Parisi v. Artus
| Decision Date | 01 December 2010 |
| Docket Number | NO. 08-CV-1785 (ENV),08-CV-1785 (ENV) |
| Parties | JOHN PARISI, Petitioner, v. DALE ARTUS, Superintendent of Clinton Correctional Facility, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
VITALIANO, D.J.
Pro se petitioner John Parisi has filed a timely petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated below, the writ is denied, and the petition is dismissed.
On the evening of February 13, 2001, Melanie Castillo was in her car, stopped at a red light. A man, whose face was obscured by a hood, opened the driver's side door and pushed Castillo towards the passenger seat. She saw that the man was holding a piece of wood. He demanded all her cash and drove the car to a wooded area, where he forced her to perform oral sex and then raped her before fleeing. Castillo was examined at a hospital that evening, and her sexual assault kit, which included the underwear she had worn that night, was turned over to police the next day. Parisi was questioned by the police immediately after the incident, but he denied any knowledge of the crime. No arrest was made at that point as the police concluded there was insufficient cause to arrest Parisi at that time.
On March 2, 2001, a resident who lived near the intersection where the car-jacking had occurred saw a man, fitting the description of the perpetrator in the Castillo rape, acting suspiciously and following a woman. Around the same time and place, two other witnesses saw a man fitting this same description. When two police officers arrived in response to a radio call, they found a man who appeared highly intoxicated. Spying the officers, the man started yelling at them and reached for a "bulge at his right side," (Resp. Memo. 10), later revealed to be a piece of wood. Trying to resist arrest, the suspect elbowed one officer in the face, and started swinging a vodka bottle. The men tumbled to the ground, and the suspect started kicking and punching the officers. With the help of additional officers, the suspect was subdued and arrested. He was later identified as petitioner Parisi.
Physical arrest did not fully subdue Parisi, as the restraints did not prevent him from spitting at the officers. The arresting officers used a yellow blanket to cover his upper body and head. Another officer went to the scene of the altercation, recovered a jacket, and swabbed a number of stains there; she later recovered the yellow blanket from the garbage can in the room where Parisi was held. DNA samples from the blanket and the scene of the altercation were sent to the crime lab to be compared to DNA from semen found on the underwear Castillo was wearing on the night of the rape.
On June 6, 2001, the crime lab determined that the DNA samples collected from the March 2, 2001 altercation matched the sample from Castillo's underwear. Parisi was indicted on July 9, 2001, charged with rape in the first degree, sodomy in the first degree, kidnapping in the second degree, robbery in the third degree, and unauthorized use of a motor vehicle in the first degree. Parisi was also separately indicted for the altercation on March 2, 2001, charged with two counts of assault in the second degree, one count of menacing in the second degree, one count of resisting arrest, and two counts of disorderly conduct.
On May 2, 2001, Parisi was indicted again, this time on an unrelated rape charge. On July 24, 2001, the judge in the unrelated case ordered petitioner to submit DNA samples; a buccal swab was taken from him on July 27, 2001.1 On July 31, 2001, the Suffolk County District Attorney's Office requested that the crime lab analyze samples from (1) the semen on Castillo's underwear, (2) the yellow blanket, and (3) petitioner's buccal swab, to see if they all came from the same individual. The DNA results all matched.
The indictments for the attack on Castillo and for the police altercation were consolidated with the consent of petitioner's trial counsel. At the consolidated trial, Castillo testified in detail about the events of February 13, 2001; several other prosecution witnesses testified that they saw a strange man wearing a hooded sweatshirt, at the same intersection where Castillo had been abducted at around the time of the abduction. Other prosecution witnesses gave similar testimony about seeing a suspicious, inebriated man on March 2, 2001. One of those witnesses testified further that the suspicious man appeared to be following a young woman. The officers involved in the altercation with Parisi testified about their resulting injuries. Finally, the People presented the evidence of the DNA match.
On August 29, 2002, the jury convicted Parisi of rape in the first degree, sodomy in the first degree, kidnapping in the second degree, robbery in the third degree, unauthorized use of a motor vehicle in the first degree, one count of assault in the second degree, menacing in the second degree, resisting arrest, and one count of disorderly conduct. The jury acquitted Parisi of one count of assault in the second degree and one count of disorderly conduct. On November 6, 2002, Parisi was sentenced as a second violent felony offender and given an aggregate sentence of 57 years, later administratively lowered to 50 years.
Parisi appealed his convictions to the Appellate Division, Second Department, where he argued: (1) that the trial court's failure to instruct the jury regarding circumstantial evidence required reversal of his conviction; (2) that he had been denied effective representation of counsel because counsel failed to object to the consolidation of the indictments and failed to request a jury charge on circumstantial evidence; (3) that the People had failed to prove guilt beyond a reasonable doubt; (4) that his sentence was illegal under New York law; and (5) that his sentence was harsh and excessive.
While his direct appeal was pending, Parisi filed a motion to vacate judgment in Suffolk County Supreme Court, pursuant to New York Criminal Procedural Law § 440.10, arguing that he had received ineffective assistance of counsel because his counsel had failed to move (1) to suppress the DNA evidence obtained from the yellow blanket and (2) for a protective order preventing the prosecution from using the buccal swab collected in the unrelated rape case. On January 31, 2005, Supreme Court denied the motion on procedural grounds, finding that sufficient facts appeared on the record for the Appellate Division to review adequately the issues brought in the § 440 motion. On March 23, 2005, Parisi applied to the Second Department for leave to appeal Supreme Court's adverse decision. His application was denied on November 22, 2005. Parisi then filed a pro se supplemental brief in his pending direct appeal to the Second Department in which he repeated the arguments he made in his § 440 motion.
The Appellate Division rejected all of Parisi's claims on March 20, 2007. People v. Parisi, 38 A.D.3d 799, 833 N.Y.S.2d 129 (2d Dep't 2007). The court found that (1) the evidence was legally sufficient to establish Parisi's guilt beyond a reasonable doubt; (2) the issue regarding a jury instruction on circumstantial evidence was not preserved for appellate review; (3) the imposition of consecutive sentences was proper under New York law; (4) the sentences imposed were not excessive; and (5) the remaining contentions were without merit. On June 5, 2007, Parisi's application for leave to appeal was denied by the New York Court of Appeals. People v. Parisi. 9 N.Y.3d 849, 840 N.Y.S.2d 775, 872 N.E.2d 888 (2007).
Parisi filed the instant pro se petition on April 28, 2008, raising the identical issues he advanced on his direct appeal. He also argues, for the first time, that the state court abused its discretion when it denied his § 440.10 motion without a hearing.
This petition is subject to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which provides that a federal writ of habeas corpus may not be granted to a state prisoner with respect to any claim that was adjudicated on the merits by a state court unless the decision was (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or (2) "based on an unreasonable determination of the facts in light of the evidence presented." 28 U.S.C. § 2254(d); see also Williams v. Tavlor. 529 U.S. 362, 413, 120 S. Ct. 1495, 1523 (2000) (under AEDPA, habeas relief is only available if "the state court arrive[d] at a conclusion opposite to that reached by Court on a question of law or if the state court decide[d] a case differently than Court has on a set of materially indistinguishable facts." .
In the AEDPA context, the term "clearly established federal law" is construed as "'refer[ring] to the holdings, as opposed to the dicta, of Court's decisions.'" Carey v. Musladin. 549 U.S. 70, 74, 127 S. Ct. 649, 653 (2006) . Further, to be "clearly established" under AEDPA, federal law must be "law that is 'dictated by reme Court precedent existing at the time the defendant's conviction became final.'" McKinney v. Artuz, 326 F.3d 87, 96 (2d Cir. 2003) (citation omitted). A state court's "unreasonable application" of law must have been more than "incorrect or erroneous"; it must have been "objectively unreasonable." Sellan v. Kuhlman 261 F.3d 303, 315 (2d Cir. 2001) (quotation omitted). Under AEDPA's deferential standard of review, "[d]etermination of factual issues made by a state court 'shall be presumed to be correct, ' and the applicant 'shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.'" Sinith v Herbert, 275 F. Supp. 2d 361, 365-66 (E.D.N. Y....
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