Schulz v. Marshall

Decision Date19 November 2007
Docket NumberNo. 06-CV-2875 (JFB).,06-CV-2875 (JFB).
Citation528 F.Supp.2d 77
PartiesStephen G. SCHULZ, Petitioner, v. Luis R. MARSHALL, Superintendent of the Wallkill Correctional Facility, Respondent.
CourtU.S. District Court — Eastern District of New York

William H. Hellerstein, Esq., Brooklyn, NY, for Petitioner.

Anne E. Oh, Esq., Riverhead, NY, for Respondent.


JOSEPH F. BIANCO, District Judge.

Stephen G. Schulz ("petitioner" or "Schulz") petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction in state court for robbery (the "petition"). In a judgment rendered on September 2, 1999, following a jury trial in the Supreme Court of the State of New York, Suffolk County (the "trial court"), petitioner was convicted of robbery in the first degree, and was sentenced to a term of eleven years' imprisonment.

This is an extremely troubling case. The conviction, based upon the identification testimony of a single eyewitness, has been the subject of over five years of litigation in the state court, including a dissenting opinion by Judge Rosenblatt in the New York Court of Appeals decision affirming the conviction, in which Judge Rosenblatt concluded that "[On the record before us, the possibility of the defendant's actual innocence is too high to justify denial of the CPL 440.10 motion without a hearing." People v. Schulz, 4 N.Y.3d 521, 531, 797 N.Y.S.2d 24, 829 N.E.2d 1192 (2005) (Rosenblatt, J., dissenting). The conviction relates to the February 3, 1999 robbery by one perpetrator at the El Classico Restaurant ("El Classico") in Brentwood, New York (the "El Classico Robbery"). At the trial, Jose Velasquez ("Velasquez"), the owner and cook of the restaurant, testified that he heard the waitress, Otilia Ruiz ("Ruiz"), scream and, when he walked into the dining area, saw the robber leaving the restaurant. Velasquez unsuccessfully chased the getaway car, but testified that the car contained both a "T" and a "1" in the license plate. Although Velasquez identified the petitioner as the robber at trial, Ruiz was unable to identify the petitioner in court as the robber, and the car that the prosecution argued had been petitioner's getaway car did not have a "T" or a "1" in the license plate (and had a New York Yankees insignia, which Velasquez had not mentioned).

The defense sought to demonstrate at trial that the El Classico Robbery was committed by an individual named Anthony Guilfoyle ("Guilfoyle"), who had some similar physical characteristics to the petitioner and had been arrested for numerous robberies in Suffolk County, New York ("Suffolk County"), including a robbery on the same night of the El Classico Robbery that occurred approximately three hours earlier, at a location about 10-12 miles away. However, the trial court precluded the defense from introducing a photograph of Guilfoyle (the "Guilfoyle photograph") at trial because the defense failed to establish a sufficient evidentiary basis to argue that Guilfoyle was the robber.1 Based essentially upon the identification testimony of Velasquez, the jury found the petitioner guilty.

Petitioner argues that certain decisions by his lawyer during the trial were constitutionally deficient and warrant habeas relief. Although petitioner points to a number of alleged deficiencies, there are two critical decisions that are the focus of this Court's inquiry. First, Schulz's attorney failed to interview Ruiz outside the courtroom prior to her testimony and then did not cross-examine her at trial. The attorney later stated in an affidavit that, as a matter of trial strategy, he wanted to interview Ruiz shortly before her testimony but that the prosecutor refused to let him do so. When the Brooklyn Law School's Second Look Clinic interviewed Ruiz after the trial, Ruiz, who had no apparent motive to lie, stated in an affidavit that: (1) when the police showed her a photo array one day after the robbery, Velasquez (who was serving as an interpreter during the police interview) pointed at petitioner's photograph and told her that he was the person who had committed the crime; (2) prior to trial, Velasquez told her that, if she did not help put Schulz in jail, Schulz would be released from jail and hurt her; and (3) the petitioner did not commit the crime and, after being shown Guilfoyle's photograph, she was "90% certain" that Guilfoyle was the robber. She stated in that affidavit that she is "certain that Stephen Schulz has been convicted of a crime that he did not commit," Second, petitioner points to a post-trial affidavit from his roommate, Anthony Tralongo ("Tralongo"), stating that he was in the courthouse during the trial prepared to testify as an alibi witness for the petitioner because the petitioner was with him in their apartment at the time of the El Classico Robbery, but he never testified at the trial because petitioner's attorney told him that they did not need him.

As discussed in detail below, having carefully reviewed the' state court record and having conducted an evidentiary hearing on this issue, this Court concludes that trial counsel's performance in this trial fell well below the Strickland standard and that the state court failed to properly consider these deficiencies and the resulting undeniable prejudice that the conduct had on the verdict. Even apart from whether the alibi witness was called to testify, there is no question in the Court's mind that, had Ruiz been interviewed by defense counsel prior to her testimony and then provided the above testimony at the trial through his questioning (which would have, among other things, permitted the Guilfoyle photograph to be admitted), there is a reasonable likelihood that the jury would not have convicted the defendant based on the single identification made by Velasquez, especially in light of the other weaknesses in the prosecution case. In short, although the Court recognizes the deferential standard of review, this Court concludes for the reasons set forth infra that the state court unreasonably applied Strickland to the facts of this case and, thus, the extraordinary remedy of habeas relief is warranted.


Schulz's trial commenced on August 30, 1999. As described below, three witnesses testified against him: Ruiz, Velasquez, and Detective Gary Gieck ("Detective Gieck"). The prosecution did not present any forensic evidence.


Velasquez testified that, at approximately 8:20 p.m. on February 3, 1999, a customer entered El Classico and placed a takeout order. (Trial Transcript ("T.")284, 288.) The customer was "tall, like 6'2", heavy, weigh like 250-275." (T.284.) At the time, Ruiz was behind the counter. (T.288.) As Velasquez was preparing the order in the kitchen, the customer remained in the dining area of the restaurant with Ruiz. (T.288-90.) Velasquez heard Ruiz yelling, and returned from the kitchen. (T.290.) The customer, now an apparent robber, said "[d]on't move" to Velasquez, and left the restaurant. (T.292.) Velasquez observed the robber get into a "fourdoor, 2-tone" car with a T and a 1 on the license plate. (T.293.) Velasquez gave chase in his car, but did not apprehend the robber. (T.293.)

Velasquez identified Schulz as the robber in court. (T.294.) Velasquez also confirmed having identified the car belonging to petitioner's roommate from among approximately twenty cars at the police precinct on February 5, 1999, (T.296-300), and having identified petitioner in two lineups on March 16, 1999 (T.300-01).

On cross-examination, Barry J. Levine, Esq. ("Levine"), Schulz's attorney, elicited from Velasquez that the license plate of the car Velasquez identified on February 5, 1999 bore a New York Yankees insignia, which Velasquez had not mentioned to the police, and contained neither a "T" nor a "1." (T.319.) Velasquez also admitted that at the time of the robbery, he had a pending gun possession charge, about which he consulted with one of the officers who investigated the El Classico robbery, Detective Lawrence Conde ("Detective Conde"), to determine whether the pending charge could affect El Classico's liquor license. (T.350-51.) Velasquez could not recall when he spoke to Detective Conde, (T.351), but pleaded guilty to disorderly conduct on February 18, 1999 in satisfaction of the gun possession charge. (T.353.) Velasquez testified that he did not receive a deal on this charge from the Suffolk County District Attorney's Office (the "DA's Office") in exchange for his testimony. (T.354-55.)

(2) Ruiz

Ruiz testified that a customer came into El Classico at approximately 8:20 p.m. on the night of the El Classico Robbery. (T.358.) After placing a takeout order with Velasquez, the customer asked Ruiz for "a dollar." (T.358.) Ruiz did not give him the dollar, and the customer proceeded to open the cash register and put money in his pockets. (T.362.) Ruiz screamed and begged the apparent robber to stop. (T.362.) Then, "the man, all of a sudden, pulled out a knife, and put it right in front of Ruiz. (T.362.) Velasquez emerged from the kitchen and attempted to chase the robber. (T.363.) Ruiz remembered that the robber was "a very fat man, a very tall, fat man." (T.364.) Ruiz stated several times, however, that the robber was not in the courtroom. (T.364.) Ruiz also stated that she felt "dizzy" and did not want to be in court. (T.366.) Levine declined to cross-examine Ruiz. (T.369.)2


At trial, Detective Giecjc of the Suffolk County Police Department testified regarding the investigation of the El Classico Robbery. Detective Gieck stated that on the night of this robbery, he learned from Detective Conde that the suspect was a "white male approximately 6'2" tall, 250 pounds, big build, with rotten teeth." (T.154.) In particular, Detective Conde identified Schulz as a suspect to Detective Gieck because "two police officers had furnished that name to...

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