Orraca v. Walker
| Decision Date | 18 June 1999 |
| Docket Number | No. 98 Civ. 4459 (LMM).,98 Civ. 4459 (LMM). |
| Citation | 53 F.Supp.2d 605 |
| Parties | Jose ORRACA, Petitioner, v. Hans G. WALKER, Superintendent, Auburn Correctional Facility, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Jose Orraca, Auburn, NY, pro se.
Susan Axelrod, Asst. District Attorney, New York County, New York City, for defendant.
By Report and Recommendation dated May 26, 1999 (the "Report"), Magistrate Judge Peck recommended that the above petition for a writ of habeas corpus be denied without prejudice as a mixed petition. No timely objections having been filed (and petitioner having, apparently, see his letter to the Court dated June 14, 1999, commenced a proceeding to raise his unexhausted claims in state court), and upon consideration of the Report, this Court accepts the recommendation of the Magistrate Judge.
The petition is dismissed without prejudice as a mixed petition.
SO ORDERED.
REPORT AND RECOMMENDATION
Petitioner Jose Orraca filed this timely habeas corpus petition on or about April 27, 1998 alleging that: his manslaughter conviction was against the weight of the evidence; he was denied a fair trial because of erroneous evidentiary rulings and prosecutorial misconduct; Brady violations; issues regarding eyewitness identification; and errors in his sentencing. (E.g., Pet. ¶ 12(A); Orraca Br. at 1.)
For the reasons set forth below, because Orraca's petition raises claims that have not been exhausted in State court, I recommend that Orraca's petition be dismissed without prejudice as a mixed petition.
On November 17, 1993, Orraca was convicted in Supreme Court, New York County, of first degree manslaughter, second degree assault and first degree reckless endangerment, and sentenced to consecutive sentences totaling 19½ to 39 years imprisonment. (Pet. ¶¶ 1-4.) See People v. Orraca, 237 A.D.2d 148, 148, 655 N.Y.S.2d 7, 8 (1st Dep't), appeal denied, 90 N.Y.2d 861, 661 N.Y.S.2d 188, 683 N.E.2d 1062 (1997). Orraca's conviction arose from the June 1, 1992 shooting death of Israel Martinez, and the July 30, 1992 police chase and arrest of Orraca. (See, e.g., Orraca 1st Dep't Br. at 3.)
On August 5, 1996, Orraca's counsel filed a 62-page brief to the First Department, raising the following issues: (1) insufficiency of the evidence and the verdict was against the weight of the evidence (Orraca 1st Dep't Br. at 15-25; Orraca 1st Dep't Reply Br. at 12-15); (2) exclusion of defense evidence (Orraca 1st Dep't Br. at 25-28); (3) prosecutorial misconduct during summation and related evidentiary errors (id. at 28-54; Orraca 1st Dep't Reply Br. at 2-12); (4) identification evidence should have been suppressed (Orraca 1st Dep't Br. at 57-60; Orraca 1st Dep't Reply Br. at 15-19); (5) Orraca was erroneously sentenced as a second violent felony offender (Orraca 1st Dep't Br. at 60-61; Orraca 1st Dep't Reply Br. at 19); and (6) consecutive sentences were excessive (Orraca 1st Dep't Br. at 61-62).
The First Department affirmed Orraca's conviction on March 13, 1997, and on June 16, 1997 the Court of Appeals denied leave to appeal. People v. Orraca, 237 A.D.2d 148, 655 N.Y.S.2d 7 (1st Dep't), appeal denied, 90 N.Y.2d 861, 661 N.Y.S.2d 188, 683 N.E.2d 1062 (1997).
On or about June 19, 1998, Orraca filed a CPL § 440.10 motion in the trial court alleging ineffective assistance of trial counsel. (Orraca Traverse Aff. ¶¶ 20-21; Affirmation of ADA Susan Axelrod, dated 11/17/98, ¶ 10.) On or about October 9, 1998, the trial court denied Orraca's CPL § 440.10 motion. On February 26, 1999, the First Department denied leave to appeal from the trial court's denial of the CPL § 440.10 motion, and the New York Court of Appeals denied leave to appeal on March 16, 1999. (See Docket No. 8: Orraca 3/17/99 Letter to Court: Enclosures.)1
Orraca's current federal habeas petition is dated April 27, 1998 and was received by the Court's Pro Se Office on April 30, 1998. (See Pet. at pp. 2, 7.) Orraca agrees with the following summary by the State of his Petition:
In that petition, he sought relief on a number of grounds: 1) that his conviction for manslaughter had been obtained in violation of his due process rights; 2) that the trial court had erred in permitting the People to introduce evidence of the lineup identifications; 3) that all of the court's pretrial rulings were unfair; 4) that the trial court precluded the introduction of exculpatory evidence; 5) that the trial court prevented him from asserting his defense; 6) that the police and prosecutor had engaged in misconduct which included the suppression of exculpatory evidence; 7) and that his sentence was unlawful.
(Axelrod Aff. ¶ 11; accord, Orraca Traverse Aff. ¶ 27; see also Pet. ¶ 12(A).)
Orraca also filed two memoranda of law in support of his habeas petition. In the 26-page brief ("Brief A"), Orraca raised various claims/arguments: (1) Brady violation and prosecutorial misconduct (Orraca Br. A at 6-7); (2) prosecutor's failure to gather information and inform Orraca of benefits given to a prosecution witness (id. at 7-8); (3) improper pretrial identification procedures including denial of counsel at the lineup (id. at 8-12); (4) Brady/Rosario violation (id. at 12-15); (5) prosecutorial misconduct during summation, with "actual innocence" excusing procedural default (id. at 16-18); (7) the verdict was against the weight of the evidence (id. at 18-20); (8) prosecutorial duty to preserve evidence until requested (without specifying what evidence) (id. at 20-21); (9) denial of due process in curtailing his cross-examination of witnesses as to whether drugs were sold in the store at which the shooting occurred (id. at 21-22); (10) Rosario violation for the State's failing to preserve the piece of paper with car license number and the car reported as speeding away from the shooting (id. at 23-24); and (11) prosecutorial misconduct and Brady violation for allowing the car in which Orraca was riding when previously arrested in January 1992 to be stolen (id. at 25-26). (See Axelrod Aff. ¶ 12.)
Orraca agrees with the following summary by the State of his second memorandum of law, Brief B:
In [Brief] B, petitioner again complained that he had been denied his right to counsel at the lineups and that the lineups had been unduly suggestive because none of the fillers were dark-skinned Hispanic men (see p. 4-8). Petitioner also complained that the People had not provided certain items of Rosario material in a timely fashion and thus prevented petitioner from establishing a defense (p. 9). Petitioner then alleged that the People had failed to disclose the existence of a ballistics report that demonstrated that the gun used to shoot Israel Martinez was not the same as the one that had been used to shoot petitioner (p. 10). Lastly, petitioner claimed that the court had erred when it refused to sever the murder counts from the charges arising as a result of the high speed chase on the day of petitioner's arrest (p. 11).
(Axelrod Aff. ¶ 13; accord, Orraca Traverse Aff. ¶ 30; see Orraca Br. B.) In addition, Orraca's Brief B (to which was attached a 116-page Addendum Statement of Facts) argued that his conviction was based on insufficient evidence and against the weight of the evidence. (Orraca Br. B. at 11-12.)
ORRACA'S HABEAS PETITION SHOULD BE DISMISSED WITHOUT PREJUDICE AS A "MIXED" PETITION THAT FAILED TO EXHAUST STATE COURT REMEDIES
A determination of whether Orraca exhausted all of his present claims in State court is made more difficult by the way Orraca brought his petition — his petition contains only a single ground (Pet. ¶ 12(A)) that is, however, made up of several claims set out in the Petition and in two supporting briefs. Accordingly, the Court must begin by examining each of Oracca's federal habeas claims to see whether it was raised in State court.
First, Orraca raises a sufficiency/weight of the evidence claim. (E.g., Orraca Br. A at 18-20; Orraca Br. B at 11.) Orraca raised this issue on direct appeal. (Orraca 1st Dep't Br. at 15-25; Orraca 1st Dep't Reply Br. at 12-15.) Thus, this claim appears to be exhausted.2
Second, Orraca complains about the state court's rulings on the pretrial identifications. (Pet. ¶ 12(A); Axelrod Aff. ¶ 11(2) & Orraca Traverse Aff. ¶ 27; Orraca Br. A at 8-12; Orraca Br. B at 4-8.) Orraca raised this issue on direct appeal. (Orraca 1st Dep't Br. at 57-60; Orraca 1st Dep't Reply Br. at 15-19.) Thus, this claim appears to be exhausted. (See fn. 2 above.)
Third, Orraca alleges various Brady (or its state law counterpart, Rosario) violations. (See Pet. ¶ 12(A); Orraca Br. A at 6-8, 12-15, 20-21, 23-26; Orraca Br. B at 9-10.)3 Orraca did not raise any Brady/Rosario claims on direct state appeal or in his CPL § 440.10 motion. (See pages 2-3 above; see also Axelrod Aff. ¶ 14.) According to the State, Orraca may still raise his Brady claims in a second CPL § 440.10 motion. (See Axelrod Aff. ¶ 14; State Br. at 4-6.) The claim, therefore, is not exhausted.
Fourth, Orraca claims that the trial court erred in admitting evidence of prior criminal conduct or "bad acts" by Orraca. (Orraca Br. A at 16-18.) Orraca raised this claim on direct appeal (Orraca 1st Dep't Br. at 29-34, 37-44) and thus it appears to be exhausted. (See fn. 2 above.)
Fifth, Orraca claims that the trial court erred in limiting his cross-examination of witnesses and presentation of defense evidence. (Orraca Br. A at 21-22.) Orraca raised this claim on direct appeal (Orraca 1st Dep't Br. at 25-28), and thus it appears to be exhausted. (See fn. 2 above.)
Sixth, Orraca argues that the trial court erred in refusing to sever...
To continue reading
Request your trial
-
Lugo v. Kuhlmann
...discussion of whether a district court should dismiss a mixed petition without prejudice under the AEDPA, see, e.g., Orraca v. Walker, 53 F.Supp.2d 605, 610-12; Otero v. Stinson, 1999 WL 412865 at 9. New York CPL § 440.10(2)(c) states, in pertinent part: 2. Notwithstanding the provisions of......
-
Glisson v. Mantello, 00 Civ. 4773(VM).
...696 F.2d 186, 194 (2d Cir.1982) (en banc), cert. denied, 464 U.S. 1048, 104 S.Ct. 723, 79 L.Ed.2d 184 (1984); Orraca v. Walker, 53 F.Supp.2d 605, 608 n. 2 (S.D.N.Y.1999). Here, one of Glisson's habeas petition claims was that the Trial Court improperly curtailed his counsel's opening statem......
-
Maldonado v. Greiner
...17, 1999) (Peck, M.J.); Lugo v. Kuhlmann, 68 F. Supp. 2d 347, 360 (S.D.N.Y. 1999) (Patterson, D.J. & Peck, M.J.); Orraca v. Walker, 53 F. Supp. 2d 605, 609-10 (S.D.N.Y. 1999) (McKenna, D.J. & Peck, M.J.); Otero v. Stinson, 51 F. Supp. 2d 415, 419 (S.D.N.Y. 1999) (Baer, D.J. & Peck, M.J.); J......
-
Besser v. Walsh
...17, 1999) (Peck, M.J.); Lugo v. Kuhlmann, 68 F. Supp. 2d 347, 360 (S.D.N.Y. 1999) (Patterson, D.J. & Peck, M.J.); Orraca v. Walker, 53 F. Supp. 2d 605, 609-10 (S.D.N.Y. 1999) (McKenna, D.J. & Peck, M.J.); Otero v. Stinson, 51 F. Supp. 2d 415, 419 (S.D.N.Y. 1999) (Baer, D.J. & Peck, M.J.); J......