Palacios v. Burge
| Decision Date | 18 January 2007 |
| Docket Number | No. 03-CV-6436 (FB).,03-CV-6436 (FB). |
| Citation | 470 F.Supp.2d 215 |
| Parties | David PALACIOS, Petitioner, v. John W. BURGE, Superintendent; Auburn Correctional Facility, and Eliot L. Spitzer, New York State Attorney General, Respondents. |
| Court | U.S. District Court — Eastern District of New York |
Lawrence T. Hausman, Legal Aid Society Criminal Appeals Bureau, New York, NY, for the Petitioner.
Richard A. Brown, District Attorney, Queens Country by John M. Catellano, Jill A. Gross-Marks, Assistant District Attorneys, Kew Gardens, NY, for the Respondent.
Petitioner, David Palacios ("Palacios"), was convicted in New York Supreme Court, Queens County, on one count of murder and one count of assault and sentenced to two consecutive indeterminate terms of imprisonment: twenty-five years to life for the murder conviction and eleven to twenty-two years for the assault conviction. He now seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on two grounds: (1) ineffective assistance of trial counsel for failing to raise a Fourth Amendment violation, and (2) Double Jeopardy. Palacios's claims were presented to and rejected by the Appellate Division, Second Department, see People v. Palacios, 295 A.D.2d 452, 743 N.Y.S.2d 302 (2d Dep't 2002), and were fully exhausted when the New York Court of Appeals denied leave to appeal. See People v. Palacios, 98 N.Y.2d 731, 749 N.Y.S.2d 482, 779 N.E.2d 193 (2002) (table). For the reasons set forth below, the petition is denied.
On April 27, 1997, a group of Hispanic men attacked Sanin Djukanovic ("Djukanovic") and his brother-in-law Edin Kolenovic ("Kolenovic"), resulting in Djukanovic's death and serious injuries to Kolenovic. Shortly after the attack, police officers detained all the men in a nightclub located near the scene of the attack and conducted a showup, during which Kolenovic and another individual, who claimed to have witnessed the attack, identified Palacios as a participant; thereafter, Palacios was arrested and, while in custody, made inculpatory statements.
Counsel for Palacios filed motions challenging the reliability of Kolenovic's pretrial identification and the voluntariness of Palacios's statements. The trial court held a combined hearing pursuant to United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965) ("Wade/Huntley hearing"), to determine whether the pretrial identifications and statements were constitutionally admissible; however, since Palacios did not challenge the constitutionality of his detention at the nightclub, no hearing was held in regard to whether the identifications and/or statements should have been suppressed as the fruits of a Fourth Amendment violation.
At the Wade/Huntley hearing, the following was established: On April 27, 1997, in response to a report of possible gang activity, Officers Richard Crespo ("Officer Crespo"), Danny Corey ("Officer Corey") and James O'Boyle ("Officer O'Boyle"), all dressed in plain clothes, were conducting surveillance in an unmarked vehicle outside of a nightclub located at 30-30 Northern Boulevard in Queens. Officer Crespo testified that at approximately 9:10 p.m., he noticed a group of Hispanic men shove their way to the front of the line of people waiting to get into the club; within a few seconds, Kolenovic drove up to the club and informed the officers that he and his brother-in-law had just been attacked a few blocks away by a group of Hispanic men who had run towards the club. Officer O'Boyle testified that he did not "believe" that he asked Kolenovic for a better description. Tr. at 70.1
Djukanovic was rushed to the hospital, but Kolenovic remained in an ambulance outside the club, which was parked approximately 25 feet from the club's front entrance, and urged the officers to let him attempt to identify the culprits; thereafter, uniformed officers, including Detective Robert Ledee ("Detective Ledee"), arrived at the club and sealed its exits. Detective Ledee testified that he asked the club's manager to permit those in line to enter the club. The manager agreed, and stopped the music; he also announced that the officers would be conducting a showup of the males who were in the club because they had reason to believe that the perpetrators of the attack were among them. See Tr. at 84. According to Detective Ledee, the men "all agreed to come outside for the showup." Tr. at 85. Officer Crespo testified that "over 100" Hispanic males participated in the showup, Tr. at 22; the state has since conceded that the number of participants was over 170. See Palacios's Mem. of Law in Supp. of Pet. for Writ of Habeas Corpus ("Palacios's Mem.") at 20.
Prior to conducting the showup, the officers observed William Mero ("Mero"), who was in line waiting to enter the club, step out of line and leave.2 One of the officers caught up with him and "walked" Mero over to the ambulance. Kolenovic, who was still in the ambulance, immediately identified him as "one of the guys[,]" Tr. at 103, and Mero was arrested. Although Mero denied any involvement in the attack, he informed the officers that he had seen the fight and could identify those involved; Mero was then placed in the unmarked police car with a view of the impending showup.
Detective Ledee testified that at about 10:00 p.m., the officers "lined [the men] up" in the club and "one by one . . . marched them" to the front door. Tr. at 84. From there, the men walked down the stairs and each was individually escorted about 50 feet from the club, where the showup was conducted.3
During the showup, Kolenovic and Mero separately identified Palacios as involved in the attack. Palacios was arrested and transported to the station house at approximately 11:05 p.m. At 1:30 p.m., the following day, Detective Lauri Senzel ("Detective Senzel") informed Palacios of his Miranda rights, after which he agreed to speak with her. Detective Senzel testified that Palacios gave the following oral statement:
He told me that he had gone to the club. He had bought a ticket ahead of time. There was a special party or group playing that evening. He went to the club, it wasn't open yet He was hanging out with a few people out in front of the club. A larger group came, joined the line. They sort of branched off from the rest of the people that were standing on line waiting to go in and they went roaming around in the neighborhood. They found two guys that had come out of a club at a video bar two or three blocks away and decided to jump [sic] being that they were in a big group. He said he wind [sic] up stabbing one of the guys that they jumped. Tr. at 123-24. At Detective Senzel's request, Palacios repeated his version of the events that took place that night, elaborating on what transpired before and after the altercation; Detective Senzel then reduced Palacios's second statement to writing, which Palacios signed.
At the conclusion of the hearing, the trial court "f[ou]nd[] that all of the witnesses [had] testified credibly," Tr. at 160, and denied Palacios's motions to suppress his statements to law enforcement and Kolenovic's pre-trial identification. Regarding the pre-trial identification, the trial court concluded that "the large number of persons involved in [the showup] procedure . . . completely eliminates suggestiveness and standing by itself removes any possible suggestiveness or taint." Id. at 166-67.
At trial, Kolenovic testified as to what transpired on April 27, 1997, but was unable to make an in-court identification of Palacios; instead, his pretrial identification was admitted into evidence. Additionally, Detective Senzel recounted Palacios's oral statement, and his written statement was introduced into evidence. No other evidence was presented connecting Palacios to the attack on Kolenovic and Djukanovic. The jury found Palacios guilty of depraved-indifference murder of Djukanovic and depraved-indifference assault of Kolenovic.
On direct appeal, Palacios raised both claims presented in his habeas petition; he did not challenge the trial court's conclusion that the showup procedure was not unduly suggestive. With respect to the ineffective-assistance claim, the Appellate Division ruled:
Contrary to the defendant's contention, he received the effective assistance of counsel. In resolving claims of ineffective assistance of counsel, the critical issue is whether, viewed in totality, the defense counsel provided meaningful representation. . . . The defendant's disagreement with the strategies and tactics employed by the defense counsel does not amount to a deprivation of effective assistance of counsel.
Palacios, 743 N.Y.S.2d at 302 (internal citations omitted).
With respect to Palacios's Double Jeopardy claim, which was based on the trial court's imposition of consecutive sentences, the Appellate Division ruled that consecutive sentences were proper "since the crimes committed were based on separate and distinct acts." Id.
Only, federal issues may be raised on habeas review. See 28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), when a federal claim has been "adjudicated on the merits" by a state court, the state court's judgment is entitled to substantial deference. See 28 U.S.C. § 2254(d). "[A] state court adjudicates a state prisoner's federal claim on the merits when it (1) disposes of the claim on the merits, and (2) reduces its disposition to judgment." Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir.2001) (citations and quotations omitted).
For claims "adjudicated on the merits," habeas relief may not be granted unless the state court "decision" (1) was "contrary to, or involved an unreasonable application of, clearly...
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Palacios v. Burge
...because the show-up was not based upon any "individualized suspicion" of a particular individual at the 30-30 Club. See Palacios, 470 F.Supp.2d at 219. The Appellate Division affirmed Palacios's conviction, concluding that he had received "meaningful representation" at trial. People v. Pala......