Leka v. Portuondo

• Decision Date: 30 November 1999
• Docket Number: No. CIV.A. 97-CV-2061 (DGT).,CIV.A. 97-CV-2061 (DGT).
• Citation: 76 F.Supp.2d 258
• Parties: Sami LEKA, Petitioner, v. Leonardo PORTUONDO, Superintendent Shawangunk Correctional Facility, Respondent.
• Court: U.S. District Court — Eastern District of New York

Page 258

76 F.Supp.2d 258

Sami LEKA, Petitioner, v. Leonardo PORTUONDO, Superintendent Shawangunk Correctional Facility, Respondent.

No. CIV.A. 97-CV-2061 (DGT).

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

November 30, 1999.

Memorandum on Reconsideration December 30, 1999.

COPYRIGHT MATERIAL OMITTED

Sami Leka, Wallkill, NY, Pro se.

Michael S. Sommer, McDermott, Will & Emery, New York City, for Petitioner.

Charles J. Hynes Kings County District Attorney by Michael Gore, Brooklyn, NY, for Respondent.

REVISED MEMORANDUM AND ORDER

TRAGER, District Judge.

Petitioner Sami Leka is currently in the custody of New York State prison officials pursuant to a 1990 conviction on second degree murder and weapons charges. Asserting actual innocence, Leka petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 claiming that the police investigation and state court proceedings leading to his conviction violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution. First, Leka argues that he was convicted partly as a result of impermissibly suggestive police identification procedures. Second, he alleges that the prosecution suppressed material evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Lastly, petitioner alleges that he was denied his Sixth Amendment right to the effective assistance of trial counsel.

Background

(1)

On the evening of February 12, 1988, at approximately 6:00 p.m., Rahman Ferati was shot eight times in the legs, chest, hand, and back as he stood in front of 1954 Ocean Avenue, between Avenues N and O, in Brooklyn, New York. Although an ambulance reached the scene within ten minutes of the shooting, efforts to save Ferati were unsuccessful, and he was pronounced dead at Coney Island Hospital at 6:43 p.m. Officers of the New York Police Department responded to the scene and, as part of their investigation, identified witnesses to the shooting. The witnesses included two passers-by, Elfren Torres ("Torres") and his then-girlfriend (now-wife) Carolyn Modica Torres ("Modica"). Torres told Sergeant Thomas Mahony that he had seen two men and a light-colored car. Modica told Sergeant Mahony that she had seen someone in a car prior to the shooting and would be able to recognize him if she saw him again. Modica then gave the officer their names and address, and the couple returned to their nearby home.

That evening, Modica and Torres discussed what they had seen with one another. Around midnight, two detectives came to the Torres' home and asked them to come to the 70th Precinct station. Torres and Modica asked whether they could come in the morning, but when they were told that the matter was urgent, agreed to accompany the detectives.

Once at the precinct house, the police separated Modica and Torres. Modica provided detectives with a description and a drawing of the man she had seen in the light-colored car, and gave a tape-recorded statement to an assistant district attorney.¹ At around 4:45 a.m., Detective Pedro Vergara showed Modica two photo arrays. Each array consisted of six photographs arranged in two horizontal rows of three photographs each. The first array included a photograph of Zeni Cira, a man who would later be tried along with petitioner for the murder of Ferati and acquitted, but who, after his acquittal, would confess to the murder. Each of the men included in the first array, including Zeni Cira, was pictured without a mustache. Modica did not identify anyone from that photo array. The second photo array included a photograph of Leka, and each of the men in the second array, including Leka, was pictured wearing a mustache. From this array, Modica identified Leka as the man she had seen in a car at the crime scene. Modica remarked to the detective that petitioner had appeared fifteen pounds heavier at the scene, but explained that petitioner had been wearing a bulky black leather jacket that made him appear bigger.

At about 1:30 a.m., Torres gave a statement to a Detective Lee (first name unknown). Torres explained that he and Modica had walked by a light-colored car and, after passing it, heard two shots. Torres turned and saw a hand holding a gun extended out of the passenger-side window of the car. Torres ducked down but quickly looked up again and saw a man outside the car shooting in a downward direction at a man in the street. At some point thereafter, Torres and Modica ran into a building. Torres stated that he did not see the car leave. Torres described the man he had seen shooting as five feet, nine inches tall, medium build, in his late twenties or early thirties, dark hair, mustached, wearing a dark leather coat, and firing a black revolver with a brown handle.

At 5:10 a.m., Detective Vergara showed Torres the same two photo arrays that had been shown to Modica. Torres did not select anyone out of the first photo array but selected petitioner from the second photo array. The police then drove Modica and Torres home.

The police apparently had Leka's photograph due to a 1977 arrest, but it is not clear why his picture was included in an array shown to Torres and Modica so soon after the crime. At trial, Detective Vergara testified that he was aware that the victim and the alleged perpetrators were Albanians, but he did not know how petitioner's name became involved in the investigation; nor was Detective Vergara aware of petitioner's name until he was handed the photo array at the precinct house.²

In any event, the police followed up on the identification of petitioner by Torres and Modica. Detective Vergara and Detective James Sanseverino went to petitioner's apartment around 6:15 a.m. on February 13th. A woman answered the door and told the police that petitioner was not there. Detective Sanseverino spoke to petitioner later that same day when petitioner voluntarily came to the precinct. Petitioner explained that he had been home when the detectives had come to his apartment, but that he had been asleep. He also told Detective Sanseverino that around 6:30 p.m. or 7:00 p.m. of the preceding evening he had gone out with his sister-in-law Naze Alijaj to rent a videotape and that he had bought snacks while his sister-in-law rented the videotape.³ Petitioner could not remember the name of the movie. In addition, petitioner claimed that he had borrowed his brother's Camaro and had driven around Manhattan for three hours between 11:00 p.m. on the 12th and 2:00 a.m. on the 13th.⁴

On March 8, 1988, the police again brought Torres and Modica to the 70th Precinct house and had them separately view a line up which included petitioner. Again, both Modica and Torres independently identified petitioner as the man they had seen on the night of the shooting. Following the identification, petitioner was arrested.

The final important pre-trial event for purposes of this petition was a Wade hearing⁵ held on February 20th and 21th, 1990, before Justice Philip E. Lagana of the New York Supreme Court, Kings County. The prosecution called three witnesses, Modica, Torres and Detective Vergara, to rebut charges that the police engaged in suggestive conduct that resulted in Modica and Torres' identifications of petitioner. The defense called no witnesses of its own, but it did assemble an in-court line up consisting of petitioner, Zeni Cira's brother Luftim (who would testify at trial at trial that he and another brother, Osman, murdered Ferati in self-defense), and six other Albanians, including relatives of both Zeni Cira and petitioner.⁶ The prosecutor asked Modica and Torres each to identify the individual they had seen at the crime scene from the line up assembled by the defense, and without hesitation both selected the petitioner. Petitioner's trial counsel, Joseph Benfante, cross-examined the three witnesses extensively in an unsuccessful effort to show that the police had engaged in some form of misconduct or had pressured Torres and Modica to identify petitioner.

At the close of the Wade hearing, the state trial court denied a motion by petitioner to adjourn the trial until all the police officers who had assembled the photo arrays or who had been in contact with either Modica or Torres could be identified, subpoenaed, and examined by the defense. The court did, however, state that it would re-open the hearing if petitioner could find any police officer whose testimony was helpful in his attack on the pre-trial identifications. The court also rejected a defense motion to hold a hearing on whether Modica and Torres had a reliable independent source for their line up identifications. The defense predicated this latter motion on the ground that the photo array was inherently suggestive because the five other pictures in the array were allegedly of Hispanic men, while petitioner was an Eastern European. There was (and is), however, no evidence in the record regarding the actual ethnicities of the photo array fill-ins.

(2)

Petitioner's trial began with jury selection on February 26, 1990. The prosecution's case detailed the intra- and inter-family feud which allegedly provided the motive for the shooting. The victim, Rahman Ferati, was related to the Ciras through the marriage of his son Veli to Zeni Cira's sister Lydia, and through the marriage of his daughter Julie to Zeni Cira's brother Luftim. After Veli's death in an automobile accident in 1978, Ferati took custody of Veli and Lydia's children. In 1986, Ferati moved from New York to Houston, Texas, taking the grandchildren with him. In 1987, during a period in which Ferati was incarcerated, the Cira family regained custody of the children and brought them back to Brooklyn. Losing custody of his grandchildren angered Ferati greatly. Around New Year's, 1988, Ferati returned to New York and took up residence with his daughter Julie, her husband, Luftim Cira, and their children. Soon thereafter, tension developed between Ferati and...