Gonzalez v. Lee
| Decision Date | 16 August 2017 |
| Docket Number | 14 CV 2514 (RJD) |
| Parties | OLBAN GONZALEZ, Petitioner, v. WILLIAM LEE, Superintendent, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
Petitioner Olban Gonzalez, serving 79 years to life for second-degree murder, multiple counts of attempted murder and related charges,1 seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The charges arise out of a tragic episode of gang violence in the heart of suburbia. On February 17, 2008, a Nassau County nightclub hosted a party for several hundred local youths, many affiliated with either Salvadorans with Pride ("SWP") or 18th Street, two area gangs. Witnesses to a brief disturbance in the club telephoned friends to report that members of a thirdgang, MS-13, were believed to be involved. The recipients of these calls, SWP and 18th Street members with grievances against MS-13, soon converged outside the club, followed four youths believed, mistakenly, to be MS-13 into the parking lot, and fired a barrage of bullets into their car just as the ignition turned. Seventeen-year old Edwin Mejia Alvarado was killed, and Jose Lopez, Carlos Guevera and Saul Guevera were seriously wounded.
Petitioner, a member of 18th Street with a strong grievance against MS-13, whom he held responsible for killing his cousin earlier that day, admits he was among the assembly outside the club on the night of the shooting, and trial witnesses established that he arrived there armed and spoke openly of his intention to commit the crime. Witnesses also established that, accompanied by the other shooter but no one else, petitioner followed the victims into the parking lot2 and admitted to the shooting moments later in the getaway vehicle. He repeated his admission, boastfully, on several subsequent occasions.
Nevertheless, emphasizing the lack of an eyewitness to the actual gunfire, petitioner insists, as he did at trial,3 sentencing and on appeal, that he is innocent, presented here as a habeas claim that the evidence was legally insufficient. As additional grounds for habeas relief, he asserts that: (i) the trial court erred in denying his request for a missing witness instruction, (ii) certain counts are duplicative, (iii) his sentence is unconstitutionally cruel and unusual, (iv) his attorney rendered ineffective assistance, and (v) the prosecution engaged in misconduct.
As discussed below, petitioner has not shown a basis for disturbing the state court'ssubstantive or procedural rulings on any of these claims or otherwise satisfied the standards for the extraordinary grant of habeas relief. His application is therefore denied and the petition is dismissed.
On the evening of February 11, 2008, several hundred mostly Salvadoran and Honduran teenagers, many affiliated with either 18th Street or SWP—gangs that generally got along with each other but not with MS-13—attended a youth party at the nightclub attached to the former Don Juan restaurant, located at the edge of the bustling retail corridor on Old Country Road in Westbury. During the event, SWP member Edgar Hernandez and others became involved in a confrontation with two other youths believed to affiliated with MS-13. Several at the party promptly telephoned SWP and 18th Street friends to report the incident and the apparent presence of the interlopers.
One recipient was SWP member (and cousin to Edgar Hernandez) Dwayne "Chocolate" Dailey, who in turn telephoned Jose Martinez to say that he "had problems with MS-13 guys" and wanted to go to Don Juan's to rescue his cousin. T. 835. Martinez telephoned his friend David Chicas, who agreed to drive.4 Gerson Turcios, also known as Pepe, was also telephonedfrom the party. The caller saw "some MS-13 people" inside the club, including "the kid that [had] reported" Turcios's friend Noe Perdomo to the authorities and "got him locked up." T. 979. Turcios then telephoned Perdomo to invite him to "catch a free one with him," which meant, "catch a fight." Perdomo drive them to Don Juan's "to fight the kid." T. 979.5
Turcios also telephoned petitioner, who was then at a Chinese restaurant with 18th Street friends Eliesser "Smiley" Martinez and Roberto "Cobra" Arevalo, and reported that MS-13 members were inside the club at Don Juan's. Only 20 hours earlier, petitioner's cousin and 18th Street member Javier Cuevas had been stabbed and petitioner blamed MS-13. Petitioner was at the crime scene moments after the incident; there, and later at the hospital, where Cuevas died, petitioner told Nassau County Detective Robert DiPietro that he was sure MS-13 was responsible and would "have to pay for this," and that "he [petitioner] is the only one out there working, that his boys haven't been doing shit." T. 805-808, 809.
Although the chronology is not seamless, Chicas and his group (including Dailey, Jose Martinez and others) were apparently the first to reach the vicinity of the club, parking in the lot of The Source Mall, located just across Old Country Road from Don Juan's. Chicas believed the plan, initially, was only to assist Dailey in extracting Hernandez.
Petitioner and his entourage (including Smiley and Cobra) were probably the next to arrive, also parking in The Source Mall lot. Chicas, from inside his vehicle, saw petitioner exithis car; he then saw the handle and cylinder of a gun at petitioner's waist, and heard petitioner say "out loud in general" rather than to anyone specific, "[t]hat MS is going to pay tonight." T. 652, 651. Jose Martinez also heard petitioner "talking about the MS people inside the club" and saw petitioner lift his shirt to expose a gun in his waistband. T. 843. He also heard petitioner say, "Let's go get 'em," T. 843. Turcios, similarly, "heard people saying that there w[ere] MS people inside of Don Juan['s] that was gonna [sic] get it." T. 984. Both petitioner and Dailey talked about MS being in the club, but Turcios was not sure who said that MS "was going to get it." T. 985.
Dailey, Chicas and Martinez arrived unarmed, and none liked or trusted petitioner. After petitioner exposed his gun, Dailey directed Martinez to go to his (Jose's) brother Droopy, who was working down the street at California Pizza Kitchen, to retrieve Dailey's gun. When Martinez "came back," he T. 836. Martinez heard petitioner "hyp[ing] Dailey to shoot the MS." T. 847. Martinez T. 836.
Smiley, in petitioner's car, saw Dailey approach and display a gun to petitioner; petitioner then walked off with Dailey to have a conversation. Smiley saw that at some point petitioner removed a pistol from his belt and showed it to Dailey. T. 1195-96.6
Soon, vehicles began leaving The Source Mall lot. Chicas moved his car across Old Country Road to the side street (Ellison Avenue) adjacent to Don Juan's; he parked in the direction of the rear of the club and its parking lot. Petitioner soon parked in front of Chicas.Chicas then got out and walked toward the front door of Don Juan's; petitioner, with Smiley and Cobra, followed suit, walking in the same direction but across the street, soon to be joined by Dailey. As instructed by petitioner and Dailey, Smiley and Cobra walked ahead, but upon reaching the corner, noticed that petitioner and Dailey were no longer behind them. They decided to "turn back" and then "heard shots." T. 1198-1199.7
Turcios and Perdomo, after leaving The Source Mall lot, stood on Old Country Road a block away from Ellison Avenue, as lookouts for possible MS-13 members exiting the club. Noticing a group with someone wearing MS-13's color, they signaled to petitioner and Dailey, who then followed the targets into the lot behind the club.
Turcios and Perdomo trailed behind petitioner and Dailey, but Turcios did not witness the shooting. He got "halfway," T. 987, and "only [saw] a figure with a hand raised, and then [he] heard the pop for [sic] a gun." T. 990. He thought there was "maybe one or two" shooters. T. 990. Perdomo, on the other hand, identified petitioner as a shooter at petitioner's first trial and another proceeding (T. 1783-84), but he did not testify at petitioner's second trial. After the shots were fired, Turcios and Perdomo ran back to their car and drove off. T. 991.
Jose Martinez gave a generally consistent account: he saw youths exit the club and head to the parking lot; he saw Turcios and Perdomo "r[u]n to" Dailey and petitioner, "communicating" something; and saw Dailey, petitioner, Turcios and Perdomo all proceed toward the rear parking lot. T. 850-851. Martinez did not see who went first; he heard the shotsbut did not see who fired; and afterward saw Perdomo and Turcios running toward him but did not see where Dailey or petitioner went. T. 851-852.
Chicas had begun to leave before the shots were fired, having turned his car around; while Chicas waited at a traffic light, Jose Martinez and Reyes walked toward his car, got in, and then shots were heard. Then someone in the car then yelled "back up," Chicas reversed a short distance, and Dailey ran toward the car and got in. Chicas then drove off. His friend Johnny Rivera, who was sitting in the middle of the back seat, discovering Dailey's weapon, shouted "What the f**k" and "just pull[ed] up the gun that he was sitting with, that he felt." T. 657. Through the rearview mirror Chicas saw Rivera holding up the weapon.
The youths followed into the club's parking lot were the four shooting victims (Edwin Mejia, Saul Guevara, Carlos Guevara, and Jose Lopez) and their friend Jose Marvin Guevara, who headed toward his own car. Mejia, as noted, died from the gunshot wounds; the three surviving victims testified but none could identify the shooters. Jose Marvin, likewise, could not offer significant details about the shooters. All he could see was ...
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