Rios v. Lempke, 11-CV-00205F

CourtUnited States District Courts. 2nd Circuit. United States District Court of Western District of New York
Writing for the CourtLESLIE G. FOSCHIO
PartiesELVIN RIOS, Petitioner, v. JOHN B. LEMPKE, Respondent.
Decision Date22 May 2014
Docket Number11-CV-00205F

ELVIN RIOS, Petitioner,
JOHN B. LEMPKE, Respondent.



DATED: May 22, 2014




Five Points Correctional Facility

Assistant District Attorney, of Counsel
Erie County District Attorney's Office
Attorney for Respondent


Petitioner commenced this action on March 10, 2011, requesting habeas corpus relief under 28 U.S.C. § 2254 ("§ 2254"). This matter is before the court on consent pursuant to 28 U.S.C. § 636(b)(1)(B). 28 U.S.C. § 636(c) (Doc. No. 10).


On March 10, 2011, Petitioner Elvin Rios ("Petitioner" or "Rios"), proceeding pro se, filed a petition (Doc. No. 1) ("Petition"), commencing this action seeking habeas corpus relief challenging Petitioner's September 5, 2008 conviction by jury in Erie

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County Court, for violations of New York Penal Law ("N.Y. Penal Law")1 § 140.30(2)(3) (Burglary in the First Degree), § 160.15(3) (Robbery in the First Degree ), § 155.30(4) (Grand Larceny in the Fourth Degree )("the Burglary, Robbery, and Larceny counts")("the First Indictment"), § 160.45(2) (Criminal Possession of Stolen Property in the Fourth Degree), § 190.78(1) (Identity Theft in the Third Degree - three counts), and § 170.10(1) (Forgery in the Second Degree - three counts )("the Criminal Possession, Identity Theft and Forgery counts")("the Second Indictment"). Over Petitioner's objection, the First and Second Indictments ("the Indictments") were consolidated for trial pursuant to N.Y. Crim. Proc. Law § 200.20(2) ("§ 200.20(2)").

Hon. Michael L. D'Amico presided at trial, where the court appointed John R. Nuchereno, Esq. ("Nuchereno") as Petitioner's defense attorney,2 and the State was represented by Assistant District Attorney Gary W. Hackbush ("ADA Hackbush").

On October 10, 2008, Petitioner was sentenced as a second violent felony offender under the First Indictment, pursuant to N.Y. Penal Law § 70.04 ("§ 70.04"), to a term of 25 years with 5 years of post-release supervision based on Petitioner's Burglary and Robbery counts; and an indeterminate sentence of 2 to 4 years on the Larceny count to run concurrently with the sentences on the Burglary and Robbery counts. Certificate of Conviction - Imprisonment, June 3, 2011. On October 10, 2008, Petitioner was also sentenced as a second violent felony offender under the Second

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Indictment, pursuant to § 70.04, to an indeterminate sentence of 2 to 4 years on the Criminal Possession count, an indeterminate sentence of 31/2 to 7 years on the three Forgery counts, and a determinate sentence of 1 year on Petitioner's three Identity Theft counts, to run concurrently but consecutive to the sentences imposed under the First Indictment. Certificate of Conviction - Imprisonment, June 3, 2011.

On April 30, 2010, Petitioner's convictions were unanimously affirmed by the New York State Supreme Court Appellate Division, Fourth Department ("the Appellate Division"). People v. Rios, 899 N.Y.S.2d 769 (App. Div. 4th Dep't. 2010) (Appeal on First Indictment), and People v. Rios, 898 N.Y.S.2d 923 (App. Div. 4th Dep't. 2010) (Appeal on Second Indictment). Leave to appeal to the New York Court of Appeals ("the Court of Appeals") in both appeals was denied on July 29, 2010. People v. Rios, 933 N.E.2d 1059 (N.Y. 2010). A request for reconsideration of the denial of leave to appeal was denied on February 24, 2011. People v. Rios, 944 N.E.2d 1156 (N.Y. 2011).

In his Petition, Petitioner asserts four grounds for federal habeas relief, specifically that the convictions and sentences are based on (1) admission of unreliable identification evidence ("First Ground"); (2) insufficient evidence to support Petitioner's conviction on the Burglary and Robbery counts, and that the verdicts were against the weight of the evidence ("Second Ground"); (3) improper consolidation of the Indictments ("Third Ground"); and (4) prosecutorial misconduct ("Fourth Ground") all in violation the Due Process Clause of the Fourteenth Amendment.

On June 17, 2011, Respondent filed the Declaration of Erie County District Attorney Matthew B. Powers in Opposition to Petitioner's Writ of Habeas Corpus (Doc.

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No. 8) ("Powers Declaration") opposing the Petition, attaching exhibits A through C ("Powers Declaration Exh(s). __"), and Respondent's Memorandum of Law in Opposition to Petition for a Writ of Habeas Corpus (Doc. No. 9) ("Respondent's Memorandum"). On July 26, 2011, Petitioner filed Petitioner's Reply In Further Support Of The Petition (Doc. No. 12) ("Petitioner's Reply"). Oral argument was deemed unnecessary.

Based on the following, the Petition is GRANTED in part and DENIED, in part.


As stated, Background, supra at 2, Petitioner challenges his September 5, 2008 conviction based on a February 6, 2008 burglary in Buffalo, New York in which Petitioner allegedly robbed a woman Christina Hobbs ("Hobbs") in her apartment, threatened the use of a weapon, seriously injured Hobbs while assaulting her, and used two credit cards stolen from Hobbs following the assault to purchase tobacco and clothing items.

At Petitioner's February 29, 2008 arraignment on the First Indictment, Petitioner, pleaded not guilty. Arraignment Hearing Tr. at 2.4 At Petitioner's July 10, 2008 arraignment on the Second Indictment, Petitioner also pleaded not guilty. Petitioner requested a Wade hearing5 challenging the photo identification array used by police to

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facilitate identification of Petitioner as the perpetrator during the investigation of the case. Arraignment Hearing Tr. at 1.

The Wade hearing, at which Petitioner challenged the photo array displayed to Hobbs on February 6, 2008 as unduly suggestive (Wade Tr. at 1-40),6 was held on July 29, 2008. During the hearing, Buffalo Police Detective Chris Dates ("Dates") testified that after Dates assisted Buffalo Police Detective Patricia Wrest ("Wrest") with assembling the photo array, Dates called Hobbs to come to the police station to view the photo array. (Wade Tr. at 7-8). Dates further testified that after reading Hobbs instructions from the photo array affidavit and presenting Hobbs with the array, People's Exh. 1, Hobbs proceeded to identify Petitioner as the perpetrator of the assault, and circled and initialed Petitioner's photo in the array. (Wade Tr. at 12). Dates testified that Nicole Beebe ("Beebe"), a clerk at Olympia Sports, a sporting goods store, viewed the photo array, and indicated that Petitioner was the person who used Hobbs's credit card, after the robbery, to purchase items at the store where Beebe worked on February 6, 2008. (Wade Tr. at 23-24). On August 7, 2008, the Wade hearing continued and Wrest testified that Christopher Salerno ("Salerno"), a clerk at KW Seneca Tobacco store, viewed the photo array and indicated that Petitioner was the individual who used Hobbs's credit card, following the robbery, to purchase items at KW Seneca Tobacco on February 6, 2008. (Wade Tr. at 15-16). The trial judge, Hon. Michael D'Amico, found the array not unduly suggestive and denied Petitioner's motion to suppress

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Hobbs's in-court identification testimony. (Tr. at 10).7 The trial judge then inquired whether either party wanted to be heard on the record, and defense counsel responded with reference to the issue of consolidation of the two indictments. (Wade Tr. at 36). Petitioner referenced the previously submitted omnibus motion that articulated Petitioner's dilemma of testifying under both indictments, specifically Petitioner's wish to testify at trial on the First Indictment, as to the use or threat to use a dangerous weapon or causing serious physical injury with regard to the Robbery and Burglary counts, and desire not to testify regarding the alleged use of the two stolen credit cards as charged in the Second Indictment. Wade Tr. at 37. The court rejected Petitioner's request, and granted the prosecutor's request for consolidation. Wade Tr. at 39.

On September 2, 2008, a Sandoval hearing8 was held where the prosecutor reviewed Petitioner's prior felony convictions. (Tr. at 11-12). Nuchereno argued in support of Petitioner's "need to testify with regard to the burglary/robbery and the elements of physical injury and threatened use of a weapon" (Tr. at 13), and the trial judge ruled that the prosecutor would be able to cross-examine Petitioner on the previous convictions, but not the number of convictions or related facts. Id. Petitioner's jury trial commenced on September 2, 2008, and concluded on September 5, 2008, at which time the jury found Petitioner guilty on all counts as charged in the First and Second Indictments.

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Evidence at Petitioner's trial established that at noon on February 6, 2008, Petitioner knocked on the door of the apartment of Justin Montgomery ("Montgomery"), a downstairs tenant then residing at 33 Linview Terrace in Buffalo, New York, the same building where...

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