JOAN M. AZRACK, District Judge.
Ronald C. Thornton ("Petitioner" or "Thornton") petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his 2010 conviction in state court. On March 9, 2010, following a jury trial, Petitioner was convicted of murder in the first degree (New York Penal Law § 125.27(1)(a)(vi)) and two counts of conspiracy in the second degree (New York Penal Law § 105.15). Petitioner was sentenced on April 20, 2010 to life without parole on the murder conviction and a concurrent indeterminate term of 8 1/3 years to 25 years imprisonment on the first conspiracy conviction and a consecutive indeterminate term of 8 1/3 years to 25 years imprisonment on the second conspiracy conviction.
Petitioner challenges his conviction on the following grounds: (1) the State violated his right to due process by adducing perjured testimony to obtain a conviction and failing to correct the perjured testimony; (2) the State committed prosecutorial misconduct by violating petitioner's Fifth Amendment privilege against self-incrimination; and (3) Petitioner's conviction was against the weight of the evidence and the State failed to prove his guilt beyond a reasonable doubt.
For the reasons set forth herein, Petitioner's request for a writ of habeas corpus is denied in its entirety.
On November 16, 2008, Petitioner was arrested in relation to the October 20, 2008 murder of James DiMartino and charged with murder and conspiracy to commit murder. He was ultimately tried for conspiracy to commit kidnapping as well. The following facts are taken from the petition, as well as from the state court trial and appellate record.
Detective Gerard McAlvin, a homicide officer in the Suffolk County Police Department, testified that Petitioner said that he knew James DiMartino for about two years prior to his murder on October 20, 2008. (Tr. 885.)
Petitioner and DiMartino set up an office in Hauppauge for their incorporated business, JMB Funding, in October 2008. (Tr. 239-41.) Petitioner described the nature of his business with DiMartino as mortgage lending, and stated that he would handle the mortgages and DiMartino would handle the legal papers. (Tr. 887.) Diane DiMartino, James DiMartino's widow, testified at trial that Petitioner and her late husband provided private loans for builders and other people interested in getting mortgages, but who could not do so through banks. (Tr. 240.)
In discussions from March 2008 to October 2008, Petitioner told Cimilluca that the source of loans for the mortgage business was John Costillano, a member of the Meat Cutters Union who had ties to organized crime. (Tr. 782-85.) Petitioner told Cimilluca that a $16 million dollar check from Costillano was going to be transferred into DiMartino's escrow account in late August 2008. (Tr. 784-85.) After investigating an address, phone number and other identifying factors of Costillano provided by Petitioner, Cimilluca was unable to locate Costillano or verify his existence. (Tr. 793-96.)
Beth Ann Kuhner, a Citibank assistant branch manager, testified at trial that on October 9, 2008, Petitioner went to the Ronkonkoma branch Citibank to deposit the $16 million dollar check. (Tr. 120-22.) He told Kuhner that he wanted to deposit the check in his personal account, and she gave him a stamped deposit slip. (Tr. 121.) She told Petitioner that she would need to verify the check and called Washington Mutual the same day to negotiate the deposit and learned the check was not good. (Tr. 122-24.) Kuhner testified that she notified Petitioner that the check was not good, and after attempting again to verify the check the next morning, she was still unable to verify the funds. (Tr. 124-25.)
Diane DiMartino testified at trial that her husband brought a copy of the deposit slip home on October 9, 2008. (Tr. 248.) On October 20, 2008, James DiMartino planned to meet Petitioner at the Capital One bank branch where DiMartino and his family bank accounts are located to transfer the $16 million dollar check into DiMartino's escrow account. (Tr. 243-44.) However, the meeting never happened because Petitioner said that he was held up at his son's orthodontist appointment. (
Frank Giustiniani, owner of Justy Construction, testified at trial that he put down a $29,000 deposit in September 2008 for a faulty deed on property sold to him by Petitioner. (Tr. 658-66.) When he spoke to Petitioner, Petitioner claimed that Giustiniani's money was in DiMartino's escrow account and he would receive it when it was cleared. (Tr. 666.) Giustiniani testified that he only received $4,000 of his deposit. (Tr. 667.) Further, Dawn Turnbull, the Capital One branch manager in Sayville, testified at trial that she found a $500,000 check dated October 7, 2008 from Petitioner to DiMartino that was returned for insufficient funds on October 15, 2008. (Tr. 235-36.)
Monique Randall testified at trial that in October 2008, she met Petitioner at an adult entertainment bar, Shady Al's in Commack. (Tr. 531-32.) Petitioner frequented Shady Al's about twice a week, and Randall worked as an exotic dancer there. (Tr. 529-31.) Randall testified she recognized Petitioner from his visits to Shady Al's, but had not previously spoken to him before other than saying "hi" and "bye." (Tr. 532.) Petitioner asked Randall to speak to him privately outside the bar and asked if she could "help him by getting a gun with a silencer" because he was "having a problem." (
On October 17, 2008, Thornton, Randall and Raysor ate lunch at the Georgia Peach Diner in Queens. (Tr. 536.) After lunch, Thornton and Raysor spoke outside and negotiated a price of $10,000 to murder DiMartino while Randall waited in Petitioner's white BMW. (Tr. 541-42.) They agreed to meet the next day at Shady Al's. (Tr. 540.)
On October 18, 2008, Randall brought Raysor and Raysor's friend to Shady Al's with her so that Raysor could "get more of a feel" of Petitioner. (Tr. 542.) While at the bar, Petitioner informed them that it was too late for the victim to come out, and he did not have the "hardware," or gun, so nothing would happen that night. (Tr. 544.)
On October 19, 2008, Randall informed Petitioner via phone that she was bringing her friends to Shady Al's. (Tr. 545.) Randall went with Raysor and his friend, Donnell Festus, to Shady Al's at around noon, because she was scheduled to work. (Tr. 245-46.) While Randall was working, Petitioner, Raysor and Festus were drinking and "getting acquainted." (Tr. 547.) It was decided that Festus was going to commit the murder, and Petitioner gave him $400.00. (Tr. 544-45, 549.) Randall testified that Petitioner said that the plan could not be completed Sunday night because there was no hardware. (Tr. 548-49). Petitioner told Randall to bring Raysor and Festus to back to Long Island early the next morning. (Tr. 548.) Randall, Raysor, and Festus spent the night at the Townhouse Motel near Shady Al's. (Tr. 551.)
On Monday, October 20, 2008, Randall called Petitioner from a payphone at the Townhouse Motel at around 9:00 a.m. (Tr. 552-53.) Randall informed Petitioner that she, Raysor, and Festus were going to the IHOP near the motel, and he agreed to meet them outside. (Tr. 553-54.) Petitioner picked up Randall, Raysor, and Festus at IHOP in his white BMW at around 11 a.m. (Tr. 554.) They drove to a McDonald's a few blocks away and parked. (Tr. 555.) Randall testified that Petitioner retrieved a Target shopping bag from the trunk and took out a black revolver that he handed to Raysor, who then gave the gun to Festus. (Tr. 555-56.)
Randall testified that Petitioner told them he was going to call the victim to meet him for lunch so that Festus could commit the murder. (Tr. 556.) After leaving the McDonald's parking lot, the four drove around the vicinity to look for good place to murder DiMartino. (T. 556-57.) Petitioner then dropped off Randall at a Commack Courtesy Inn, and approximately ten minutes later, Raysor and Festus returned. (Tr. 557-58.) Randall testified that they told her that they found a place to kill DiMartino and left the room. (Tr. 558-59.)
Raysor returned to the Courtesy Inn room alone about ten minutes later and told Randall that "the guy's down there." (Tr. 559.) According to Randall, Petitioner told Raysor that DiMartino would be driving a white Lexus with a Yankees logo on the back of the car. (
Randall testified at trial that after Raysor and Festus left the Courtesy Inn, Petitioner called her and said that he would pick her up and give her the rest of the money. (Tr. 562.) However, because police were outside the murder scene, Petitioner could not get to Randall at the motel and they agreed to meet at Hooters. (Tr. 562-63.) Randall testified that these conversations occurred around 4:00 or 5:00 p.m. (Tr. 563.)
Randall testified that when she left the Courtesy Inn to meet Petitioner, she took the gun from the bathroom, wrapped it in a coat, and put in in the trunk of the cab that picked her up. (Tr. 563-64.) Petitioner met Randall outside of Hooters and gave her $200 for cab fare. (Tr. 564.) He said that he gave Raysor and Festus a "bonus," which she later learned amounted to $2,000. (Tr. 564-65.) Randall then took the cab to the Huntington mall to pick up Raysor and Festus, who had shopping bags with them. (Tr. 565.) Randall placed the gun into one of the shopping bags and brought it to her home in Queens. (Tr. 566). Randall testified that she does not know what happened to the gun after that. (
Randall testified that she called Petitioner every day after the murder to get the rest of the money. (Tr. 566.) On October 24, 2008, Petitioner told Randall that he would meet her at Shady Al's to give her the rest of the money. (Tr. 567.) Petitioner waited for Randall outside Shady Al's a few hours later and put $8,000.00 into her purse when she arrived. (Tr. 567-68.) Randall testified that she later gave the money to Raysor. (Tr. 568.)
Margaret Lynch testified at trial that she was driving on Jericho Turnpike and missed the turn to get into Michael's Nursery at around 3:00 p.m. on October 20, 2008. (Tr. 74-75.) After turning into the restaurant parking lot where DiMartino was shot so that she could turn around, Lynch saw a body lying next to a SUV. (Tr. 75-76.) Within ten minutes she called 911. (
On the same day, Suffolk County Homicide Detectives Ralph Rivera and Gerard McAlvin went to James DiMartino's home at around 8:30 p.m. and informed his wife, Diane DiMartino, and their four young daughters of the murder. (Tr. 871-72.) Detective McAlvin testified at trial that Diane told them that James left around 12:30 p.m. to meet Petitioner and John Costillano at a restaurant. (Tr. 872.)
McAlvin testified that he and Detective Rivera then interviewed Petitioner outside of his house in Nesconset around 9:15 p.m. (Tr. 874-75.) Petitioner told the detectives that he planned to have lunch with DiMartino and his business partner, but did not attend because he had a stomach ache. (Tr. 875.) He said during the day he was changing light bulbs with his fiancée at the tanning salon they owned, Skin Deep Tanning. (
On October 21, 2008, Detective McAlvin met with Petitioner, Detective Cimilluca, and Detective Bittari in the District Attorney's office in Hauppauge. (Tr. 883.) Detective McAlvin asked Petitioner "biographical, background" questions about himself, his relation to DiMartino, and their business. (Tr. 883-97.) Petitioner also told detectives about John Costillano. (Tr. 895-97.) Detective McAlvin also asked Petitioner about the vehicles he saw at his home the night before, including his 2008 BMW. (Tr. 884-85.)
McAlvin testified that the detectives then discussed Petitioner's whereabouts the day before with him. (Tr. 888-91.) Petitioner said he first learned about the lunch meeting when DiMartino called him at about 3:00 p.m. (Tr. 891.) Petitioner denied that a stomach ache was the reason that he did not attend the lunch and instead, said that he did not attend because he was changing bulbs at the tanning salon. (Tr. 890.) According to McAlvin, Petitioner read text messages to and from DiMartino from the day before on his BlackBerry cell phone. (Tr. 892.) McAlvin testified that Petitioner said that DiMartino owed him $10,000 and also owed Jim Grant $200,000 and Andre Rodney $79,000. (Tr. 893.)
After the meeting at the District Attorney's office, detectives went with Petitioner to the JMB Funding office to take possession of DiMartino's computer. (Tr. 897-98.) Detective McAlvin testified that on October 26, 2008, he returned to James DiMartino's home to retrieve a copy of the deposit slip for the $16 million dollar check that Diane DiMartino found. (Tr. 900.) On October 28, 2008, Detectives McAlvin and Rivera met Petitioner at the JMB Funding office so Petitioner could retrieve business papers. (Tr. 898-99.) Petitioner told Detective McAlvin that Arlene Nelson of Nationwide Court Services, where DiMartino worked, received multiple inquiries from people whom DiMartino owed money to. (Tr. 899.) Petitioner also said that he heard at a local grocery store that DiMartino's body was discovered by a woman named Lisa, and DiMartino used to have a girlfriend Lisa. (Tr. 899-900.)
McAlvin testified that the entire team continued to work on the investigation during the next four weeks. (Tr. 901.) They interviewed Jim Grant, Davis Beck, motel clerks and owners, and cab drivers, and also reviewed phone records. (Tr. 902.) Law enforcement identified Lisa Mevo as the woman DiMartino with whom had an affair in 2005. (Tr. 902-03.) McAlvin testified that they interviewed her and discovered that the affair was over. (Tr. 903.) The detectives interviewed Lisa Mevo's ex-husband Victor Mevo, a pilot for the New York City Police Department Aviation Unit, on October 23, 2008. (Tr. 903-04.) He showed detectives his off-duty weapon, a Smith and Western 38 revolver. (Tr. 904.) McAlvin testified that the weapon did not smell as if it had been fired recently. (
Detective McAlvin testified that the Petitioner's cell phone records for the phone number that he provided law enforcement were subpoenaed. (Tr. 908.) McAlvin said that law enforcement was particularly interested in calls occurring on October 20, 2008. (Tr. 909.) They identified calls to a few 718 numbers, and detectives noticed a call from a Townhouse Motel pay phone at 9:19 a.m. (Tr. 909-10.) Law enforcement subsequently reviewed the motel's security videos of the lobby and check-in records. (Tr. 910-11.) Detectives were able to identify the cab company that took the co-conspirators to IHOP, and they reviewed IHOP's surveillance videos. (Tr. 912-13.) They saw a white BMW in the footage. (Tr. 920.) After interviewing more cab companies, one said that it dropped a female off at the Courtesy Inn on the day in question. (Tr. 914.) Detectives cross-referenced the records from the two motels and found Monique Randall's name registered at the motels. (Tr. 915.) After reviewing surveillance video at the Courtesy Inn, detectives saw a white BMW coming up the driveway. (Tr. 919.) They also identified the cab company that picked up Randall from the Courtesy Inn and took her to Queens. (Tr. 921.)
On November 16, 2008, Detectives Gerard McAlvin, Ralph Rivera, Pat Portela, Robert Chase and Detective Sergeant Edward Fandrey arrested Petitioner on North Country Road in Saint James. (Tr. 924.) Petitioner was taken to Police Headquarters in Yaphank and placed in an interview room in the homicide office. (Tr. 925-26.) Detective Sergeant Fandrey interviewed Petitioner briefly and completed the Prisoner Activity Log. (Tr. 926.) Detective Rivera read Thornton his rights, which Thornton initialed on the rights card as Rivera read them. (Tr. 926-31.) Rivera read Petitioner two waivers. (Tr. 930.) First, Rivera asked Petitioner if he understood the rights as they were explained to him, to which Petitioner answered yes. (Tr. 930.) Rivera then asked Petitioner if he wished to talk to law enforcement at that point, and Petitioner said no and that he wanted to speak to his lawyer, at which point the interview concluded. (Tr. 930-31.) Detective Rivera testified that he seized Petitioner's wallet, a white metal necklace, a white metal bracelet, $963.62, a pack of gum and a set of keys at the time of the arrest. (Tr. 1098.) The police impounded Petitioner's BMW and took it to the crime scene lab for processing. (Tr. 1099.)
On November 15, 2008, Randall was arrested and charged with murder and conspiracy. (Tr. 568.) Raysor and Festus were subsequently arrested. Randall testified at trial that she first described the incident as a robbery in a written statement to police. (Tr. 569-70, 604.) However, according to Randall, "other things started coming out" and "the story I told in my statement did not match up with the evidence." (Tr. 607.) On November 19, 2008, Randall entered into a cooperation agreement to testify against her co-defendants and get a prosecutor's recommended sentence of 15 years to life. (Tr. 570-71.) On November 24, 2008, Randall pled guilty to murder in the second degree.
Detective Thomas Hess of the Special Investigations Bureau for the Suffolk County Police Department testified at trial that he became involved in an investigation of Petitioner on January 9, 2009. (Tr. 1102.) Thomas Shelton, another inmate at Suffolk County Correctional Facility, informed law enforcement that Petitioner wanted to kidnap someone. (
Investigator John Seymour, who was then assigned to the Suffolk County District Attorney's Office, testified that he went undercover as "Scott's" go-between using the name John Cinetto. (Tr. 1173-74.) Detective Hess facilitated the meeting between Petitioner and Seymour, and they first met at Suffolk County Correctional Facility on January 13, 2009. (Tr. 1174.) Petitioner told Seymour he would pay him for the kidnapping with a brick of cocaine, which he would get to him through a third party. (Tr. 1177.)
On January 20, 2009, Seymour met with Petitioner again to discuss the kidnapping. (Tr. 1178.) Petitioner informed Seymour that Randall's daughter was in Albany. (Tr. 1181.) Petitioner told Seymour to do "whatever has to be done" and that "I have no remorse. I don't care." (Tr. 1181.) The meetings with Seymour were recorded on audiotape and videotape, and transcribed after the meetings. (Tr. 1182.) When Detective Hess informed Petitioner that he got Randall's daughter coming off the school bus, Petitioner said, "Man, I love you guys." (Tr. 1133.)
A grand jury in Suffolk County returned an indictment for charges of murder in the first degree and conspiracy in the second degree. Petitioner proceeded to trial by jury on February 8, 2010. Petitioner did not testify at trial. On March 9, 2010, the jury reached a verdict, finding Petitioner guilty of murder in the first degree and two counts of conspiracy in the second degree. (Tr. 1480.) On April 20, 2010, Justice Hinrichs sentenced Petitioner to life without the possibility of parole for the count of murder in the first degree. (S. 40-41.)
Petitioner, then represented by counsel, appealed his conviction to the Appellate Division, Second Department, raising four issues that: (1) the trial court committed reversible error and deprived Petitioner of a fair trial when it granted the People's
In a decision dated February 25, 2013, the Appellate Division, Second Department, affirmed Petitioner's convictions. The court held that Petitioner's challenge to the legal sufficiency of the evidence was unpreserved for appellate review.
In a letter to the New York Court of Appeals dated April 12, 2013, Petitioner sought leave to appeal from the Appellate Division's February 25, 2013 decision pursuant to New York Criminal Procedure Law Section 460.20. (R. 2263.) On May 21, 2013, Assistant District Attorney Grazia DiVicenzo submitted a letter in opposition. (R. 2265-66.) On June 14, 2013, the Court of Appeals denied Petitioner's application for leave to appeal.
Petitioner filed a
To determine whether a Petitioner is entitled to a writ of habeas corpus, a federal court must apply the standard of review set forth in 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act ("AEDPA"), which provides, in relevant part:
AEDPA establishes a deferential standard of review: "`a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.'"
For the reasons discussed below, the Court denies Petitioner habeas relief in its entirety. Initially, the Court finds that Petitioner's claim regarding prosecutorial misconduct in using perjured testimony is procedurally barred because it was not brought on direct appeal. Further, Petitioner's claims regarding legal sufficiency of the evidence and the admission of Petitioner's post-arrest silence were unpreserved for appellate review and thus, also procedurally barred. However, in an abundance of caution, the Court has analyzed the merits of all claims. As set forth below, the Court finds that all of petitioner's claims are without merit and therefore, denies the motion in its entirety on the merits.
As a threshold matter, a district court shall not review a habeas petition unless "the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). Although a state prisoner need not petition for certiorari to the United States Supreme Court to exhaust his claims,
Passage through the state courts, in and of itself, "is not sufficient."
Like the failure to exhaust a claim, the failure to satisfy the state's procedural requirements will deprive the federal courts of an opportunity to address the federal constitutional or statutory issues in a petitioner's claim.
Even where a plaintiff properly exhausts his claim, however, exhaustion "does not automatically entitle the habeas petitioner to litigate his or her claims in federal court. Instead, if the petitioner procedurally defaulted those claims, the prisoner generally is barred from asserting those claims in a federal habeas proceeding."
The procedural bar rule in the review of applications for writs of habeas corpus is based on the comity and respect accorded to state judgments.
Once it is determined that a claim is procedurally barred under state rules, a federal court still may review such a claim on its merits if the petitioner can demonstrate both cause for the default and prejudice resulting therefrom, or if he can demonstrate that the failure to consider the claim will result in a miscarriage of justice.
"The burden of proving exhaustion lies with the habeas petitioner."
As discussed
However, Petitioner's sufficiency of the evidence claim and prosecutorial misconduct claim regarding his right of privilege against self-incrimination are nevertheless procedurally barred from review. In New York, an objection to the legal sufficiency of the evidence takes the form of a motion to dismiss.
At trial, Petitioner's counsel made no such motion disputing the sufficiency of the evidence and on appeal, the Appellate Division ruled that Petitioner's "challenge to the legal sufficiency of the evidence is unpreserved for appellate review."
Further, defense counsel must object to a prosecutor's line of questioning of a defendant at the time in order to preserve the claim for appellate review.
Thus, under New York law, these claims cannot be reviewed because they were each decided on an independent and adequate state procedural ground.
In order for Petitioner to overcome this procedural bar, Petitioner must "demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice."
In sum, Petitioner did not exhaust state court remedies in regards to his claim that the State used perjured testimony to obtain a conviction. Further, the issues of the legal sufficiency of the evidence and prosecutorial misconduct regarding eliciting testimony about Petitioner's post-arrest silence were unpreserved for appellate review. Consequently, Petitioner's claims are procedurally barred from federal habeas review. In any event, assuming
Petitioner claims that that State violated his due process right by using perjured testimony from Monique Randall. (Pet. at 3.) For the reasons set forth below, the Court finds that Petitioner's claim is without merit.
A petitioner's claim that his or her conviction was based on perjured testimony is analyzed under the Due Process Clause of the Fourteenth Amendment.
Once that threshold determination has been met, "[w]hether the introduction of perjured testimony requires a new trial depends on the materiality of the perjury to the jury's verdict and the extent to which the prosecution was aware of the perjury."
According to Petitioner, "the prosecution's main witness," Monique Randall perjured herself "during testimony while under oath" and the prosecution failed to correct this false testimony "relating to witness credibility." (Pet. at 3.) However, the Court finds that Petitioner's claim that the prosecution violated his right to due process by eliciting and failing to correct perjured testimony is without merit.
Initially, Petitioner failed to prove the threshold issue that Monique Randall committed perjury. Petitioner fails to make any specific allegations as to in what manner Randall committed perjury and Petitioner's general assertions that Randall committed perjury are unsupported by the record. At trial, defense counsel elicited the fact that Randall initially lied to police when questioned after the murder, and pointed to inconsistencies in Randall's initial written statement to the police and her narrative after she entered into a cooperation agreement, and that she stood to gain from testifying against Petitioner at trial. (Tr. 600-08.) Petitioner did not specifically address the inconsistencies between Randall's initial written statement and trial testimony in his habeas petition, but regardless, mere inconsistencies in testimony do not rise to the level of perjury.
Further, Petitioner failed to show that the prosecution was aware or should have known that Randall committed perjury.
Petitioner claims that the prosecution violated his Fifth Amendment privilege against self-incrimination by eliciting testimony that he invoked his Miranda rights. (Pet. at 3.) Petitioner contends that the testimony prejudiced the jury. (
The Fifth Amendment's protection against self-incrimination is well established.
This Court agrees with the Appellate Division that the prosecution improperly elicited Detective Rivera's and McAlvin's testimony regarding Petitioner's post-arrest silence.
The
Here, the overwhelming evidence of Petitioner's guilt renders any improper admission of testimony regarding Petitioner's post-arrest silence harmless error under
In sum, the Court denies Petitioner's self-incrimination claim because although testimony regarding his post-arrest silence was improperly elicited, the error constituted harmless error under the applicable
Petitioner claims that his conviction was against the weight of the evidence and the State failed to prove his guilt beyond a reasonable doubt. (Pet. at 3.) As an initial matter, "weight of evidence" is the name of a specific claim under New York state law and thus, is not cognizable on federal habeas review.
With respect to this claim, the Appellate Division ruled on the merits that the evidence at petitioner's trial was "legally sufficient to establish the defendant's guilt beyond a reasonable doubt."
The law governing habeas relief from a state conviction based on insufficiency of the evidence is well established. A petitioner "`bears a very heavy burden'" when challenging the legal sufficiency of the evidence of a state criminal conviction in a writ of habeas corpus.
A habeas petitioner cannot prevail on a claim of legally insufficient evidence unless he can show that, viewing the evidence in the light most favorable to the prosecution, "no rational trier of fact could have found proof of guilt beyond a reasonable doubt."
In New York, a person is guilty of murder in the first degree when: "[w]ith intent to cause death of another person, he causes the death of such person . . . and . . . the defendant committed the killing or procured commission of the killing pursuant to an agreement with a person other than the intended victim to commit the same for the receipt, or in expectation of the receipt, of anything of pecuniary value from a party to the agreement or from a person other than the intended victim acting at the direction of a party to such agreement." N.Y. Penal Law § 125.27(1)(a)(vi).
A person is guilty of conspiracy in New York when: "with intent that conduct constituting a class A felony be performed, he agrees with one or more persons to engage in or cause the performance of such conduct." N.Y. Penal Law § 105.15. Murder in the first degree and kidnapping in the first degree are Class A felonies in New York. N.Y. Penal Law § 125.27; N.Y. Penal Law § 135.25.
Under the standard enunciated in
Specifically, although Petitioner attacks the credibility of Monique Randall and argues that she has "proven to be unbelievable," (Pet. at 3), such a claim does not warrant habeas relief. It is well established that a habeas court may neither "disturb the jury's findings with respect to the witnesses' credibility,"
Further, in addition to Monique Randall's testimony, the prosecution presented abundant evidence inculpating Petitioner. In particular, the jurors heard testimony: (1) that Petitioner represented that the fictitious John Costillano was to provide funding for the mortgages Petitioner and the victim were providing in their business (Tr. 782-98); (2) that James DiMartino went to meet Petitioner and John Costillano at the restaurant where he was murdered (T. 245-46); (3) that phone records established that calls were made by Petitioner to and from Randall on the day of the murder (T. 908-11); (4) that surveillance videos corroborated Monique Randall's testimony regarding Petitioner picking her and the co-conspirators up from IHOP before the murder (T. 912-15, 919-21); (5) that data extracted from cell towers corroborates Randall's testimony regarding the locations of Petitioner and Randall on the day of the murder (T. 970-1006, 1013-26); and (6) of recordings of Petitioner's conversation with undercover officers to plan the kidnapping of Randall's daughter. (T. 1102-19, 1121-22, 1128-34, 1141-56, 1173-83.)
In sum, the Court concludes that the evidence was legally sufficient to establish that Petitioner committed first degree murder of James DiMartino, conspiracy to commit DiMartino's murder and conspiracy to kidnap Monique Randall's daughter. For the reasons set forth above, this Court finds that Petitioner's claim as to the legal sufficiency of evidence is without merit, and, thus, that the state court did not unreasonably apply federal law in rejecting Petitioner's claim.
For the foregoing reasons, the habeas petition is denied in its entirety. Because Petitioner has failed to make a substantial showing of a denial of a constitutional right, no certificate of appealability shall issue.