Hernandez v. Lempke
| Decision Date | 02 July 2014 |
| Docket Number | 10-CV-1791(JS) |
| Parties | MARCO HERNANDEZ, Petitioner, v. JOHN LEMPKE, Superintendent of Orleans Correctional Facility, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
APPEARANCES
For Petitioner:
Marco Hernandez, prose
Orleans Correctional Facility
For Respondent:
Jason Richards, Esq.
Nassau County District Attorney's Office
Marco Hernandez ("Petitioner") petitions this Court pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, his Petition is DENIED.
On March 11, 2006, Petitioner and Jose Arevalo approached Julio Apolinar as Apolinar and his mother were walking on a neighborhood street in Westbury, New York. (Resp't's Br., Docket Entry 9, at 1; see also Trial Tr. 679:14-682:18.) After Apolinar told his mother to go home, Petitioner and Arevalo "proceeded to terrorize and humiliate [Apolinar]." (Resp't's Br. at 1.) Arevalo had a beer bottle in his hand; Petitioner had a knife in his hand. (Trial Tr. 684:19-25.) Petitioner "yanked" Apolinar's neck-chains off of Apolinar. (Trial Tr. 687:11-20.) Apolinar's sister's boyfriend, Francisco Roque, saw Petitioner and Arevalo confronting Apolinar at the same time. (Trial Tr. 951:10-954:13.)
After stealing Apolinar's chains and shirt, they returned to the restaurant from where they had first appeared. (Trial Tr. 689:13-21.) Apolinar went home and, upon arriving, saw his sister calling the police. (Trial Tr. 689:25-690:25; 803:15-17.) The police arrived and took Apolinar to canvass the area. (Trial Tr. 691:7-23.)
After Apolinar identified Arevalo standing in front of a nearby deli, the police officers arrested Arevalo and Petitioner in the deli's parking lot. (Trial Tr. 692:15-696:18.) The police recovered Apolinar's chains from Petitioner's back pocket. (Trial Tr. 533:13-21.) Petitioner and Arevalo were then taken to a Nassau County police station, where Detective Luis Salazar acted as a Spanish language interpreter during the custodial questioning of both suspects. (Hr'g Tr. 60:19-61:14.) Detective Salazar read Petitioner his Miranda rights and Petitioner signed the Miranda card. Salazarthen began to ask Petitioner questions, in Spanish, related to the robbery. (Hr'g Tr. 61:15-23.)1 Salazar prepared a written statement based upon Petitioner's oral statements. (Hr'g Tr. 63:20-22.) Salazar read Petitioner the written statement, Petitioner told Salazar the statement was accurate, and Petitioner signed the statement. (Hr'g Tr. 65:20-66:8.) In that statement, (Resp't's Br. at 2.)
Petitioner and Arevalo were each charged with Robbery in the First Degree (New York Penal Law ("N.Y.P.L.") § 160.15(3)), Robbery in the Second Degree (N.Y.P.L. § 160.10(1)), Grand Larceny in the Fourth Degree (N.Y.P.L. § 155.30(5)), and Criminal Possession of Stolen Property in the Fifth Degree (N.Y.P.L. § 165.40). (See, e.g., Trial Tr. 316:22-317:18.) Petitioner and Arevalo were tried jointly. (See, e.g., Trial Tr. 14-22.)
After a pre-trial suppression hearing, the trial court held that Petitioner knowingly, intelligently, and voluntarilywaived his Miranda rights as to his written statements. (See Amended Order, Docket Entry 9-4, at 2.) The court held, therefore, that the written statements were admissible during trial. (See Amended Order at 2.)
On October 17, 2006, at the conclusion of a jury trial, Petitioner and Arevalo were each found guilty of Robbery in the Second Degree, Grand Larceny in the Fourth Degree, and Criminal Possession of Stolen Property in the Fifth Degree. (Trial Tr. 1159:11-1160:18.) Petitioner was sentenced as follows: (1) for the robbery conviction, eight years imprisonment and five years of post-release supervision; (2) for the grand larceny conviction, one-and-one-third-to-four years imprisonment; and (3) for the criminal possession of stolen property conviction, one year of imprisonment. (See Pet'r's Appellate Br., Ex. A, Docket Entry 1-2, at 1.2) These sentences were to run concurrently. (See Pet'r's Appellate Br. at 1.)
Petitioner appealed the conviction to the New York Appellate Division, Second Department. (See generally Pet'r's Appellate Br.) Petitioner argued that: (1) the trial courterred in denying Petitioner's motion to sever the trial; (2) Petitioner's Miranda waiver was not made knowingly, intelligently, and voluntarily; (3) the jury's verdict was insufficiently supported by law; (4) the trial court erred by not giving a missing witness charge to the jury; and (5) Petitioner's sentence was harsh and excessive. (See, e.g., Pet'r's Appellate Br. at 39-65.)
On November 10, 2009, the Appellate Division affirmed the judgment. People v. Hernandez, 67 A.D.3d 820, 889 N.Y.S.2d 218 (N.Y. App. Div. 2d Dep't 2009). The court held that: (1) the trial court did not err in denying Petitioner's severance motion; (2) the court had no basis to disturb the trial court's Miranda holding; (3) the evidence was legally sufficient to establish Petitioner's guilt beyond a reasonable doubt; (4) Petitioner's missing witness charge claim was untimely and, substantively, the trial court's ruling was not improper; and (5) Petitioner's sentence was not excessive. Hernandez, 67 A.D. 3d 821.
Petitioner applied for leave to appeal to the New York Court of Appeals. Petitioner's application included three of the five claims that were in his Appellate Division appeal. These claims regarded the trial court's denial of Petitioner's: (1) severance motion; (2) pre-trial motion to exclude Petitioner's custodial statements (Miranda); and (3) motion fora missing witness charge. (See Pet'r's Nov. 17, 2009 Letter Appl., Docket Entry 9-23.) The New York Court of Appeals denied Petitioner's application on January 15, 2010. People v. Hernandez, 13 N.Y.3d 939, 922 N.E.2d 918, 895 N.Y.S.2d 329 (N.Y. 2010).
On December 9, 2009, Petitioner filed a motion to vacate judgment in the County Court of Nassau County. (See Motion to Vacate J., Docket Entry 9-26). Petitioner argued that the trial court: (1) should have granted Petitioner's motion to sever and (2) violated Petitioner's Confrontation Clause rights by relying on a letter from the district attorney and a Nassau County Probation Department report. (See Affidavit in Support of Motion to Vacate J., Docket Entry 9-26, at 9, 11.) The County Court denied Petitioner's motion because, the court held, the motion was procedurally barred. (See March 8, 2010 Order of the County Court ("March Order"), Docket Entry 9-29.) The Appellate Division denied Petitioner's leave to appeal the County Court's holding. (See August 5, 2010 Decision & Order ("August 2010 Order"), Docket Entry 13, at 2.)
Petitioner asserts the following grounds: (1) the trial court erred in denying Petitioner's motion to sever the trial; (2) Petitioner's Miranda waiver was not made knowingly, intelligently, and voluntarily; (3) the jury's verdict wasinsufficiently supported as a matter of law; (4) the trial court erred by not giving a missing witness charge to the jury; (5) Petitioner's Confrontation Clause right was denied as to Arevalo's trial statements; and (6) Petitioner's Confrontation Clause right was denied as to the district attorney's letter and the Nassau County Probation Department report. (See Pet. ¶ 13.)
The Court will first address the applicable legal standard before turning to the merits of the Petition.
"The writ of habeas corpus stands as a safeguard against imprisonment of those held in violation of the law." Harrington v. Richter, --- U.S. ----, 131 S. Ct. 770, 780, 178 L. Ed. 2d 624 (2011).
The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus [on] behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(a).
A federal court may grant a writ of habeas corpus to a state prisoner when prior state adjudication of the prisoner's case "resulted in a decision that was contrary to, or involvedan unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." Id. at § 2254(d)(1). "This is a 'difficult to meet,' and 'highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt.'" Cullen v. Pinholster, --- U.S. ----, 131 S. Ct. 1388, 1398, 179 L. Ed. 2d 557 (2011).
During a review of a petition for a writ of habeas corpus, federal courts presume that the state court's factual determinations are correct. See 28 U.S.C. § 2254(e)(1).
A state prisoner seeking federal habeas review of his state conviction is required to first exhaust all remedies available to him in state court. See 28 U.S.C. § 2254(b)(1)(A). "Exhaustion requires a petitioner fairly to present the federal claim in state court." Jones v. Keane, 329 F.3d 290, 294 (2d Cir. 2003). Presentation means a petitioner "has informed the state court of both the factual and the legal premises of the claim he asserts in federal court." Id. at 295 (internal quotation marks and citations omitted).
In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisonercan demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.
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