Gonzalez v. Cunningham

Decision Date16 November 2009
Docket NumberNo. 08 Civ. 8806(VM).,08 Civ. 8806(VM).
Citation670 F.Supp.2d 254
PartiesEusebio GONZALEZ, Petitioner, v. Raymond J. CUNNINGHAM, Respondent.
CourtU.S. District Court — Southern District of New York

Eusebio Gonzalez, Woodbourne, NY, pro se.


VICTOR MARRERO, District Judge.

Pro se petitioner Eusebio Gonzalez ("Gonzalez"), who is currently incarcerated at Woodbourne Correctional Facility in New York ("Woodbourne"), seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 against Raymond J. Cunningham, Superintendent of Woodbourne ("Respondent"). Gonzalez was convicted in New York State Supreme Court (the "Trial Court") of Manslaughter in the First Degree, in violation of New York Penal Law § 125.20(1). The Trial Court sentenced Gonzalez to a 150-month term of incarceration. The Appellate Division, First Department ("Appellate Division"), affirmed the conviction on appeal.

In the instant petition, Gonzalez asserts two due process claims as grounds for habeas relief. First, he argues that the evidence adduced at trial by the People of New York (the "State") failed to disprove his justification defense beyond a reasonable doubt. Second, Gonzalez argues that the Trial Court incorrectly instructed the jury with regard to Gonzalez's proffered justification defense and, to the extent the issue was not properly preserved, that he was denied effective assistance of trial counsel. Respondent asserts that Gonzalez's claims are procedurally barred because the Appellate Division refused to review them on independent and adequate state grounds. In the alternative, Respondent argues that Gonzalez's claims, if reviewed, would fail on the merits. For the reasons discussed below, Gonzalez's petition is DENIED.


The conviction challenged in this petition arises from an August 17, 2002 episode that resulted in the stabbing death of Alberto Rivera ("Rivera") in East Harlem.

After a night of drinking, Gonzalez and a roommate, Guadencio Martinez Aguilar ("Aguilar"), were involved in an early morning street fight with a group of approximately nine men and one woman allegedly affiliated with a gang known as the "Vagos of 116th Street." While the group attacked Aguilar, Gonzalez ran home to get help. After arming himself with two nine-to-ten inch kitchen knives, Gonzalez returned to the scene to assist Aguilar. The men initially dispersed when Gonzalez, armed with the kitchen knives, returned to the scene.

As Gonzalez tended to Aguilar, the gang returned, threatening to kill Gonzalez while throwing bottles and rocks in his direction. Gonzalez and Aguilar fled separately. A group of attackers knocked Aguilar down and resumed beating him. Gonzalez returned, once again, brandishing a kitchen knife to ward off the attackers. The gang again dispersed. Afraid to turn his back on the attackers again, Gonzalez, from a distance, urged a severely beaten, bloodied and then unconscious Aguilar to run but was uncertain that Aguilar could hear him and thought that he was already dead. Fearing that the gang would return and kill him this time, Gonzalez left the scene and retreated towards his apartment.

As Gonzalez approached his apartment, he came across Rivera. Gonzalez incorrectly thought Rivera was a member of the gang that previously attacked him and Aguilar. After exchanging words across the street, Rivera, unarmed and roughly five feet tall, approached Gonzalez with his hands raised and, according to Gonzalez, threatened to kill him. At that point, Gonzalez stabbed Rivera in the chest,2 piercing Rivera's left lung and heart, and fled to his apartment. Rivera died as a result of the stab wound. Autopsy results revealed that Rivera stood five feet tall, weighed 121 pounds, and had a blood alcohol concentration of .16 at the time of death.

After returning home, Gonzalez immediately washed the knife and then fled to Baltimore, where he purchased a one-way plane ticket to return to his native Mexico on August 20, 2002. On August 19, one of Gonzalez's roommates, Concepcion Sanchez ("Sanchez"), reported the killing and Gonzalez's location to the police, leading to Gonzalez's arrest later that day in Baltimore.

On September 6, 2002, a New York County Grand Jury issued an indictment charging Gonzalez with Murder in the Second Degree. Gonzalez's jury trial before the New York Supreme Court began on March 15, 2004.

1. The Trial

The State's case against Gonzalez relied heavily on the testimony of Mark Gangadeen ("Gangadeen") and Sanchez. Gangadeen admitted to being a compulsive liar,3 had a criminal record, and struggled with long-term psychiatric troubles. Gangadeen testified that he was in the neighborhood during the events in question and witnessed the street brawl and the events leading up to Rivera's death. According to Gangadeen, Rivera approached Gonzalez unarmed. After the two men briefly exchanged words, Gonzalez stabbed Rivera. Gangadeen's story was largely consistent with the description of the circumstances provided by other witnesses, including the general facts recounted by Gonzalez. Sanchez testified that Gonzalez described the events of the night in question to him by telephone. According to Sanchez, Gonzalez admitted to stabbing Rivera after a verbal confrontation. He also asked Sanchez to send his belongings to Baltimore so he could take them to Mexico. Sanchez reported the incident and Gonzalez's whereabouts to CrimeStoppers, which awarded him one thousand dollars for the information. Both men were cross-examined at trial.

At the conclusion of the State's case, Gonzalez argued that the evidence presented was insufficient to convict because there was no proof that Gonzalez intended to cause Rivera's death. Gonzalez did not argue, as he does now, that the evidence was insufficient because the State failed to disprove his justification defense beyond a reasonable doubt and did not move to dismiss the case for legal insufficiency.

On March 24, 2004, the Trial Court held a charge conference. The Trial Court granted Gonzalez's request for a justification charge. The Trial Court read its proposed justification charge to the parties. The Trial Court asked defense counsel if he had any exceptions or requests regarding the justification charge. He did not. On March 29, 2004, the Trial Court delivered its final charge to the jury. The judge instructed the jury as he had proposed during the preceding conference. Defense counsel did not object to the Trial Court's charge. During jury deliberations, the jury requested clarification of the law of justification. In response to this request, the judge provided a supplemental justification charge. Defense counsel again made no objection.

On April 2, 2004, the jury acquitted Gonzalez of Murder in the Second Degree and convicted him of the lesser-included offense of Manslaughter in the First Degree. Judgment was rendered against Gonzalez on July 8, 2004. Gonzalez was sentenced to a 150-month term of incarceration.

2. The Appeal

Gonzalez appealed the verdict to the Appellate Division, First Department. He raised two arguments on appeal, both alleging due process violations. First, he argued that the prosecution failed to disprove Gonzalez's justification defense beyond a reasonable doubt. Gonzalez argued that he presented sufficient evidence to make out the defense as a matter of law and that the State's case did not disprove that defense beyond a reasonable doubt because it relied on incredible and unreliable testimony. Second, he argued that the Trial Court improperly failed to instruct the jury that: (1) the justification defense applied equally to the defense of a third party,(2) the petitioner had to be able to retreat with complete safety to himself and others; and (3) the duty to retreat did not arise until the point when physical force is used or imminent. In addition, Gonzalez claimed he was denied effective assistance of counsel as a result of his counsel's failure to object to the Trial Court's justification charge.

On March 27, 2007, the Appellate Division affirmed the conviction. The Appellate Division declined to review Gonzalez's claims challenging the sufficiency of the evidence and the justification charge because they were not preserved at trial. See People v. Gonzalez, 38 A.D.3d 439, 834 N.Y.S.2d 20, 21 (1st Dep't 2007). The Appellate Division noted that even in the case of preservation, it would still affirm Gonzalez's conviction on the merits. See id. at 21-22. In addition, the court rejected Gonzalez's ineffective assistance claim. See id. at 22.

On July 9, 2007, the New York Court of Appeals denied Gonzalez's leave to appeal. See People v. Gonzalez, 9 N.Y.3d 865, 840 N.Y.S.2d 895, 872 N.E.2d 1201 (2007).

3. The Habeas Petition

In his habeas petition, Gonzalez raises the same two issues that he raised in his direct appeal. First, he argues that the prosecution failed to disprove his justification defense beyond a reasonable doubt in violation of his rights under the Fourteenth Amendment's Due Process Clause. Second, he argues that the Trial Court improperly instructed the jury with regard to the justification defense, also in violation of his due process rights. Gonzalez additionally claims he was denied effective assistance of counsel to the extent his objection to the justification charge was not preserved at trial.

1. Exhaustion

As an initial matter, the Court is mindful that Gonzalez is proceeding pro se, and that his submissions should thus be held to "less stringent standards than formal pleadings drafted by lawyers." Ferran v. Town of Nassau, 11 F.3d 21, 22 (2d Cir. 1993) (quoting Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980)). Moreover, when a plaintiff brings a case pro se, the Court must construe his pleadings liberally and interpret them "to raise the strongest arguments that they suggest." Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.1996) (quoting ...

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