Clemente v. Lee
| Decision Date | 04 January 2021 |
| Docket Number | 18-CV-1978 (AMD) (LB) |
| Parties | VICTOR CLEMENTE, Petitioner, v. WILLIAM LEE, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
On March 28, 2018, the petitioner, currently incarcerated at Eastern New York Correctional Facility, brought this action seeking habeas corpus relief pursuant to 28 U.S.C. § 2254. The petitioner claims that he was denied his Sixth Amendment right to a speedy trial and that one of his appellate lawyers was ineffective. For the following reasons, the petitioner's motion is denied.
On November 20, 1986, the petitioner shot and killed Fred Drapete. He was arrested and charged with murder in the second degree and criminal possession of a weapon in the second and third degrees. (ECF No. 13 at 14.) Over the next year, the prosecutors repeatedly announced that they were not ready for trial because they could not find two eyewitnesses—the petitioner's mother and sister. On January 26, 1988, the petitioner, who was released on bond, moved to dismiss the indictment pursuant to Section 30.20 of the New York Criminal Procedure Law ("C.P.L."). (ECF No. 13 at 57.) He claimed that he had been materially prejudiced by the delay in bringing his case to trial because a potentially exculpatory witness had moved away. (Id. at 58-59.) The prosecution responded that the defendant consented to multiple adjournments, that it was working diligently with the FBI to locate the witnesses and that the proffered testimony of the missing witness was not exculpatory. (Id. at 62-64.) On March 22, 1988, the Honorable Seymour Rotker dismissed the indictment, finding the petitioner was denied his right to a speedy trial. (Id. at 69-72.)
The prosecution appealed the dismissal on April 12, 1988. (Id. at 73.) At that point, the petitioner's trial lawyer was no longer representing him, and no brief was filed on the petitioner's behalf. The Appellate Division reversed and reinstated the indictment, ruling that the 14-month delay "was not an extraordinarily long time, given the seriousness of the charge, which, by necessity, requires careful preparation." People v. Clemente, 541 N.Y.S.2d 583, 584 (2d Dep't 1989). Noting that the petitioner was at liberty, the court also found that the prosecution's effort to locate witnesses was "a valid reason for delay." Id. The court remitted the case for further proceedings on the indictment. See id. When the petitioner failed to appear for his June 13, 1989 court date, a warrant was issued for his arrest.
More than 15 years later, in December of 2006, detectives arrested the petitioner in California, where he had been since 1988. After the petitioner was returned to New York, he moved to dismiss the indictment pursuant to C.P.L § 30.20, arguing that the prosecutors did not exercise due diligence in searching for him after the warrant issued in 1989. (ECF No. 13-3 at 55-56.) The Honorable Robert Hanophy denied the motion, finding that the petitioner had avoided apprehension and was thus not deprived of his right to a speedy trial. (ECF No. 13-2 at 351.)
The petitioner went to trial before the Honorable Richard L. Buchter and a jury on March 31, 2008. (ECF No. 13-3 at 238.) The prosecution established the following facts.
On November 20, 1986, officers responding to a reported shooting at 160-16 79th Avenue Flushing, New York found Fred Drapete in the first floor apartment; he was lying face down and had nine bullet holes in his body. (ECF No. 13-4 at 143-145.) The petitioner, who lived in the first floor apartment with his family, was sitting next to the victim. (Id. at 162-63.) As officers escorted the petitioner to the patrol car, he looked down at the victim and said, (Id. at 203.) Detective Peter Fiorello told the petitioner to stop talking and took him to the 107th precinct. (Id.) Detective Frank Ahearn questioned the petitioner when he arrived at the precinct. (Id. at 231.) The petitioner said that he fought with the victim, who had a gun, and that the victim shot himself. (Id. at 255.)
Another officer found the victim's two daughters, who were three and four-years-old, hiding in the basement apartment where the victim lived with his wife and two girls. (Id. at 52, 146.) When the victim's wife arrived shortly thereafter, her younger daughter told her, "Uncle June shot poppa." (Id. at 76-77.) The girl said that "Uncle June" shot the mirror in the basement, then shot the victim in the arm and followed him upstairs where the children heard more gunshots. (Id.)
Detectives found a 9-millimeter caliber Smith and Wesson semi-automatic pistol lying near the victim's body; the slide on the gun was pulled back and there were no bullets in the gun's clip or in the chamber. (Id. at 106-09.) There were multiple deformed bullets and shell casings in the basement apartment, the foyer and in the first floor apartment; testing proved that all the ballistics evidence came from the Smith and Wesson. (Id. at 106-109, 221.) An autopsy of the victim established that he was shot nine times. (Id. at 262-63.) Six of the bullets enteredhis body through the back; the fatal wound, which also entered the victim's back, perforated his lung and aortic arteries. (Id. at 262-65, 274-75.)
The defense did not call any witnesses.
On April 8, 2008, the jury convicted the petitioner of second degree murder and weapons possession. (ECF No. 13-5 at 26.) Judge Buchter sentenced the petitioner to concurrent indeterminate prison terms of twenty years to life for murder and five to fifteen years for the weapons possession. (Id. at 53.)
The petitioner, represented by counsel, appealed his conviction to the Appellate Division, Second Department. (ECF No. 13 at 81.) He argued that he was denied his Sixth Amendment right to a speedy trial. (Id. at 108.) He also challenged the trial court's evidentiary rulings, the prosecutor's comments in summation, and the court's charge to the jury. (Id. at 142-63.) Finally, the petitioner claimed that his trial counsel was ineffective for asking the victim's wife about a civil settlement. (Id.)
On May 3, 2011, the Appellate Division affirmed the petitioner's conviction, finding that the trial court "properly determined that the defendant's constitutional right to a speedy trial was not violated." People v. Clemente, 84 A.D.3d 829, 830 (2d Dep't 2011). The Appellate Division rejected the petitioner's claims about the prosecutor's summation, the trial court's evidentiary rulings, and the jury charge. Id. at 830-31. Finally, the court concluded that the petitioner's trial lawyer provided him with effective representation. Id. at 831.
The Court of Appeals denied the petitioner's application for leave to appeal on June 23, 2011, and denied his motion for reconsideration on August 31, 2011. People v. Clemente, 17 N.Y.3d 793 (2011), reh'g denied, 17 N.Y.3d 814 (2011).
On June 4, 2012, the United States Supreme Court denied the petitioner's petition for a writ of certiorari. Clemente v. New York, 566 U.S. 1035 (2012).
On December 27, 2012, the petitioner moved pro se to vacate the conviction under C.P.L. § 440.10. (ECF No. 13 at 307-14.) He argued that he was denied his right to counsel when the Appellate Division decided the prosecution's appeal of Judge Rotker's speedy trial dismissal without hearing from the petitioner. (Id.)
Judge Buchter denied the petitioner's motion on April 18, 2013, ruling that " court [was] not the proper forum for the relief requested," and that "the proper forum for the relief defendant requests is the Appellate Division." (ECF No. 13-1 at 10-12.)
On September 11, 2013, the petitioner moved pro se for coram nobis relief in the Appellate Division on the same ground—that his conviction should be vacated because he was not represented in the 1989 appeal. (Id. at 21-32.)
On February 11, 2015, the Appellate Division granted the petitioner's writ of error coram nobis in part, concluding that the petitioner's right to appellate counsel was violated. People v. Clemente, 125 A.D.3d 786, 786 (2d Dep't 2015) (citation omitted). The court appointed counsel to represent the petitioner, set a briefing schedule, and held the petitioner's application in abeyance.1 Id. The petitioner, represented by counsel, argued that the trial court properlydismissed the indictment based on a violation of the petitioner's Sixth Amendment right to a speedy trial. (ECF No. 13-2 at 210.) On May 4, 2016, the Appellate Division found that "there [wa]s no basis to vacate [the] original determination in the decision and order dated May 22, 1989 . . . reversing the order dismissing the indictment, and thereupon reinstating the indictment." People v. Clemente, 139 A.D.3d 751, 753 (2d Dep't 2016). The court also denied the "remaining branches of the [petitioner's] application" for a writ of error coram nobis. Id. at 752. On August 11, 2016, the Court of Appeals denied the petitioner's application for leave to appeal. People v. Clemente, 28 N.Y.3d 928 (2016).
On April 5, 2017, the petitioner filed his second pro se motion for coram nobis relief, arguing that he did not receive effective representation on his direct appeal or on the rehearing of the prosecutor's appeal of the speedy trial dismissal. The petitioner argued that his attorney on direct appeal should have challenged Judge Buchter's response to a jury note. He also claimed that his lawyer on the rehearing was ineffective because she did not argue that the Appellate Division should have vacated his conviction instead of ordering a new appeal. (ECF No. 13-2 at 39-56.)
The Appellate Division denied the petitioner's application on December 13, 2017, because the petitioner "failed to establish that he was...
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