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July 9, 1999


The opinion of the court was delivered by: Scheindlin, District Judge.


I have duly considered petitioner's Objections, dated May 17, 1999, to the Report and Recommendation of United States Magistrate Judge Andrew J. Peck, dated March 19, 1999, and have found them to be without merit. Accordingly, I hereby accept and adopt the thoughtful and extremely thorough Report and Recommendation in full and dismiss the above-referenced habeas petition. The Clerk of the Court is directed to close this case.



Petitioner Luis Avincola seeks a writ of habeas corpus from his 1986 conviction of murder in the second degree, for which he was sentenced to twenty-five years to life imprisonment. (See Pet., ¶¶ 1-4). Avincola raises numerous grounds in his petition. One of his grounds, that the trial court improperly omitted a circumstantial evidence charge from the jury instructions (Pet. ¶ 12(F)), was denied by the state court on a state procedural ground. Therefore, this denial rested on an adequate and independent state law ground and federal habeas review of this claim is barred. The federal nature of one of Avincola's grounds, that the trial court improperly admitted evidence of uncharged crimes (Pet. ¶ 12(B)) was not fairly presented to the state court. Because Avincola may no longer raise it in state court, this claim is deemed exhausted; however, his procedural default bars federal habeas review of this claim. Additionally, two parts of his prosecutorial misconduct claim (Pet. ¶ 12(E)) have never been presented to any state court. Avincola is now procedurally barred from raising these claims in state court, so they are deemed exhausted, but his procedural default also bars federal habeas review of these claims. Avincola's remaining grounds — (1) improper admission of hearsay evidence (Pet. ¶ 12(F)), (2) violation of his Fifth Amendment rights based on the improper admission of statements he made while in custody (Pet. ¶ 12(A)), (3) violation of his confrontation rights under the Sixth Amendment (Pet. ¶ 12(C)), (4) the remaining prosecutorial misconduct claims (Pet. ¶ 12(D)-(E)), (5) ineffective assistance of trial counsel (Pet. ¶ 12(G)), and (6) ineffective assistance of appellate counsel (Pet. ¶ 12(G)) — are all exhausted, but lack merit. Accordingly, for the reasons set forth below, the Court should deny Avincola's hebeas petition.*fn1


At approximately 6:00 p.m. on December 30, 1985, Luis Avincola, also known as "Columbia," shot and killed Rudolpho Garcia, also known as "San Martin." Soon after the shooting, Avincola told San Martin's girlfriend, Nilda Ortiz Rivera, also known as "Flaca," that he had just killed her "old man." (E.g., Trial Transcript [hereinafter. "T."] 305, 315-16, 331.)

Avincola's In Custody Statements to the Police

At the crime scene, Rivera reported to the police that a man named "Columbia" had just approached her and told her that he had shot San Martin. (6/30/96 Suppression Hearing Tr. [hereinafter, "S."] 99,122-23; see also Ex. B:*fn2 7/14/86 Trial Ct. Opinion at 2-4.) Based on that information, the police arrested Avincola later that night. (S. 14-15; see Ex. B: 7/14/86 Trial Ct. Op. at 3.) When Avincola was brought to the precinct, he appeared to the police to be "stoned," that is, under the influence of cocaine, as his pupils were dilated and he was in a "very hyper" state. (S. 78-79, 89-90; see Ex. B: 7/14/86 Trial Ct. Op. at 5.) However, his speech was not slurred and he appeared to know where he was. (S.90-92.)

Detective Palma read Avincola his Miranda rights in English, but Avincola indicated in Spanish that he did not understand. (S. 34, 40-41, 69-70, 91-92; see Ex. B: 7/14/86 Trial Ct. Op. at 4-5.) Detective Palma, who is bilingual, read Avincola a Spanish version of the Miranda rights, which Avincola indicated he understood. (S. 34, 40-41, 41-43, 45, 91-93; see Ex. B: 7/14/86 Trial Ct. Op. at 5.) Telling the police that he had nothing to hide, Avincola answered subsequent questioning by police after he ate some food and had slept for around four hours. (S. 45, 79, 82-83; see Ex. B: 7/14/86 Trial Ct. Op. at 5-6.) Avincola told the police that "San Martin[] was following him around the neighborhood. And he was trying to take me off. And that's why I stated I was going to kill him. Because I thought he had a gun." (S. 55, see Ex. B: 7/14/86 Trial Ct. Op. at 6-7.) The police prepared a written version of this statement, but Avincola did not sign it. (S. 55-56; see Ex. B: 7/14/86 Trial Ct. Op. at 6.)

Prior to trial, Avincola filed a motion to suppress, inter alia, his statements to the police. (See Ex. B: 7/14/86 Trial Ct. Op. at 8.) A suppression hearing was held prior to trial. At the hearing, Detective Palma testified as to the reading of the Miranda warning:

    [DETECTIVE PALMA]: When I read him his rights in English he
  stated he didn't understand it. When I read them in Spanish,
  he responded yes to all the questions. So therefore, I
  realized this individual understood what I was telling him.

Q Did you have to repeat any of the rights?

A No.

Q Did he ask you to repeat any of the rights?

A No.

Q Did he ask you to repeat any of them?

A No.

    Q Did he answer yes right after you completed asking the
  rights in Spanish?

A Yes.

Q No hesitation?

A No, no hesitation whatsoever.

(S.91-93.) Additionally, the trial court asked Detective Palma to state in Spanish the Miranda warnings that he gave to Avincola, which were translated as follows:

    THE COURT: I want to hear from the detective now what he said
  and I want the [official court] interpreter to listen to it.
  Say what you said in Spanish to him.

(Whereupon the witness read from a document in Spanish.)

THE COURT: Will you interpret that?

    THE INTERPRETER: . . . . You have the right to remain silent.
  And to answer questions; do you understand? Anything you say
  we can use against you; do you understand? You have the right
  to consult a lawyer before you answer any questions and to
  have an attorney present to answer questions; do you
  understand? If you don't have the abil [sic] for a lawyer the
  city will give you a free one. With my command of two
  languages I understood. It is not a perfect Spanish, it would
  be hard to understand for a non-educated person.
    THE COURT: Don't give me an evaluation, but translate into
  English even with mistakes what he is saying.
    THE INTERPRETER: If you don't have a lawyer at your disposal
  you have the right to state silence until you have the
  opportunity to have an attorney. Now that I have advised you
  of your rights, do you want to speak right now with the

[DETECTIVE PALMA]: His answer was he had nothing to hide.

(S.44-45.) The trial court denied Avincola's suppression motion, finding that Avincola "was fully and properly advised of his Miranda rights in Spanish by Detective Palma and knowingly and intelligently waived those rights." (Ex. B: 7/14/86 Trial Ct. Op. at 8.).

The Prosecution's Opening Statement at Trial

In his opening statement at trial, the prosecutor told the injury about a witness to the shooting:

    And as I indicated the incident happened sometime around 7
  o'clock that evening.
    The evidence will come from a witness named Luis Alvarado who
  was present in the apartment on the third floor, whose
  attention was drawn to an argument between the deceased and
  defendant on the third floor landing immediately outside the
  door. . . .
    Evidence will show that [Alvarado] was watching a Spanish
  soap opera on TV. After initially going to the peephole in
  the inside of his apartment, he then walked away. Within
  moments he heard a single gunshot.
    He went back to the peephole and saw the defendant with a
  sawed-off rifle running down the stairs from the third floor
  down to the second floor. He lost sight of him.

(T. 27.) When the prosecution was unable to produce Alvarado as a witness at trial, Avincola's counsel moved for a mistrial. (T. 855-56.)

In response, the prosecutor stated that he had intended to call Alvarado as a witness at trial, and had met with Alvarado in his office on the morning of July 7, 1986, a few days before the trial was scheduled to commence. (T. 856-57.) At that meeting, the prosecutor informed Alvarado that "the case was going to proceed to trial" and that he probably would testify on July 11. (T. 857-58.) On July 11, Alvarado did not appear at the prosecutor's office as his subpoena had directed and the prosecutor sent a detective to find Alvarado. (T. 861.) That same day, the prosecutor gave his opening statement referring to Alvarado's potential testimony. Id. Upon returning to his office at the end of the day, the prosecutor learned that Alvarado's girlfriend had left her job and got some indication that Alvarado may have fled, and "through later investigation." including "rumor and innuendo," the prosecutor learned that "the word in the street [was] that he had fled to Santo Domingo." (Id.) The trial court denied the mistrial motion. (T.865.)

During his summation, Avincola's attorney used Alvarado's absence to Avincola's advantage:

    I need not elaborate on the obvious fact that there is no
  witness who came into this court and gave evidence before you
  that he or she saw Luis Avincola shoot San Martin.
    What you do have is someone who flew the coop. Tony, Luis
  Alvarado who lived right here. . . . It's got these two
  doors. Both to his apartment, I think you heard Nilda say
  that. And the stairway, the top of the stairs is where the
  shooting occurred.
    That's where Tony lived. Tony who used to deal drug deals
  with San Martin and Nilda.
    Tony whose apartment was right in front of the scene where
  San Martin was killed. Tony who when he had to come into
  court to testify under oath before a jury about whatever,
  flew the coop and went to Santo Domingo, so they said.
    Does he have some reason to flee in connection with this case
  when he lived right at death's door step literally where he
  dealt drugs from with San Martin?

(T. 1002-03.)

Evidence at Trial

The victim, San Martin, along with his girlfriend Rivera, were steerers for a drug dealer working out of a building located at 568 W. 161st Street in Manhattan. (T. 308-10.) Avincola, who was a competing drug dealer working out of the same building, had twice threatened to kill Rivera and San Martin a week before the actual shooting. (T. 311-13, 324-26, 415, 440, 442, 445-48.) A week prior to the shooting, Avincola was in Mayra Mejia's apartment, carrying an object in a paper bag about two feet in length that looked like a shotgun. (T. 591-93, 623-24, 650.) On December 29, 1985, Avincola told Mejia that he swore "to his mother that he was going to kill San Martin" because San Martin and Rivera "were taking his client[s] away." (T. 596-97.)

On December 30, 1985, Clarence Collins, the superintendent of the adjoining building, saw Avincola on the stoop of 568 W. 161st Street. (T. 164-65.) Collins shared a soda with Avincola and then left him on the stoop and went home. (T. 165-66, 246.) Immediately after he entered his building, Collins heard two shots that appeared to come from the next building. (T. 165.) Fifteen minutes later, he entered 568 W. 161st Street and found San Martin lying on the stairs. (T. 167-68.)

Within an hour of the shooting, Avincola approached Rivera on the street two blocks away from the crime scene and told her to "`go to 6 — 161, that I killed the one that is your old man.'" (T. 315-16.)

Avincola was arrested later that night at a hotel and brought to the police precinct. (T. 281-84.) The hotel desk clerk gave the police a rent receipt for Avincola's room. (T. 705-07.) At the precinct, Rivera and Mejia identified Avincola as "Columbia" through a one-way mirror. (T. 319-20, 467-68.) Detective Palma read Avincola his Miranda rights in Spanish. (T. 677-80, 696-98.) Four hours later, in response to questioning by the police, Avincola admitted that he knew San Martin but denied that he had killed him. (T. 700-02.). Additionally, he told the police that "`San Martin was always following me around trying to take me off for my drug customers,'" and added, "that's why I stated I was going to kill him because I heard that San Martin had a gun." (T. 713, 725-26.)

Rivera's and Collins's Trial Testimony and Invocation of Their Fifth Amendment Rights

During cross-examination, witness Clarence Collins asserted, upon the advice of counsel, his Fifth Amendment privilege against self-incrimination in response to defense counsel's questions about potential liability for tax fraud (T.175-177), sources of income other than his building superintendent job (T. 177-78, 217-18), his drug use (T. 187, 223), and his possession of a firearm (T. 221-22). Upon each of these assertions of privilege, the trial court instructed the jury that "since the questions put to Mr. Collins . . . relate solely to his own credibility or believability as a witness, you may take into consideration his refusal to answer that question as though he had answered the question unfavorably to himself." (T. 176, see also T.178, 218, 221-23.)

During the cross-examination, witness Rivera asserted her Fifth Amendment privilege against self-incrimination in response to defense counsel's questions about her drug activities and her sources of income. (E.g., T. 337, 341, 345, 346, 350-53, 392-93, 396-97, 420-23, 442, 461, 473.) The trial court only allowed Rivera to assert her privilege at four separate times (T. 345, 346, 392-93, 420-21); the remaining times the trial court either ordered her to answer as the answer was not privileged or ordered her to answer giving her immunity from possible prosecution related to those answers. (T. 337, 341, 350-53, 396-97, 421-23, 442, 461, 473.) When the trial court allowed her to assert her privilege, the court made it clear to the jury that the question was asked solely for purposes of credibility and the jury could consider her refusal to answer as an answer negative to Rivera. (T. 345, 346, 388-89, 392-93, 421.)*fn3

The Victim's Father Spoke to Two Jurors During a Trial Recess

During a lunch recess, San Martin's father approached two jurors sitting on a bench, identified himself and attempted to chat with them. (T. 427, 431-35.) The jurors immediately reported the incident to a court officer and the judge questioned each of the two jurors separately. (T. 427, 430.) One of the jurors explained the incident as follows:

    A JUROR: What happened is we were standing at the juror
  benches waiting to come into the courtroom. This was ...

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