Guerrero v. Lamanna, 17-cv-1486 (JGK)

• Decision Date: 18 September 2018
• Docket Number: 17-cv-1486 (JGK)
• Citation: 325 F.Supp.3d 476
• Parties: Lerio GUERRERO, Petitioner, v. Jamie LAMANNA, Respondent.
• Court: U.S. District Court — Southern District of New York

325 F.Supp.3d 476

Lerio GUERRERO, Petitioner,

v.Jamie LAMANNA, Respondent.

17-cv-1486 (JGK)

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

Signed September 18, 2018

Lerio Guerrero, Wallkill, NY, pro se

Michelle Elaine Maerov, James Foster Gibbons, New York State Attorney General's Office, New York, NY, for Respondent

MEMORANDUM OPINION AND ORDER

JOHN G. KOELTL, United States District Judge:

The petitioner, Lerio Guerrero, brings this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petitioner pleaded guilty on October 9, 2012, to an indictment in New York State Supreme Court, New York County, charging rape in the first degree, sodomy in the first degree, robbery in the first degree, burglary in the first degree, and attempted robbery in the first degree. The petitioner is currently incarcerated and is serving seven concurrent terms of fifteen years. The petitioner argues that his constitutional right to due process of law was violated as a result of his DNA indictment, an amendment to that indictment, and an allegedly delayed prosecution.

For the reasons explained below, the petition for a writ of habeas corpus is denied.

I.

The following is a summary of the relevant facts. On November 8, 1998, a woman was attacked by a man as she was entering her apartment in the Lower East Side of Manhattan. Holding a piece of broken glass to the victim's throat, the man raped and sodomized her. State Court Record ("S.R.") at 200. He then stole her wallet, took her to an ATM and forced her to withdraw money. S.R. at 200. The victim escaped and was brought to a hospital, where a rape kit was prepared. S.R. at 200. The police recovered the attacker's blood from the victim's coat, as well as an impression left on the ATM receipt by the joint area of a right index finger. Six usable fingerprints were also recovered from the crime scene. S.R. at 201. The police were also able to isolate the attacker's DNA profile from the rape kit. S.R. at 202.

The New York City Police Department ("NYPD") conducted an extensive investigation into the incident in an attempt to find the attacker. S.R. at 201. However, the usable fingerprints yielded no match in the State ID system. Other avenues pursued by the police, such as canvassing the area, having the victim review mugshots, and distributing surveillance video to the public, were unsuccessful. S.R. at 201-202. The attacker was not found and the case was closed in July, 1999, when it was determined that all leads had been exhausted. S.R. at 202.

On April 13, 2005, a New York County grand jury, using the DNA profile obtained during the police investigation, charged the attacker by DNA indictment with rape in the first degree, two counts of sodomy in the first degree, burglary in the first degree, two counts of robbery in the first degree, and attempted robbery in the first degree. S.R. at 203.

In May 2011, while questioning the petitioner concerning an unrelated rape, investigators recovered his DNA from a cigarette he smoked during the interrogation and left in the police station. S.R. at 203. The DNA profile taken from the cigarette butt matched the DNA profile of the attacker who committed the 1998 rape. S.R. at 203. The finger joint impression taken from the crime scene was also matched to the petitioner. S.R. at 203.

On June 9, 2011, the 2005 indictment was amended to replace the identifying DNA profile with the petitioner's name. S.R. at 203-204. The petitioner was arrested on the amended indictment soon afterwards. S.R. at 9. On July 25, 2011, the petitioner filed a motion to dismiss the indictment on the grounds of insufficiency, improper amendment, and as a violation of the statute of limitations and the right to a speedy trial. S.R. at 60. On October 25, 2011, the motion was denied by the New York State Supreme Court. S.R. at 171. On October 9, 2012, the petitioner pleaded guilty to all counts of the indictment and executed a waiver of appellate rights. S.R. at 180-189. The petitioner was sentenced on October 23, 2012 to seven concurrent terms of fifteen years of incarceration. S.R. at 35-36.

The petitioner appealed to the Appellate Division, First Department, claiming that the indictment and subsequent amendment violated several provisions of the State and Federal Constitutions and alleging several state statutory claims. People v. Guerrero, 126 A.D.3d 613, 3 N.Y.S.3d 600, 601 (2015), aff'd, 28 N.Y.3d 110, 42 N.Y.S.3d 80, 65 N.E.3d 51 (2016). The Appellate Division affirmed the judgment of conviction. First, the court held that the speedy trial claims raised by the petitioner were meritless because the petitioner had not established prejudice, and the delay was explained by the people's practical inability to prosecute until the attacker's identity was known. Guerrero I, 3 N.Y.S.3d at 601. The court then held that the remainder of the petitioner's claims had been forfeited by his guilty plea and his waiver of the right to appeal. Id. Alternatively, the court held that the DNA indictment and its amendment were proper under state law, and that the remainder of the petitioner's claims failed on the merits. Id.

The petitioner was granted leave to appeal to the Court of Appeals. The Court of Appeals affirmed over a lone dissent, explaining that New York law provides that only those claims involving "jurisdictional defects" or "rights of a constitutional dimension that go to the very heart of the process" may survive a guilty plea. People v. Guerrero, 28 N.Y.3d 110, 42 N.Y.S.3d 80, 65 N.E.3d 51, 56 (N.Y. 2016). The court found that, of the claims brought by the petitioner, only the constitutional speedy trial claim had survived his guilty plea, and affirmed the Appellate Division's ruling that that claim was meritless. Guerrero II,42 N.Y.S.3d 80, 65 N.E.3d at 56.

On February 28, 2017, the petitioner filed his petition for habeas corpus before this court, pursuant to 28 U.S.C. § 2254. While unclear from his petition, which does not set forth his claims distinctly, the petitioner appears to raise numerous claims regarding the original DNA indictment, the amendment of the indictment, the state statute of limitations, and the allegedly delayed prosecution. Habeas Pet. 5. Reading his petition in the light most favorable to his case, as the Court must for a pro se plaintiff, the petitioner alleges the following claims: (1) the John Doe indictment violated his state and federal constitutional rights to be charged by a grand jury, (2) the indictment was not supported by legally sufficient factual allegations, (3) the indictment was not supported by competent and admissible evidence, (4) the indictment was improperly amended, (5) the indictment did not give adequate notice of the charges, (6) the prosecution violated the state statute of limitations, and (7) he was deprived of his right to a speedy trial.¹ Resp't Br. 9-10.

These claims can generally be categorized into three groups. First, the petitioner makes claims suggesting that the indictment process was deficient and that the statute of limitations was circumvented through the delayed process of amending the indictment (Claims 1-6). Second, the petitioner argues that the delay between the incident and the amendment of the indictment violated his speedy trial rights under the Fifth and Sixth Amendments (Claim 7). Lastly, Guerrero contends that his constitutional right to due process was violated by the cumulative effect of the errors made by the state trial court.

The Court will address each category of claims in turn.

II.

The respondent argues that the petitioner's claims relating to the Doe indictment and the statute of limitations must be dismissed.

A.

First, the respondent argues that the petitioner's claims relating to the indictment and state statute of limitations are not cognizable under federal habeas relief because the state court rejected those claims on an independent and adequate state ground.

Federal courts "will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). "The doctrine applies to bar federal habeas when a state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement." Id. at 729-730, 111 S.Ct. 2546. In order to satisfy the test for an independent and adequate state law ground, the state law rule must be "a ‘firmly established and regularly followed state practice’ " at the time at which it is to be applied. Ford v. Georgia, 498 U.S. 411, 423-424, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991) (quoting James v. Kentucky, 466 U.S. 341, 348, 104 S.Ct. 1830, 80 L.Ed.2d 346 (1984) ).

New York state courts have long held that a defendant who pleads guilty forfeits all claims relating to deprivations of rights from before the plea was entered, other than those that are either "jurisdictional" or of a "constitutional dimension that go to the very heart of the process (such as the constitutional speedy trial right, the protection against double jeopardy or a defendant's competency to stand trial)." People v. Hanson, 95 N.Y.2d 227, 715 N.Y.S.2d 369, 738 N.E.2d 773, 776 (2000) ; see also Guerrero II, 42 N.Y.S.3d 80, 65 N.E.3d at 56 ; People v. Taylor, 65 N.Y.2d 1, 489 N.Y.S.2d 152, 478 N.E.2d 755, 758 (1982). With respect to challenges to indictments, an indictment is "jurisdictionally defective only if it does not effectively charge the defendant with the commission of a particular crime." People v. Iannone, 45 N.Y.2d 589, 412 N.Y.S.2d 110, 384 N.E.2d 656, 664 (1978) ; see generally People v. Swartz, 130 A.D.2d 288, 520 N.Y.S.2d 224, 225 (1987) (citing People v. Case, 42 N.Y.2d 98, 396 N.Y.S.2d 841, 365 N.E.2d 872, 874 (1977) ). With respect to claims alleging violations of the statute of limitations, the New York courts have held...