Tineo-Santos v. Piccolo
| Decision Date | 13 August 2021 |
| Docket Number | 19-CV-5038 (MKV) (JLC) |
| Parties | FRANCISCO TINEO-SANTOS, Petitioner, v. PAUL PICCOLO, Superintendent of Southport Correctional Facility, Respondent. |
| Court | U.S. District Court — Southern District of New York |
ORDER & REPORT AND RECOMMENDATION
Petitioner Francisco Tineo-Santos seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 following his conviction for second-degree murder. He also requests reconsideration of the Court's January 21, 2021 Opinion and Order denying him leave to amend his petition and to stay and hold the case in abeyance while he exhausted a new ineffective assistance of counsel claim in state court. For the reasons set forth below, the Court denies Tineo-Santos' motion for reconsideration and recommends that his petition be denied.
In the early morning of May 10, 2009, Tineo-Santos got into a livery cab to go home. Petitioner's Memorandum in Support of his Claims for Habeas Corpus Relief (“Pet. Mem.”) Dkt. No. 3, at 3-4. During the ride, a dispute between Tineo-Santos and the cab driver, Roberto Pita, arose after Tineo-Santos mistakenly gave him an incorrect address. Id. Tineo-Santos then shot Pita three times, causing the car to crash. Id. at 2-4; Respondent's Memorandum of Law in Opposition to Tineo-Santos' Petition (“Opp.”), Dkt. No. 13 at 2. Two bystanders who were nearby when the shots were fired went to the scene of the incident and observed Tineo-Santos and Pita in the cab. Trial Transcript (“Tr.”), Dkt. No. 14-2-14-5, at 14-39, 103-06. The police arrived at the scene soon thereafter and arrested Tineo-Santos, who was brought to St Barnabas Hospital (“St. Barnabas”) for his injuries. Id. at 243, 257, 261. Pita was pronounced dead at the scene. Id. at 280-81.
Tineo-Santos underwent surgery that same day, after which he was transferred to the recovery unit of the hospital. Pet. Mem. at 7. Two detectives entered the recovery unit approximately three hours later, and interviewed Tineo-Santos and obtained a written statement from him. Id. at 2; Tr. at 18-19. In the interview, Tineo-Santos admitted that he had shot Pita. Pet. Mem. at 3. At the time of his written statement, Tineo-Santos was taking several medications, including Demerol, Phenergan, and Percocet. Id. at 7 (). An assistant district attorney, Dominick DiMaggio (“ADA DiMaggio”), arrived at the hospital the next day, and after receiving permission to speak with Tineo-Santos from the St. Barnabas Risk Management department (“Risk Management”), obtained a video statement from him admitting to the shooting. Id. at 3. Tineo-Santos also stated that he appreciated that Pita was not pressing charges, even though by that time, unbeknownst to Tineo-Santos, Pita had already passed away. Id. at 4. For both interviews, Tineo-Santos agreed to waive his Miranda rights. Tr. at 141; see Opp. at 2; Pet. Mem. at 2.
Tineo-Santos moved to suppress the statements taken from him at the hospital, and a Huntley hearing was held on December 22, 2011. See Huntley Transcript (“Huntley Tr.”), Dkt. No. 14 at 1-24. ADA DiMaggio, who took the video statement, was the sole witness at the hearing concerning both the written and video statements. See id.; Pet. Mem. at 2. While most of the Huntley hearing involved testimony about the video statement, there was also some limited testimony about the written statement. See Huntley Tr. at 5 ( ); id. at 9 (identifying written statement); id. at 18-20 (questions on cross-examination about the time, location, and interviewer that took the statement). Following the direct and cross-examination of ADA DiMaggio, Tineo-Santo's trial attorney-David Segal-did not call any witnesses or present any argument, but simply “rest[ed] on the record.” Id. at 23. The court then ruled, finding a “knowing, intelligent and voluntary waiver by the defendant, both to [the] written statement as well as to the video statement” and denied the motion to suppress. Id. at 24.
At the trial, the People called several witnesses. Two of them testified that they had left a deli on the night of the incident when they heard three gunshots, and they watched the taxicab crash. After arriving at the scene of the crash, one of the witnesses observed Tineo-Santos in the backseat of the car reaching for a pistol, and both witnesses observed the driver lying in the front of the car. Tr. at 14-39, 103-06. ADA DiMaggio also testified, stating that Risk Management had “cleared” him to speak with Tineo-Santos in the hospital and, within a few hours, he arrived at the hospital, advised Tineo-Santos of his Miranda rights, and then proceeded to take Tineo-Santos' video statement. Id. at 136-44. The Court then admitted Tineo-Santos' video statement and his written statement into evidence.
Following a recess, Segal objected to the admission of the written statement, claiming that a Huntley hearing had not been held as to the written statement. Tr. at 168-74. Specifically, Segal contended that the People “never said they were going to use that [written] statement” and that there was no Huntley hearing held as to that statement. Id. at 169. Segal again reiterated that he believed that “the video was coming in and that was it” and that he was “objecting to [the written statement]” and he did not “want the written statement coming in” as evidence. Id. at 170, 172. The court then read into the record the Huntley hearing minutes, in which the motion to suppress both the video and the written statements had been denied. Id. at 174. Upon hearing this ruling, Segal “withdr[e]w what [he] said.” Id.
The People continued to present its case. Testimony was elicited from the vice president for Quality and Clinical Services at St. Barnabas, who explained the Risk Management policy for visits from the police, id. at 221-38, as well as from a police officer who responded to the shooting, who described the scene of the crime and how she secured the gun, id. at 245-49. Finally, a medical examiner testified about Pita's autopsy. See id. at 318-54.
Tineo-Santos did not present a defense. See id. at 356. In summation, his attorney noted that the “most important part of th[e] case . . . is [the] video [statement],” id. at 395, but that the ADA had manipulated Tineo-Santos into making that statement and that the People did not call the detective who had taken the written statement “because it would [have] hurt them,” id. at 399.
The court submitted to the jury the charge of second-degree murder and, alternatively, first-degree manslaughter. Tr. at 455-64. Deliberations lasted from December 11 through December 24, 2012, adjourning for four days for various reasons during this period. See Pet. Mem. at 11, 13. During their deliberations the jury reported multiple deadlocks, and the court issued an abbreviated Allen charge and then a full Allen charge before the jury ultimately returned a verdict of guilty of second-degree murder. Tr. at 650. On January 18, 2013, Tineo-Santos was sentenced to 25 years to life. See Transcript of Sentencing Hearing, Dkt. No. 14-5 at 1-13; Petition for Writ of Habeas Corpus by a Person in State Custody (“Pet.”), Dkt. No. 1, ¶ 3.
Following sentencing, Tineo-Santos appealed his conviction to the First Department. Pet. ¶ 9. He also challenged the conviction by bringing an ineffective assistance of counsel claim under New York Criminal Procedure Law Section 440.10 on April 13, 2016. Pet. ¶ 11. Specifically, Tineo-Santos argued that the failure of his trial counsel, Segal, inter alia, to present any arguments or to call as a witness the detective who took Tineo-Santos' written statement at the Huntley hearing amounted to ineffective assistance of counsel. See Opp. Ex. 2, Dkt. No. 13-2, at 3031.
In a Decision and Order dated November 21, 2016, the New York State Supreme Court, Bronx County denied Tineo-Santos' Section 440.10 motion, holding that Tineo-Santos did not establish that he was prejudiced by Segal's performance. See Pet. Ex. B, Dkt. No. 1-2, at 13-18. First, the court found that “[t]he voluntariness of both the written and video statements was not tainted by police misconduct,” id. at 13, as “a police deception technique of stating to [a] suspect that the murder victim is still alive in and of itself does not invalidate the voluntariness of a statement made subsequent to a proper Miranda warning,” id. at 15. In light of the “absence of promises made to or threats made against” Tineo-Santos at the time he made the statements, his relatively limited interaction with law enforcement personnel, and the fact that Tineo-Santos was only “lightly sedated,” the court concluded that the “written and video statements were voluntary.” Id. Second, the court held that, even if the statements were not voluntary and Segal had successfully suppressed both statements, “the results would not have been completely dispositive of the proceeding.” Id. at 17. The court noted that the evidence presented at trial included, inter alia, two eyewitnesses and the testimony of the responding officer and concluded that “in the totality of the circumstances, defendant was not deprived of a fair trial based on counsel's failure to object to the voluntariness of the written and videotape statements.” Id. at 17-18. The court then opined that it was not necessary to determine whether counsel's performance was deficient because Tineo-Santos had failed to establish prejudice, but nonetheless added that Segal “performed effectively” and “provided competent, meaningful, and...
To continue reading
Request your trial