Escalera v. Coombe
| Decision Date | 30 January 1987 |
| Docket Number | No. 85 Civ. 1698.,85 Civ. 1698. |
| Citation | 652 F. Supp. 1316 |
| Parties | Robert ESCALERA, Petitioner, v. Philip COOMBE, Superintendent of Eastern Correctional Facility, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
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Peter J. Avenia, Gombiner and Avenia, New York City for petitioner.
Leonard Joblove, Asst. Dist. Atty., (Elizabeth Holtzman, Dist. Atty., and Barbara D. Underwood and Peter A. Weinstein, Asst. Dist. Attys., of counsel), Brooklyn, N.Y., for respondent.
Petitioner Robert Escalera is serving a sentence of fifteen years to life upon his conviction of felony murder in violation of N.Y. Penal Law §§ 125.25(3) (McKinney 1975). After the judgment of conviction was entered on September 24, 1976, the appellate division affirmed Escalera's conviction on February 27, 1978, 61 A.D.2d 890, 402 N.Y.S.2d 700. On June 9, 1978, Escalera was denied leave to appeal to the New York Court of Appeals. The trial court denied Escalera's motion to vacate the judgment, N.Y. Crim.Proc.Law § 440.10 (McKinney 1983), on August 3, 1981. This petition for a writ of habeas corpus, 28 U.S.C. § 2254, followed.
The petition raises two arguments. First, Escalera contends that the state trial court denied him due process, as well as his sixth amendment right to call witnesses, when it precluded him from calling his brother, Peter Escalera, as an alibi witness. Second, Escalera argues that he was denied due process when the trial court admitted identification testimony that suffered from an impermissibly great danger of misidentification. The State maintains that the first claim was never presented to the state courts and that, because it is unexhausted, the entire petition must be dismissed. Additionally, the State disputes the merits of each of Escalera's two arguments.
For the reasons that follow, the court finds that Escalera has exhausted his state remedies within the meaning of 28 U.S.C. § 2254(b) and (c), but that he is not entitled to habeas relief on the merits. Accordingly, the petition is dismissed.
On August 18, 1975, at approximately 6:00 p.m., Pasquale Nieves and Felix Torres went for a walk in Fort Greene Park in Brooklyn. They were accompanied by Jesus Cordero, his young son, and another friend. After they had been in the park for about thirty minutes, a man approached and asked if they had seen his dog. Shortly thereafter, four young men came up to that man and one asked whether he would give them money if they found his dog. The man said that he had no money.
Nieves and Torres, together with their friends, walked with the man who was looking for his dog. The four young men followed them. After approximately three to five minutes, the four young men stopped Nieves, Torres, and friends, indicating that it was a holdup. One of the four held a revolver, while the other three had knives.
Cordero, who was holding a small baseball bat, swung at the gun hand of the man with the revolver. He missed, and the man shot him. The four young men ran away, and Cordero died several days later of the single gunshot wound to his chest.
Nieves and Torres ultimately identified Robert Escalera as the gunman. Before trial, Nieves, Torres, and Detective Harold Ruger testified at a Wade hearing, see United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and the trial judge concluded that Nieves and Torres would be permitted to identify Escalera to the jury at his trial.
In addition to testifying in his own defense, Robert Escalera called his friend Samuel Gonzalez as an alibi witness. Gonzalez, who knew Escalera for eighteen or twenty years at the time of the trial (T270),1 testified that he met Escalera coming off a bus at 5:30 on the afternoon of the shooting (T272). According to his testimony, Gonzalez walked with Escalera to the latter's house (T273), left him there (id.), and then returned to Escalera's house at approximately 6:40 (T274). The two were together until approximately 7:30 (T274-81). This testimony was offered to negate the possibility that Escalera had been at the scene of the shooting when it took place, at approximately 6:30.
At the commencement of an afternoon session during Escalera's direct examination, his attorney advised the court — for the first time — that he intended to call Peter Escalera, the defendant's brother, as an alibi witness (T232). Counsel represented that it had been his intention to call Escalera's father, but that he changed his mind because the father was "very nervous" and "a cardiac patient who has to go for treatment on a regular basis" (id.). Peter Escalera was prepared to testify that his brother had been at home between 6:00 and 6:30 p.m. (id.). Before this colloquy, Escalera had not given notice that either his father or his brother might be called as an alibi witness.
The prosecutor was unimpressed by defense counsel's suggestion that he be given an opportunity to question the proposed alibi witness before he was to take the stand (T233). He stated: "I ask that the witness be precluded and that I be given ample opportunity to examine these witnesses with a stenographer present" (id.).2 He also found it "strange" that he had heard nothing of Peter Escalera's proposed testimony until after the luncheon recess, even though the prospective witness had been in court all morning (id.).
The trial judge precluded Peter Escalera's testimony, in view of New York's statutory requirement that criminal defendants provide, upon a demand by the prosecution, a list of alibi witnesses (T234). See New York Crim.Proc.Law § 250.20(1) (McKinney 1982). The notice of alibi statute provides:
If at the trial the defendant calls such an alibi witness without having served the demanded notice of alibi, or if having served such a notice he calls a witness not specified therein, the court may exclude any testimony of such witness relating to the alibi defense. The court may in its discretion receive such testimony, but before doing so, it must, upon application of the people, grant an adjournment not in excess of three days.
Id. § 250.20(3).
The trial judge emphasized that Peter Escalera was not a witness whom the defendant would have had trouble locating (T234). To the contrary, "he is a member of the family fully known to the defense throughout" (id.). Additionally, the trial judge noted the lateness of the application for leave to call the alibi witness (id.).
At the conclusion of all testimony, defense counsel renewed his application (T290). The trial judge responded:
Defense counsel answered that he initially intended to stay away from calling family members as witnesses, because the jury might feel that relatives would lie on behalf of the defendant (T292). Escalera's attorney added, cryptically: "And there was only a question as to whether the father who was the one who was in the better position to observe what happened in the apartment would be the witness" (T292-93).3 Counsel continued that the prosecution would not be prejudiced by admission of the alibi testimony, since "Mr. Escalera and his father have been to the precinct and they have discussed the case with the investigating detective in this case" (T293).4 The trial court adhered to its earlier ruling and the defense rested (T294). Escalera now contends that the order precluding his brother's alibi testimony violated the sixth amendment.
The State contends that Escalera failed to exhaust his state remedies on the sixth amendment claim, as required by 28 U.S.C. § 2254(b) and (c). "It has long been settled `that a state prisoner must normally exhaust available state judicial remedies before a federal court will entertain his petition for habeas corpus.'" Gandia v. Hoke, 648 F.Supp. 1425, 1427 (E.D.N.Y. 1986) (quoting Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971)).
In Daye v. Attorney General of the State of New York, 696 F.2d 186, 194 (2d Cir.1982) (en banc), cert. denied, 464 U.S. 1048, 104 S.Ct. 723, 79 L.Ed.2d 184 (1984), the court listed four ways in which the exhaustion requirement might be met, even without citation to the relevant constitutional provision:
(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegtion of a pattern of facts that is well within the mainstream of constitutional litigation.
The State makes much of the fact that...
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