Cruz v. Colvin
| Decision Date | 14 August 2019 |
| Docket Number | No. 17-CV-3757 (JFB),17-CV-3757 (JFB) |
| Parties | EDUARDO CRUZ, Petitioner, v. JOHN COLVIN, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
Eduardo Cruz ("petitioner"), proceeding pro se, petitions this Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his conviction entered on July 19, 2013, in the Supreme Court of the State of New York, Nassau County (the "trial court"). Following a jury trial, petitioner was convicted of nine counts of robbery in the first degree, N.Y. Penal Law ("N.Y.P.L.") § 160.15(3), (4); five counts of robbery in the second degree, N.Y.P.L. § 160.10(1), (2)(a); five counts of burglary in the first degree, N.Y.P.L. § 140.30(2), (3), (4); one count of burglary in the second degree, N.Y.P.L. § 104.25(2); two counts of assault in the second degree, N.Y.P.L. § 120.05(6); two counts of criminal possession of a weapon in the fourth degree, N.Y.P.L. § 265.01(2); three counts of unlawful imprisonment in the second degree, N.Y.P.L. § 135.05; escape in the third degree, N.Y.P.L. § 205.05; resisting arrest, N.Y.P.L. § 205.30; criminal possession of stolen property in the fifth degree, N.Y.P.L. § 164.50; and one count of attempted unlawful imprisonment in the second degree, N.Y.P.L. §§ 110.00/135.05. Petitioner was sentenced to an aggregate determinate term of twenty-five years' incarceration followed by five years of post-release supervision. Five orders of protection were signed ordering petitioner to stay away from Shabnam Muzafar, Ashad Sumra, Ghulam Sumra, Harris Sumra, and Mohammad Shafique until September 18, 2044. Petitioner was also required to pay $2,819.34 in restitution.
In the instant case, petitioner challenges his conviction on the following grounds: (1) his arrest was the product of a Fourth Amendment violation; (2) his confession was involuntary; (3) there was insufficient evidence to find physical injury; (4) he received ineffective assistance of counsel; and (5) the concurrent inclusory counts should be dismissed.
For the reasons set forth below, the petition for a writ of habeas corpus is denied in its entirety. Specifically, the Court concludes that petitioner's first and third claims are procedurally barred from habeas review. Moreover, the Court concludes that all of petitioner's claims, including the first and third claim, are without merit.
On September 19, 2011, petitioner was arrested, along with three other co-defendants, and charged with nine counts of robbery in the first degree, five counts of robbery in the second degree, five counts of burglary in the first degree, one count of burglary in the second degree, two counts of assault in the second degree, two counts of criminal possession of a weapon in the fourth degree, three counts of unlawful imprisonment in the second degree, one count of escape in the third degree, one count of resisting arrest, one charge of criminal possession of stolen property in the fifth degree, and one count of attempted unlawful imprisonment in the second degree. (Tr. 7; Resp't's Aff. ¶ 25, ECF No. 7.)1 These charges arose from petitioner's participation in a home invasion that occurred at 1350 Bellmore Avenue in North Bellmore, New York.
1. The Evidence
On September 19, 2011, at approximately 8:30 a.m., petitioner entered the home at 1350 Bellmore Avenue in Nassau County, and encountered Shabnam Muzafar ("Muzafar") in the kitchen. (Tr. 325, 327.) He approached Muzafar from behind, held a knife to her neck, and moved her into her bedroom. (Tr. 325-327.) While petitioner held Muzafar down, co-defendants Gustavo Arroyo ("Arroyo"), carrying a knife, and Carlos Segura ("Segura"), carrying a gun, entered the home and tied her up. (Tr. 327-30, 332-33, 593, 595.)
At this point Arshad Sumra ("Sumra"), Muzafar's husband, knocked on the front door after returning home from dropping his son off at school. (Tr. 333-334, 589-90.) Segura went to answer the door, while petitioner received a phone call. (Tr. 334, 594.) Segura opened the door, placed a gun on Sumra's neck, and proceeded to walk him to the bedroom where Muzafar was tied up. (Tr. 334-335, 592-593.) The three co-defendants proceeded to ransack the room, beat the victims, and tie up Sumra and Mohamed Shafique ("Shafique"), who was visiting from Pakistan and staying at the house. (Tr. 322, 334, 336-37, 340-41, 343, 596-97). After the co-defendants demanded money, Sumra pointed them to a jacket that had about 6,000 dollars and Muzafar's jewelry in it, which the co-defendants took. (Tr. 337-40, 598-99.) He also told them that his brother, Ghulam Sumra ("Ghulam"), was in the basement and had money, prompting petitioner to go downstairs. (Tr. 595-96, 600.)
Once downstairs, petitioner put a knife to Ghulam's throat and demanded money from him. (Tr. 905-06.) Petitioner then stole Ghulam's cellphone and money and tied him up with the wire of the cellphone charger. Petitioner also spoke on his [petitioner's] phone before exiting the room. (Tr. 906.) Phone records introduced into evidence at trial corroborate that a cellphone associated with petitioner was in communication with a cellphone associated with Dario Guerrero("Guerrero"), the driver of the getaway car, during the relevant time period. (Tr. 1096.)
While Cruz was downstairs, Harris Sumra ("Harris"), Muzafar's and Sumra's son, arrived at the house. (Tr. 345, 600-01.) As Harris approached the house, he noticed a white car resembling a law enforcement vehicle that had a spotlight and no front license plate. (Tr. 815.) He began knocking on the door of the house, when he saw the man in the driver's seat of the white car, who was on the phone and looking at him. (Tr. 816.) Arroyo answered the door and tried to pull Harris inside. (Tr. 817, 824.) As Arroyo tried to grab Harris, Harris's shirt ripped allowing him to escape Arroyo's grip and run for help. (Id.)
Gina Weiss ("Weiss"), who was driving in the neighborhood, saw Harris searching for help and stopped her car to help him. (Tr. 430-32.) As Harris was explaining what had happened to Weiss, the perpetrators got into the white car, which began heading south on Bellmore Avenue. (Tr. 431-32, 435-37, 818.) Andrew Smart ("Smart"), a driver who happened to be passing by, saw the white car make a sharp U-turn and saw people running from the house into the car. (Tr. 284-86.) He pulled up next to Weiss to ask what happened and then proceeded to follow the white car. (Id.) Both Smart and Weiss called police to report what they had seen. (Tr. 288, 432.)
At 9:04 a.m. on September 19, 2011, Sergeant John Lezamiz ("Sergeant Lezamiz") received a radio transmission, stating that there was an armed burglary in progress at 1350 Bellmore Avenue where victims were tied up. (Tr. 948.) As Sergeant Lezamiz began driving towards the address, more transmissions came in with details of the incident. (Tr. 949.) Sergeant Lezamiz learned that four suspects were in a "white Crown Victoria with Pennsylvania plates, tinted windows, bumper stickers on the back, and...a police spotlight on the car." (Id.) The suspects were described as two Black males, one Hispanic male, and one unknown fourth person. (Id.)
As Sergeant Lezamiz approached the intersection of Mill Road and Merrick Road, he noticed a car stuck in traffic that matched the one described in the transmissions. (Tr. 950.) By the time Sergeant Lezamiz turned around, the car was gone. (Id.) He radioed in that he had spotted the vehicle and assigned officers to canvas the Meadowbrook Parkway, which was where he thought the car was heading. (Tr. 951.)
Sergeant Lezamiz continued on Merrick Road toward the scene of the crime when he again spotted the vehicle. (Id.) He turned on his sirens and lights and the vehicle pulled over near Babylon Turnpike and Merrick Road. (Id.) Sergeant Lezamiz exited his car, drew his gun, and demanded that the suspects exit their vehicle. (Tr. 952.) As the suspects exited the vehicle, Sergeant Lezamiz saw petitioner reach for his waistband. (Tr. 953.) Sergeant Lezamiz therefore commanded the suspects to put their hands above their head, which they did. (Id.) He further instructed them to lay face down on the sidewalk and they complied. (Tr. 954.)
While petitioner was on the ground, Sergeant Lezamiz put his weight on petitioner to arrest him first, because he believed that petitioner was armed with a weapon from petitioner's earlier motions towards his waistband. (Tr. 953, 956.) Sergeant Lezamiz handcuffed one of petitioner's hands, but struggled to simultaneously handcuff petitioner's other hand and keep his gun drawn. (Tr. 956.) As Sergeant Lezamiz was attempting to handcuff petitioner, Arroyo got up and began to run east on Merrick Road towards Lindenmere. (Id.) Sergeant Lezamiz yelled at Arroyo to stop, but remained on top of petitioner to keep him under control. (Tr.957.) Guerrero and Segura then got up and ran back in their car. (Id.) While still attempting to maintain control of petitioner, Sergeant Lezamiz turned towards Guerrero and Segura and demanded that they get out of their car. (Id.) Petitioner then overpowered Sergeant Lezamiz, escaped from underneath him, and began to run away towards East Lake School. (Id.) Guerrero began driving at Sergeant Lezamiz who responded by firing four rounds into the car, causing Guerrero to swerve around him and continue east on Merrick Road. (Id.)
Sergeant Lezamiz proceeded to transmit his location, as well as the direction in which both Arroyo and the vehicle fled. (Tr. 958-59.) Officer Daniel Clarke ("Officer Clarke") and Officer John Billelo ("Officer Billelo") went to Sergeant Lezamiz's location in their marked police car. (Tr. 959.) Those officers saw Sergeant Lezamiz running and gesturing toward petitioner and so they continued in their car to catch petitioner. (Tr. 402, 923, 959-60.) Officer Clarke and Officer...
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