Hernandez v. Lee
| Decision Date | 11 April 2014 |
| Docket Number | No 10-CV-4667 (JFB),10-CV-4667 (JFB) |
| Parties | JOSE HERNANDEZ, Petitioner, v. WILLIAM LEE, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
Jose Hernandez (hereinafter "Hernandez" or "petitioner") petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction in the Supreme Court of the State of New York, County of Nassau (the "trial court"), for murder in the second degree (N.Y Penal Law § 125.25(1)) and gang assault in the first degree (N.Y. Penal Law § 120.07). Petitioner was sentenced to a term of imprisonment of twenty-five years to life.
Petitioner challenges his conviction on the following grounds: (1) the prosecution failed to establish his identity as the stabber beyond a reasonable doubt; (2) the evidence was insufficient to support a finding of guilt beyond a reasonable doubt; (3) he was denied the effective assistance of counsel; (4) he was deprived of his right to a fair trial by the comments of the prosecutor; and (5) he was denied his right to a fair trial because the jury was not instructed that it could draw an adverse inference from the prosecution's failure to call most of the material witnesses to the crime.
For the reasons set forth below, the Court concludes that petitioner's claims of prosecutorial misconduct and failure to give a missing witness charge are procedurally barred. In any event, the Court has examined all of the petitioner's claims on the merits and determines that there is no basis for habeas relief.
The following facts were adduced from the petition and documents attached thereto, as well as from the state court trial and appellate record.
On November 16, 2005, Christian Pagan ("Pagan") was stabbed in the chest and groin at 416 Clinton Street in Hempstead, New York, which was the location of the Laundry Palace. (Tr.1 at 654, 668.) Pagan was a twenty-three year old member of the gang Salvadorans With Pride ("SWP"), and the Laundry Palace was a known SWP hangout. (Id. at 601, 629.)
Police Officer Martino Derisi and his partner Officer Espina arrived at the Laundry Palace around 9:12 p.m. and found Pagan lying face up in a pool of blood. Officer Derisi called for an ambulance. When emergency medical technicians arrived at the scene at approximately 9:20 p.m., Pagan was in cardiac arrest. (Id. at 554-55.) On the way to Winthrop University Hospital, ambulance medical technicians attempted to revive Pagan, but he eventually died at the hospital at 9:55 p.m. as a result of multiple stab wounds to the chest and groin, resulting in perforations to the heart and left lung. (Id. at 555-56, 666.) Doctor Brian O' Reilly performed an autopsy on Pagan on November 17, 2005. (Id. at 654.) A toxicology test revealed that Pagan had approximately a .25 percent blood alcohol content at the time of his death. (Id. at 670-71.)
On November 16, 2005, after Pagan was taken to the hospital, several more police officers went to the crime scene. (Id. at 609.) Detective Bruce Schurmann of the Crime Scene Search Section arrived at the Laundry Palace at 10:45 p.m. and photographed and videotaped the laundromat. (Id. at 487-88.) He also dusted for fingerprints and collected physical evidence, which included concrete pieces, a stone, a black plastic bag, a t-shirt and a sweatshirt. (Id. at 496, 501, 512.) Detective Barbara Stemmle of the Latent Fingerprint Section testified at trial that there were no identifiable fingerprints on the black plastic bag. (Id. at 565.) Four latent fingerprints were lifted from some of the other recovered items, but none matched petitioner's or Yoni Martinez's ("Martinez") prints.2 (Id. at 568-69.) Detective Stemmle testified that the concrete pieces were not good surfaces for fingerprint impressions because they were too rough. (Id. at 56165.) Detective Aylward, the lead detective on the investigation of Pagan's death, interviewed approximately six or seven witnesses who were present at the Laundry Palace that evening. (Id. at 544, 546.)
There was evidence introduced at trial regarding the events that preceded the death of Pagan, which established a motive for the killing. That evidence is summarized below.
On November 16, 2005, petitioner and four of his friends gathered in Hempstead, New York. (Id. at 739.) The group consisted of petitioner, Martinez, Roquetta, Ardillo, and Fantasma,3 (id. at 747), who were all members of the El Salvadoran gang Mara Salvatrucha, commonly known as MS-13. (Id. at 622.) Martinez informed the group that his friend was beaten with sticks the prior week by members of MS-13's rival gang, SWP. (Id. at 748.) Petitioner and the other members of the group agreed that they should seek out revenge on an SWP memberto get even for SWP's assault on Martinez's friend. (Id. at 748.)
Petitioner admitted in a sworn statement to Detective Aponte that MS-13 and SWP do not get along, and that his group wanted to demonstrate to the members of SWP that MS-13 was a more powerful gang. (Id. at 739.) The group decided to walk towards the Laundry Palace, a known SWP hangout, located on 416 Clinton Street in Hempstead, New York. (Id. at 601, 629.) The exterior wall of the Laundry Palace contained graffiti of both MS-13 and SWP, which was a sign of gang conflict. (Id. at 631-33.)
As petitioner's group approached Clinton Street, they picked up rocks and broken pieces of concrete from the ground to use to throw at the first SWP member they could find. (Id. at 748.) Petitioner placed concrete and rocks in his pockets, while others carried bats, and Martinez carried a knife in his waistband. (Id. at 748.)
When the group arrived at the Laundry Palace, petitioner spotted Pagan. (Id.) Petitioner knew that Pagan was an SWP member because he witnessed Pagan graffiti the Laundry Palace for SWP on a prior occasion. (Id.) Petitioner then flashed MS-13 hand signals to Pagan, who responded with SWP hand gestures. (Id.) It was at that point that some members of petitioner's group followed Pagan into the Laundry Palace. (Id.) The altercation began at approximately 9:15 p.m. (Id. at 601.) In a sworn statement to the police, petitioner stated that three members of his group rushed in (id. at 748), while at trial an employee of the laundromat (discussed below) testified that only two members of petitioner's group went into the Laundry Palace (id. at 581-85.)
At trial, only one eyewitness was called by the prosecution to testify (id. at 575), although there were approximately six or seven customers in the Laundry Palace at the time of the altercation (id. at 544, 46). The prosecution called Lus Amanda Rodriguez ("Rodriguez"), an employee of the Laundry Palace who had worked there for two years. (Id. at 575-76.) Rodriguez was in the back office of the Laundry Palace with her husband Miguel Quillen at around 9:10 p.m. on November 16, 2005. (Id.) Rodriguez testified that a Hispanic man, a dark-skinned man, and Pagan entered the laundromat. ioId. at 580-81.) At trial, Rodriguez testified that she heard a loud noise from the back office, which sounded like the front door slamming open. (Id. at 577.) It was at that point that she stood up to observe what was happening in the main area of the Laundry Palace. (Id. at 578-79.) Although Rodriguez could not see anything at the time of the first noise, she had a view of the front doors when she heard a second noise that sounded like something hitting the coin kiosk.4 (Id.) Rodriguez testified that two men entered the laundromat to confront Pagan, who had been at the Laundry Palace earlier to use the restroom. (Id. at 580-81.) She described one of the men as Hispanic, thin, and a little taller than 4'10''. (Id.) Rodriguez testified that the Hispanic man was wearing a baseball cap and had a light mustache. (Id.) Rodriguez described the other man as black and tall. (Id. at 581). Rodriguez testified that she made eye contact with the stabber during the altercation. (Id. at 597.)
At trial, Rodriguez testified that the thin Hispanic man threw stones at Pagan. (Id.) One of the stones struck Pagan in the face,causing him to bleed and then collapse onto the ground. (Id. at 580.) Rodriguez said that, once Pagan was on the ground, the thin Hispanic man took out a knife and stabbed Pagan once in the chest. (Id. at 581.) She described the knife as about sixteen to eighteen inches in length with a wooden hilt. (Id.)
Rodriguez testified that the Laundry Palace was brightly lit during the entire altercation (id. at 585), and that she was as close as six feet from Pagan and at most fifteen to twenty feet away at all times (id. at 585, 597). Rodriguez stated that, after the thin Hispanic man stabbed Pagan, the stabber and the tall black man left the Laundry Palace and ran away. (Id. at 58788.) Two other Hispanic men who were waiting outside also fled the scene. (Id. at 587-88.) Rodriguez testified that the entire incident lasted no longer than one minute. (Id. at 598.) Rodriguez made conflicting statements as to whether she called the police during the altercation or after the fight had ended. (Id. at 607-09.)
On December 20, 2005, at 7:25 p.m., Rodriguez went to the Robbery Squad on Newbridge Road in Bellmore, N.Y. to identify Pagan's stabber from a lineup. (Id. at 588.) Rodriguez selected petitioner from the lineup. (Id.) At trial, Rodriguez was not able to identify petitioner as the stabber in court. (Id.) However, the prosecution introduced evidence, including photographs of petitioner shortly after the murder, to establish that petitioner's appearance had changed substantially from the time of the lineup. (Id. at 779-81.)
Petitioner was arrested and questioned by Detective Milton Aponte on December 19, 2005. (Id. at 684, 739.) Without an attorney present, petitioner voluntarily gave a sworn statement to Detective Aponte. (Id. at 747.) Detective Aponte is...
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