Olivo v. Graham
| Decision Date | 23 March 2021 |
| Docket Number | 15 Civ. 9938 (VB) (AEK) |
| Parties | Carlos Perez Olivo, Petitioner, v. Superintendent H. Graham, Respondent. |
| Court | U.S. District Court — Southern District of New York |
REPORT AND RECOMMENDATION
Currently before the Court is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by pro se Petitioner Carlos Perez Olivo (“Petitioner”) challenging his judgment of conviction for the crimes of murder in the second degree and criminal possession of a weapon in the second degree. ECF No. 1 (“Petition”) ¶ 5; ECF No. 8 (“Aff. in Opp'n”) at 1. The Petition sets forth three purported grounds for habeas relief: (1) the conviction was obtained without due process of law because the case was not proved beyond a reasonable doubt and the evidence of guilt was not legally sufficient; (2) Petitioner was deprived of a fair trial due to prosecutorial misconduct; and (3) the trial court's evidentiary rulings were erroneous and deprived Petitioner of his right to a fair trial and to present a meaningful defense. Petition ¶ 12.
For the reasons that follow, I respectfully recommend that the Petition be DENIED in its entirety.
On November 18, 2006, Petitioner's wife, Peggy Perez-Olivo, was shot in the head and killed, and Petitioner was shot in the abdomen, while they were driving home to Chappaqua, New York, from a night out in New York City. Petitioner claims that after he and his wife exited the Taconic Parkway and were driving north on Route 100, their car was cut off by another car and forced to stop, at which point an unidentified man exited the other car and entered their car through the rear driver's side door. According to Petitioner, the assailant pointed a gun at him and his wife from the rear seat, and Petitioner reached back and tried to wrestle the gun from the assailant. Petitioner claims that in the course of the struggle over the gun, both he and his wife were shot. Thereafter, the assailant fled Petitioner's car, returned to the other car, and the other car drove off. Petitioner claims that his wife was asleep in the car at the time of the incident and did not wake up at all during the course of these events.
According to the prosecution, Petitioner pulled his car over along Route 100, shot and killed his wife, and then shot himself in an attempt to cover up his crime. The prosecution put forth an extensive amount of forensic evidence-including medical evidence, DNA evidence, ballistics and gunpowder pattern and residue evidence, and accident reconstruction evidence-to prove its theory of the crime and discredit Petitioner's account. The prosecution also put forth substantial evidence regarding motive, beginning with the fact that Petitioner, a one-time criminal defense lawyer, had been disbarred shortly before his wife's death, see Matter of Perez-Olivo, 33 A.D.3d 141 (1st Dep't 2006) (Petitioner was disbarred on August 3, 2006), and therefore lost his ability to earn income. In addition, Petitioner was the beneficiary of multiple life insurance policies for which his wife was the insured or which would otherwise result in payment to Petitioner upon his wife's death, most of which had either been taken out or had their coverage increased in the midst of Petitioner's disbarment proceedings. Furthermore, the prosecution offered evidence that Petitioner was not in a happy marriage and had been involved in a long-term extramarital affair with a woman named Ileana Poole.
Petitioner did not testify at trial. His defense included, among other things, testimony from his children and two of his sisters-in-law that Petitioner and his wife were happily married, and testimony from two experts regarding certain forensic evidence, which attempted to undermine the prosecution's theory that Petitioner shot his wife, shot himself, and fired other shots in an effort to cover up his crime.
In an indictment filed on December 20, 2007, Petitioner was charged with murder in the second degree, see N.Y. Penal Law § 125.25(1), criminal possession of a weapon in the second degree, see N.Y. Penal Law § 265.03(3), and criminal possession of a weapon in the fourth degree, see N.Y. Penal Law § 265.01(1). Aff. in Opp'n at 22; see Resp. Ex. 1.[3] In advance of Petitioner's criminal trial, the prosecution filed a so-called Ventimiglia / Sandoval Request, see Resp. Ex. 3, and on September 3, 4, and 8, 2008, pre-trial hearings were held to address the Molineux and Sandoval motions set forth therein. See Hearing Transcript (“H.”) at 10-46, 5670, 105-08.[4]
The trial in Petitioner's criminal case began on September 12, 2008. Aff. in Opp'n at 23. On October 4, 2008, the jury rendered its verdict, finding Petitioner guilty of murder in the second degree and criminal possession of a weapon in the second degree. Trial Transcript (“Tr.”) at 2266.[5] On December 2, 2008, the trial judge sentenced Petitioner to an indeterminate term of imprisonment of 25 years to life for murder in the second degree, and a concurrent determinate term of imprisonment of 15 years, followed by 5 years of post-release supervision, for criminal possession of a weapon in the second degree. Sentencing Transcript at 1, 14-15.
In December 2013, Petitioner, proceeding through counsel, directly appealed his judgment of conviction. Resp. Ex. 5 (“Appellant's Brief”). Petitioner raised three claims on direct appeal: (1) the evidence adduced at trial was legally insufficient to establish guilt beyond a reasonable doubt, and the verdict was against the weight of the evidence; (2) the trial court's evidentiary rulings were so improper as to deny Petitioner his rights to present a meaningful defense and to a fair trial; and (3) the prosecutor's summation was improper. Id. Respondent filed an opposition to Petitioner's counseled brief, Resp. Ex. 6, and Petitioner's counsel filed a reply brief, Resp. Ex. 7. Thereafter, Petitioner filed a pro se supplemental brief on direct appeal, which was served on Respondent on June 25, 2014. Resp. Ex. 8 (“Pro Se Brief'); see Aff. in Opp'n at 25. Petitioner raised three claims in his pro se supplemental brief: (1) the evidence adduced at trial was legally insufficient to establish guilt beyond a reasonable doubt, and the verdict was against the weight of the evidence; (2) the Ventimiglia and Sandoval rulings were violated by the prosecution; and (3) the prosecution engaged in prosecutorial misconduct and misled the court and the jury for the purpose and effect of preventing Petitioner from receiving a fair trial. Pro Se Brief.[6] Respondent filed an opposition to Petitioner's pro se supplemental brief as well. Resp. Ex. 9.
The Appellate Division, Second Department affirmed Petitioner's conviction on April 22, 2015. People v. Perez-Olivo, 127 A.D.3d 1110 (2d Dep't 2015).[7] Petitioner's counsel filed an application for leave to appeal to the New York Court of Appeals, Resp. Ex. 11, and Petitioner filed a pro se application for leave to appeal, Resp. Ex. 12; see Aff. in Opp'n at 27.[8] Respondent filed a letter in opposition to the application for leave to appeal. Resp. Ex. 13. The New York Court of Appeals denied leave to appeal on July 13, 2015. People v. Perez-Olivo, 25 N.Y.3d 1205 (2015); Resp. Ex. 14.
Pursuant to the prison mailbox rule, see Noble v. Kelly, 246 F.3d 93, 97 (2d Cir. 2001) (), Petitioner filed the instant Petition on December 15, 2015. See Petition at 8 (ECF No. 1-1 at 2) (under the statement that the Petition “was placed in the prison mailing system on . . ., ” Petitioner signed the Petition and dated it “12-15-2015”). Respondent filed opposition papers on May 30, 2016. ECF No. 8. Petitioner's reply papers were docketed on June 29, 2016. ECF No. 9.
“Habeas review is an extraordinary remedy.” Bousley v. United States, 523 U.S. 614, 621 (1998) (citing Reed v. Farley, 512 U.S. 339, 354 (1994)). To be granted a writ of habeas corpus from a federal district court, a petitioner must fully and carefully comply with the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254. Before a federal district court may review the merits of a state criminal judgment in a habeas corpus action, the court must first determine whether the petitioner has complied with the procedural requirements set forth in 28 U.S.C. §§ 2244 and 2254. If a petitioner has met these threshold requirements, a federal district court may hear “an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court” only if the petitioner “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The court must then determine the appropriate standard of review applicable to the petitioner's claim(s) in accordance with 28 U.S.C. § 2254(d).
Generally a state prisoner has one year from the date his or her conviction becomes final to file a habeas petition in federal court. 28 U.S.C. § 2244(d)(1). This limitations period ordinarily begins to run on “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). The limitations period is tolled while “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending ....” 28 U.S.C. § 2244(d)(2). The limitations period may also be equitably tolled if a petitioner can show that “extraordinary circumstances prevented him [or her] from...
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