Vazquez v. Scully

• Decision Date: 15 September 1988
• Docket Number: No. 87 Civ. 6864 (CHT).,87 Civ. 6864 (CHT).
• Citation: 694 F. Supp. 1094
• Parties: Jose VAZQUEZ, Petitioner, v. Charles J. SCULLY, Superintendent, Greenhaven Correctional Facility, Respondent.
• Court: U.S. District Court — Southern District of New York

694 F. Supp. 1094

Jose VAZQUEZ, Petitioner, v. Charles J. SCULLY, Superintendent, Greenhaven Correctional Facility, Respondent.

No. 87 Civ. 6864 (CHT).

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

September 15, 1988.

William M. Kunstler, Ronald L. Kuby, New York City, for petitioner.

Robert M. Morgenthau, Dist. Atty., New York City, for respondent; Deirdre Roney, Marc Frazier Scholl, Asst. Dist. Attys., of counsel.

OPINION

TENNEY, District Judge.

Jose Vazquez ("Vazquez") has petitioned for a writ of habeas corpus (the "Petition"), pursuant to 28 U.S.C. § 2254 (1982), against Greenhaven Correctional Facility Superintendent Charles J. Scully ("Scully"). As called for in Rule 5 of the Rules Governing Section 2254 Cases in the United States District Courts, Scully has filed an answer and provided a transcript of the state trial proceedings. For the reasons set forth in this memorandum opinion and order, the court finds that no evidentiary hearing is required and dismisses the petition.

BACKGROUND

During the early morning hours of Sunday, February 23, 1976 at the Casablanca nightclub in New York City, Freddie Vazquez, brother of the petitioner, was involved in an argument in the nightclub's restroom with Robert Tirado ("Tirado") the owner of the Casablanca, and Arthur Diamond ("Diamond"), a club bouncer. Freddie Vazquez left the restroom and conversed with his brother, Jose, the petitioner. Immediately following this conversation, petitioner drew a handgun and shot both Diamond and Tirado. Diamond was killed and Tirado was seriously wounded. After the shooting, Freddie, petitioner Jose Vazquez, and another brother Thomas Vazquez, also present at the nightclub, departed from the Casablanca.

Petitioner presented no witnesses and was convicted of both murder and attempted murder in the second degree after a jury trial in Supreme Court of the State of New York (B. Roberts, J.) on January 31, 1978. This conviction followed an earlier trial in February 1977 which concluded in a hung jury and mistrial (Goldman, J.). Judgment was entered on March 3, 1978. Petitioner is currently serving concurrent terms of 15 years to life on the murder conviction and 10 to 20 years on the attempted murder count. The Appellate Division, First Department affirmed the conviction without opinion. 78 A.D.2d 1019, 435 N.Y.S.2d 424 (1980). Leave to appeal to the New York Court of Appeals was denied. 52 N.Y.2d 838, 437 N.Y.S.2d 1042, 418 N.E.2d 691 (1980). In April 1980, petitioner filed a coram nobis petition under N.Y.Crim. Proc.L. § 440.10 (McKinney 1983). On June 5, 1980 the Supreme Court, New York County, denied the petition. Leave to appeal to the Appellate Division, First Department was denied on September 16, 1980.

Vazquez's petition alleges (1) that he was denied his Sixth Amendment right to effective assistance of counsel by his attorney's failure to move for a mistrial and by his failure to consult with petitioner about whether such a motion should be made; and (2) that he was denied his Fifth Amendment right to due process of law by the admission of highly prejudicial and inadmissible evidence of his past criminal record and by the failure of the trial court to order a mistrial on its own motion after the admission of the prejudicial evidence. Petitioner also makes certain allegations not heretofore raised. He now alleges that he had retained trial counsel for his first trial and that by the time of the second trial he had exhausted his funds and that counsel unsuccessfully attempted to withdraw. Petition ¶ 6. There is no record of any attempt by counsel to withdraw. He further alleges that:

Counsel's failure to move for a mistrial, and to consult with petitioner, was based, in whole or in part, by a desire to avoid having to try the case for a third time, as petitioner had no funds to remunerate counsel.

Petition, Third Claim ¶ 19.

DISCUSSION

The events which precipitated the petitioner's claims occurred for the most part after the commission of the crimes and in the course of the initial police investigation. Tirado, who had been seriously wounded, had been taken to a hospital where he was interviewed by Detective Joseph White ("White") on two occasions on the day following the crime. The first occasion was in the early morning hours of February 22, 1976 around 5:30 a.m. when White, after first going to the Casablanca, went to the hospital where he obtained information from Tirado. Thereafter, he returned briefly to the vicinity of the Casablanca to check vehicles and search for the weapon. He then returned to his office. After leaving the office he went to the residence of Thomas Vazquez, petitioner's brother, and talked with Thomas Vazquez's wife.

At the trial the following questions and answers were exchanged regarding White's investigation subsequent to talking with Mrs. Vazquez:

Q After you had this discussion, what did you next do?

A We went back to the Fourth Homicide Zone Office, and we did Police Department record checks. We checked the record of a Jose Vasquez, Thomas Vasquez, and Freddie Vasquez.

Q You checked certain Police Department files to determine whether in fact there was a record?

A Yes, sir.

Trial Transcript ("Tr.") at 424.

Defense counsel and prosecutor conferred with the trial judge out of the presence of the jury regarding the above testimony. Defense counsel moved for a mistrial which the court denied stating there could be no possible prejudice to the defendant because there was no mention of any criminal record. Tr. 428, 429.

Nevertheless, when the jury returned, the trial judge elicited further testimony:

Q Officer, what record did you check?

A We checked the telephone directory, we checked the Motor Vehicle Bureau records with regard to vehicle ownership, we checked the Motor Vehicle Bureau records in respect to operating licenses.

Q And the effort was to obtain addresses of the Vasquez'?

A Yes, sir.

Q Of Jose Vasquez, Wilfredo Vasquez and Thomas Vasquez?

A Yes, sir.

Q Was any information that you obtained during the course of checking the records in any was utilized at that particular time?

A No, sir, not at that time. It wasn't productive.

Q In other words, your check of the records was not productive at all?

A That's correct, sir.

Tr. 436-37.

The trial continued with the prosecutor examining White. This involved the second occasion when White visited Tirado at the hospital. Earlier, White had testified that he went back to the hospital in the afternoon of February 22, 1976. The testimony at this stage had been interrupted by defendant's motion for a mistrial because of the reference to police department record checks referred to above. The later testimony is as follows:

Q Detective Rieck (sic), I believe we were at the point when you said sometimes (sic) you returned back to Roosevelt Hospital?

A We spoke to Mr. Tirado who was in a room at the hospital at that time, and he identified for us the photograph of Jose Vasquez.

Tr. 437.

Defense counsel immediately asked to approach the bench and a spirited colloquy concerning the photograph occurred out of the presence of the jury. The trial subsequently resumed and the trial judge instructed the jurors to disregard any reference to what was shown to Tirado. Tr. 462-63.

The trial judge, during a recess, told defense counsel that if he wished to move for a mistrial, the court would grant it. Tr. 473-75. Defense counsel declined to so move. Tr. 475.

Petitioner's contention is that "White's testimony that he returned to the station house to check records there, followed by his description of showing Jose Vazquez's photograph to Robert Tirado at the hospital, could have been interpreted by the jury to mean that Vazquez was a man with a prior criminal history, well known to the police, whose files contain a mug shot of petitioner."¹ Petitioner's Memorandum of Law at 8. It is this evidence which petitioner characterizes as highly prejudicial and inadmissible evidence.

The Exhaustion Requirement

Before a federal district court can review a state trial proceeding under 28 U.S.C. § 2254, the petitioner must exhaust all available state remedies. See Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); Duckworth v. Serrano, 454 U.S. 1, 3, 102 S.Ct. 18, 19, 70 L.Ed.2d 1 (1981). Any petition containing both exhausted and unexhausted claims must be dismissed. Holland v. Scully, 797 F.2d 57, 64 (2d Cir.), cert. denied, 479 U.S. 870, 107 S.Ct. 237, 93 L.Ed.2d 162 (1986). The exhaustion principle requires that a petitioner seeking a writ alleging his constitutional rights were violated at trial, must have presented the state courts with the grounds for such allegations and afforded such courts the opportunity to remedy the alleged defect. Dean v. Smith, 753 F.2d 239, 241 (2d Cir.1985); Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir.1982), cert. denied, 464 U.S. 1048, 104 S.Ct. 723, 79 L.Ed.2d 184 (1984). See also 28 U.S.C. § 2254(c) (providing that "an applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented").

In the instant case the state maintains that Vazquez has not exhausted the remedies available in the state courts because his petition contains a claim not presented to the state courts, more particularly factual allegations relating to his claim of ineffective assistance of counsel that were never presented to the state courts. Petitioner alleges that by the time of his second trial he had exhausted his funds and that his counsel unsuccessfully attempted to withdraw. Petition ¶ 6. He further alleges that his counsel's failure to move for a mistrial or to consult with petitioner was based in whole or in part on counsel's desire to avoid a third trial because petitioner was out of funds (and presumably counsel would not receive fair...