Zheng v. Warden, Sing Sing Corr. Facility

• Decision Date: 17 September 2019
• Docket Number: 16 CV 1166 (RJD)
• Parties: HAI GUANG ZHENG, Petitioner, v. WARDEN, SING SING CORRECTIONAL FACILITY Respondent.
• Court: U.S. District Court — Eastern District of New York

HAI GUANG ZHENG, Petitioner,
v.
WARDEN, SING SING CORRECTIONAL FACILITY Respondent.

16 CV 1166 (RJD)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

September 17, 2019

MEMORANDUM & ORDER

DEARIE, District Judge.

Before the Court is Petitioner Hai Guang Zheng's ("Petitioner") application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted in 1996, after a jury trial in New York Supreme Court, Queens County, of four counts of kidnapping in the first degree, two counts of rape in the first degree, one count of kidnapping in the second degree, two counts of sexual abuse in the first degree and one count of criminal possession of a weapon in the second degree. He was sentenced to an aggregate term of eighty-four years to life.¹

Petitioner's conviction arises out of the abduction of one man and two women at JFK Airport in 1995. As a result of entering the United States from China illegally in 1992, Petitioner

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incurred a significant financial debt to his smuggler, AK Guan ("Guan"). Three years later, and still indebted to Guan, Petitioner agreed to meet Guan at JFK Airport on March 31, 1995 to pick up some of Guan's friends. When Petitioner arrived at the airport, Guan joined Petitioner in his car. At the same time, Guo Bang Liu ("Guo") and his wife Liu Yan Wu ("Liu"), arrived at JFK Airport from Los Angeles, California, and were greeted by Guo's sister, Jin Hao Liu ("Jin"), who lived in Manhattan. As Guo, Liu and Jin left the airport via limousine service, Guan directed Petitioner to cut off the car, at which point, Petitioner testified, Guan approached the car carrying a pistol. Trial Tr. 901:2-902:16 (Hai Guang Zheng). At trial, the victims gave conflicting accounts regarding whether both Petitioner and Guan or just Guan approached the car and whether one or both men were carrying guns. Trial Tr. 349: 17-350:5 (Guo Bang Liu); 395:5-396:4 (Jin Hao Liu); 451:19-23 (Liu Yan Wu). Ultimately, Guo, Liu and Jin were ordered out of their car and into Petitioner's car. While Petitioner was driving, Guan demanded Guo and Liu hand over their passports; however, when Guan examined the passports, he apparently realized he and Petitioner had abducted the wrong people. Trial Tr. 351:5-11 (Guo Bang Liu); 428:13-22 (Jin Hao Liu). Nevertheless, Petitioner continued driving and eventually stopped the car at a location near the Brooklyn Bridge. Guo was released, made his way to his family's apartment in Manhattan and went to the local police precinct with a family member. From Brooklyn, Petitioner and Guan drove the women to a basement apartment in Flushing, Queens where they were joined by a third man, Petitioner's codefendant. The victims testified that the codefendant was quite a bit shorter and heavier than the "tall" man driving the car—later identified as Petitioner. Trial Tr. 400:7-13 (Jin Hao Liu); 455: 22-25 (Liu Yan Wu). Guan left Petitioner and his codefendant in the apartment and instructed Petitioner to call the women's family and demand ransom money. Petitioner claimed that he protested, but Guan responded

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that if Petitioner asked any questions or failed to follow instructions, he would kill Petitioner's family in China and send Petitioner back to China. Trial Tr. 905:4-10 (Hai Guang Zheng). The women spent the night in the apartment, but did not sleep because, as they later testified, they observed a gun next to Petitioner's pillow and feared for their safety. Trial Tr. 404:8-18 (Jin Hao Liu); 457:15-19 (Liu Yan Wu). Petitioner testified that after Guan left the apartment, he telephoned a friend, who told Petitioner to call the police. Trial Tr. 932:7-15 (Hai Guang Zheng). Petitioner did not call the police, he claimed, because he feared retribution from Guan. Id.

The women testified they were raped the next morning, one after the other, by Petitioner and his codefendant. Trial Tr. 403:4-408:2 (Jin Hao Liu); 457:22-465:21 (Liu Yan Wu). Petitioner raped Liu while the codefendant raped Jin and then Petitioner raped Jin while the codefendant raped Liu. Id. Liu testified that she resisted the "taller man," later identified as Petitioner, and thus was not sure where he ultimately ejaculated. Trial Tr. 494:4-495:9 (Liu Yan Wu). Liu testified that she was not strong enough to resist Petitioner's codefendant and he ejaculated in her vagina. Trial Tr. 465:7-18 (Liu Yan Wu). There was no testimony at trial confirming whether Petitioner ejaculated while raping Jin, and if so, where he ejaculated. Petitioner denies raping the two women.

According to Petitioner, he spoke to Guan the morning after the kidnapping, who was angry he had not yet demanded ransom from the women's family. Trial Tr. 933:8-24 (Hai Guang Zheng). Petitioner finally called the family and around 10:00 PM, more than 24 hours after the abduction, a family member transported $15,000 in a bag of groceries to 217 Henry Street in Manhattan. Because the family had already gone to the police, the calls between the women's family and Petitioner were recorded and traced and police were dispatched to the area

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where the two women were held. Shortly after midnight, a detective observed two men and two women walk out of a house and get into a car. Trial Tr. 727:5-729:22 (Det. Steven Banks). The detective and his partner followed the car for a few blocks and then pulled up alongside it where they were able to confirm that the women resembled those in photographs provided to the police. Id. The detective arrested Petitioner and his codefendant and the women were taken to Beekman Hospital in Manhattan. Neither of the women had any physical bruising or scratching. Tests showed semen in Liu's vagina and on her underwear. There was semen found only in Jin's underwear. At trial, Liu testified that prior to her rape she had sexual intercourse with her husband two days earlier. Trial Tr. 499:17-501:13 (Liu Yan Wu). Jin testified that prior to her rape she had sexual intercourse in January 1995—approximately three months earlier. Trial Tr. 444:19-445:6 (Jin Hao Liu). Additional testimony revealed that spermatozoa can remain on the skin for "up to 72 hours" and on clothing for "years" and still elicit a "positive" test result. Trial Tr. 563:4-15 (Thomas Hickey).

Petitioner testified at trial and asserted his innocence. He confessed to kidnapping but explained he was acting under duress and feared for his own life as well as the lives and safety of his family in China. Petitioner testified that he never raped the women. Trial Tr. 911:2-18 (Hai Guang Zheng). Petitioner asked the trial court to instruct the jury on the defense of duress, which the court declined to do, noting Petitioner (i) "was free to go any time he wanted to. He had a phone. He left the place many, many times. He could have called the police. He could have left completely," and (ii) that the exception to duress for those who "intentionally or recklessly" place themselves in a situation where they will be subject to duress applied. Trial Tr. 996:20-998:21. Petitioner was convicted on July 8, 1996 on ten of the twelve charges against him.

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Since his conviction, Petitioner has continuously asserted his innocence. Petitioner filed a direct appeal to the Appellate Division, Second Department. The Appellate Division vacated Petitioner's conviction of Sexual Abuse in the First Degree and his corresponding sentence, because no evidence pertaining to that count had been presented at trial, and otherwise affirmed Petitioner's conviction with respect to the kidnapping, rape and weapons charges. The Appellate Division concluded the trial court appropriately declined to instruct the jury on the affirmative defense of duress because "[v]iewing the evidence adduced at trial in the light most favorable to the defendant, there is no reasonable view of the evidence to support the defendant's claim of duress. The defendant failed to establish that the force or threat of force was capable of immediate exercise o[r] realization." People v. Hai Guang Zheng, 268 A.D.2d 443, 444 (2d Dept. 2000). Petitioner's motion for leave to appeal to the Court of Appeals was denied on June 15, 2000.

Since then, Petitioner has filed two motions in the trial court pursuant to NY CPL §§ 440.10 and 440.30 to vacate his conviction: first, claiming ineffective assistance of counsel as a result of his attorney's failure to have DNA evidence available at the time of his trial, and second, seeking post-conviction DNA testing. In both motions, Petitioner claimed DNA testing would exonerate him. On June 18, 2001, the trial court denied Petitioner's ineffective assistance of counsel claim because it was a record-based claim that should have been raised in Petitioner's direct appeal. The Appellate Division denied Petitioner's application for leave to appeal.

Petitioner filed his second motion to vacate pursuant to NY CPL § 440.30 on April 24, 2007, requesting DNA testing. The trial court denied Petitioner's motion on September 21, 2007, because Petitioner failed to show that there was a reasonable probability that the verdict would have been more favorable had DNA tests been performed— in light of other evidence

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against Petitioner, including the victims' testimony regarding the circumstances of the rapes, even a negative DNA test result would not exonerate him. People v. Hai Guang Zheng, 2007 WL 2825997 (N.Y. Sup. Ct. Sept. 21, 2007). The trial court also concluded that the District Attorney's office satisfied its burden of establishing that, after over ten years, the rape kits could not be located, and, declined to draw an adverse inference on that basis. People v. Flax, 162 A.D.3d 1667, 1668 (4th Dept. 2018) (citing NY CPL § 440.30) (precluding "the court from drawing an adverse inference based on a purported failure to preserve evidence where...the People established that, despite their efforts, the physical location of the specific evidence is unknown"). The Appellate Division affirmed...