Pinero v. Greiner

• Decision Date: 17 September 2007
• Docket Number: No. 01 Civ. 9991(DLC).,01 Civ. 9991(DLC).
• Citation: 519 F.Supp.2d 360
• Parties: William PINERO, Petitioner, v. Charles GREINER, Respondent.
• Court: U.S. District Court — Southern District of New York

519 F.Supp.2d 360

William PINERO, Petitioner, v. Charles GREINER, Respondent.

No. 01 Civ. 9991(DLC).

United States District Court, S.D. New York.

September 17, 2007.

Damond J. Carter, Albany, New York, for Petitioner.

Mary Jo L. Blanchard, Assistant District Attorney, Bronx County District Attorney's Office, Bronx, New York, for Respondent.

OPINION AND ORDER

DENISE COTE, District Judge.

William Pinero ("Pinero") brings this petition for a writ of habeas corpus under 28 U.S.C. § 2254, following his 1997 conviction for murder in the Supreme Court of New York, Bronx County. On May 25, 2007, Magistrate Judge Douglas F. Eaton issued a report (the "Report") recommending that the petition be denied. Pinero has objected to the Report. For the following reasons, the Report is adopted, and the petition is denied.

BACKGROUND

As described in detail in the Report, the evidence at trial established that on November 2, 1994, Pinero accompanied another man, identified as Michael Kealing, to the Bronx office of victim Glenn Walker, a Christmas tree vendor. While Pinero restrained Walker's associate, Dirceline Delgado, Kealing shot and killed Walker. The prosecution rested its case primarily on Delgado's eyewitness identification of Pinero and Pinero's post-arrest statements.

Delgado was hysterical and able to provide only a limited description of the two perpetrators immediately following the murder, but more than seven months later ,she selected Pinero from a photo array produced by the police. Pinero was then arrested. More than six months after that identification, Delgado selected Pinero from a lineup. Pinero, after receiving Miranda warnings from the police, provided several incriminating details about the murder and also repeatedly asked the investigating police detective "what kind of deal" he would get if he admitted to being present at the murder. Pinero's defense rested on a claim that Delgado had misidentified him and on an alibi provided by Pinero's former girlfriend, who testified that Pinero was with her at the time of the murder.

The prosecution also introduced evidence that Pinero was part of a conspiracy to extort money for the right to sell Christmas trees at a certain Bronx location. Testimony from Walker's widow and Delgado established that Walker had paid protection money to certain unnamed persons in 1992, but stopped paying 1993 and 1994. In December 1992, two fires that were designated "nonaccidental" by the Fire Department occurred at Walker's Christmas tree lot. George Nash, who began selling Christmas trees in that lot after Walker's murder, testified that Pinero collected $10,000 in protection money from him in December 1994. The prosecution argued that all of these events — Walker's 1992 payments, the 1993 fires, Walker's 1994 murder, and Nash's payments to Pinero — were part of a single extortion conspiracy concerning the rights to sell Christmas trees on the lot where both Walker and Nash worked. Pinero was convicted by a jury and sentenced to twenty-five years to life.

Following conviction and sentencing, Pinero's case wended a circuitous path through the New York state and federal courts. On direct appeal, Pinero argued that (1) admission of evidence of uncharged crimes violated his rights to due process and to a fair trial; (2) the photographic array in which he was identified was unduly suggestive because he was the only person pictured with the sole distinguishing characteristic mentioned by the complainant; (3) the trial court deprived him of the opportunity to present relevant exculpatory evidence, to wit, a scar; (4) his due process right to a fair trial was violated by the prosecution's treatment of his alibi witness and the jury charge on the alibi defense; (5) a mistrial should have been granted because of the investigating detective's efforts to bolster Delgado's identification of Pinero; and (6) he was deserving of a less harsh prison sentence. The New York Supreme Court, Appellate Division unanimously affirmed the conviction and sentence, see People v. Pinero, 270 A.D.2d 212, 706 N.Y.S.2d 28 (1st Dep't 2000) ("Pinero"), and the New York Court of Appeals denied leave to appeal, see People v. Pinero, 95 N.Y.2d 856, 714 N.Y.S.2d 7, 736 N.E.2d 868 (2000) (Table). Pinero's conviction became final on October 26, 2000.

Collateral attacks in state court ensued. In November 2001, Pinero pro se filed a petition coram nobis, alleging that his appellate counsel had provided ineffective assistance by failing to raise (1) ineffective assistance of trial counsel in failing to request certain pretrial hearings; (2) a constitutional challenge based on the prosecutor's peremptory challenges to two black veniremen; (3) the trial court's error in denying defense counsel's application to remove a particular juror; and (4) the court's failure to respond adequately to a jury request for a readback of testimony. The Appellate Division denied the petition in 2002. A second coram nobis petition was filed by Pinero's retained counsel in the summer of 2003, alleging that (1) Pinero's trial counsel had been informed that Delgado had perjured herself, but failed to inform the judge; (2) trial counsel failed to advise Pinero concerning the wisdom of taking a plea offer allegedly made by the state during the trial; and (3) trial counsel failed to act on an allegation by Pinero's parents that certain jurors were sleeping during trial. The Appellate Division denied this petition in 2004. In a subsequent motion under New York Criminal Procedure Law § 440, Pinero essentially restated the arguments made in his second coram nobis petition and added one additional claim that his trial counsel failed to make use of material exculpatory evidence in his possession. The Appellate Division denied this petition and dismissed Pinero's appeal.

While he was seeking collateral relief in state court, Pinero was also pursuing habeas relief in federal court. His pro se habeas petition was received by this district's Pro Se Office on October 22, 2001. By letter dated November 20, 2001, Pinero acknowledged that his petition contained unexhausted ineffective assistance of counsel claims. Those claims were dismissed, and the remainder of the petition was stayed. That stay was lifted in March 2003 upon Pinero's request, and he submitted an amended habeas petition. The amended petition raises the following ten grounds:

Ground One Petitioner was denied due process when the admission of uncharged crimes deprived him of a fair trial, where the evidence was not relevant for any permissible purpose and its prejudicial effect greatly outweighed its probative value.

Ground Two Petitioner was denied equal protection where the prosecution was allowed to peremptorily challenge all male prospective jurors during jury selection.

Ground Three Petitioner was denied his right to a fair trial when an unduly suggestive photograph which singled out petitioner by a single distinguishing characteristic mentioned by the complainant was admitted into evidence.

Ground Four Petitioner was denied his due process right to a fair trial when the court gave a charge that relieved the people of their burden to disprove petitioner's alibi defense beyond a reasonable doubt and equated the jury's disbelief of the alibi testimony with conclusive proof of petitioner's presence at the crime scene.

Ground Five Petitioner was denied due process and a fair trial by the prosecutor's cross-examination of petitioner's alibi witness by focusing on juvenile criminal proceedings.

Ground Six Petitioner was denied effective assistance of trial counsel when counsel neglected to secure a Dunaway hearing after [he had] requested one and was granted a hearing.

Ground Seven Petitioner was deprived of due process and a fair trial by the court's refusal to allow the defendant to publish his scar to the jury unless the prisoner testified.

Ground Eight Petitioner was deprived of due process and a fair trial when the Court refused to grant a mistrial for the detective telling the jury that the eyewitness picked petitioner out of the photo array.

Ground Nine The sentence imposed was harsh and excessive in violation of the Eighth Amendment.

Ground Ten Appellate counsel was ineffective for failing to raise a claim of ineffective assistance of trial counsel due to counsel's failure to use probative impeachment material, failure to alert the trial court to juror misconduct, and improperly advising petitioner with regard to his plea options.

The matter was referred to Magistrate Judge Douglas F. Eaton, and on October 31, 2005, Assistant District Attorney Mary Jo L. Blanchard served and filed an Affidavit in Opposition to Pinero's habeas petition and argued that it should be denied. Following issuance of Magistrate Judge Eaton's May 25, 2007 Report, Pinero, now represented by counsel, filed objections to most of its recommendations and asserted that the state court's errors

resulted in Mr. Pinero's right to a fair trial being violated where the trial court improperly admitted evidence of prior uncharged crimes, charged the jury, with an imbalanced jury charge, precluded Mr. Pinero's right to present evidence in his defense, allowed the State to proceed where it employed suggestive identification procedures and elicited testimony that the state's pivotal witness had identified Mr. Pinero by way of pre-trial criminal procedures, and allowed the State to improperly cross examine the Defense alibi witness and where Mr. Pinero was afforded ineffective assistance of trial and appellate counsel.

Moreover, Pinero noted that his failure to argue any particular issue did not evidence an intention to abandon that claim. Rather, "[i]n such a case, where the issue has not been abandoned, Petitioner will rely upon his previous submissions for the claim in question." The state replied, and Pinero surreplied.

DISCUSSION

The Report identifies ten different claims in the petition and...