Vera v. Hanslmaier, 95 Civ. 5288(BSJ).
| Decision Date | 29 April 1996 |
| Docket Number | No. 95 Civ. 5288(BSJ).,95 Civ. 5288(BSJ). |
| Citation | 928 F. Supp. 278 |
| Parties | Manuel VERA, Petitioner, v. Robert HANSLMAIER, Superintendent, Woodbourne Correctional Facility, Respondent. |
| Court | U.S. District Court — Southern District of New York |
Manuel Vera, Woodbourne, NY, pro se.
Steven A. Yomtov, Assistant District Attorney, Bronx County, Bronx, NY, for defendant.
Manuel Vera, pro se, petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.1 Challenging his state conviction for manslaughter in the first degree, petitioner argues that he was denied due process by what he claims were 1) the People's failure to disprove his justification defense beyond a reasonable doubt, 2) the trial court's unbalanced interested witness charge, and 3) the prosecutor's improper summation remarks. This Court referred the petition to United States Magistrate Judge Peck for a Report and Recommendation. After reviewing the Report and Recommendation Magistrate Judge Peck issued, this Court holds that the petition must be denied.
Viewing all of the evidence, and drawing all reasonable inferences in favor of the prosecution, Magistrate Judge Peck found that a rational fact finder could have believed the People's witnesses and could have found that petitioner had the required intent to commit first degree manslaughter and was guilty beyond a reasonable doubt. Accordingly, he found that petitioner did not meet the burden necessary to prevail on an insufficiency claim made on appeal. With regard to petitioner's remaining claims, Magistrate Judge Peck found that the Appellate Division's affirmance of the conviction rested on independent and adequate state grounds, that is, petitioner's failure to object at trial, thereby barring federal court review. Consequently, Magistrate Judge Peck recommended that the petition be denied.
A district court will uphold a Magistrate's Report and Recommendation unless it is clearly erroneous or contrary to law. See 28 U.S.C. § 636(b)(1). However, if a party files an objection to a magistrate's Report and Recommendation, "the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id. Since petitioner filed no objection, this Court has reviewed Magistrate Judge Peck's findings to determine if they are clearly erroneous or contrary to law, and finds that they are not.
This Court adopts in its entirety Magistrate Judge Peck's Report and Recommendation, which is appended hereto. Accordingly, the petition is denied, and no writ shall issue.
REPORT AND RECOMMENDATION
A jury in the New York Supreme Court, Bronx County, convicted petitioner Manuel Vera on November 7, 1990, of manslaughter in the first degree. See People v. Vera, 182 A.D.2d 574, 585 N.Y.S.2d 700 (1st Dep't 1992). As a second felony offender, Vera was sentenced to nine to eighteen years imprisonment. Id. Vera's habeas corpus petition alleges that (1) the state failed to disprove, beyond a reasonable doubt, his justification defense, and (2) he was denied due process by the trial court's unbalanced interested witness charge and the prosecutor's expression of his personal belief in Vera's guilt. For the reasons set forth below, I recommend that the Court deny Vera's petition. As to petitioner Vera's first ground, there was sufficient evidence for the jury to have convicted him. As to the second ground, the Court is barred from reaching it because the Appellate Division denied Vera's appeal for an adequate and independent state ground, that is, his failure to object at trial.
On September 23, 1990, between 8:30 and 9:00 P.M., an altercation arose between petitioner Vera and the deceased, Edward Jay ("Jay"), also known as "Shane," "Blackie," or "Blood." (Trial Transcript hereafter, "T" at 19-21, 37-38, 51, 95-96.)
The People's first witness, Robin Singleton, testified that she and a couple of other people were standing on the corner of Walton Avenue and 165th Street in the Bronx when Jay touched Vera. (T. 19-21, 32, 40-41.) A fight broke out, but was stopped. (T. 21, 40-43.) Singleton testified that Vera twice screamed, "Yo, Bubba man, that mother f___er don't know me, don't touch me, I kill that mother f___er." (T. 32-33.) Some people walked Jay down the hill, left him there, and returned to the corner. (T. 21, 33, 44, 46.) Vera followed Jay down the hill and another fight began; during this fight, Vera pulled a knife and stabbed Jay. (T. 21, 45-48.) After Vera stabbed Jay, the people who had been standing on the corner attacked Vera and beat him up, including hitting him with bottles. (T. 21, 45, 50.) On cross-examination, defense counsel brought out contradictions between Singleton's trial and grand jury testimony, and emphasized that Singleton sold drugs and was the victim's friend. (T. 35-40, 47-49, 52-53.)
The People's next witness, Willis Bing, testified to essentially the same events. Bing testified that Jay accidentally bumped Vera, words were spoken, although Bing did not remember what was said, and the first fight started. (T. 57-61, 81-82, 85.) Bing and others broke up this fight, and told Jay to walk down the hill. (T. 59, 61, 85-86.) Bing returned to the corner and a few minutes later someone said that Jay had been stabbed; Bing looked down the block and saw Vera stab Jay a second time. (T. 59-60, 86-87.) At no time did Jay have a weapon in his hand. (T. 62-63.) Bing left when the police arrived because he was carrying PCP (angel dust) for sale. (T. 90.) On cross-examination, defense counsel established that Bing sold drugs and was Jay's friend. (T. 69-78, 81.)
The People's third, and last, eyewitness to the stabbing was John Duran. His version of the events differed from Singleton's and Bing's. Duran was in a grocery store with some friends when someone said Jay was in an argument. (T. 95, 100-01, 115.) Duran then went outside, and saw one of his friends holding Jay. (T. 95-96, 101, 115.) Someone told Vera to leave the area. (T. 96, 115, 117.) Vera was angry and resounded that nobody owns the block. (T. 117.) According to Duran's testimony, Vera, not Jay, walked down the hill first, and Jay walked down the hill after Vera. (T. 96-97, 120, 132.) While going down the hill, Jay was saying "no problem," indicating that there was not a problem between him and Vera. (T. 97, 101.) When Jay reached out to touch Vera on the shoulder, Vera pulled out a knife and swung at Jay, missing him. (T. 97-98, 101, 127-28, 130.) Jay stumbled back, and Vera stabbed him twice in the chest. (T. 98, 101-02, 121, 130-31.) After Vera stabbed Jay, the people who had been standing on the corner beat Vera up using beer bottles. (T. 98, 133, 140-41.) Duran called the police and made a statement to them when they arrived. (T. 98-99.) Duran testified that Jay liked to drink beer, that he never saw Jay fighting or battering anyone, and that he never saw Jay carry a knife. (T. 99-100.) On cross-examination, the defense developed the facts that Duran had a criminal record and was Jay's friend. (T. 111-14.)
The remainder of the People's case consisted of Police Officers Michael Meigh and Chris Acker, who arrived at the scene (T. 145-85); Terry Fraser, a forensic analyst with the Medical Examiner's office, who was necessary to establish the chain of custody of the knife (T. 186-87, 195-203); and Dr. Yury Kogan of the Medical Examiner's Office, who testified that the cause of Jay's death was a stab wound. (T. 204-24, at T. 207.) Dr. Kogan also testified that there was only a single stab wound (while Duran and Bing had testified that Jay was stabbed twice). (T. 220.) The People then rested. (T. 224.)
Petitioner Vera testified in his own defense. Vera testified that he went to 165th Street and Walton Avenue to see a girl named Wanda. (T. 232-33.) Vera could not remember Wanda's last name. (T. 251.) Jay approached Vera and attempted to hand him something, maybe drugs; when Vera refused, Jay got mad, grabbed Vera and then Jay threw a punch at him. (T. 234, 236, 250.) The people on the block grabbed Vera and Jay, separating them. (T. 236-37.) The people told Vera to get off the block. (T. 237.) As Vera was walking away, he heard footsteps and was punched in the face. (T. 238.) Someone started hitting Vera with a stick, and then Jay broke a beer bottle and, holding it in his left hand, came at Vera and cut his face. (T. 238-39, 242, 263-64.) Vera pulled out his knife and began swinging it around to protect himself, trying to get away. (T. 239, 249, 269-70, 273.) Jay lunged at Vera again with the broken bottle. (T. 241-42.) Vera ducked and stabbed Jay under the armpit. (T. 242-43, 249-50, 264-66.) Vera tried to run away but the other people attacked Vera, hitting him, kicking him and throwing bottles at him. (T. 243-44.) The police then came and Vera gave up his knife. (T. 244.)
On the People's rebuttal case, to rebut Vera's testimony that Jay came at him with a bottle in his left hand, Rosa Jay testified that her brother was right not left-handed. (T. 320.)
In summation, (Vera's App.Div. Brief at 17.)
In response, the Assistant District Attorney (Mr. Turkin) defended the People's witnesses' credibility:
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