Cruz v. Berbary, 03-CV-0596 (VEB).

• Decision Date: 16 October 2006
• Docket Number: No. 03-CV-0596 (VEB).,03-CV-0596 (VEB).
• Citation: 456 F.Supp.2d 410
• Parties: Jose L. CRUZ, Petitioner, v. James BERBARY, et al., Respondents.
• Court: U.S. District Court — Western District of New York

456 F.Supp.2d 410

Jose L. CRUZ, Petitioner, v. James BERBARY, et al., Respondents.

No. 03-CV-0596 (VEB).

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

October 16, 2006.

COPYRIGHT MATERIAL OMITTED

Jose L. Cruz, Collins, NY, for Petitioner.

Darren Longo, Esq., Office of the New York State, Buffalo, NY, for Respondents.

DECISION AND ORDER

BIANCHINI, United States Magistrate Judge.

INTRODUCTION

Jose L. Cruz ("Cruz") filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Ontario County Court following a jury trial on charges of third degree criminal sale of a controlled substance and second degree menacing. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(c).

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Cruz was arrested in July 2000, in connection with the shooting death of Victor Omar Rivera-Gomez ("Rivera-Gomez") on January 29, 2000. An Ontario County grand jury returned an indictment charging Cruz with one count of second degree murder with respect to Rivera-Gomez's death, one count of third degree criminal sale of a controlled substance for allegedly selling heroin to Jose Rivera (a/k/a "Chucho"), and one count of second degree menacing with respect to actions allegedly taken by Cruz which placed or attempted to place Chucho in reasonable fear of serious physical injury or death.

Cruz's jury trial commenced in Ontario County Court on February 20, 2001. Chucho testified that in January 2000, Cruz gave him ten bundles of heroin to sell. (This occurred prior to the murder of Rivera-Gomez.) Chucho testified that he was a heroin addict and used eight to nine bags of heroin a day. Chuco sniffed four of the bundles given to him by Cruz and, based on his experience with using heroin, testified that the substance given to him by Cruz made him "high." Chucho also testified that there came a point in time after the murder where he began cooperating with the police and participated in a taped conversation with Cruz. The tape recording was received into evidence at trial, along with a transcript. Eduardo Alvarez-Castillo testified that in mid-January 2000, he witnessed Cruz give about ten bundles of heroin to Chucho.

Johanna Herrera ("Herrera") testified that Cruz came to her apartment on January 28, 2000, looking for Chucho, who allegedly owed him drug money. Cruz informed Herrera that Rivera-Gomez's hours were "counting" because he was a snitch. Herrera testified that Cruz asked her to sell heroin for him, in place of Rivera-Gomez, because Rivera-Gomez owed Cruz money. Arlene Gonzalez ("Gonzalez") also testified that Cruz came to Herrera's apartment on the night before Rivera-Gomez was killed and said that he was looking for Chucho. Cruz said that Gonzalez would "get hers too" if she was hiding Chucho. At that time, Chucho was hiding in a closet in fear because he owed Cruz money for the heroin that Cruz earlier had given Chucho to sell.

On February 28, 2001, the jury returned a verdict acquitting Cruz of second degree murder but convicting him of the remaining two charges in the indictment alleging criminal sale of a controlled substance and menacing. He was sentenced on May 25, 2001, to a term of six to eighteen years on the criminal sale conviction and, a concurrent one-year term on the menacing conviction.

The Appellate Division, Fourth Department, of New York State Supreme Court unanimously affirmed his conviction on direct appeal. The New York Court of Appeals denied leave to appeal.

Cruz subsequently filed a pro se motion to vacate the judgment of conviction pursuant to New York Criminal Procedure Law ("C.P.L."). § 440.10 alleging that (1) the trial court "lacked subject matter jurisdiction over the second count of the indictment of Criminal Sale of a Controlled Substance" because "the accusatory instrument" did "not contain non-hearsay allegations" since "no drugs [were] confiscated"; (2) he could not be found guilty of criminal sale of a controlled substance because no drugs were confiscated and no tests were performed on them; and (3) he was denied his right to due process and equal protection because he was "charged and indicted for Criminal Sale of a Controlled Substance ... without the recovery of any drugs." See Respondent's Exhibit 0. The motion court denied the application on the basis that "the claims asserted .. . were either previously determined on the merits upon the defendant's direct appeal from the judgment (see, CPL 440.10(2)(a); People v. Shih-Wei Su, 213 A.D.2d 502, 624 N.Y.S.2d 904), or could have been, but were not raised upon the direct appeal (see, CPL 440.10(2)(0)H" See Respondent's Exhibit P.

This timely habeas petition followed in which Cruz asserts verbatim the three grounds raised in support of his C.P.L. § 440.10 motion. See Attachment to Petition (Docket No. 1). He also alleges that an "[u]nqualified witness [i.e., Chucho] testified as [an] expert[.]" See Petition at 1122(a); Attachment to Petition (Docket No. 1). In his argument under the point heading "Was the State[']s Witness Unqualified" Cruz states that trial counsel was ineffective in failing to object to the admission of the tape-recording of Chucho's conversation with him.

For the reasons set forth below, the petition is dismissed.

DISCUSSION

Exhaustion

To satisfy the exhaustion requirement imposed by 28 U.S.C. § 2254(b) and (c), a petitioner "must have informed the state court of both the factual and the legal premises of the claim he asserts in federal court" Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir.1982) (en banc) (citing Picard v. Connor, 404 U.S. 270, 276-77, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971)). Although the petitioner need not have explicitly described his claims as arising under the federal constitution, id. at 195, he must have relied on pertinent federal or state cases employing constitutional analysis, asserted the claim "in terms so particular as to call to mind a specific right protected by the Constitution," or alleged "a pattern of facts that is well within the mainstream of constitutional litigation," id. at 194.

Respondent states that petitioner's "direct appeal focused only on the assertion that Chucho was not competent to identity [sic] of the substance [sic] in question at petitioner's trial." Respondent's Memorandum of Law at 5 (Docket No. 7). Respondent asserts that Cruz "made no mention in his appeal of subject matter jurisdiction, inconsistent prosecution, denial of due process and equal protection, unqualified witness, or ineffective assistance of counsel." Id. Respondent argues that, as a result, Cruz has failed to exhaust his state court remedies with respect to these claims. However, respondent then goes on to observe that Cruz actually raised the claims involving the alleged lack of subject matter jurisdiction, inconsistent prosecution, and the denial of due process and equal protection based on the state's failure to introduce the drugs at trial in his C.P.L. § 440.10 motion. Thus, contrary to respondent's contention, these three claims are exhausted.¹ The Court agrees with respondent that Cruz's claims of ineffective assistance of counsel and improper introduction of Chucho's "expert" testimony are unexhausted.

I. Ineffective assistance of counsel

As to the ineffective assistance of counsel claim premised on the failure to object to the introduction of the tape of Chucho's conversation with him, respondent is correct that this claim was not asserted in any state court proceeding by Cruz. This claim appears to have been raised for the first time on federal habeas review and therefore is unexhausted. For Cruz to return to state court to exhaust the claim, however, would be futile, for the reasons set forth in the following paragraphs.

The Court notes that Section 440.10(1)(h) of the New York Criminal Procedure Law ("C.P.L.") does provide a method by which individuals can collaterally attack their convictions even after they have used up their one direct appeal. Under C.P.L. § 440.10(2)(c), however, a New York court must deny a § 440.10 motion where the movant unjustifiably failed to raise the constitutional violation on direct appeal despite a sufficient record to have permitted such an appeal. See N.Y.Crim. Proc. Law § 440.10(2)(c); see also Reyes v. Keane, 118 F.3d 136, 139 (2d Cir.1997). Denial of a C.P.L. § 440.10 motion, pursuant to § 440.10(2)(c), will not always be appropriate in the ineffective assistance context, such as when the facts supporting the instance of ineffective assistance of counsel appeared outside the record. Reyes, 118 F.3d at 139 (citing People v. Harris, 109 A.D.2d 351, 491 N.Y.S.2d 678, 687 (1985) (holding that trial record was insufficient to require that an ineffective assistance of counsel claim relating to alleged faulty legal advice be brought on direct appeal), appeal denied, 66 N.Y.2d 919, 498 N.Y.S.2d 1034, 489 N.E.2d 779 (N.Y.1985)).

Here, however, Cruz represents that the ineffective assistance is premised on trial counsel's alleged failure to object to the prosecutor's introduction of an audiotape of an incriminating conversation between him and the state's main witness. Thus, any error by trial counsel would be contained within the trial record. Moreover, Cruz had new counsel representing him on direct appeal. There is no justifiable reason, then, why Cruz could not have raised his ineffective assistance of counsel claim on direct review, especially since he had different counsel representing him. See Reyes, 118 F.3d at 139-140 (holding that petitioner's ineffective assistance of trial counsel claim-which was premised on counsel's failure to object to the reasonable doubt charge-did not fall within any of the exceptions noted by the New York courts and should be deemed exhausted because, if it were raised on a C.P.L. § 440.10 motion, the state court would deny it pursuant to C.P.L. § 440.10(2)(c)). Because there...