Lugo v. Kuhlmann

Decision Date07 October 1999
Docket NumberNo. 98 Civ. 8662 (RPP).,98 Civ. 8662 (RPP).
Citation68 F.Supp.2d 347
PartiesManuel LUGO, Petitioner, v. Robert H. KUHLMANN, Superintendent, Respondent.
CourtU.S. District Court — Southern District of New York

Manuel Lugo, Fallsburg, NY, pro se.

Robert T. Johnson, District Attorney, Bronx County, Karen Swiger, Assistant District Attorney, Bronx County, Bronx, NY, for Respondent.

ORDER ACCEPTING MAGISTRATE'S REPORT AND RECOMMENDATION

ROBERT P. PATTERSON, Jr., District Judge.

This Court has received and reviewed the Report and Recommendation (the "Report") issued by Magistrate Judge Andrew J. Peck on July 29, 1999. On August 6, 1999, Karen Swiger, Assistant District Attorney, submitted an Objection to Magistrate's Report and Recommendation ("Respondent's Objection") on behalf of respondent objecting to portions of the Report. On September 20, 1999, petitioner filed his Reply and Objections to the Magistrate Judge's Proposed Report and Recommendation ("Petitioner's Objections"). Respondent's first objection to the Report is based on the contention that the one-year limitation period under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2244(d)(1), runs from the date of the denial by the New York Court of Appeals of petitioner's application for leave to appeal. The law in this Circuit is that the state conviction becomes final once the time to seek direct review in the United States Supreme Court by writ of certiorari has expired. Ross v. Artuz, 150 F.3d 97, 98 (2d Cir. 1998). As to respondent's other objections that (1) the court's reasonable doubt charge is a matter of state law not cognizable on federal habeas corpus review; (2) the Magistrate Judge did not apply the standards of the AEDPA, 28 U.S.C. § 2254(d), in reviewing the court's reasonable doubt charge; (3) the Magistrate Judge improperly considered petitioner's claims regarding the prosecutor's summation as federal constitutional claims because such claims were only raised as state law claims, were not included in the petition for habeas corpus and did not apply the standards contained in the AEDPA, 28 U.S.C. § 2254(d); and (4) the Magistrate Judge did not apply the standards of the AEDPA, 28 U.S.C. § 2254(d), in evaluation of petitioner's claim of ineffective assistance of counsel (Respondent's Objections), it is not necessary to rule on these objections since the Report reached conclusions on those subjects favorable to the respondent, although not based on rationale proposed by the respondent.

The objections filed by petitioner raise one point not directly decided by the Report, i.e., that petitioner's appellate counsel did not properly raise on appeal that, in response to a jury note, "the Court in a condensed and mixed fashion reiterated to the jury the elements of Murder by depraved indifference as it [sic] pertain to Marilyn Colon." (Petitioner's Objections at 22-24.) In fact, appellate counsel did argue that this supplementary charge was grounds for reversal in Point I of her brief on appeal to the Appellate Division. (Affidavit in Opposition of Karen Swiger dated April 1999, Ex. 1 at 15-18.) That appellate counsel raised the issue of the corrections of the supplementary charge is reflected in the decision of the Appellate Division, 232 A.D.2d 236, 648 N.Y.S.2d 539, and petitioner acknowledges that in a follow-up letter to Judge Titone of the New York Court of Appeals, appellate counsel "reiterated the words of her appellate brief." (Petitioner's Objections at 5.) Thus, petitioner's claim of a failure to raise this point is not well grounded and does not constitute ineffective assistance of appellate counsel.

Petitioner's remaining objections have also been reviewed and found to have been properly responded to in the Report.

Accordingly, after consideration of the Report and the objections filed thereto, it is hereby:

ORDERED that the Report and Recommendation issued by Magistrate Judge Andrew J. Peck on July 29, 1999 is accepted in accordance with 28 U.S.C. § 636(b). Accordingly, it is further

ORDERED that in accordance with the Report the Petition of Manuel Lugo is dismissed. As the petition presents no question of substance for appellate review, a certificate of appealability will not be issued under 28 U.S.C. § 2253. Pursuant to 28 U.S.C. § 1915(a)(3), it is hereby certified that no appeal from this order would be taken in good faith.

SO ORDERED.

REPORT AND RECOMMENDATION

PECK, United States Magistrate Judge.

To the Honorable Robert P. Patterson, United States District Judge:

Petitioner Manuel Lugo seeks a writ of habeas corpus from his 1994 conviction of two counts of second degree murder, for which he was sentenced to consecutive terms totaling 45 years to life. Lugo's petition raises five claims: (a) there was insufficient evidence to support his conviction for Colon's murder (Pet.¶ 12(A)), (b) the trial court's reasonable doubt jury instruction deprived him of a fair trial (Pet. ¶ 12(B)), (c) comments by the prosecutor in summation were prejudicial (Pet.¶ 12(C)), (d) evidence of Colon's pregnancy was erroneously admitted into evidence (Pet. ¶ 12(C)), and (e) ineffective assistance of appellate counsel (Pet.¶ 12(D)).1 Lugo's insufficiency of the evidence claim was raised on direct appeal to the First Department but was not adequately raised in his application for leave to appeal to the New York Court of Appeals. Thus, that ground is unexhausted and procedurally defaulted in state court, and federal habeas corpus review of that claim accordingly is barred. Lugo's claim as to Colon's pregnancy was not raised in federal constitutional terms before the First Department and thus is unexhausted but procedurally barred for habeas review. Lugo's remaining claims lack merit. Accordingly, for the reasons set forth below, the Court should deny Lugo's petition.

FACTS
Evidence at Trial

In the early morning of December 30, 1990, Wilfredo Roman, under orders from Manuel Lugo, shot and killed Carlos Ventura and Ventura's girlfriend, Marilyn Colon. The court tried Lugo and Roman together, but using two separate juries. (See 3/29/94 Pretrial Tr. at 2-16; see also, e.g., Trial Transcript ["Tr."] 1359-61, 1365-69.) Lugo's street name or nickname was "Supra," and Roman's street name was "Faze." (Tr. at 1480, 1486, 1489, 2066, 2407-08.)

At around 10:30 p.m. on December 29, 1990, Ventura and Colon parked Ventura's automobile on Vyse Avenue between 180th and 181st Streets in the Bronx. (Tr. 1496-98, 1500-01, 2417.) Colon was Ventura's girlfriend or wife. (Tr. 1474-75, 2401, 2417.) While Colon remained in the car, Ventura talked to Angel Otero, Ruben Cruz, and other drug dealers about their drug business. (Tr. 1501-02, 2417-18.) Cruz informed Ventura, a drug dealer in the area (Tr. 1473-74, 2400), that Lugo was selling crack (in "blue tops" vials) in Ventura's territory. (Tr. 1501, 1682, 1684, 1688, 2405, 2418-19, 2489.) A half hour later, Lugo drove by, Cruz stopped him, and Lugo and Ventura had a lengthy argument about their drug sales territories. (Tr. 1503-05, 1688, 1693-97, 1705, 2420-22, 2424, 2440.) Following the argument, Ventura returned to his parked automobile and sat with Colon. (Tr. 2424.)

Lugo then went to the corner of 181st Street and Vyse Avenue. Wilfredo Roman came over, and Lugo told Roman to retrieve a gun from his apartment. (Tr. 1520-21A, 1524-25, 1536-37, 1706-07, 1745, 2424-26.) About fifteen minutes later, at around 1:00 a.m., Roman returned with something "bulky" underneath his jacket, and Lugo told him: "go do what you have to do, go do your job. But be careful of his wife because she's pregnant." (Tr. 1524, 1526-28, 1537-38, 1540, 1549, 1710-11, 1714-16, 1747-48, 1764-65, 2429-31, 2435.)

Roman walked down the block, stopped behind Ventura's car, and opened fire towards Ventura. (Tr. 1528, 1540-43, 1545, 1717-18, 1748, 2431.) Roman fired six or seven shots from an Uzi through the car's rear window, killing Ventura. (Tr. 1543-45, 2432.) Roman "was going to leave, but since he heard [Colon] screaming" he moved to the rear by the passenger side where Colon was sitting and fired one shot at close range into her head. (Tr. 1546-48, 1568, 1718-19, 2432.) Roman left, going towards the same building from which he had gotten the gun. (Tr. 1553-54.)

A short time later, Lugo asked Otero if "Carlos was dead already." (Tr. 1553.) When Otero responded that Ventura was dead, Lugo left the scene. (Id.)

Approximately three days after the shooting, Lugo and Roman went to Otero's apartment, carrying an Uzi. (Tr. 1584-85, 1752, 2443.) Lugo told Otero that it was the gun "used to fix that smart guy." (Tr. 1585, 2443-45.) Lugo and Roman asked Otero to keep the Uzi for them, but Otero said no. (Tr. 1586-87.)

After Otero was arrested (along with Lugo) for selling crack, Otero gave the police and the prosecutors information about the shootings of Ventura and Colon. (Tr. 1577-83, 1761-63, 1818, 2251-52.) Lugo and Roman were arrested on February 19, 1991. (Tr.2069-71, 2076-77, 2147-48, 2150, 2179-80, 2256-57, 2445-46.)2

At the close of the evidence, the People agreed to Lugo's counsel's motion to dismiss the intentional second degree murder count as to Colon (Tr. 2637-38), but the trial court denied the defense motion to dismiss the second degree depraved indifference murder count as to Colon. (Tr. 2638, 2652-54.) The trial court explained:

I will charge the fourth count of the indictment charging the defendant with murder in the second degree under the theory of depraved indifference as it is applicable to the deceased, Marilyn Colon.

The reason for that [is] ... that the evidence in the case demonstrates that Mr. Lugo allegedly told Mr. Roman, "go do your duty, but be careful of the girl, she is pregnant."

Although that demonstrates a lack of intent to kill her intentionally, it does not relieve him of the responsibility that flows from the fact that...

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