Lopez v. Lee
| Decision Date | 07 December 2011 |
| Docket Number | 11-CV-2706 (JG) |
| Parties | HECTOR LOPEZ, Petitioner, v. WILLIAM LEE, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
FOR ONLINE PUBLICATION ONLY
APPEARANCES:
HECTOR LOPEZ
Petitioner, Pro se
CHARLES J. HYNES
By: Leonard Joblove
Camille O'Hara Gillespie
Attorney for Respondent
Hector Lopez, who is currently incarcerated at Green Haven Correctional Facility, petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. After a jury trial in the Supreme Court of New York, Kings County, Lopez was convicted of two counts of murder in the second degree, a single count of arson in the first degree and four counts of assault in the first degree. Lopez was sentenced, as modified on appeal, to concurrent terms of imprisonment of 25 years to life on each murder count and lesser concurrent terms on the remaining counts. He nowseeks habeas relief from his conviction and sentence on the following grounds: (1) the state court improperly refused to instruct the jury that testimony of an accomplice could not establish guilt unless corroborated; (2) Lopez was arrested at his home without a warrant or probable cause in violation of the Fourth Amendment; and (3) the government unlawfully withheld information, including the full extent of the benefits it provided to a witness. For the reasons stated below, the petition is denied.
In the early morning hours of June 21, 1994, Lopez set fire to an apartment building in Brooklyn, New York. The building was the home of Jose Rivera, who was romantically involved with Christina Morales, Lopez's ex-girlfriend and the mother of his children. Rivera, the presumed target of the fire, was not home at the time. Two residents of the building died of smoke inhalation. Two other residents were seriously injured and five firefighters also sustained injuries.
Lopez was arrested and charged with multiple counts of murder in the second degree, in violation of N.Y. Penal Law § 125.25(2) & (3); arson in the first degree, in violation of N.Y. Penal Law § 150.20(1); and assault in the second degree, in violation of N.Y. Penal Law § 120.05(3).
While these charges were pending, Lopez conspired with his girlfriend, Carmen Matos, to murder Rivera and Morales. Lopez and Matos were both charged with conspiracy, attempted murder, witness-tampering and criminal solicitation charges. After his conviction on the murder, arson and assault charges, Lopez pleaded guilty to the post-fire conspiracy charge. He was sentenced to a prison term of four and one-half to nine years, to run concurrently with hisother sentences. Lopez does not challenge his conviction or sentence in connection with the conspiracy charge in his habeas petition.
Before trial, Lopez filed an omnibus motion seeking, inter alia, suppression of evidence obtained as a result of Lopez's arrest. He claimed that the arrest was warrantless and without probable cause and, thus, in violation of the Fourth Amendment.
In a decision and order dated October 3, 1994, the trial court denied Lopez's motion to suppress evidence obtained as a result of his arrest. The court explained that Lopez's Decision and Order at 1, People v. Lopez, No. 7529/94 (N.Y. Sup. Ct. Kings Cnty. Oct. 3, 1994). Lopez renewed his motion to suppress several months later, and the trial court again denied the motion without a hearing.
Lopez's trial on the murder, arson and assault charges took place over several days in August and September 1995.1 Matos testified against Lopez pursuant to a cooperation agreement with the government. 2 The existence and terms of the cooperation agreement were disclosed to Lopez prior to trial. Both the original cooperation agreement and an amended agreement were admitted into evidence.
Matos testified that Lopez had asked her to get Rivera's home address from the Department of Motor Vehicles, which she did. Matos also testified that after Lopez's arrest, headmitted to her that he had set the fire, Trial Tr. 440-42, and that he wanted to have Rivera and Morales killed, see, e.g., id. at 448.
On September 8, 1995, the jury found Lopez guilty of two counts of murder in the second degree, one count of arson in the first degree and four counts of assault in the first degree. On October 2, 1995, the trial court sentenced Lopez to: (i) two consecutive prison terms of 25 years to life for the two murder counts; (ii) a prison term of 25 years to life for the arson count, to run concurrently with the murder sentences; (iii) two prison terms of 5 to 15 years for two of the assault counts and two prison terms of 3 to 9 years for the two remaining assault counts, all to run consecutively to each other and to the other sentences. Oct. 2, 1995 Tr. 25. The total term of imprisonment imposed was 66 years to life. Id. at 26.
Lopez appealed his convictions and sentence to the Appellate Division of the Supreme Court of New York, Second Department. Lopez asserted two arguments on appeal. First, he argued that the trial court should have instructed the jury that it could not convict Lopez on the basis of Matos's testimony unless her testimony was corroborated because there was evidence that Matos was an accomplice to the charged crimes. Second, he argued that the trial court erred in imposing some of the sentences consecutively rather than concurrently.
The Appellate Division affirmed the convictions but modified the judgment so that the sentences would all run concurrently. See People v. Lopez, 694 N.Y.S.2d 674, 675 (App. Div. 2d Dep't 1999). It rejected Lopez's argument that the jury should have been instructed that Matos's testimony had to be corroborated "as there is no evidence from which the jury could reasonably infer that [Matos] was an accomplice." Id. Lopez sought leave to appeal to the NewYork Court of Appeals. His application for leave to appeal was denied on November 30, 1999. People v. Lopez, 724 N.E.2d 387 (N.Y. 1999) (Levine, J.).
On December 30, 1996 - while his direct appeal was still pending - Lopez moved to vacate his judgment of conviction pursuant to § 440.10 of the New York Criminal Procedure Law. In his § 440.10 motion, Lopez argued that the government had (i) failed to turn over the complete transcripts of a witness's testimony before the grand jury, as required by New York law; (ii) improperly pressured and coached Matos to testify falsely against Lopez; and (iii) failed to disclose all of the benefits Matos had received in exchange for her cooperation. In support of his motion, Lopez submitted an affidavit signed by Matos in which she asserted that her testimony against Lopez had been false and that the prosecution had pressured her to lie.
In a decision and order dated November 10, 1998, the Kings County Supreme Court denied Lopez's § 440.10 motion. The court held that Lopez's claim that the government had failed to turn over the complete grand jury transcripts of one of the trial witnesses was procedurally barred because Lopez could have raised that issue in the trial court. Decision and Order at 2, People v. Lopez, No. 7529/94 (N.Y. Sup. Ct. Kings County Nov. 10, 1998). In addition, the court held that the violation of any duty to disclose the transcripts was non-prejudicial. Id.
The court rejected Lopez's claim that the government had pressured Matos to lie. The court held that Matos's affidavit was Id. at 2-3.
As for Lopez's claim that the government had not disclosed all of the benefits it provided to Matos, the court found that the cross-examination of Matos demonstrated that "the benefit conferred on her was substantial." Id. at 3. The court also held that, in light of the "overwhelming evidence" of Lopez's guilt, any nondisclosure of the details of the benefits provided to Matos "would constitute harmless error." Id.
According to the government, Lopez did not seek leave to appeal the denial of his § 440.10 motion to the Appellate Division.
On May 20, 2002, Lopez applied to the Appellate Division for a writ of error coram nobis arguing that he had received ineffective assistance from the attorney that handled his direct appeal. 3 Lopez argued that his appellate counsel had failed to argue that Lopez had received ineffective assistance from his trial counsel. The asserted deficiencies of Lopez's trial counsel were the failures to: (i) raise the fact that the transcript of a witness's testimony was not provided to Lopez prior to trial; (ii) establish a record that all of the benefits received by Matos were not disclosed; (iii) disclose prosecutorial misconduct; (iv) request a hearing on whether evidence obtained from a search of Lopez's car should have been suppressed; and (v) access the trial transcripts when preparing Lopez's § 440.10 motion.
The Appellate Division denied the coram nobis application on October 7, 2002, stating without explanation that Lopez had "failed to establish that he was denied the effective assistance of appellate counsel." People v. Lopez, 751 N.Y.S.2d 407, 407 (App. Div. 2d Dep't 2002).
Lopez's petition was filed in late May 2011 and was received in this Court on June 2, 2011.4 In his petition, Lopez asserts three grounds for federal habeas relief. First, he argues that he was denied an "accomplice in fact charge" with respect to Matos. Pet. ¶ 13, ECF No. 1. Second, he argues that the police arrested him in his home without probable cause. Id. Finally, he argues that the...
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