RAYMOND J. DEARIE, District Judge.
Following a jury trial at which he testified in his own defense, petitioner Orlando Masaguilar was convicted of attempted murder in the second degree, assault in the first degree, menacing in the second degree, criminal possession of a weapon in the second degree, criminal use of a firearm in the first degree, and criminal possession of a controlled substance in the fourth degree. He was sentenced as a prior violent felony offender to concurrent 25-year terms on the attempted murder, assault and weapons counts, and received an additional nine-year term, to be served consecutively, on the drug possession count. The principal charges arose out of a shooting that occurred during the early hours of Christmas morning outside a delicatessen in Uniondale that was hosting a holiday party. The separate charge of drug possession is based on the discovery of a packet of cocaine inside each of petitioner's socks at the time of his arrest two days later.
Following affirmance of petitioner's conviction by the Appellate Division, Second Department, which found the evidence of his guilt to be "overwhelming,"
For the reasons set forth below, the application for habeas relief is denied and the petition dismissed.
The principal prosecution witness was the victim of the shooting, Manuel Medrano, who survived and identified petitioner as the man who shot him. (Trial Transcript, ECF No. 7 ("TT") at 132-150). Shortly after midnight, on December 25, 2007, Medrano arrived at the Vista Alegre Delicatessen in Uniondale for a holiday party. He quickly encountered a man he knew as "Adillio" and noticed that his face was bruised. Adillio explained to Medrano that the bruises were the result of a fight he had had with petitioner earlier in the evening. Medrano then left Adillio and went downstairs to the party. There, he saw a man named Dominicano approach petitioner and say something to him, and then saw both men go upstairs. Not long afterwards, Medrano heard commotion above and went upstairs and out to the parking lot to look. There, he saw petitioner and Adillio in a fight and tried to intervene. The next thing he knew, petitioner was pointing a gun toward Adillio; Medrano heard petitioner say, in substance, get away because I'm going to kill that guy, and then felt a bullet enter his chest.
Approximately 12 hours after the shooting, while in critical but stable condition at Nassau County Medical Center, Medrano spoke with Detective Stephen Firestone about the incident. He said he knew who had shot him and wrote down "Cuba" (petitioner's street name). He also told Firestone he had the shooter's phone number stored in his cell phone.
Medrano identified petitioner in the courtroom as Cuba or El Cubano, confirmed that he had known petitioner for several months, and testified that they had a "good relationship" and were "friendly" with each other.
Medrano had been a police officer in El Salvador before coming to the United States in 2000. In response to defense questions, Medrano stated that he was aware of the existence of a Salvadoran gang, MS 13; that he believed that it was mostly Salvadorans who patronized the Vista Alegre deli; and that petitioner was probably its only Cuban customer.
A second eyewitness to the shooting, Juan Cruz also positively identified petitioner as the shooter. (TT 237-248). Cruz recalled being in the basement when loud noises were heard from above. Accompanied by a group of other guests, Cruz went upstairs to investigate. Upon seeing petitioner in the parking lot with a gun, the others closed the door, leaving Cruz locked outside, with only petitioner, Medrano, and one other person.
According to Cruz, Medrano approached petitioner and said, in substance, what's going on, "and then [petitioner] shot him with the gun." Cruz then tried to go back inside but the door was still locked. A discrepancy between Cruz's and Medrano's accounts is that Cruz did not identify anyone at the scene as Adillio, but he confirmed the identity of the victim and the shooter:
After the shooting and just before departing, petitioner said to Cruz, "What's with you?" Cruz responded, "Look, you already destroyed him. What are you doing now, you might as well leave." Cruz "remained there with this other person and the person that got shot" and then called 911. He did not stay at the scene to speak with the police that night and testified at trial only because he was subpoenaed.
Detective Stephen Firestone, who reported to the scene, testified about the interviews he conducted in the initial hours after the shooting and the ensuing investigative steps that led to the apprehension of petitioner. Of note, Firestone interviewed approximately eight witnesses in front of the Vista Alegre who told him they did not see the shooting but had been fleeing after hearing the gunshot. Firestone also interviewed Lisandro Perez, the owner of the Vista Alegre, who told him that although he did not see the shooting, he had witnessed petitioner in a verbal altercation with Adillio earlier that evening.
Firestone also interviewed Mauricio Velazquez, who told him that he (Velazquez) was in the parking lot at the relevant time, saw petitioner shoot Medrano, and caught Medrano as he fell backwards from the blow.
As for the drug charge, testimony came from Police Officer Michael Capobianco, one of the two officers who arrested petitioner two days after the shooting. (
Petitioner took the stand in his own defense. (
With respect to the drug charge, petitioner testified that he did not possess cocaine at the time of his arrest but was being framed by police. He claimed that that the first time he saw the cocaine was when Detective Firestone entered the holding cell carrying it. He claimed that Firestone said that he was going to make sure he went to jail for the drugs no matter what happened with the case.
As for the $905 he was carrying at the time of his arrest, petitioner testified that he had a steady job "working in . . . water supply" and general maintenance for the Town of Ocean Beach on Fire Island that paid $12 per hour plus significant seasonal overtime, and that the Friday before his arrest he had received his biweekly pay of approximately $1400. Because money had once been stolen from his room, he was in the habit of carrying his cash with him.
Several lines of inquiry pursued during cross-examination of petitioner are the subject of the prosecutorial misconduct claim. The first line explored a possible drug-dealing rivalry as the motive for shooting the intended victim; petitioner says that casting him as a drug dealer unduly prejudicial in its own right and improper for the additional reason that he was charged only with the possession of cocaine, not its distribution.
The challenged remarks begin with the prosecutor asking petitioner whether it was true that "Adillio is a drug dealer in the Uniondale area," and whether petitioner "ha[d] a problem with Adillio because he [Adillio] was selling drugs in the neighborhood where you sell your drugs." (TT 311-312). Petitioner replied by asking, "Sell my drugs? . . . Who told you that I sell drugs," to which the prosecutor responded: "Do you want a list of people who told me?" (TT 312). The prosecutor then said, "I shouldn't say that, Judge, I'm sorry." (TT 312). Defense counsel did not object, and no curative instruction was requested or given. Later, the prosecutor returned to the subject, asking, "[s]o this $905 in cash . . . is hard earned money and not money that you made from selling drugs?" (TT 314). Defense counsel again did not object, and no curative instruction was requested or given.
The second challenged line of questions relates to petitioner's prior conviction. Petitioner complains that the questions improperly impeached his credibility not on the ground of the prior conviction but because he had invoked his constitutional right to a trial in that earlier matter. The following exchange occurred:
Petitioner also cries foul at questions addressing the length of time he served on the prior conviction. He asserts that the prosecutor's objective once again was to shift the jury's focus to uncharged conduct — in this context, by probing the fact that petitioner served twenty-five years on a fifteen-year sentence (the implication being that he committed additional crimes while in prison). Petitioner singles out this exchange:
A third challenged line of inquiry involves petitioner's claim that he was being framed. Petitioner complains, inter alia, that the prosecutor asked him whether he was truly claiming that arresting officers who did not previously know him nevertheless chose to "fram[e]" him for cocaine possession (TT 319-320), and whether the witnesses who testified that he was the shooter were "dishonest" and "lying." (TT 320). (To this last question counsel did interpose an objection, which the court sustained).
Petitioner complains that, although there was no trial evidence about the seized cocaine's street value, the prosecutor pointed to the drugs during summation and said, "that's a lot of money right here in this package." (TT 338). A second alleged impropriety relates to the number of witnesses. The defense had sought to draw a favorable inference from the fact that of the many guests at the party, only two came forward and testified; refuting this point, the prosecutor argued: "I'm sure [petitioner] was banking that they wouldn't [come forward], especially when his reputation is so well known in the community, a person who has already been convicted of murder . . . who now has a gun and shoots somebody in front of all these people." (TT 340). (There was no defense objection). Petitioner says it was unduly prejudicial to suggest to the jury that he knew that his reputation as a killer would intimidate potential witnesses.
Notwithstanding the verdict, at sentencing defense counsel re-asserted the trial claim that he was framed for a Salvadoran gang shooting. The prosecutor argued that petitioner committed perjury in that his trial testimony conflicted with an earlier, rejected plea.
Each of the grounds advanced in petitioner's habeas petition was raised and rejected by the Appellate Division, Second Department on petitioner's direct appeal. Treating severance first, the appellate court agreed with petitioner that "the Supreme Court should have granted [petitioner's] motion to sever the count charging criminal possession of a controlled substance in the fourth degree from the remaining counts," but concluded that "the error was harmless, as the evidence of [petitioner's] guilt was overwhelming, and there is no significant probability that the error contributed to [petitioner's] convictions."
Next, the appellate court concluded that the "challenges to the alleged instances of prosecutorial misconduct at trial and in summation are unpreserved for appellate review."
A habeas corpus petition is not a vehicle for re-litigating every issue previously advanced in state criminal trial or appeal: section 2254 relief is available only to a prisoner who can show that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254 (a). When, in the attempt to make that showing, a prisoner advances claims that have already been adjudicated on the merits in state court, relief "shall not be granted . . . unless the adjudication of the claim — (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). The Supreme Court has recognized that these standards "erect[] a formidable barrier to federal habeas relief,"
The requirements of section 2254(d)(1) and (2) have been strictly construed: the "contrary to" and "unreasonable application" clauses of paragraph(d)(1) mean that, when advancing a claim of legal error, a federal habeas applicant must show that the state court, in rejecting his claim, either "directly contradict[ed] a holding of the Supreme Court,"
In order "to ensure that state-court judgments are accorded the finality and respect necessary to preserve the integrity of legal proceedings within our system of federalism," a federal court "will not review the merits of claims . . . that a state court declined to hear because the petitioner failed to abide by a state procedural rule."
Notably, the bar applies "even where the state court has also ruled in the alternative on the merits of the federal claim."
In
In
Because the Appellate Division concluded that petitioner's allegations of prosecutorial misconduct were unpreserved for appellate review,
Were the allegations of misconduct not procedurally barred, however, the Court would still deny habeas relief on the ground that the Appellate Division's denial of relief was not contrary to or an unreasonable application of controlling Supreme Court holdings,
Simply put, the fact that the allegations do not rise to the level of egregiousness triggering habeas relief does not make the misconduct of which they complain a matter the Court can overlook. The prosecutor was out of line, plain and simple, and repeatedly: when he offered his own hearsay testimony about what others supposedly told him (i.e., that petitioner allegedly sold drugs); when he pressed petitioner to characterize prosecution witnesses as liars — which amounts to an impermissible shifting of the burden of proof; when he impugned petitioner's credibility on the grounds that he had invoked his constitutional right to a trial in a prior criminal matter; when he offered the suggestion that petitioner was "so well known in the community" as a murderer as an explanation for the shortage of witnesses from the party; and, in general, for having exploited the factually unrelated drug possession charge by making reckless insinuations about drug dealing. There was simply no evidence that petitioner was involved in the illegal distribution of controlled substances and no excuse for the prosecutor's apparent effort to make the jury think otherwise.
As for the evidence of guilt, while there is no question as to sufficiency,
But
Petitioner argues that there was no factual relationship between the drug and shooting-related charges sufficient to justify joinder under New York's Criminal Procedure Law § 200.20(2)(a) and (b). He further claims that the prosecutor misled the lower court by asserting that the charges arose out of the same criminal transaction and that, if the charges were severed, the same officers would have to testify at both trials.
These allegations do not state a violation of the constitution or federal law and so are not cognizable here.
In any event, as noted, the Appellate Division found that the Supreme Court should have granted the motion to sever but, again citing the overwhelming evidence of guilt and lack of any "significant probability" that the error contributed to the verdicts of guilt,
Assuming arguendo that petitioner's claim triggered analysis under the constitutional test,
To establish ineffective assistance of counsel at trial or on appeal, a criminal defendant must show that counsel's performance fell below an objective standard of reasonableness and that the alleged deficiency affected the outcome of the proceeding.
To prevail on such a claim in a federal habeas petition is especially difficult where, as here, the state court has rejected the ineffectiveness claim on the merits, because the applicant must overcome the double deference that
Further, the fact that the state appellate court deciding the ineffectiveness claim applies New York rather than federal constitutional law — as is the case here, where the Appellate Division cites
Petitioner's ineffectiveness allegations essentially derive from his prosecutorial misconduct claim — i.e., he asserts that his lawyer should have done something more to fend off the various prosecutorial improprieties already discussed — and for this reason, they are no more a basis for habeas relief than the prosecutorial misconduct claim. In short, the lack of prejudice finding inherent in the Court's rejection of the prosecutorial misconduct claim (above) disposes of the prejudice inquiry under
As discussed, the Court remains disturbed by the tactics and rhetoric exhibited by the prosecutor in this case, which crossed the line from aggressive to reckless and inappropriate. The Court is likewise uncomfortable with the improper joinder of the shooting-related charges with a wholly unrelated drug possession charge, which the prosecutor exploited irresponsibly. But the evidence of guilt is compelling and the requisite constitutional prejudice has not been shown. For all the reasons discussed, therefore, Orlando Masaguilar's application for relief under 28 U.S.C. § 2254 is denied in its entirety. Further, because Masaguilar has not "made a substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), a certificate of appealability will not issue.
SO ORDERED.