Echevarria–perez v. Burge

• Decision Date: 26 April 2011
• Docket Number: No. 06–CV–0841(VEB).,06–CV–0841(VEB).
• Citation: 779 F.Supp.2d 326
• Parties: Ariel ECHEVARRIA–PEREZ, Petitioner,v.John BURGE, Superintendent, Respondent.
• Court: U.S. District Court — Western District of New York

779 F.Supp.2d 326

Ariel ECHEVARRIA–PEREZ, Petitioner,

v.John BURGE, Superintendent, Respondent.

No. 06–CV–0841(VEB).

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

April 26, 2011.

Ariel Echevarria–Perez, Elmira, NY, pro se.Loretta S. Courtney, Rochester, NY, for Respondent.

DECISION AND ORDER

VICTOR E. BIANCHINI, United States Magistrate Judge.I. Introduction

Proceeding pro se, Ariel Echevarria–Perez (“Echevarria–Perez” or “Petitioner”) seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the basis that his detention in state custody is unconstitutional. Petitioner is serving an indeterminate sentence of 25 years to life pursuant to a judgment of conviction entered against him in New York State Supreme Court (Monroe County) following a jury trial on charges of second degree (depraved indifference) murder.

The parties have consented to final disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1). For the reasons that follow, the petition is dismissed.

II. Factual Background

On the evening of June 7, 2000, Luis Saez (“Saez”) was walking south along North Clinton Avenue in the City of Rochester, with four other people (his adult daughter Evelyn Saez (“Evelyn”) and her boyfriend, José Danny Vega (“Vega”); together with Saez's friend, Chino; and Saez's other daughter, nine-year-old Madeline Saez (“Madeline”)). They had just dropped off some film to be developed and were on the way back to Saez's home at 323 Clifford Avenue, a few blocks way. All of a sudden, three men jumped out of a brown automobile brandishing machetes. Evelyn recognized them as men who had accosted her the previous summer; she knew them as “Fish,” “Miechi” and “Lazaro.” Evelyn explained that on that earlier occasion, while they were drunk, they had tried to “feel on” her, but she resisted and the incident ended with Lazaro spitting at her. Evelyn told her father and mother, Myrna Echevarria (“Mrs. Echevarria”), (no relation to the Petitioner), about the matter at the time.

The driver of the brown vehicle was identified at trial by several witnesses, including Vega and Evelyn, as Petitioner. Petitioner remained inside the car during the incident. T.344–50, 351–59, 404–15, 476–77 (Numbers preceded by “T.” refer to pages from the trial transcript.)

Saez and Vega, who were both unarmed, fled while Evelyn watched from a nearby store where she remained with her sister. Two of the men pursued Saez and Vega on foot, swinging their machetes in an effort to slash the older man. The third man chased Chino on foot toward Carl Street. Petitioner, meanwhile, was “circling around” Saez with his car. T.356–62, 365, 415–20.

Michael Cunliffe (“Cunliffe”) happened to be driving by and pulled over when he noticed Saez and was concerned about the situation. Cunliffe explained that Saez had once intervened and done him a good turn when Cunliffe was involved in a group of people “fighting and arguing” at Carl Street and North Clinton.

On the night of the murder, Cunliffe recalled seeing two men with machetes jump out of the back seat of the brown sedan and chase Saez's friend down Carl Street. Before any of the men on foot could reach Saez, the vehicle caught up with him. Evelyn saw her father, who was a former boxer, “punch it” and the driver. Cunliffe identified the driver as Petitioner.

Vega and Cunliffe saw Saez throw several punches, and Vega also observed Saez break one of the windows. T.364–65, 420–21, 522–27.

Saez then ran south along Clinton Avenue toward his home on Clifford Avenue, where his wife, Myrna Echevarria, was outside watching. Evelyn had also begun to run home. Meanwhile, Vega was trying to call the police from a nearby store. Cunliffe, who was still inside his car, saw the brown vehicle do a “doughnut” in the middle of Clinton Avenue after which Petitioner “floored it”. The car gave “a little screech” as it rounded the comer onto Clifford, and Petitioner drove “right into Luis [Saez],” about 25 to 30 feet from the corner. T.366, 422, 470–72, 527–32, 563–64.

Although they did not hear the screeching sound, Vega, Evelyn, and Mrs. Echevarria each saw that Saez was hit hard enough to send his body “flying” upwards. After bouncing onto and off the car's windshield, in what Cunliffe described as a “cartwheel,” Saez landed head first on the pavement while Petitioner sped off. Mrs. Echevarria confirmed that the vehicle had come from the direction of Clinton Avenue when it collided with her husband, who had already turned onto Clifford Avenue and was looking west in her direction. Mrs. Echevarria recalled, “It lifted him up in the air and he fell on top of the glass and landed on the ground.” T.366, 428, 470–73, 527–32.

Several other motorists saw the incident as well. Eugene Michael (“Michael”), a battalion chief with the Rochester Fire Department, was stopped on Clifford Avenue, east of Clinton Avenue, behind five or six other cars wailing for a red light to change. He saw a man running south on Clinton Avenue turn west onto Clifford Avenue, while a brown vehicle made the same turn—at a faster than normal speed but not so excessive as to appear “out of control”. Michael observed the brown car striking the running man and catapult his body into the air. T.497–501.

Edwin Ortiz and Lydia Ortiz were heading in the other direction, east on Clifford Avenue, when they saw a man walking rapidly as if he were “agitated” toward them. They watched as he was struck by the brown automobile which “quickly turned right” from Clinton onto Clifford. Mr. Ortiz estimated the car's speed at impact as between 25 and 35 miles per hour, which was slower than Vega thought it was traveling, but consistent with Cunliffe's approximation of the car's speed before the turn. By this point, “Fish” was back in the car. T.427, 476, 522, 563, 608–12, 622–27, 647.

After the collision, Petitioner did not slow down until he passed Mrs. Echevarria as she was running to her husband's side. “Fish” stuck his head out the window and said something to her. Petitioner meanwhile continued driving east, turned onto Lill Street, and then made a U-turn which enabled Cunliffe to catch up with him. Petitioner downplayed the incident, assuring Cunliffe, “Hey, don't worry about it” and continued driving away. Cunliffe took down the vehicle's license number before returning to the stricken Saez. T.476–79, 534–39.

Edwin Ortiz also followed Petitioner and when his vehicle finally came to a stop at Roth Street and Avenue A, he pulled along side and asked him why he had hit the man. Petitioner pointed to his face indicating that something had provoked him. T.613–18.

The autopsy established the cause of Luis Saez death to an “extremely severe” closed head injury, consistent with his being struck by a moving automobile and hitting the pavement on his head, resulting in massive brain damage. T.599–603. Defense counsel did not cross-examine the medical examiner.

Petitioner fled to New Jersey once he found out that Saez had died, but he returned to Rochester in January of 2001. He arranged to surrender himself on March 19, 2001, explaining, “I am getting too old to keep running.” T.645–47, 654, 725. After being advised of his constitutional rights, in both English and Spanish, he waived them and gave Investigator Randall Benjamin the following account of the killing and what caused it:

Last summer I had hit a person on Clifford Avenue. What led up to this was that my two friends, Miechi and Fish, had a problem with the guy I hit, his name is Luis. Luis had robbed Miechi and punched him in the face. We reported it to the police. Luis was arrested, but Miechi never followed through with it and Luis got out of jail. After that, they had problems with Luis and his friends. I never had problems with these guys before, but after they saw me with the police that day, I don't think they like me either.

In June of last year. I am not sure of what day it was. I had picked up Miechi and Fish. We went to a store on Clifford Avenue at Mead. I had parked my car right in front of the store. Luis and two other guys came down Clinton Avenue from Carl Street. When they came down the street. Meichi and Fish got out of the car. They started fighting with the guys and I stayed in the car. When I was in the car, Luis came up to the car and punched me in the nose and made it bleed. He then broke the window of the door right behind me and kept hitting the car. I then took off.

I drove up to Carl Street and turned around. When I turned around, Miechi got in the car with me. I then went down Clinton Avenue and turned on Clifford towards Conkey Avenue. When I turned the comer. I saw Luis standing in the road. I thought he was going to hit me again, so I hit him.

Petitioner continued with a description of his flight from the scene, and confirmed that when “the guy in the white car” (i.e., Cunliffe) who followed him said something about the man he had hit and left lying in the street, he responded by pointing to his face and saying. “Look what he did to me!” T.711–26.

The defense theory was killing of Luis Saez was an accident. See, e.g., T.756. The prosecution presented alternative theories of liability—that Echevarria–Perez's act of striking Saez with his vehicle was either an intentional act, or was done with depraved indifference to human life. The jury returned a verdict convicting Petitioner of depraved indifference murder. Petitioner was sentenced to 25 years to life.

His direct appeal and collateral motion to vacate the judgment were unsuccessful. This timely habeas petition followed in which Petitioner raises the following issues: (1) his conviction was against the weight of the evidence; (2) his identification procedure was unduly suggestive; (3) his sentence was harsh and excessive; and (4) the trial evidence was sufficient to convict him of intentional murder but insufficient to convict him of depraved indifference murder.

III. DiscussionA. Ground One: Verdict Against the...