Garcia v. Portuondo, 02 Civ.2312 LAK.
| Decision Date | 13 September 2004 |
| Docket Number | No. 02 Civ.2312 LAK.,02 Civ.2312 LAK. |
| Citation | 334 F.Supp.2d 446 |
| Parties | Jose GARCIA, Petitioner, v. Leonard PORTUONDO, etc., et al., Respondents. |
| Court | U.S. District Court — Southern District of New York |
Jose Garcia, Petitioner pro se.
Nancy D. Killian, Assistant District Attorney, Robert T. Johnson, District Attorney for Bronx County, for Respondents.
Petitioner Jose Garcia is before this Court on a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He argues that his constitutional rights were violated by the failure of the government to turn over Brady materials and by ineffective assistance of counsel. Respondents have moved to dismiss the petition as untimely. Petitioner does not dispute that his petition was filed outside the one year limitations period, but argues that habeas relief is not foreclosed because he is actually innocent of the crime.
In a report and recommendation dated September 9, 2003 ("Report and Recommendation"), Magistrate Judge Kevin N. Fox recommended that the Court grant respondents' motion to dismiss, finding that petitioner filed his habeas petition nearly two years after the expiration of the limitations period and that petitioner failed to make a showing of actual innocence sufficient to overcome this "procedural" default. Petitioner has objected to the Report and Recommendation.1
In light of its de novo review of the record, this Court respectfully disagrees with Judge Fox's analysis and recommendation. Thus, petitioner's objections to the Report and Recommendation are sustained, and the respondents' motion to dismiss the petition as untimely is denied.
Petitioner was convicted for the second-degree murder of Cesar Vasquez, a crime of which he maintains his innocence. As much in this case turns on whether evidence not presented to the jury is sufficient to present a credible claim of actual innocence, a brief description of the trial is appropriate.
The prosecution's star witness was Penny Denor, the only testifying eye-witness to the murder. Ms. Denor testified that, on July 16, 1991, the night of the murder, she looked out of her fourth-floor window for her fourteen year-old son, who had not come home for dinner.2 After spotting her son directly beneath her window, she saw three men with handguns-the driver and two passengers-get out of a blue vehicle that was double-parked near her son.3 She looked at the face of the driver, at his gun, and back to his face.4 She testified that she saw the front seat passenger of the car, noticing in particular his "very flowery[,] ... very outstanding" shirt, and the other passenger, another man.5 Fearing for her son's safety, she ran down the hallway and stairs to the courtyard and heard five or more gunshots.6 When she arrived in the courtyard, she saw a body lying on the ground and then saw three men run through the gate and into the blue vehicle.7
There was no physical evidence linking petitioner to the murder. Instead, the prosecution established petitioner's connection to the murder through the testimony of Ms. Denor and Detective Pezzullo, the detective assigned to the case, in two ways. First, Ms. Denor made an in-court identification of Garcia as the front seat passenger.8 Second, Ms. Denor testified that she had been present at a lineup approximately five months after the murder. She said she initially identified someone other than number five as the individual in the lineup whom she recognized. Immediately upon leaving the room, however, she said she had told Detective Pezzullo that she had identified the wrong person, implied that she had been afraid to identify the person she actually recognized because a defense lawyer had been present, and told the detective that she knew all along that the person she recognized had been the individual in number five position.9 Detective Pezzullo testified that he was present at the lineup and that petitioner was in the number five position.10
The defense attempted to discredit the eye-witness testimony, establishing on cross-examination that Ms. Denor had been under the effects of Valium the night of the murder,11 that she had testified previously that Valium made her sleepy,12 that she was on another antidepressant, Thorizine, at the time of the lineup and during trial,13 and that there were a number of inconsistencies in her testimony.14
The defense case consisted of one witness, Griselda Vasquez, the sister of the victim. She testified that, on July 16, 1991, she looked out her window and saw a man who looked like "he had just finished doing something; like a rat"15 get into a car. She then realized that her brother was lying on the ground and ran down the stairs to the courtyard where she found him dead.16 Ms. Vasquez stated that she had known petitioner as a friend of her brother's, that she had seen him before many times, and that she did not see him outside her window the night of the murder.17 The defense attempted also to establish an alibi through Ms. Vasquez, who testified that she telephoned petitioner in Santo Domingo and spoke with him just after the murder occurred.18 The prosecution established on cross-examination, however, that she had no personal knowledge that petitioner had been in Santo Domingo, as she did not physically dial the telephone but had it handed to her once the call had been placed by someone else.19 The prosecution attempted to discredit her testimony also with a rebuttal witness, Edmundo Vargas, who testified in substance that he had lived at the apartment complex where the murder occurred and that he had seen Ms. Vasquez with her mother on the night of the murder,20 contradicting Ms. Vasquez's statement that her mother was not in the country at the time.21
On January 8, 1993, the jury found petitioner guilty in the Supreme Court of New York, Bronx County, of second-degree murder. On January 19, 1993, he was sentenced to an indeterminate term of imprisonment of twenty-five years to life. His conviction was affirmed by the Appellate Division, First Department, on September 26, 1995,22 and the New York Court of Appeals denied petitioner's application for leave to appeal on April 4, 1996.23 By motion dated November 26, 1997, petitioner applied to the Appellate Division for a writ of error coram nobis, vacating its decision on the ground of ineffective assistance of counsel, but the motion was denied on July 23, 1998.24
On May 10, 1999, petitioner filed his first petition for a writ of habeas corpus, raising no claims but asking instead for an extension of time in which to file an application for habeas relief. This Court granted respondents' motion to dismiss the petition as untimely.25 Returning to state court, on September 1, 2000, petitioner filed a motion to vacate the judgment of conviction pursuant to N.Y.Crim. Proc. L. § 440.10, which was denied on December 7, 2000.26 Leave to appeal was denied by the Appellate Division on August 9, 2000.27
On April 12, 2002, petitioner sought leave to file a successive habeas corpus petition pursuant to 28 U.S.C. § 2244(b), arguing that his initial petition had not been a habeas petition but a request for an extension of time. In this application, he asserted three grounds for habeas relief: (1) his "actual innocence" of the offense for which he was convicted, (2) Brady violations, and (3) ineffective assistance of counsel. The Second Circuit denied the successive petition application as unnecessary because his initial petition had not been decided on the merits, as it did not raise any claims, and transferred the petition to this Court.28 Now before this Court are petitioner's objections to Magistrate Judge Fox's recommendation that respondents' motion to dismiss the petition as time-barred under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA")29 be granted.
Under AEDPA, the filing of a habeas corpus petition is governed by a one year statute of limitations.30 Here, the limitations period began to run on July 3, 1996, the date on which his time to seek certiorari from the Supreme Court expired.31 His initial petition, the motion for an extension of time to file his petition, was filed May 10, 1999, almost two years after the statute of limitations period expired. Thus, his petition is untimely, and respondents' motion to dismiss should be granted, absent some sufficient reason to reach the merits in spite of the apparent statute of limitations bar.
The Report and Recommendation considered and rejected two possible mechanisms through which petitioner might overcome the procedural bar: equitable tolling for cause and miscarriage of justice. The equitable tolling for cause issue is dealt with adequately in the Report and Recommendation and need not be addressed here.32 This Court respectfully disagrees with Judge Fox on the handling of the miscarriage of justice claim.
The Report and Recommendation treated the untimeliness of the petition as any other procedural default, assuming without discussion that petitioner therefore "may be excused from the default and obtain federal review of his constitutional claims by demonstrating cause for the default and actual prejudice as a result of the alleged violation of federal law, or by demonstrating that failure to consider the claims will result in a fundamental miscarriage of justice."33 Petitioner does not here make a cause and prejudice claim. Thus, the Report and Recommendation proceeded to examine his miscarriage of justice claim, explaining that he might succeed only by demonstrating that "a constitutional violation has probably resulted in the conviction of one who is actually innocent."34
The Magistrate Judge correctly identified the standard by which a habeas court should determine whether to reach the merits of a petition that otherwise would be barred because of state procedural defaults or as abusive or successive.35 In those situations, the...
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