Gomez v. Miller
| Decision Date | 20 November 2021 |
| Docket Number | 9:19-CV-1571 (TJM) |
| Parties | PETER GOMEZ, Petitioner, v. MARK MILLER, Superintendent, Green Haven Correctional Facility[1], Respondent. |
| Court | U.S. District Court — Northern District of New York |
PETER GOMEZ, Petitioner,
v.
MARK MILLER, Superintendent, Green Haven Correctional Facility[1], Respondent.
No. 9:19-CV-1571 (TJM)
United States District Court, N.D. New York
November 20, 2021
APPEARANCES:
PETER GOMEZ, Petitioner pro se, Green Haven Correctional Facility.
HON. LETITIA JAMES, Attorney for Respondent, New York State Attorney General.
OF COUNSEL:
PAUL B. LYONS, ESQ., Ass't Attorney General.
DECISION AND ORDER
THOMAS J. MCAVOY, Senior United States District Judge.
I. INTRODUCTION
Petitioner Peter Gomez ("Petitioner") seeks federal habeas corpus relief pursuant to 28 U.S.C. § 2254. Dkt. No. 1 ("Petition"). On January 22, 2021, with the Court's permission, Petitioner filed a Second Amended Petition. Dkt. No. 24 ("Sec. Am. Pet."). On January 26,
2021, the Court directed Respondent to answer the Second Amended Petition. Dkt. No. 25. Respondent opposed the petition. Dkt. No. 28, Memorandum of Law in Opposition; Dkt. No. 29, Answer; Dkt. No. 30, State Court Records. Petitioner filed a traverse (Dkt. No. 32) and a supplemental traverse (Dkt. No. 34).
For the reasons that follow, the habeas petition is denied and dismissed.
II. RELEVANT BACKGROUND
A. Indictment
In April 2014, an Albany County grand jury returned a four-count indictment charging Petitioner with criminal possession of a controlled substance in the first degree, criminal possession of a controlled substance in the third degree, criminal sale of a controlled substance in the first degree, and operating as a major trafficker. SR. at 14-18.[2] The charges arose from Petitioner's possession of cocaine with intent to sell in Cohoes, New York on March 18, 2014. Id. Police executed a search warrant for the search of a 2010 black Nissan and recovered four clear plastic bags containing cocaine. Id. at 138-139, 143.
B. Suppression Hearing
In May 2014, Petitioner filed a pre-trial counseled omnibus motion. SR. at 115-151. Of relevance herein, Petitioner sought a Huntley and Dunaway-Mapp[3] hearing related to
tangible property recovered from a search of his vehicle and his oral statements. Id. The trial court scheduled a Huntley and Dunaway-Mapp hearing (hereinafter "suppression hearing") to resolve the motions. Id. at 159.
The suppression hearing was held in Albany County Court on June 27, 2014 and July 10, 2014. TR. at 118. Petitioner was represented at the suppression hearing by retained counsel, Attorney Cheryl Coleman. Id.
At the hearing, Inv. Missenis, an investigator assigned to the Community Narcotics Enforcement Team and employed with the State Police for over 24 years, was called to testify. TR. at 22-23. Inv. Missenis submitted an application for a search warrant to Cohoes City Court Judge Van Ullen on March 14, 2014. Id. at 24-25. In the application, Inv. Missenis outlined his investigation that led to the application to search a 2007 white Audi AQ7 bearing New York registration GLC-7699. Id. at 28-29, SR. at 147. In the sworn application, Inv. Missenis claimed he received information for an unnamed confidential informant ("CI") that Petitioner distributed large quantities of cocaine. SR. at 146-151. The CI reported Petitioner was expected to arrive in Cohoes on March 14, 2014 and that he drove "a couple different vehicles, a white Audi Q7" and "a black Nissan Sentra" with a New Jersey registration, owned by Petitioner's girlfriend. Id. at 148; TR. at 43. The black Nissan was not the target of the warrant because Inv. Missenis did not know the license plate number. TR. at 29, 44. Judge Van Ullen signed the warrant on March 14, 2014. SR. at 145. Inv. Missenis attempted to execute the warrant, but Petitioner did not arrive in Cohoes on March 14, 2014, in any vehicle. TR. at 13, 43.
Inv. Missenis later learned from the CI that Petitioner would arrive "a few days later."
TR. at 52-54. Inv. Missenis testified that, on March 18, 2014, at approximately 5:30 p.m., Petitioner arrived on Lincoln Avenue in Cohoes, NY in a black Nissan. Id. at 31. Inv. Missenis and Investigator Vardeen approached the driver's side of the vehicle and Vardeen "pulled out her gun." Id. at 40. Petitioner "ran off," but was apprehended within minutes, handcuffed and transported to the police station. Id.
After Petitioner was detained, Inv. Missenis submitted an application for a search warrant for a 2010 black Nissan with New Jersey registration H39DCY to Judge Van Ullen. TR. at 30-31. In the application, Inv. Missenis referred to the March 14, 2014 application and warrant. Id. at 44; SR. at 141. Inv. Missenis averred, "[i]t should be noted that a couple of minutes before the traffic stop, CS-1 contacted your affiant and advised that Peter Gomez was in the area of 27 Lincoln Ave with the delivery of cocaine." SR. at 142. Judge Van Ullen signed the warrant on March 18, 2014. Id. at 139. Inv. Missenis executed the search warrant and recovered two plastic bags from the trunk containing a 2.2-pound brick of powder cocaine. TR. at 35-36.
The prosecution also called Investigator Robert Marrero ("Inv. Marrero") to testify. TR. at 58. Inv. Missenis called Inv. Marrero on March 18, 2014 to speak with Petitioner because "they assumed he didn't speak any English." Id. at 59-60. Inv. Marrero did not tell Petitioner he was under arrest and, to Marrero's knowledge, no one else told Petitioner he was under arrest. Id. at 68-60. Inv. Marrero and Petitioner engaged in "small talk," in English and Spanish, at the State Police barracks in Latham. Id. at 61. At that time, Petitioner was in handcuffs and "chained to a wall." Id. at 71. During the conversation, Petitioner asked, in English, "what was going on" and Inv. Marrero responded "I really don't know" but explained to Petitioner that he was taken into custody because he ran from the vehicle. TR. at 62, 74.
Petitioner then asked if there was a warrant on his vehicle and Inv. Marrero responded, "I don't know." Id. at 62, 75.
The trial court rendered a written decision denying Petitioner's motion to suppress. SR. at 163-169. The trial court concluded, "[t]he information submitted in the March 14, 2014 search warrant application was clearly incorporated by reference into the second search warrant application." Id. at 167. The trial court continued, "the prior search warrant application was both available to the City Court Judge and sufficiently fresh in the Judge's memory so that he could accurately assess it[]" and further, the prior search warrant application was "available to [the City Court Judge] in a form which could be reviewed at a later date." Id. Accordingly, the trial court concluded that the March 18, 2014 search warrant was not defective and denied Petitioner's motion to suppress the tangible evidence. Id. at 167-168. The trial court also denied Petitioner's motion to suppress his statements regarding a warrant for his vehicle finding, "although the conversation clearly took place in a custodial setting," the statements were "spontaneous and unprompted by any inquiry." SR. at 167-168.
C. Supplemental Indictment
On October 7, 2014, Petitioner filed a counseled Order to Show Cause to dismiss Counts Two, Three, and Four of the indictment. SR. at 170-183. The trial court granted the motion, in part, and dismissed Counts Three and Four, with leave to re-present. Id. at 192. On January 23, 2015, the grand jury returned an indictment charging Petitioner with criminal sale of a controlled substance in the first degree and operating as a major trafficker. Id. at 18-19. This indictment was consolidated with the original indictment. Id. at 199.
D. Plea and Sentencing Proceedings
On July 24, 2015, Petitioner and his counsel appeared in Albany Supreme Court for a hearing. TR. at 81. At the commencement, the trial court acknowledged that the People extended a plea offer to Petitioner; Petitioner would plead guilty to an A-II felony of criminal sale of a controlled substance in the second degree, in full satisfaction of the indictment, in exchange for a sentence of twelve years, five years post-release supervision, and a waiver of Petitioner's right to appeal. Id. at 81-82. Petitioner's counsel indicated he wished to accept the plea. Id. at 82.
Petitioner was placed under oath. TR. at 82. Petitioner stated he had enough time to discuss the case and plea agreement with his counsel. Id. at 85. Petitioner represented he could understand English and the proceedings, and had not taken any medication or drugs which would impair his thinking. Id. at 84-85. The court then explained the myriad of trial rights to which Petitioner was entitled and agreed to waive as a condition of the plea agreement. TR. at 86-87. Petitioner also stated he had not been promised anything or threatened into pleading guilty. Id. at 88. Petitioner was presented with, and signed, a waiver of appeal form. Id. at 90-91.
The court engaged in a colloquy with Petitioner whereupon he admitted to knowingly and unlawfully selling cocaine in excess of one-half ounce or more on March 18, 2014. TR. at 93-94. When the trial judge asked Petitioner if he had questions for the court, Petitioner "asked for a weekend" with his children. Id. at 95. The court responded, "I was willing to allow you to turn yourself in on Monday if you plead to the A-I with a possible sentence of up to 24 years." Id. at 96. The court stated that the plea offer was "A-II and you would plea to it today and be put in today." Id. Petitioner agreed. Id.
On September 4, 2015, Petitioner was sentenced as a second felony offender to a
twelve-year determinate sentence followed by five years post-release supervision. TR. at 110.
On September 8, 2015, Petitioner's counsel filed a notice of appeal. SR. at 11.
E. Direct Appeal
On September 1, 2017, Petitioner filed a counseled brief and appendix in the Appellate Division, Third Department ("AD"). SR. 223-432. The issues raised by Petitioner...
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