Kiejliches v. Perez
| Decision Date | 29 July 2011 |
| Docket Number | 07-CV-2397 (NGG) |
| Parties | ELENA KIEJLICHES, Petitioner, v. A. PEREZ, Superintendent, Bedford Hills Correctional Facility, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
Petitioner pro se Elena Kiejliches ("Kiejliches") brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging her 2002 state-court conviction for second-degree murder and tampering with physical evidence. (See Pet. (Docket Entry # 1).) For the reasons set forth below, the petition is denied.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that the adjudication of the claim "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). Determination of factual issues made by a state court "shall be presumed to be correct," and the applicant "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." Id. § 2254(e)(1).
An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of afederal claim." Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001). A decision is "contrary to" clearly established federal law if "the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362,412-13 (2000). A decision is "an unreasonable application" of clearly established federal law if a state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case." Id. at 413. For relief to be warranted, the "state court's application of governing federal law ... must be shown to be not only erroneous, but objectively unreasonable." Waddington v. Sarausad, 129 S. Ct. 823, 831 (2009) (internal quotation marks omitted).
In assessing "clearly established" federal law, a federal district court must confine itself to the holdings, as opposed to the dicta, of the Supreme Court. See Carey v. Musladin, 549 U.S. 70, 74 (2006). Moreover, "Musladin admonishes courts to read the Supreme Court's holdings narrowly and to disregard as dicta for habeas purposes much of the underlying logic and rationale of the high court's decisions." Rodriguez v. Miller, 499 F.3d 136,140 (2d Cir. 2007); see also Yarborough v. Alvarado, 541 U.S. 652, 660-61 (2004). .
A state court's finding of procedural default, absent certain exceptions, bars a federal court from granting habeas relief. See Coleman v. Thompson, 501 U.S. 722, 750 (1991). To overcome such a default, a petitioner must demonstrate either (1) cause and actual prejudice, or (2) that failure to consider the claim will result in a fundamental miscarriage of justice. Id. at750. A state court holding that a claim is both procedurally barred and without merit is sufficient to invoke a state procedural bar. See Harris v. Reed, 489 U.S. 255, 264 n.10 (1989); Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 810 (2d Cir. 2000).
A pleading by a pro se litigant must be construed liberally and interpreted to raise the strongest arguments that it suggests. Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,474 (2d Cir. 2006). "If a pro se litigant pleads facts that would entitle him to relief, that petition should not be dismissed because the litigant did not correctly identify the statute or rule of law that provides the relief he seeks." Thompson v. Choinski, 525 F.3d 205,209 (2d Cir. 2008).
On the night of March 24, 2000, Kiejliches went up to the room where her husband, Borys Kiejliches ("Borys"), was sleeping, and shot him in the head. (See Resp't Aff. (Docket Entry # 5) at 2.) Kiejliches wrapped Borys's body with beddings and towels, wrapped his head in a black garbage bag, and tied the body with an electrical cord.
On the same night, March 24, 2000, Kiejliches called Messiah Justice ("Justice"), her lover, frantic, saying that she needed him to come to the house in a hurry. (Id. at 944.) Justice was a 26-year-old male with a substantial criminal record. (Id. at 882-93.) When Justice arrived at the house a few hours later, Kiejliches led him to the basement and told Justice that she had killed Borys and needed Justice's help. (Id. at 947.) Justice saw a large bundle of sheets wrapped up on the floor, next to red stains. (Id at 947-48.) They loaded Borys's body into a Range Rover along with toys and teddy bears that had been stained with blood. (Id. at 949-53.) They also cut out a stained portion of the carpet and placed it in a black plastic bag, but that wasnot placed in the Range Rover. (Id. 953-56.) They both drove to Brooklyn, and Justice disposed of the toys in a dumpster of a school and then discarded the body in an abandoned building. (Id. at 957-60.) Justice later returned to the body, and with another person's assistance, put the wrapped body in a barrel and dumped it in the water in East New York. (Id. at 972-78.)
On April 25, 2000, the body was found wrapped in bedding and towels similar to those found by police during a search of Kiejliches's house. (Id. at 119; 157-58; 185-88.) On May 5, 2000, Justice was arrested in connection with the death of Borys. (Id. at 895-96.) After his arrest, Justice entered into a cooperation agreement with the People on May 11, 2000. (Id. at 896.) Justice pleaded guilty to hindering in the first degree and tampering with physical evidence, with no specific sentence agreed upon. (Id. at 897-99.) Under the agreement, Justice agreed to testify truthfully if called to do so. (Id. at 897.)
On May 15, 2000, Kiejliches was arrested for her husband's murder. (Resp't Aff. (Docket Entry # 5) at 13.)
A trial took place from June 5 to June 25, 2002. Justice, who was the main witness, testified to the facts surrounding Kiejliches's murder of Borys. He testified that Kiejliches told him that Borys had already taken a million dollars from her, and that he wanted to take everything from her, including the kids. (Trial Tr. at 930.) Justice further testified that Kiejliches had called him on the night of March 24, 2000, the night of the murder, to help her, because she had killed Borys. (Id at 943-47.) Justice relayed how he had helped Kiejliches move the body, and how he eventually dumped it in the water in East New York. (Id. at 949-60, 973-78.)
In addition to Justice's testimony, several other witnesses testified at trial. Two expert witnesses and a motive witness testified. The first expert witness, Dr. Henry Nields ("Nields"), the City Medical Examiner who conducted the autopsy on Borys, testified at trial about the autopsy he performed, as well as the results of the toxicology test, which he did not perform. (Id. at 1753-69, 1784.) The second expert witness, Detective Robert Tamburri, was a ballistics expert who testified about, among other things, the distance from the firearm to the impact site, and whether the gun shot wound on Borys's head was a contact wound. (Id. at 1806-07,1810.) Yuri Sverdlov ("Sverdlov"), Borys's stockbroker and financial consultant, testified about Kiejliches's motive. Sverdlov testified that, in January of 2000, when Borys attempted to remove Kiejliches from a joint account, Borys and Kiejliches had a loud argument over the phone. (Id. at 641-43.) Borys informed Kiejliches that he was going to remove her from this account, and others, because he knew she was having an affair. (Id. at 642-43.)
On June 25,2002 Kiejliches was convicted by a trial jury of second-degree murder and tampering with physical evidence. (See Pet. (Docket Entry # 1) at 1.)
The Second Department of the Appellate Division affirmed the judgment on April 4, 2006. (Id. at 2.) Petitioner's leave to appeal to the New York Court of Appeals was denied on June 7, 2006. (Id.) Petitioner then filed a C.P.L. § 440 motion, on May 21, 2007, in the Supreme Court of New York in Richmond County. (Id. at 3.)
On June 11, 2007, Petitioner pro se Kiejliches petitioned for a writ of habeas corpus under 28 U.S.C. § 2254, challenging her 2002 state-court conviction for second-degree murder and tampering with physical evidence. (Id. at 1.) After concluding that Kiejliches had filed a"mixed petition" containing both exhausted and unexhausted claims (see Order (Docket Entry # 10) at 4), the court granted Kiejliches's motion to stay the petition so that she could exhaust her claims in state court through her C.P.L. § 440 motion. (Id. at 6.) On February 5, 2010, the court granted Kiejliches leave to amend her petition to incorporate her newly exhausted claims. (See Order (Docket Entry # 20) at 6.)
On March 22, 2011, Kiejliches filed a motion seeking a second stay and abeyance of her petition so that she may exhaust an additional claim—namely, ineffective assistance of counsel due to an inadequate production of evidence to refute a key prosecution witness—in state court. (See Docket...
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