Ormejuste v. Artus

Decision Date23 June 2021
Docket Number15-CV-5567 (JS)
PartiesDARIO ORMEJUSTE, Petitioner, v. DALE ARTUS, Superintendent of Attica-Correctional Facility, Respondent.
CourtU.S. District Court — Eastern District of New York


For Petitioner:

Dario Ormejuste, pro se


Attica Correctional Facility

639 Exchange Street

Attica, New York 14011

For Respondent:

Andrea M. DiGregorio, Esq.

Nassau County District Attorney's Office

252 Old Country Road

Mineola, New York 11501

SEYBERT, District Judge:

Pending before the Court is a pro se petition, submitted by Dario Ormejuste ("Petitioner" or "Ormejuste"), for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("§ 2254") raising four grounds for relief. (Petition ("Pet."), ECF No. 1.) Respondent Dale Artus, named in his capacity as the Superintendent at the Attica Correctional Facility (the "State" or "Respondent"), has responded to the Petition. (See Respondent's Response in Opposition ("Resp. Opp."), ECF No. 8 at 1-71.) For the reasons set forth below, the petition is denied, and the case dismissed.

I. The Offense Conduct1

Petitioner lived at a house located at 117-40 238th Street, Elmont, New York (the "Residence"), that he shared with his parents, Bob Ormejuste ("Bob"), and Rose Ormejuste ("Rose"), and his brother, Guerby Ormejuste ("Guerby"). (Tr. 322:22-24.) In June 2010, Guerby was thirty years old and employed as a New York City Corrections Officer, (Tr. 323:15; 327:5-6); Petitioner was twenty-four and unemployed. (Tr. 323:17; 336:9.)

Tex Ormejuste ("Tex"), Bob's brother, testified that he lived on the same block as the Residence and saw Bob almost every day. (Tr. 322:17-18; 325:23-326:8.) The last time Tex saw Bob was on Sunday, June 20, 2010. (Tr. 337:14-17.) On Monday, June 21, and Tuesday, June 22, 2010, Tex did not see Bob; he went to Bob's house at about 6:00 p.m. both nights and rang the bell, but no one answered. (Tr. 339:6-340:25.)

At approximately 3:30 a.m. on Wednesday, June 23, 2010, Tex received a phone call from Guerby's supervisor saying that Guerby had not shown up for work for two days and asking Tex tocheck on him.2 (Tr. 343:3-12; 672-73.) Tex promptly went to the Residence and heard loud music, which stopped playing after Tex rang the doorbell. (Tr. 343:15-344:19.) He called the house phone and, after no one answered, he called the police. (Tr. 344:23-345:2; 345:8.)

The police arrived at the Residence, responding to a "well check" — a request to check up on the family and make sure everyone is alright. (Tr. 383:4-14; 418:8-419:1.) Upon their arrival, the police officers and Tex made numerous unsuccessful efforts to elicit a response from within the Residence for an approximate ten-minute period, e.g., walking around the house, knocking on the windows, calling out, ringing the doorbell, knocking on the door, and making phone calls, but all with no answer. (Tr. 345:23-346:23; 386:12-20.) They observed a light on at the back of the Residence. (Tr. 403:11-20.) The police also checked the doors and windows to see if there was any damage, but found none, nor any signs of a potential break-in. (Tr. 385:8-12; 387:17-21.)

The responding officers called for a supervisor; thereafter, Sergeant Timothy Rooney arrived. (Tr. 388:7-14.) Sergeant Rooney had them repeat efforts to contact someone in the house, including knocking on doors and windows, calling out, andtrying all phone numbers. (Tr. 389:2-23.) Although phones could be heard ringing inside, no one answered or responded to any of the actions taken. (Tr. 389:17; 419:21-25; 423:7-21.) After about fifteen minutes, Sergeant Rooney made the decision to enter the home to see if anyone was injured. (Tr. 390:9-14; 423:21-424:1.) The officers removed an air conditioner unit from a back window and Officer Averill Thompson entered the house. (Tr. 391:1-11.) Finding himself in a bedroom with a locked door, Officer Thompson pried open the door, whereupon he detected the smell of bleach. (Tr. 392:3-393:12; 395:5-10.) Then, hearing movement upstairs, Officer Thompson drew his weapon and moved from the bedroom into the house, calling out "Police" loudly multiple times, but getting no response. (Tr. 396:1-397:2.) He opened a side door to admit his partner and Sergeant Rooney. (Tr. 397:15-16.) Noticing a couch-like object in the kitchen, the officers approached, pulled back a sheet, and discovered the dead body of a black male with dried blood on him. (Tr. 398:18-399-9; 427:13-15.)

Given this discovery and the sound of movement in the upstairs, the officers left the house to call for additional officers. (Tr. 399:12-15; 428:8-11; 442:22-24.) Sergeant Rooney called for assistance and a perimeter was established around the house. (Tr. 428:2-11.) Officers from the Emergency Services Unit ("ESU") arrived on the scene. (Tr. 401:1-6.)

At approximately 6:45 a.m., movement was detected in an upstairs window; then the front door opened, and Petitioner appeared. (Tr. 431:1-6; 447:1-11; 452:6-8.) As Petitioner exited the house, ESU officers advanced while issuing orders for him to show his hands and get on the ground. (Tr. 447:19-448:8.) Officers were able to get him on the ground, but Petitioner would not follow verbal commands and refused to be handcuffed. (Tr. 449:6-13.) An officer used a taser on Petitioner, after which officers successfully subdued and handcuffed him. (Tr. 449:14-16.) Petitioner was placed under arrest and put in the rear of a marked Nassau County Police Department car. (Tr. 496:16-21.)

A tactical squad from the Bureau of Special Operations ("BSO") entered the Residence and went room to room looking for other people. Some officers went upstairs, where they found no one, but observed a Glock, a black semi-automatic weapon, on a small table. (Tr. 471:18-22.) The Glock was later determined to have been owned by Guerby in his capacity as a corrections officer at Rikers Island. (Tr. 599-600; 649-50.)

Returning downstairs, the BSO officers saw the body of an older man taped or tied up on the kitchen floor, saw blood, and smelled bleach. (Tr. 473:24-474:2.) This individual was ultimately identified as Bob Ormejuste, Petitioner's father (Tr. 743:19-22), who suffered two gunshot wounds to the neck and left eye, the latter of which perforated his brain. (Tr. 940:1-4;944:17-945:4.) The medical examiner testified that Bob had been dead for two to three days by the time the autopsy was performed on June 24, 2010. (Tr. 948:21-25.)

After discovering no one else on the main floor, the BSO officers proceeded into the basement, where they observed blood on the floor and discovered another covered body. (Tr. 474:25-475:1-5.) This individual was later identified as Guerby Ormejuste, Petitioner's brother. The medical examiner determined that Guerby had ten gunshot wounds, one each to his arm, abdomen, groin, face, and six to his back (Tr. 883:7-10), and that at the time of the autopsy, on June 24, 2010, he had been dead for two days, plus or minus six hours. (Tr. 902:23-25.) After clearing the house and confirming that no other individuals were present within, the BSO officers withdrew.

Officers from the Crime Scene Search Unit subsequently processed the scene, taking photographs and collecting evidence, including, inter alia: (1) the Glock observed by the BSO officers and ammunition (Tr. 773:16-774:2); (2) drops of blood on the side door and driveway that matched a DNA profile for Rose (Tr. 759:18-21; 1099:6-9); (3) a pair of Timberland boots that had DNA on the inside matching a sample from Petitioner's saliva, and blood on the bottom that matched a DNA profile for Guerby (Tr. 752:15-23; 1089:7-9; 1088:19-23; 1090:15-18); (4) bullets in the kitchen wall and in the basement that were later found to be consistent withhaving been fired by the Glock3 (Tr. 794:21-23; 765:10-12); (5) bottles of bleach (Tr. 766:10-16); and, (6) latex gloves in the downstairs hallway and the upstairs bathroom (Tr. 745:18-19; 773:16-774:2).

After being taken into custody, Petitioner was taken to the Fifth Precinct in Elmont. (Tr. 497:13-16.) Upon arrival at approximately 8:00 a.m., Petitioner was brought to an interview room and his handcuffs were removed. (Tr. 497:17-498:5.) Detectives Carl Re and Roberto DePietro proceeded to take pedigree information from Petitioner, including that he lived in the upstairs of the Residence, that his parents lived on the main floor, and that Guerby lived in a basement apartment. (Tr. 500:9-501:22.) After eliciting the background information and providing him with some food, Detective Re read Petitioner his Miranda rights off a card. (Tr. 503:7-504:2.) Petitioner indicated, verbally and in writing, that he understood the rights and answered "Yes" when asked if he would be willing to answer questions. (Tr. 504:8-505:6.)

According to the detectives, Petitioner claimed not to have seen any family member since Sunday. (Tr. 513:4-8.) Heclaimed to have been sticking to his daily "ritual" on both Monday and Tuesday, which consisted of arising at 6:40 a.m., showering, eating peanut butter cups or pieces for breakfast, having a cigarette, then leaving the Residence around 9:00 a.m. to spend the entire day at a local park. (Tr. 509:18-510:4; 512:21-513:25; 514:16-515:4.)

Petitioner did not react when told that his father and brother were dead or that his mother was missing, but just sat there. (Tr. 519:15-520:6.) He then told the detectives that "Lugaroo," did it, describing Lugaroo as a Haitian vigilante group that sells crack and cuts people's heads off. (Tr. 520:11-19.) At one point he indicated that his mother, father, and Tex all smoked crack, and that all three were Lugaroo. (Tr. 521:8-16.) He suggested that his mother might by at an aunt's house, but acknowledged that she could be dead. (Tr. 522:15-523:8.)

At approximately 11:40 a.m., Petitioner was transferred to the Homicide Squad at Police Headquarters in Mineola. (Tr. 537:18-538:7.) He was interviewed again by Detective Re and the lead detective on the case,...

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