Sanabria v. Martuscello
| Decision Date | 16 September 2019 |
| Docket Number | 15 Civ. 1534 (CS)(LMS) |
| Parties | SANABRIA, Petitioner, v. MARTUSCELLO, Respondent. |
| Court | U.S. District Court — Southern District of New York |
No objections to this Report and Recommendation (the "R&R") have been received, so the Court reviews it for clear error. Finding no error, clear or otherwise, the Court adopts the R&R as the decision of the Court. The petition is dismissed. The Clerk shall close the case.
SO ORDERED.
/s/_________
10/8/19
1
Currently before the Court is a petition (the "Petition") for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by Petitioner Eric Sanabria ("Petitioner"), proceeding pro se, challenging his 2011 judgment of conviction for Attempted Burglary in the First Degree, Criminal Possession of a Weapon in the Second Degree, and Criminal Possession of a Weapon in the Third Degree. Docket # 36 ("Amended Petition"). Petitioner was sentenced on July 13, 2011, to eight years imprisonment plus five years post-release supervision on the burglary and criminal possession of a weapon in the second-degree charges, and an indeterminate term of three to six years imprisonment on the criminal possession of a weapon in the third-degreecharge, all sentences to run concurrently. Transcript: Docket # 9-10 at 11-13.2 The Petition3 sets forth four grounds for habeas relief: (1) the prosecution withheld an exculpatory letter ("Burgess letter") and allocution statements made by co-defendants in violation of Petitioner's constitutional rights under Brady4 and Rosario5, (2) prosecutorial misconduct and legal insufficiency of the evidence as it relates to an allegedly suggestive in-court identification, (3) trial court error for failing to give a duress jury charge, and (4) ineffective assistance of trial and appellate counsel. Id.
For the following reasons, I conclude, and respectfully recommend that Your Honor should conclude, that the Petition should be dismissed in its entirety.
On March 25, 2010, Petitioner and his girlfriend, Dionne Burton, were looking for a place to stay. Tr. # 9-8: 87-88. Dionne's friend, Danielle Gove, offered her residence to the couple. Id. When they arrived at Gove's residence another individual, Christopher Thomas, was already there. Id. Thomas asked Petitioner what he was doing at Gove's residence, and Petitioner responded that he did not have a place to live. Id. Petitioner had wanted to get toWarwick, New York, to ask his mother for help. Id. at 89. Thomas told Petitioner that one of Thomas's friends was coming to the Gove residence, and Petitioner could ask that friend for a ride to Warwick. Id. at 88. Richard Lockett, along with James Burgess, and Rashid Weston, then arrived at the Gove residence. Id. at 89. Simon Shomo arrived separately. Id. Lockett agreed to give Petitioner a ride. According to Petitioner, he did not know Lockett, Burgess, Weston, or Shomo, but he accepted the offer. Id.
Later that night at Kings Estates, located in Warwick, New York, Laureen Henry awoke to the sound of her doorbell. Tr. ## 9-7: 5-6, 9-6: 50. When Henry reached her front door, she looked through its window and saw a man who she thought was her son at the door, along with two other men standing on the steps behind him. Tr. # 9-6: 50-51. All the men were slim, according to Henry. Id. at 51, 72. Henry recognized the man located second from the door, but she could not believe that man was Petitioner, because he was over one hundred pounds thinner than Petitioner. Id. at 51-53, 63-64. Henry did not recognize the third man. Id. at 53. Before Henry could open her front door, she saw that the man standing nearest to her door had a bandana over his face and held a gun at his side. Id. at 51, 54. Henry ran upstairs to her bathroom where she called 9-1-1. Id. at 51, 55-56. As she ran, she heard a slap and kick at the door. Id. at 55. While on the phone with 9-1-1, Henry saw one of the men leaving. Id. at 56. She did not see where the other two men went. Id.
According to Petitioner, he was in Lockett's car for the entire attempted burglary. Tr. # 9-8: 91-92. Petitioner had ridden with Lockett, Burgess, Westin, and Shomo from Gove's residence to Kings Estates. Id. at 89-91. As the group approached Kings Estates, Petitioner heard a clicking sound, presumably the sound of a gun. Id. at 90. Petitioner asked to pull over, that Petitioner would "walk to the Jiffy store to call [his] mother." Id. As Petitioner motioned toopen the car door, Burgess grabbed him and told him to "[g]et the F in." Id. at 91. The car stopped inside King Estates and everyone exited the vehicle except Petitioner. Id. Petitioner sat in the rear passenger-side seat and tried to call his girlfriend. Id.; Tr. # 9-7:10-11. He saw the other men walk toward the end of the corner and begin speaking to an unidentified person. Tr. # 9-8: 91. At the same time, another car drove right in front of Lockett's car so that Petitioner could not get out of the car. Id. Petitioner believed the occupants of that car were members of the Bloods gang. Id. at 91-92. The men hurried back into Lockett's car and it sped away. Id. Officer Oresto, from the Town of Warwick Police Department, was responding to Henry's 9-1-1 call and was approaching the entrance to Kings Estates. Tr. # 9-7: 4-6. Oresto's patrol car was nearly struck head-on by Lockett's fleeing vehicle. Id. at 6. As Lockett's car drove past, Oresto saw a small handgun being thrown from the rear, passenger-side window.6 Id. at 6-7. Oresto then made a U-turn in order to pursue Lockett's vehicle. Id. at 8. During the chase Lockett tried to put his car in reverse, and the car stalled. Tr. # 9-8: 92. At that point, Lockett and Petitioner (the rear passenger-side occupant) exited the car and fled in opposite directions. Id.; Tr. # 9-7: 8-10. Oresto had seen Petitioner a few times before and recognized him as the man fleeing from the rear passenger-side of Lockett's car. Tr. # 9-7: 10-11. Petitioner testified that he got out of the car and ran because he "was scared of everything going on." Tr. # 9-8: 92.
Petitioner ran first to the nearby Wickham Village housing complex where he found Samara Astorino's house (Samara previously had dated Petitioner's son). Tr. ## 9-7: 58-59, 9-8: 92. Petitioner knocked on the door but was told to leave. Tr. # 9-8: 92. From there Petitioner went to Vincent Davis' house, which was also in Wickham Village. Id. at 92-93; Tr. # 9-7: 67-68. Davis knew Petitioner through Petitioner's father. Tr. # 9-7: 67. Davis called a taxi for Petitioner and gave him money for the fare. Tr. # 9-7:68-69; Tr. # 9-8: 93. The taxi driver was another of Petitioner's acquaintances. Tr. # 9-8: 93. Petitioner gave the driver several drop-off destinations including Goshen, New York and Newburgh, New York. Id.; Tr. # 9-7: 73-74.
The taxi driver noticed the police as she drove Petitioner out of Wickham Village. Id. at 76. According to the driver, she told Petitioner the police were pulling them over and saw Petitioner sitting on the floor in the backseat of the taxi. Id. at 76-77. The taxi pulled over near the entrance to Kings Estates. Id. at 77. Police officers ordered the driver out of the taxi and then removed Petitioner from the backseat area. Id. at 78. Petitioner was taken into custody. Tr. # 9-8: 11-12, 20-21. Later Officer Blackwell, an officer with the Town of Warwick Police Department, found a gun at the entrance to Kings Estates. Id. at11-12.
At trial, Henry (the victim) had trouble identifying Petitioner. Henry testified that she had worked with Petitioner's step-father, OJ, for over six years. Tr. # 9-6:49. The following exchanged occurred:
Id. The prosecutor then directed Henry through her testimony of what happened the night of the incident. Id. Henry referred to Petitioner as being present but repeatedly stated that she couldnot believe the man was Petitioner because of the drastic difference in weight between him and the person she remembered. Id. at 51-53. After eliciting further testimony surrounding the events of that night, the prosecutor returned to the matter of identifying Petitioner. The following exchange occurred:
Id. at 57-58. Henry testified that she "didn't know it was Eric at the moment" and that she did not tell the 911 operator that Petitioner was at her door. Id. at 53, 67-68. Henry later testified that she had known Petitioner for about seven years and that they had worked together for about a year. Tr. # 9-6:66-67. During argument on a trial order of dismissal held outside the presence of the jury Petitioner's counsel stated, "Ms. Henry identified [Petitioner] by pointing him out between the two people sitting at the defense table." Tr. # 9-8: 80. Petitioner's counsel noted that Henry's description of the three men at her door that night conflicts with the descriptions given...
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