of habeas corpus is dismissed without prejudice to refiling after Petitioner has either exhausted his unexhausted claims or submitted a petition dropping them.

REPORT AND RECOMMENDATION TO THE HONORABLE ROBERT P. PATTERSON, JR.

GRUBIN, United States Magistrate Judge:

Petitioner, currently an inmate at the Green Haven Correctional Facility, pro se seeks a writ of habeas corpus under 28 U.S.C. § 2254 to obtain his release from custody pursuant to a February 14, 1983 judgment of the New York State Supreme Court, New York County (Galligan, J.), convicting him after a jury trial of criminal sale of a firearm in the second degree, see N.Y. Penal Law § 265.11(2) (McKinney 1989), and three counts of criminal possession of a weapon in the third degree. See N.Y. Penal Law § 265.02(1) (McKinney 1989). Petitioner was sentenced as a persistent felony offender to four concurrent indeterminate terms of 15 years to life. I respectfully recommend that the petition be dismissed at this time without prejudice pursuant to the doctrine of Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), because it contains unexhausted as well as exhausted claims.

BACKGROUND

Viewing the facts in a light favorable to the state, see, e.g., Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Reddy v. Coombe, 846 F.2d 866, 869 (2d Cir.), cert. denied, 488 U.S. 929, 109 S.Ct. 316, 102 L.Ed.2d 334 (1988); Garcia v. Warden, 795 F.2d 5, 6 (2d Cir.1986), the evidence established that on February 9, 1982 at about 4:45 a.m. petitioner and a friend, Ellen Alberto, were parked in a station wagon on East 123rd Street between Park and Lexington Avenues in Manhattan. Two police officers driving in the area observed a young man, Willie Jones, in the street next to the station wagon who shouted at them, pointed to the car and said "They just robbed me. He has a gun." When the officers exited their car to investigate, petitioner and Alberto, who was driving, sped off, going north on Park Avenue and then east on 124th Street. After a high-speed chase through the Bronx ending on the George Washington Bridge and a struggle after petitioner tried to run from the officers, he was arrested and read his Miranda rights. After complaining of head pains petitioner was taken to Harlem Hospital and then to Central Booking where, after being read his Miranda rights again, he told a detective "I didn't rob the nigger. I was there to sell him the .38." Police found a 12-gauge sawed-off shotgun and a .9mm automatic pistol in the tire compartment of the station wagon. After interrogating Alberto, they went to 124th Street near Park Avenue to search for another weapon where, later, a .38-caliber revolver was found.

Witnesses called by the state at trial included Nick Santo and Thomas Galucci. Santo testified that in the early part of February 1982 and perhaps on the evening of February 8, 1982, after petitioner's brother and Santo's son had been arrested for burglarizing a stereo store, petitioner had told Santo that there were guns in Santo's house and that he wanted to find them and get rid of them. Petitioner, Alberto and Santo's wife had searched Santo's house and found a sawed-off shotgun and two guns which were given to petitioner to dispose of. Galucci, who was a gun store owner, testified that the .9mm automatic pistol found in the station wagon and the .38-caliber revolver found on 124th Street were among weapons that had been stolen from his store during a robbery on January 7. Petitioner was convicted of criminal possession of the 12-gauge sawed-off shotgun, the .9mm automatic pistol and the .38-caliber revolver and criminal sale of the .38-caliber revolver.

Petitioner appealed his conviction to the Appellate Division of the New York State Supreme Court on the following grounds: (1) there was insufficient evidence of possession of or intent to sell the .38-caliber revolver, petitioner's post-arrest statement having been "uncorroborated," and insufficient evidence of possession of the two guns found in the car, because, if not for certain erroneous evidentiary rulings, the jury would not have made the presumption provided by N.Y. Penal Law § 265.15(3) of possession of firearms found in automobiles; (2) petitioner's post-arrest statements were obtained in violation of his Fifth and Sixth Amendment rights because they were obtained in violation of the Miranda doctrine and due to the physical brutality and lengthy waiting period before arraignment inflicted upon him by the police; (3) three counts of the original indictment that had been originally dismissed were resubmitted to a new grand jury without a proper order under state law; (4) petitioner was denied a fair trial by the admission of evidence of uncharged crimes, the exclusion of certain medical records and expert testimony regarding petitioner's admission to hospitals on the day of his arrest and the following day which would have enabled him to attack the credibility of testimony as to his physical condition at the time of his post-arrest statements, the use of a "disfavored" jury instruction as to burden of proof, and improper summation remarks by the prosecutrix; and (5) petitioner was improperly adjudicated a persistent felony offender, and his sentence was excessive. On February 27, 1986 the Appellate Division affirmed petitioner's conviction without opinion, People v. Camarano, 117 A.D.2d 1024, 499 N.Y.S.2d 565 (1st Dep't 1986), and on April 7, 1986 the Court of Appeals of the State of New York denied leave to appeal. People v. Camarano, 67 N.Y.2d 940, 502 N.Y.S.2d 1032, 494 N.E.2d 117 (1986) (Hancock, Jr., J).

Petitioner also filed four motions for collateral relief following his conviction. On March 8, 1985, prior to the Appellate Division's decision on his appeal, petitioner moved to vacate the judgment pursuant to N.Y.Crim.Proc.Law § 440.10(1)(g) & (h), claiming that "newly discovered" medical records, which had been withheld by the District Attorney's office in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), reflecting his physical condition at the time of his alleged post-arrest statements showed that "perjured testimony" had been given against him and that he never made such statements at all or, even if it were assumed he had, they were involuntary. He also argued that new evidence showed one of the firearms had not been obtained from a gun store burglary and argued that the resubmission of charges to a new grand jury had been in violation of state law. On May 16, 1985 Justice Galligan denied the motion because petitioner made no showing that the evidence concerning his medical condition or the firearm could not have been produced prior to trial. Moreover, the medical evidence bore "at most only on an issue tangential to that of guilt or innocence," petitioner failed to show in what way the firearm evidence would have affected the jury verdict, and petitioner's allegations were insufficient to warrant any further inquiry. People v. Camarano, Indictment No. 4583/82, slip op. at 2-3. I can find no record of petitioner's having sought leave to appeal this decision to the Appellate Division.

On June 17, 1986 petitioner filed a second motion pursuant to § 440.10(1)(g) & (h), claiming again that "newly discovered" medical records showing the extent of his injuries after arrest, which had been withheld by the District Attorney's office with the complicity of Harlem and Beekman Hospitals in covering up police brutality and manipulating patient records and which he now attached to his motion, required a new trial and that his rights were violated by excessive delay prior to arraignment and by admission of his "involuntary" statements at trial which were, he contended, never even made at all. On September 11, 1986 Justice Galligan denied this motion, ruling (1) that the issues raised had already been raised and determined in petitioner's direct appeal of his conviction and in his prior § 440.10 motion and thus, under N.Y.Crim.Proc.Law §§ 440.10(2)(a) & (3)(b), could not be raised again; (2) that, in any event, the information contained in his medical records existed at the time of trial and petitioner had had a fair opportunity to litigate those issues at trial; and (3) the "new" evidence "contains nothing which could have created even a remote probability that had it been received at trial (assuming arguendo its admissibility) it could have resulted in a verdict more favorable to defendant." With respect to petitioner's other arguments, they could have but had not been raised on appeal and thus were barred under N.Y.Crim.Proc. Law § 440.10(2)(c), and, in any event, "they wholly lack in...