Marengo v. Conway, 04 Civ. 2207(VM).
| Citation | 342 F.Supp.2d 222 |
| Decision Date | 28 October 2004 |
| Docket Number | No. 04 Civ. 2207(VM).,04 Civ. 2207(VM). |
| Parties | Michael MARENGO, Petitioner, v. James T. CONWAY, Respondent. |
| Court | U.S. District Court — Southern District of New York |
Michael Marengo Attica, NY, pro se.
DECISION AND ORDER
Pro se petitioner Michael Marengo ("Marengo") filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("§ 2254") challenging his conviction in New York State Supreme Court, New York County (the "trial court") of eleven counts of robbery in the first degree, in violation of New York Penal Law ("NYPL") § 160.15(3), (4), and one count of robbery in the third degree, in violation of NYPL § 160.05. The trial court sentenced Marengo as a persistent violent felony offender to eleven concurrent prison terms of 25 years to life on the first-degree robbery counts, to run consecutively to a term of three and one-half to seven years on the third-degree robbery count. Marengo is currently serving his sentence.
Marengo's habeas petition alleges that his federal constitutional rights were violated during his state criminal proceedings. Respondent, James T. Conway (the "State") moves this Court to dismiss Marengo's petition. For the reasons discussed below, the State's motion is granted.
Marengo was arrested in connection with a police investigation into a series of eight robberies of Manhattan commercial establishments committed during April, May, and June of 1996. Marengo used a gun or a knife in each robbery. The final robbery took place at a yogurt shop and was recorded by the store's video surveillance camera. Police officers released the video tape to the public and an emergency 911 call led officers to the Senton Hotel in Manhattan on July 3, 1996. Shortly after arriving at the hotel, police officers observed Marengo running from the building. The officers arrested Marengo after recognizing him from the surveillance tape. Pursuant to a search warrant, the officers searched the hotel room where Marengo was staying and seized evidence that linked him to the robberies, including a cap and a knife.
Marengo was subsequently indicted for twelve counts of robbery in the first degree. After a jury trial, Marengo was found guilty of eleven of the twelve counts of robbery in the first degree, and one count of robbery in the third degree. The trial court sentenced Marengo as a persistent violent felony offender to eleven concurrent prison terms of 25 years to life to run consecutively to a term of three and one-half to seven years in prison.
On direct appeal to the New York Supreme Court Appellate Division, First Department (the "Appellate Division"), Marengo raised essentially the same arguments he raises in his habeas petition, namely, that: (1) the trial court deprived him of his right to due process and a fair trial by failing to sever the counts of the indictment charging him with eight separate robberies; (2) he was deprived of his right to effective assistance of counsel because his trial counsel failed to request severance or object to the court's modus operandi instruction; and (3) the trial court erred in denying his request for an adverse inference instruction to the jury with respect to the erasure of recorded 911 calls that related to some of the robberies.
On October 17, 2000, the Appellate Division unanimously affirmed the trial court's conviction. See People v. Marengo, 276 A.D.2d 358, 714 N.Y.S.2d 43 (1st Dep't 2000). Marengo sought leave to appeal to the New York Court of Appeals, which denied leave on November 27, 2000. See People v. Marengo, 95 N.Y.2d 936, 721 N.Y.S.2d 612, 744 N.E.2d 148 (2000).
On January 17, 2002, Marengo moved the trial court to vacate its judgment pursuant to New York Criminal Procedure Law ("NYCPL") § 440.10 (" § 440.10"). Marengo claimed that evidence derived from an illegal search and seizure had been presented against him at trial, and that his counsel at trial was ineffective in failing to move to suppress the evidence. The trial court denied Marengo's request on April 11, 2002, finding first that because the claims were not raised on direct appeal, they were unpreserved, and second, because the claims lacked substantive merit. See People v. Marengo, Ind. No 7014/96, slip op. 2 (N.Y.Sup.Ct. Apr. 11, 2002). Specifically, the trial court found that Marengo had failed to show that suppression of the evidence would have been required, and that his ineffective assistance of counsel claim was meritless because the result would probably not have differed in light of the overwhelming evidence presented at trial that linked him to the robberies. See id. at 2-3.
On May 20, 2002, Marengo sought leave to appeal the Order denying his § 440.10 motion. The Appellate Division denied leave on July 18, 2002. Marengo, however, asserts that he was not notified of the decision until sometime in early 2004, when the Appellate Division responded to his inquiry as to the status of his motion.
Marengo asserts three claims in the instant petition.2 First, Marengo argues that the trial court deprived him of his right to due process by failing to sever the counts of the indictment charging him with eight separate robberies, and by instructing the jury that it could consider the proof establishing any of the crimes charged to determine the identity of the perpetrator of an unrelated incident. Second, Marengo further asserts that the trial court deprived him of his right to a fair trial and confrontation by denying his request for an adverse inference instruction concerning the State's destruction of 911 tapes that had recorded reports of the robberies. Finally, Marengo claims that he was deprived his right to effective assistance of counsel when his counsel failed to: (1) request severance, (2) object to the court's modus operandi instruction, and (3) move to suppress the evidence obtained from the hotel room pursuant to the search warrant.
On July 26, 2004, the State filed a motion to dismiss Marengo's habeas petition on the grounds that it is barred by the one-year statute of limitations period. The State further argues that even if Marengo's petition were timely, the substantive claims can be dismissed as meritless.3
A petitioner in custody pursuant to a judgment of a state trial court is entitled to habeas relief only if he can show that his detention violates the United States Constitution or federal law or treaties of the United States. See 28 U.S.C. § 2254(a). The purpose of federal habeas review of state court convictions is to "assure that when a person is detained unlawfully or in violation of his constitutional rights he will be afforded an independent determination by a federal court of the legality of his detention, even though the issue may already have been decided on the merits by a state tribunal." United States ex rel. Radich v. Criminal Court of New York, 459 F.2d 745, 748 (2d Cir.1972).
Pursuant to the various sub-sections of § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, this Court's review is guided by certain restrictions on the nature and extent of review that a federal court can conduct in considering a habeas petition. Under § 2254, if a state court adjudicates a petitioner's federal claim on the merits, a federal court on habeas corpus review must defer to the state court's determination of that claim unless such adjudication resulted in a decision that was either "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or 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).
A state court adjudicates a petitioner's federal claim "on the merits," and thus triggers the highly-deferential AEDPA standard of review, when it: (1) disposes of the claim on the merits; and (2) reduces its disposition to judgment. See Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir.2001). In so doing, the state court need not explicitly refer to either the particular federal claim or to any federal case law. See id. The only requirement is that the claim be finally resolved, with res judicata effect, on substantive rather than procedural grounds. See id. at 311.
If the state court's adjudication of a petitioner's federal claim is not based on the merits — for example, when the decision rests solely on procedural grounds — the state court's decision on that claim is entitled to no deference. Instead, the federal court must apply a pre-AEDPA de novo review to the state court's disposition of the federal claim. See Cotto v. Herbert, 331 F.3d 217, 230 (2d Cir.2003) (citing Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir.2001)).
AEDPA established a one-year limitation period for state prisoners seeking federal habeas corpus review. See 28 U.S.C. § 2244(d)(1). The period begins to run from the latest of
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
Id.
Under AEDPA, "[t]...
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