Curet v. Graham

• Decision Date: 11 May 2022
• Docket Number: 14cv04831 (VSB) (DF)
• Parties: JOSE CURET, Petitioner, v. HAROLD D. GRAHAM, Respondent.
• Court: U.S. District Court — Southern District of New York

JOSE CURET, Petitioner, v. HAROLD D. GRAHAM, Respondent.

No. 14cv04831 (VSB) (DF)

United States District Court, S.D. New York

May 11, 2022

Mr Jose Curet

Sullivan Corr. Facility

Counsel for Respondent

REPORT AND RECOMMENDATION

DEBRA FRIEMAN, UNITED STATES MAGISTRATE JUDGE

TO THE HONORABLE VERNON S. BRODERICK, U.S.D.J.:

Pro se petitioner Jose Curet (“Petitioner”) seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, following his conviction in state court, upon a jury verdict, of one count of Murder in the Second Degree, in violation of New York Penal Law § 125.25(3) (i.e., felony murder); Attempted Murder in the Second Degree, in violation of New York Penal Law § 110/125.25(1); Burglary in the First Degree, in violation of New York Penal Law § 140.30(1); Attempted Robbery in the First Degree, in violation of New York Penal Law § 110/160.15(2); and Criminal Possession of a Weapon in the Second Degree, in violation of New York Penal Law § 265.03(2). (See Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody filed Jun. 11, 2014 (“Petition” or “Pet.”) (Dkt. 1) ¶ 5.) At the time he filed his Petition, Petitioner was incarcerated at the Auburn Correctional Facility (“Auburn”), in Auburn, New York (see Pet., at 1), although he has since been transferred to the Sullivan Correction Facility (“Sullivan”), in Fallsburg, New York (see Dkt. 24). Petitioner is presently serving a sentence of 43-years-to-life imprisonment, to be followed by five years of post-release supervision. (Pet. ¶ 3.)

In this habeas proceeding, Petitioner raises a number of challenges to his conviction, generally focused on the trial court's refusal to submit to the jury a statutory defense to felony murder that Petitioner claims was supported by the evidence at trial; the claimed ineffective assistance provided to Petitioner by his appellate counsel, who, according to Petitioner, failed to raise numerous meritorious claims on direct appeal; and the alleged deprivation of a fair and impartial jury, based on the fact that one of the jurors had personal knowledge relevant to the crimes that she failed to disclose during voir dire and then shared with other jurors. (See Pet. ¶ 12; see also generally Petitioner's Memorandum of Law in Support of Petitioner's Petition uner 28 U.S.C. § 2254 for Writ of Habeas Corpus, dated May 7, 2015 (“Pet. Mem.”) (Dkt. 11, at 1-28).) Respondent, the Superintendent of Auburn, ^[1] argues that the various claims that Petitioner has asserted should be dismissed either because they lack merit or because they are unexhausted (and, in any event, without merit). (See generally Respondent's Memorandum of Law, dated June 3, 2015 (“Resp. Mem.”) (Dkt. 18).)

For the reasons set forth below, I recommend that the Petition be dismissed in its entirety.

BACKGROUND

A. Factual Background

Petitioner and his codefendant, Noel Bruno (“Bruno”), stood trial together in 2009 for crimes related to a home invasion in the Bronx and multiple homicides that were committed in the course of that home invasion. Based on the evidence presented by the prosecution at trial, ^[2]the events underlying Petitioner's conviction may be summarized as follows:

1. Johanna Hartley's Testimony at Trial

On the evening of September 20, 2005, Johanna Hartley (“Johanna”) and her husband, Elvis Hartley (“Elvis”) were visiting the apartment of Miguel Aquino (“Aquino”), ^[3] Dilcia Tejada (“Tejada”), and Tejada's two-year old son. (Trial Tr., Dkt. 16-16, at 3; 16-20, at 644-46.) Johanna testified that, after Aquino “made some food” (id., Dkt. 16-21, at 655), the two couples were on the couch talking when “[s]omeone knocked on the door” (id., at 657). Aquino opened the door, and Johanna testified that she heard him shout in Spanish, “oh, my mother, ” before three men, including two individuals Johanna identified as Bruno and Petitioner, ^[4] entered the apartment. (Id., at 657-59.) Johanna testified that Petitioner said “move over there, move over there, and go in there, get in there to the bathroom, ” and then pointed a gun at Elvis's head. (Id., at 660; see also id., Dkt. 16-22, at 788.)

Johanna testified that Petitioner put everyone into the bathroom, except for Aquino, who remained in the living room with Bruno. (Id., Dkt. 16-21, at 675.) From the bathroom, Johanna could hear Aquino yelling “that's enough; don't hit me anymore.” (Id., at 675, 680.) She also testified that she overheard Bruno asking Aquino, “Where is the stuff? Where is the stuff? You have it here.” (Id., at 682.) Johanna asked Petitioner “[w]hat was happening, ” and, according to Johanna, Petitioner and the third man both responded, “[T]his is the guy we are looking for, this jerk. [I]f he doesn't talk, you are all going to die here.” (Id., at 683.)

Johanna testified that Bruno and Petitioner searched the apartment, “removing and tossing stuff, ” while the third man held the gun (id., at 684), although, around this time, “[a]ll three” of the men were also asking Aquino, “Where is the stuff, if not we are going to kill you” (id.). According to Johanna, Bruno instructed either Petitioner and/or the third man to “bring one from the bathroom over [to the living room].” (Id., at 685; but see Dkt. 16-22, at 803.) Johanna was chosen, and taken to the living room, where the third man forced her to lie face down on the floor next to Aquino, who, according to Johanna, was already bound with tape. (Id., Dkt. 16-21, at 685, 688.) After Bruno continued to question Aquino, to no avail, the third man “started pressuring [Aquino] with the gun, ” including “hit[ting] [Aquino] in the head.” (Id., at 687.)

Johanna testified that Petitioner, at Bruno's behest, then brought Elvis to the living room. (Id., at 689-90.) All three of the men then continued to tell Aquino: “[T]alk, talk, because if you don't, all of you are going to die here. If you don't say where the stuff is, all of you are going to die.” (Id.) According to Johanna, Bruno had, at some point, taken the gun (she also indicated that the gun was being passed around among the three men) and was hitting Aquino with it while the other two men searched the apartment. (Id., at 690-91.)

Some time later, while Bruno was binding and gagging Johanna and her husband Elvis, Tejada emerged from the bathroom and begged Aquino to answer the men's questions. (Id., at 711-12.) When her pleas were unsuccessful, Tejada returned to the bathroom and the three men continued their search of the apartment, “searching” and “tossing stuff.” (Id., at 712-16.)

Johanna testified that, after Elvis was bound, Bruno removed Elvis's wallet, his ring, and a chain. (Id., at 718, 720.) A card in Elvis's wallet indicated to Bruno that Elvis had family in the police force. (Id., at 719.) Around this time, Johanna pleaded with Petitioner that her bracelet was impeding her blood flow, and she testified that Petitioner cut the bracelet off, along with the tape binding her wrists, scratching her in the process. (Id., at 721.) Bruno, however, then bound her up again. (Id., at 723.) Johanna testified that, at this point, “[t]hey seemed desperate. They seemed jittery, nervous.” (Id.) Johanna also testified that she requested a glass of water from Petitioner, informing him that she was “choking” (id., at 725), and, according to Johanna, Petitioner, after giving her the water, said to her: “Drink this water .... [T]his is the last water that you will drink .... All of you are going to die because of [Aquino's] fault” (id.).

Johanna testified that Bruno then pulled out a rope and was moving toward Aquino when Tejada came “running” and begged Bruno not to kill Aquino. (Id., at 726.) Bruno proceeded to strangle Aquino while the other two participants watched. (Id., at 728.) Johanna testified that, after strangling Aquino, Bruno “walked away and got a telephone cable.” (Id.) Elvis then “stood up, ” presumably to intervene or defend himself from an attack by Bruno, but was knocked down by all three of the men. (Id., at 729.) Bruno started to kick Elvis in the stomach while Tejada yelled at the three men not to kill “him, ” which, according to Johanna, caused the three men to go “crazy” because Tejada was “yelling too loudly.” (Id., at 730.) Johanna testified that, at some point, Bruno placed a pillow on Aquino's head and shot him there, killing him.

(Id., at 742-43.) Afterwards, Bruno also shot Johanna, and she lost consciousness. (Id., at 738).^[5]When Johanna regained consciousness, she saw Petitioner “at the door, ” and she testified that Petitioner saw her “open[] [her] eyes, ” and she watched Petitioner say to Bruno: “[S]he's alive, come back.” (Id., at 739.) Bruno returned to Johanna with the gun “in his hand.” (Id.) At this point, Johanna stated that she “felt that no one else was moving.” (Id., at 740.)

Johanna testified that Bruno “got on top of [Johanna] with the gun, ” and they struggled. (Id., at 744.) According to Johanna, Bruno then shot her in her right cheek, although she testified that she did not lose consciousness again.^[6] (Id.) Johanna further testified that, as Bruno and Petitioner were leaving the apartment, she observed Bruno “shooting behind him” and heard Petitioner protesting and telling Bruno, “you hit me.” (Id., at 745.) After Bruno and Petitioner left the apartment, Johanna knocked on neighboring doors for help. (Id., at 746.) Eventually, a man invited her in, and called the police. (Id., at 747.)

Johanna testified that, during an initial interview by Detectives Luis Aponte and Carlos Infante at St. Barnabas Hospital, she gave a description of the individuals involved in the crimes telling the detectives that “one had a hat and the other had a ponytail, and the other had the spikey hair spiked up.” (Id., at 758.) Johanna also...