Martinez v. Walker

• Decision Date: 29 March 2005
• Docket Number: No. 00-CV-6603.,00-CV-6603.
• Parties: Hector MARTINEZ, Petitioner, v. Hans WALKER, Superintendent of Auburn Correctional Facility, Respondent.
• Court: U.S. District Court — Western District of New York

380 F.Supp.2d 179

Hector MARTINEZ, Petitioner, v. Hans WALKER, Superintendent of Auburn Correctional Facility, Respondent.

No. 00-CV-6603.

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

March 29, 2005.

COPYRIGHT MATERIAL OMITTED

Hector Martinez, Auburn, NY, pro se.

Marian Whitney Payson, Esq., Assistant Attorney General Office of the Attorney General, Rochester, NY, Frank J. Clark, Esq., District Attorney of Erie County, Buffalo, NY, for Defendant.

DECISION AND ORDER

BIANCHINI, United States Magistrate Judge.

INTRODUCTION

Hector Martinez ("Martinez") filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in County Court on five counts of first degree burglary and three counts of second degree assault. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(b).

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On October 13, 1997, at about 9:30 p.m., Robert Sanders ("Sanders") and Paul Frontuto ("Frontuto") ran into Martinez while on their way to Sanders's mother's home in the City of Buffalo.¹ Martinez, who had known Sanders for about four years, informed the two men that certain individuals owed him money and that he wanted to collect it. Martinez asked them to go with him to 273 Amherst Street where the alleged debtors (John Surman ("Surman"), Joseph Drury ("Drury") and Jeffrey Evert ("Evert")) resided.

Jennifer Perkins ("Perkins") lived a few houses up from 273 Amherst Street at 285 Amherst Street. Martinez, whose girlfriend was friends with Perkins, also lived on Amherst Street about five houses away. On the night of October 13, Perkins saw Martinez, who is Hispanic, walking with two white men toward 273 Amherst Street from the direction of Martinez's house. As the three passed by Perkins's house, Martinez briefly stopped to talk to her. Perkins described Martinez as wearing a blue-and-white jersey, a grey "hoody" sweatshirt, and white jeans. She stated that he was carrying a bookbag and that his companions were both wearing black jeans. Martinez informed Perkins that if the "5-0" (i.e., the police) came by, she was to say that she did not see or hear anything.

After issuing that warning to Perkins, Martinez and his cohorts walked up the driveway of 273 Amherst Street. Perkins saw them enter the building from a door on the driveway and then walk upstairs together. Sanders testified that he was wielding a hammer, Martinez, a pistol, and Frontuto, a hammer.²

Surman, the first victim, testified that he heard a knock at his apartment door on the night of October 13 at about 10 p.m. As he opened the door, he was immediately shoved into his apartment by three men. Surman was unable to identify Martinez from a photo array, but he testified at trial that one of his assailants was white and one Hispanic; he could not remember the race of the third assailant. Surman testified that the Hispanic man had a gun and the other two intruders had a hammer and a club. According to Surman, the Hispanic man beat him and demanded, "Where's the stuff?" (Sanders, the accomplice, testified that Martinez was asking where the drugs were.) Surman replied that he did not know what the man was talking about.

Eventually, the three perpetrators ceased their attack on Surman and went across the hall to Drury and Evert's apartment. Surman attempted to escape out a back window but could not open the window due to the defensive wounds on his hands. Surman then hid in a closet.

Drury, who lived across the hall with Evert, testified that minutes after he heard doors being slammed, a Hispanic man wearing black jeans and a flannel shirt broke into his apartment. Drury was unable to identify Martinez from a photo array. The Hispanic man aimed his gun at them and demanded, "Where's the shit?" According to Drury, the Hispanic man pistol-whipped him in the jaw causing him to fall to the floor. Drury testified that he felt blows to his head, back and legs. He could not recall with certainty whether there were two or three assailants. Drury stated that he was dragged, along with Evert, down the hall to Surman's apartment where he was struck with a hammer on his legs.

Evert, the third victim, testified that he heard the door being kicked in and that the next thing he saw was a gun in his face. Evert recalled that the person with the gun was Hispanic. He definitely recalled there being one other intruder but could not recall whether there was a third. After being forced to lie on the ground by the Hispanic man, Evert was struck in the head with a hammer and a gun.

Evert testified that he and Drury were led across the hallway to Surman's apartment. One of the assailants informed Drury that he had better answer some questions "right" or he would have a "cap popped into his head." A gun was displayed when the man said this. The intruders then asked Evert, "So you have kids?" Evert answered yes and the intruders hit him in the head several times and said, "There you go, now go back to your wife and kids." That was the end of the assault.

Sanders testified that he and Martinez removed a stereo from Drury's apartment. After the attack, Drury noticed that his stereo components were missing. Perkins testified that she saw Sanders and Frontuto walking away from 273 Amherst Street toward Martinez's house; Sanders was carrying a stereo and Frontuto had the same bookbag that Martinez was carrying when Martinez stopped to talk to her prior to the attacks.

The jury returned a verdict convicting Martinez of five counts of first degree burglary and three counts of second degree assault. Martinez was sentenced to an indeterminate term of twenty years to life imprisonment.

The Appellate Division, Fourth Department, of New York State Supreme Court unanimously affirmed his conviction on November 12, 1999. People v. Martinez, 266 A.D.2d 847, 698 N.Y.S.2d 806 (4th Dept.1999). The New York Court of Appeals denied leave to appeal on June 7 1999. People v. Martinez, 93 N.Y.2d 974, 695 N.Y.S.2d 60, 716 N.E.2d 1105 (1999).

This federal habeas petition followed. For the reasons set forth below, the petition is denied.

DISCUSSION

Standard of Review

To prevail under 28 U.S.C. § 2254, as amended in 1996, a petitioner seeking federal review of his conviction must demonstrate that the state court's adjudication of his Federal constitutional claim resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Supreme Court precedent, or resulted in a decision that was based on an unreasonable factual determination in light of the evidence presented in state court. See 28 U.S.C. § 2254(d)(1), (2); Williams v. Taylor, 529 U.S. 362, 375-76, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

Merits of the Petition

Claims I and II: Improper admission of accomplice testimony and insufficient corroborating testimony

Because these two claims are related, I will consider them together. Martinez contends that the testimony of Sanders, his accomplice, was based upon "perjury and duress for a favorable sentence." Petition at 3 (Docket # 1). On cross-examination, Sanders was asked, "Actually, you would say anything here to get that reduction [in prison time], wouldn't you?" T.133. Sanders replied, "Yes." T.132. On re-direct examination, Sanders explained that he "didn't mean it as [he]'d say anything to get [himself] out of trouble" and that he "didn't really understand the question." T.156. Sanders averred that he was telling the truth about the events of October 13, 1997, and admitted that he was attempting to "cut [his] legal losses as a result of that testimony." T.156. Martinez cannot establish that Sanders, in fact, perjured himself based upon one answer that Sanders gave to defense counsel's question on cross-examination. The statement at issue goes to the weight of Sanders's testimony, rather than its admissibility; the jury could properly consider it when determining whether to credit Sanders's testimony about the burglary.

With respect to Martinez's claim that there was insufficient evidence to corroborate the accomplice testimony, respondent argues that such a claim does not present a constitutional question and is not cognizable on habeas review. Because Martinez's claim is based solely on the New York state law accomplice corroboration requirement, see N.Y.Crim. Proc. Law § 60.22,³ it does not constitute a claim of a violation of a federal constitutional right. Indeed, there is no federal constitutional rule requiring the corroboration of accomplice testimony. See Caminetti v. United States, 242 U.S. 470, 495, 37 S.Ct. 192, 61 L.Ed. 442 (1917) ("[T]here is no absolute rule of law preventing convictions on the testimony of accomplices if juries believe them."). A conviction may be sustained on the basis of the testimony of a single accomplice, provided that testimony is "not incredible on its face and is capable of establishing guilt beyond a reasonable doubt." United States v. Gordon, 987 F.2d 902, 906 (2d Cir.1993) (citing United States v. Parker, 903 F.2d 91, 97 (2d Cir.), cert. denied, 498 U.S. 872, 111 S.Ct. 196, 112 L.Ed.2d 158 (1990)). "Any lack of corroboration goes to the weight of the evidence, not to its sufficiency, and a challenge to the weight of the evidence is a matter for argument to the jury, not a ground for reversal on appeal." Id. Consequently, Martinez's claim based on the lack of corroborative testimony must be dismissed. Accord, e.g., Mariani v. Kelly, 2001 WL 1860961, at *4 (N.D.N.Y. Feb.2, 2001) ("Petitioner's claim that the accomplice testimony was not sufficiently corroborated alleges purely a matter of state law, and is thus not cognizable on federal habeas corpus review.") (footnote omitted) (citing Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991); Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990)).

Claim III: Improper sentencing as persistent...