Gonzalez-Pena v. Herbert

• Decision Date: 05 January 2005
• Docket Number: No. 01-CV-6222.,01-CV-6222.
• Parties: Freddy GONZALEZ-PENA, Petitioner, v. Victor HERBERT, Superintendent, Attica Correctional Facility, and Frank J. Clark, District Attorney, Erie County, Respondents.
• Court: U.S. District Court — Western District of New York

369 F.Supp.2d 376

Freddy GONZALEZ-PENA, Petitioner, v. Victor HERBERT, Superintendent, Attica Correctional Facility, and Frank J. Clark, District Attorney, Erie County, Respondents.

No. 01-CV-6222.

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

January 5, 2005.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Freddy Gonzalez-Pena, Stormville, NY, pro se.

Raymond C. Herman, Erie County District Attorney's Office, J. Michael Marion, Asst. District Attorney, Kevin M. Dillon, Erie County District Attorney, Buffalo, NY, for Defendants.

DECISION AND ORDER

BIANCHINI, United States Magistrate Judge.

INTRODUCTION

Freddy Gonzalez-Peña ("Gonzalez-Peña" or "petitioner") filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Erie County Court on two counts of criminal possession of a controlled substance, one count of forgery and one count of criminal impersonation. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(b).

BACKGROUND

Gonzalez-Peña was arrested on September 27, 1997, in the City of Buffalo for possessing heroin with the intent to sell. During the booking process, Gonzalez-Peña made false statements about his identity and alienage. Although he initially only was charged with criminal possession of a controlled substance, charges of forgery and criminal impersonation were added to the indictment following further investigation into his misrepresentations about his identity and citizenship.

Gonzalez-Peña's jury trial commenced in Erie County Court (D'Amico, J.) on March 30, 1998. A summary of the relevant trial testimony follows.

At about 6:30 p.m. on September 27, 1997, Detectives Lawrence Sadlocha ("Sadlocha"), Patrick Judge ("Judge") and Darnyl Parker ("Parker") from the Buffalo Police Department's Narcotics Squad were on duty operating an unmarked patrol car. One of their targets was the house at 382 Fargo Avenue about which they had received numerous citizen complaints of drug-related activity. That evening, the detectives observed two men walk down the driveway of 382 Fargo Avenue carrying plastic bags. Their suspicions raised about possible drug activity, the officers pulled their vehicle over, exited, and asked the two men to stop. One man waited in the driveway, but the other, Gonzalez-Peña, strode away quickly and then broke into a run. He was carrying a white plastic shopping bag with red markings on it under his arm.¹ The individual in the driveway told the detectives that he lived in the upper apartment at 382 Fargo Avenue, that the lower apartment was vacant, and that he did not know Gonzalez-Peña.

When Parker and Sadlocha pursued Gonzalez-Peña into the lower apartment, they observed a light go on in the rear of the house; the light turned out to be located in the stairwell leading to the basement. Sadlocha and Parker made their way to the back of the house. There, Sadlocha discovered a small white plastic bag with red markings sitting on a ledge in the stairwell. Inside the bag, which appeared identical to the one Gonzalez-Peña had been carrying, was a large amount of heroin packaged in individual glassine bags for sale.

Sadlocha and Parker then proceeded downstairs to the basement. Parker discovered Gonzalez-Peña about a minute or two later hiding behind a partition and placed him under arrest. The detectives testified that only a couple of minutes elapsed from the time Gonzalez-Peña ran into the house until Sadlocha found the heroin. Parker also found $700 in cash in Gonzalez-Peña's pockets, and this money was confiscated as drug sale proceeds.

During the booking procedure, Gonzalez-Peña claimed that his name was "Pedro Jose Serrano-Martinez." He produced three forms of identification with Serrano-Martinez's name: a Getty Gasoline Company employee card ("the Getty card"), a "New York State Residence Card" ("the residence card"), and a birth certificate.²

On the night of Gonzalez-Peña's arrest, Sadlocha asked Agent Daniel Allman ("Allman") of the United States Border Patrol to interview Gonzalez-Peña about his citizenship. During the interview, Allman asked Gonzalez-Peña his name, his Social Security number, where he was born, and the names of his parents. Gonzalez-Peña claimed to have been born on October 21, 1975, in Puerto Rico. When Allman asked Gonzalez-Peña for contact information for his parents in Puerto Rico, petitioner stated that he did not know where his parents lived.

After Gonzalez-Peña was finger-printed, he signed the fingerprint card as Pedro Serrano-Martinez.³ Petitioner's fingerprints were found to match those of an individual named Daniel Peña, a/k/a Freddy Gonzalez-Peña, who had been deported to the Dominican Republic in 1995. The prosecution, over defense counsel objection, introduced two letters written by Daniel Peña, a/k/a Freddy Gonzalez-Peña, to the United States Immigration and Naturalization Service ("INS") in 1993 and 1994, while he was being detained at a state correctional facility pending resolution of a deportation issue.⁴

Doris Rivera, the occupant of the upstairs apartment at 382 Fargo Avenue, testified for the defense that Gonzalez-Peña was a friend of hers. He and a man named Elvis Santos ("Santos") had been visiting her for a few hours on the evening of September 27, 1997. When the two men left between 6 p.m. and 7 p.m., Santos was carrying a white "shoe bag" and a duffel bag, both of which contained clothing. Gonzalez-Peña did not have anything in his hands when he left her apartment. Several moments later, she looked out the window and observed Santos being questioned by the police, but she did not see Gonzalez-Peña.

Omayra Rivera, Doris Rivera's sister, testified that on the evening of September 27, 1997, she observed Santos place shoes and clothing into a white "shoe bag" while he was at the apartment. The next time she observed Santos was when the policemen were searching Santos' bag in the driveway. Like her sister, Omayra Rivera did not see where Gonzalez-Peña went after he left the apartment. Both Doris and Omayra Rivera testified that they had never observed Gonzalez-Peña in the basement of 382 Fargo Avenue.

The jury returned a verdict of guilty on all charges on April 3, 1998. Gonzalez-Peña was sentenced on May 29, 1998, as a second felony offender to concurrent indeterminate terms of imprisonment of 12½ to 25 years and 7½ to 15 years for the third degree and fourth degree controlled substance possession charges, respectively. He was sentenced to 2 to 4 years on the forgery charge and a definite term of 1 year for the criminal impersonation charge, both terms to be served concurrently with each other, but consecutively to the sentences for the possession counts.

Gonzalez-Peña appealed his conviction which was unanimously affirmed by the Appellate Division, Fourth Department, of New York State Supreme Court on September 29, 2000. People v. Gonzalez Peña, 275 A.D.2d 1007, 713 N.Y.S.2d 588 (4^th Dept.2000). The Court of Appeals denied leave to appeal on December 14, 2000. People v. Gonzalez-Peña, 95 N.Y.2d 967, 722 N.Y.S.2d 485, 745 N.E.2d 405 (2000).

On April 27, 2001, petitioner filed a petition for a writ of habeas corpus in this Court pursuant to 28 U.S.C. § 2254 alleging the following grounds for relief: (1) counsel failed to move to suppress the heroin seized at Fargo Avenue; (2) counsel erred in not objecting to the border patrol agent's testimony concerning his pedigree questioning of petitioner; (3) counsel did not request limiting instructions concerning evidence received as to petitioner's previous deportation and illegal re-entry; (4) counsel failed to object to improper remarks by the prosecutor; (5) the chemist's testimony was inadmissible hearsay; (6) the trial court erred in allowing the prosecution to use evidence regarding petitioner's deportation in its direct case on the forgery and criminal impersonation charges; and (7) a proper chain of custody was never established for the seized drugs.

Respondent answered the petition on August 3, 2001, and submitted a memorandum of law in support of its request for an order dismissing the petition. See Docket ## 6, 7. At that time, Gonzalez-Peña had pending a motion for a reconstruction hearing pursuant to People v. Antommarchi, 80 N.Y.2d 247, 590 N.Y.S.2d 33, 604 N.E.2d 95 (1992), on the ground that one of his arresting officers, Darnyl Parker, had planted the drugs seized at Fargo Avenue. Gonzalez-Peña stated that Parker "was a direct part of the alleged drug arrest" forming the basis of the conviction challenged in this habeas petition, and he requested that the petition be held in abeyance so that he could return to state court and file a motion to vacate the judgment based on the prosecution's alleged failure to disclose material impeachment evidence about Parker in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ("Brady"). See Docket # 9. Respondent opposed Gonzalez-Peña's motion. See Docket # 11.

After receiving a copy of Gonzalez-Peña's motion pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10 and the Erie County Court order denying that motion,⁵ this Court issued an order granting his motion to amend his habeas petition to add the Brady claim. See Docket # 15. Gonzalez-Peña was directed to file a supplemental petition setting forth the substance of his Brady claim and addressing whether the claim had been properly exhausted in state court. In light of the Court's ruling, Gonzalez-Peña's motion to hold his petition in abeyance was denied as moot.

On October 22, 2002, Gonzalez-Peña requested an extension of time to supplement his petition. However, the Court's order granting this request crossed in the mail with his supplemental pleading mailed October 31, 2002. Thus, the Court received Gonzalez-Peña's "Supplemental Pleading" amending his original habeas petition to add the claimed Brady violation on...