Perez v. Greiner
| Decision Date | 23 October 2003 |
| Docket Number | 02 Civ. 1436 (JSR) (JCF). |
| Parties | SERGIO PEREZ, Petitioner, v. CHARLES GREINER, Superintendent, Green Haven Correctional Facility, Respondent. |
| Court | U.S. District Court — Southern District of New York |
Sergio Perez brings this habeas corpus petition pursuant to 28 U.S.C. § 2254, challenging his conviction in New York State Court, New York County, for two counts of robbery. In the petition, Mr. Perez argues that both his trial attorney and his appellate attorney provided ineffective assistance of counsel. Because these claims either are procedurally barred or lack merit, I recommend that the petition be denied.
On May 10, 1995, at approximately 11:00 a.m., Zu Chaun Wang was preparing to eat lunch inside his parked van at the corner of Attorney and Stanton Streets in Manhattan. (Tr. at 212-13).1 After he entered the passenger side of the van, Mr. Wang was prevented from closing the door by two people. (Tr. at 213-14). These individuals pushed Mr. Wang's head to one side and demanded money. (Tr. at 214-15). Mr. Wang was able to see that the larger individual wore a white T-shirt and had darker skin than the other the smaller individual wore darker-colored clothing and had lighter skin. (Tr. at 214, 216, 251-52).
Mr. Wang gave the robbers two rolls of quarters, which amounted to $20.00. (Tr. at 215). The perpetrators then took $100.00 from Mr. Wang's wallet and a cellular telephone from Mr. Wang's jacket. (Tr. at 215-16, 218). The individual wearing the white T-shirt placed his hand inside his shirt with a finger pointing outwards and told Mr. Wang that he had a gun. (Tr. at 217-18). After taking Mr. Wang's property, one of the robbers punched him in the face. (Tr. at 218).
Vidal Hernandez was a witness to the crime. From about ten feet away, he observed a "Spanish guy" punch a "Chinese guy" in the face, and a "Black guy" look in the victim's pockets. (Tr. at 270-71). Mr. Hernandez also observed the "Black guy" take a telephone and money from the victim. (Tr. at 274). When Mr. Hernandez yelled, "Stop, police," the perpetrators began running on Clinton Street, and Mr. Hernandez gave chase. (Tr. at 274-75).
Near the corner of Clinton and Stanton Streets, the robbers passed Detective Warren Lockley, an undercover police officer. (Tr. at 275, 361; H. at 14-15).2 Detective Lockley joined Mr. Hernandez in chasing the two individuals, who turned onto Houston Street and entered a dry cleaner. (Tr. at 286-87, 364; H. at 16-17). When the perpetrators exited a few seconds later, Mr. Hernandez caught the man later arrested by Detective Lockley and identified as Ralph Williams, while the other robber ran northward on Avenue B. (Tr. at 287-92, 373, 375-76; H. at 17-18, 41).
Mr. Williams was taken to a bus shelter at the corner of Houston Street and Avenue B. (Tr. at 376-77; H. at 19-20). About 10-20 minutes later, police officers brought the petitioner, Sergio Perez, to the same bus shelter and placed him next to Mr. Williams. (Tr. at 292-93, 387; H. at 23). About five minutes after the petitioner arrived, Mr. Wang was brought to the bus shelter in a police vehicle. (Tr. at 379; H. at 21, 23). Mr. Wang positively identified the petitioner and Mr. Williams as the two individuals who had robbed him. (H. at 22-23).
The petitioner and Mr. Williams were charged with one count of First Degree Robbery in violation of New York Penal Law § 160.15(4) for committing a robbery while displaying a firearm; one count of Second Degree Robbery under Penal Law § 160.10(1) for committing a robbery with an accomplice; and one count of Second Degree Robbery under Penal Law § 160.10(2)(a) for causing physical injury during a robbery. The third count was subsequently dismissed. (Exh. A to Declaration of Darian B. Taylor in Opposition to Petition for a Writ of Habeas Corpus dated March 26, 2003 ("Taylor Decl."), at 40-43).
On September 22, 1995, a combined Mapp/Wade hearing was held on the petitioner's motion to suppress physical evidence seized from him, his pretrial statements, and testimony relating to pretrial identifications. (Exh. A to Taylor Decl. at 35-38). The petitioner's motion was denied in its entirety. (H. at 69-71).
During the jury trial, Mr. Wang was unable to make an in-court identification of the defendants, nor could he verify that he recognized the defendants during the bus shelter "show-up" on the day of the robbery. (Tr. at 229-30). Mr. Hernandez made an incourt identification of the petitioner and Mr. Williams as the two individuals whom he observed robbing Mr. Wang. (Tr. at 271, 309). On cross-examination, Mr. Hernandez also testified that he was asked by "the undercover detective" whether he recognized the petitioner as one of the individuals involved in the robbery; Mr. Hernandez answered, "yes" (Tr. at 340-41). Finally, Detective Lockley made an in-court identification of the defendants as the two individuals whom he observed running past him on the day of the robbery and who were apprehended and brought to the bus shelter show-up. (Tr. at 359-60, 387-88).
On October 10, 1995, the petitioner was convicted of two counts of Second Degree Robbery, one for committing the robbery by displaying a firearm and the other for having an accomplice in the crime. He appealed to the Appellate Division, First Department, asserting that the trial judge erred in refusing to suppress, or hold a Wade hearing with respect to, the identification testimony of Mr. Hernandez and Detective Lockley. (Brief for Defendant-Appellant ("Def. App. Br."), attached as Exh. B to Taylor Decl., at 14-20). The petitioner also challenged the trial judge's Sandoval ruling, which permitted the use of two prior convictions of the petitioner for impeachment purposes. (Def. App. Br. at 20-22).3
On January 22, 1998, the Appellate Division affirmed Mr. Perez's conviction. People v. Perez, 246 A.D.2d 448, 667 N.Y.S.2d 244 (1st Dep't 1998). It held that Mr. Perez had not preserved at trial his claims concerning the identification testimony, and it refused to consider these claims on the merits. Id. at 448, 667 N.Y.S.2d at 245. The court also held that the Sandoval ruling was an appropriate exercise of the trial court's discretion. Id. Mr. Perez sought leave to appeal to the New York Court of Appeals, and the application was denied on May 27, 1998. People v. Perez, 91 N.Y.2d 1011, 676 N.Y.S.2d 139 (1998).
On February 2, 1999, Mr. Perez filed his first motion to vacate judgment pursuant to New York Criminal Procedure Law ("CPL") § 440.10, objecting to the identification testimony of Mr. Wang, Mr. Hernandez, and Detective Lockley. (Affidavit of Sergio Perez in Support of Motion to Vacate Judgment ("Perez 2/2/99 Aff.") dated February 2, 1999, attached as Exh. H to Taylor Decl., at 18-34). Mr. Perez also asserted that his trial counsel was ineffective in that he: (1) failed to object to the identification testimony of Mr. Wang, Mr. Hernandez, and Detective Lockley, (2) failed to present an opening statement, (3) had a conflict of interest arising from a threat by the trial court to sanction him, (4) failed to properly cross-examine witnesses and refute testimony, (5) made an inadequate investigation of facts pertaining to the case, (6) failed to present expert testimony concerning the unreliability of eyewitness identifications, including cross-racial identifications, (7) failed to object to the "bolstering and vouching" of witnesses by prosecutors, (8) failed to minimize prejudice during in-court identifications by seating the petitioner away from the defense table, and (9) failed to seek a severance of the petitioner's case from that of his co-defendant. (Perez 2/2/99 Aff. at 18, 21, 28, 31, 32, 34-50; Petitioner's Memorandum of Law in Reply to Opposition for a Writ of Habeas Corpus ("Pet. Reply Memo.") at 17-18). In two supplemental submissions, the petitioner further argued that his trial counsel was ineffective for failing to seek a dismissal of his indictment on the grounds that "false evidence" was presented to the grand jury by prosecutors, and that the supporting the indictment was insufficient. (Supplemental Affidavits of Sergio Perez in Support of Motion to Vacate Judgment dated August 24 and December 1, 1999, attached as Exh. J to Taylor Decl.; Pet. Reply Memo. at 18-19). Finally, the petitioner submitted a response to the prosecution's answer, adding that his trial counsel was ineffective for neglecting to investigate "foul play" by the police who failed to provide an interpreter for Mr. Wang at the bus shelter show-up. (Defendant's Response to People's Opposition to Motion to Vacate Judgment, attached as Exh. L to Taylor Decl., ¶ 7; Pet. Reply Memo. at 19).
On April 25, 2000, the New York Supreme Court denied Mr Perez's first motion to vacate. The court held that "all of the defendant's claims regarding the identification issues . . . either were, or could have been, raised on direct appeal," and therefore could not be heard in a motion to vacate judgment. (Order of the Supreme Court of the State of New York dated April 25, 2000 ("4/25/00 Order"), attached as Exh. M to Taylor Decl. at 1). With respect to the ineffective assistance claims, the court held that the claims relating to trial counsel's alleged conflict of interest, failure to "make specific arguments to the court or the jury," and failure to seek a dismissal of the indictment were "based on the trial record and could have been raised on direct appeal" and were therefore barred. (4/25/00 Order at 2). Finally, the court held that Mr. Perez's claims relating to counsel's failure to investigate were moot, and that the petitioner's claims, "either viewed in isolation or as a whole," did not demonstrate that his trial counsel provided ineffective assistance. (4/25/00 Order at 3). The...
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