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October 7, 1999


The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.


This Court has received and reviewed the Report and Recommendation (the "Report") issued by Magistrate Judge Andrew J. Peck on July 29, 1999. On August 6, 1999, Karen Swiger, Assistant District Attorney, submitted an Objection to Magistrate's Report and Recommendation ("Respondent's Objection") on behalf of respondent objecting to portions of the Report. On September 20, 1999, petitioner filed his Reply and Objections to the Magistrate Judge's Proposed Report and Recommendation ("Petitioner's Objections"). Respondent's first objection to the Report is based on the contention that the one-year limitation period under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2244(d)(1), runs from the date of the denial by the New York Court of Appeals of petitioner's application for leave to appeal. The law in this Circuit is that the state conviction becomes final once the time to seek direct review in the United States Supreme Court by writ of certiorari has expired. Ross v. Artuz, 150 F.3d 97, 98 (2d Cir. 1998). As to respondent's other objections that (1) the court's reasonable doubt charge is a matter of state law not cognizable on federal habeas corpus review; (2) the Magistrate Judge did not apply the standards of the AEDPA, 28 U.S.C. § 2254(d), in reviewing the court's reasonable doubt charge; (3) the Magistrate Judge improperly considered petitioner's claims regarding the prosecutor's summation as federal constitutional claims because such claims were only raised as state law claims, were not included in the petition for habeas corpus and did not apply the standards contained in the AEDPA, 28 U.S.C. § 2254(d); and (4) the Magistrate Judge did not apply the standards of the AEDPA, 28 U.S.C. § 2254(d), in evaluation of petitioner's claim of ineffective assistance of counsel (Respondent's Objections), it is not necessary to rule on these objections since the Report reached conclusions on those subjects favorable to the respondent, although not based on rationale proposed by the respondent.

The objections filed by petitioner raise one point not directly decided by the Report, i.e., that petitioner's appellate counsel did not properly raise on appeal that, in response to a jury note, "the Court in a condensed and mixed fashion reiterated to the jury the elements of Murder by depraved indifference as it [sic] pertain to Marilyn Colon." (Petitioner's Objections at 22-24.) In fact, appellate counsel did argue that this supplementary charge was grounds for reversal in Point I of her brief on appeal to the Appellate Division. (Affidavit in Opposition of Karen Swiger dated April 1999, Ex. 1 at 15-18.) That appellate counsel raised the issue of the corrections of the supplementary charge is reflected in the decision of the Appellate Division, 232 A.D.2d 236, 648 N.Y.S.2d 539, and petitioner acknowledges that in a follow-up letter to Judge Titone of the New York Court of Appeals, appellate counsel "reiterated the words of her appellate brief." (Petitioner's Objections at 5.) Thus, petitioner's claim of a failure to raise this point is not well grounded and does not constitute ineffective assistance of appellate counsel.

Petitioner's remaining objections have also been reviewed and found to have been properly responded to in the Report.

Accordingly, after consideration of the Report and the objections filed thereto, it is hereby:

    ORDERED that the Report and Recommendation issued
  by Magistrate Judge Andrew J. Peck on July 29, 1999
  is accepted in accordance with 28 U.S.C. § 636(b).
  Accordingly, it is further
    ORDERED that in accordance with the Report the
  Petition of Manuel Lugo is dismissed. As the petition
  presents no question of substance for appellate
  review, a certificate of appealability will not be
  issued under 28 U.S.C. § 2253. Pursuant to
  28 U.S.C. § 1915(a)(3), it is hereby certified that no appeal
  from this order would be taken in good faith.



To the Honorable Robert P. Patterson, United States District Judge:

Petitioner Manuel Lugo seeks a writ of habeas corpus from his 1994 conviction of two counts of second degree murder, for which he was sentenced to consecutive terms totaling 45 years to life. Lugo's petition raises five claims: (a) there was insufficient evidence to support his conviction for Colon's murder (Pet. ¶ 12(A)), (b) the trial court's reasonable doubt jury instruction deprived him of a fair trial (Pet. ¶ 12(B)), (c) comments by the prosecutor in summation were prejudicial (Pet. ¶ 12(C)), (d) evidence of Colon's pregnancy was erroneously admitted into evidence (Pet. ¶ 12(C)), and (e) ineffective assistance of appellate counsel (Pet. ¶ 12(D)).*fn1 Lugo's insufficiency of the evidence claim was raised on direct appeal to the First Department but was not adequately raised in his application for leave to appeal to the New York Court of Appeals. Thus, that ground is unexhausted and procedurally defaulted in state court, and federal habeas corpus review of that claim accordingly is barred. Lugo's claim as to Colon's pregnancy was not raised in federal constitutional terms before the First Department and thus is unexhausted but procedurally barred for habeas review. Lugo's remaining claims lack merit. Accordingly, for the reasons set forth below, the Court should deny Lugo's petition.


Evidence at Trial

In the early morning of December 30, 1990, Wilfredo Roman, under orders from Manuel Lugo, shot and killed Carlos Ventura and Ventura's girlfriend, Marilyn Colon. The court tried Lugo and Roman together, but using two separate juries. (See 3/29/94 Pretrial Tr. at 2-16; see also, e.g., Trial Transcript ["Tr."] 1359-61, 1365-69.) Lugo's street name or nickname was "Supra," and Roman's street name was "Faze." (Tr. at 1480, 1486, 1489, 2066, 2407-08.)

At around 10:30 p.m. on December 29, 1990, Ventura and Colon parked Ventura's automobile on Vyse Avenue between 180th and 181st Streets in the Bronx. (Tr. 1496-98, 1500-01, 2417.) Colon was Ventura's girlfriend or wife. (Tr. 1474-75, 2401, 2417.) While Colon remained in the car, Ventura talked to Angel Otero, Ruben Cruz, and other drug dealers about their drug business. (Tr. 1501-02, 2417-18.) Cruz informed Ventura, a drug dealer in the area (Tr. 1473-74, 2400), that Lugo was selling crack (in "blue tops" vials) in Ventura's territory. (Tr. 1501, 1682, 1684, 1688, 2405, 2418-19, 2489.) A half hour later, Lugo drove by, Cruz stopped him, and Lugo and Ventura had a lengthy argument about their drug sales territories. (Tr. 1503-05, 1688, 1693-97, 1705, 2420-22, 2424, 2440.) Following the argument, Ventura returned to his parked automobile and sat with Colon. (Tr. 2424.)

Lugo then went to the corner of 181st Street and Vyse Avenue. Wilfredo Roman came over, and Lugo told Roman to retrieve a gun from his apartment. (Tr. 1520-21A, 1524-25, 1536-37, 1706-07, 1745, 2424-26.) About fifteen minutes later, at around 1:00 a.m., Roman returned with something "bulky" underneath his jacket, and Lugo told him: "go do what you have to do, go do your job. But be careful of his wife because she's pregnant." (Tr. 1524, 1526-28, 1537-38, 1540, 1549, 1710-11, 1714-16, 1747-48, 1764-65, 2429-31, 2435.)

Roman walked down the block, stopped behind Ventura's car, and opened fire towards Ventura. (Tr. 1528, 1540-43, 1545, 1717-18, 1748, 2431.) Roman fired six or seven shots from an Uzi through the car's rear window, killing Ventura. (Tr. 1543-45, 2432.) Roman "was going to leave, but since he heard [Colon] screaming" he moved to the rear by the passenger side where Colon was sitting and fired one shot at close range into her head. (Tr. 1546-48, 1568, 1718-19, 2432.) Roman left, going towards the same building from which he had gotten the gun. (Tr. 1553-54.)

A short time later, Lugo asked Otero if "Carlos was dead already." (Tr. 1553.) When Otero responded that Ventura was dead, Lugo left the scene. (Id.)

Approximately three days after the shooting, Lugo and Roman went to Otero's apartment, carrying an Uzi. (Tr. 1584-85, 1752, 2443.) Lugo told Otero that it was the gun "used to fix that smart guy." (Tr. 1585, 2443-45.) Lugo and Roman asked Otero to keep the Uzi for them, but Otero said no. (Tr. 1586-87.)

After Otero was arrested (along with Lugo) for selling crack, Otero gave the police and the prosecutors information about the shootings of Ventura and Colon. (Tr. 1577-83, 1761-63, 1818, 2251-52.) Lugo and Roman were arrested on February 19, 1991. (Tr. 2069-71, 2076-77, 2147-48, 2150, 2179-80, 2256-57, 2445-46.)*fn2

At the close of the evidence, the People agreed to Lugo's counsel's motion to dismiss the intentional second degree murder count as to Colon (Tr. 2637-38), but the trial court denied the defense motion to dismiss the second degree depraved indifference murder count as to Colon. (Tr. 2638, 2652-54.) The trial court explained:

  I will charge the fourth count of the indictment
  charging the defendant with murder in the second
  degree under the theory of depraved indifference as
  it is applicable to the deceased, Marilyn Colon.
    The reason for that [is] . . . that the evidence in
  the case demonstrates that Mr. Lugo allegedly told
  Mr. Roman, "go do your duty, but be careful of the
  girl, she is pregnant."
    Although that demonstrates a lack of intent to kill
  her intentionally, it does not relieve him of the
  responsibility that flows from the fact that during
  the shooting of Mr. Ventura, Mr. Lugo is charged with
  knowing that the act of shooting someone with a
  semi-automatic Uzi creates a grave risk. It
  demonstrates a reckless engagement in conduct which
  creates a grave risk of death to another person, and
  that is all that he is charged with foreseeing.
    That's the responsibility of knowing that there's a
  grave risk of death to another person and
  nonetheless, sets forth this dangerous activity by a
  person acting in concert with him, which end up in
  the death of a second person, to wit, Miss Colon.
    Accordingly, based on that reasoning, the Court
  will charge depraved indifference as to defendant
  Lugo, as it is applicable to the deceased, Marilyn

(Tr. 2652-53.) Defense counsel noted that the evidence, viewed most favorably to the State, was "one person telling another one to kill person `X' and then shots are fired directly at that person `X', . . . bullets are not sprayed," and that after that was completed, "the shooter heard screaming, and then returned in a completely separate and different act and then intentionally shot person `A'." (Tr. 2655-56.) The trial court felt that was a factual argument to be presented to the jury. (Tr. 256-57.)*fn3

Testimony Concerning Colon's Pregnancy

In a pretrial ruling concerning the issue of Colon's pregnancy, over Lugo's objection, the trial court allowed the assistant medical examiner to testify that Colon was pregnant at the time of the shootings. (e.g., Tr. 1999, 2019), noting the relevance of this evidence to the depraved indifference murder charges against Lugo. (3/29/94 Pretrial Tr. 16-25.) The trial judge held that he was going to allow the evidence that Ms. Colon was pregnant because the People informed him they would introduce evidence that Lugo said to "`be careful of the woman [Colon] because she is pregnant.'" (3/29/94 Pretrial Tr. 17-18, 22, 25.) However, the court prohibited the prosecution from offering evidence that Colon was nine months pregnant or that Colon gave birth to a live baby before she died, or that the baby was alive at the time of trial. (3/29/94 Pretrial Tr. 17-25; Tr. 2019-21.) At trial itself, Lugo made no objection to testimony concerning his statement to Roman regarding Colon's pregnancy. (E.g., Tr. 1526-28, 1538, 1549, 1710-15, 2429-31), which he used for his own benefit. (E.g., Tr. 2571-74.)

The Prosecutor's Summation

During summations, the prosecutor stated:

    Now, this case is not a drug case, However, drugs
  are very important for the motive in this murder.
  This case is about the snuffing out of two human
  lives. The issue is not whether the drug dealer has a
  right to be protected. The issue is not whether a
  drug dealer's life is more important or less
  important than anyone else's. Everyone hates drug
  dealers, everyone hates drugs. Drugs are ruining our
  community, our families, our children, our nation.


    THE COURT: Don't let that argument create a passion
  in you that will lead you to disregard the cool, calm
  evaluation of the evidence which will be your
    [THE PROSECUTOR]: Also bullets can stray and hit
  innocent bystanders. We do not live in the wild west,
  we must all follow the law because when bullets fly,
  innocents die.
    A look, a glance, a stare, people are murdered
  every day for the stupidest of reasons, over

(Tr. 2824-25, 2836.) Defense counsel objected both to the first and third paragraph of remarks quoted above. (Tr. 2824-25, 2836.) The prosecutor also mistakenly represented in summation that the murder weapon had been found. (Tr. 2885.) Defense counsel's objection was sustained. (Tr. 2885-86.)

The Trial Court's Charge to the Jury

In its preliminary instructions to the jury at the very beginning of the trial, the trial judge told the jury that "[t]he defendants, each of them have pled not guilty to the indictment, and according to the law, the People now have the burden to prove each defendant guilty beyond a reasonable doubt. The defendants need not prove anything. Each defendant is presumed to be innocent." (Tr. 1356.)

In the final jury charge, the trial judge first instructed the jury about the presumption if innocence:

    In this and every criminal case the accused is
  presumed to be innocent. That presumption remains
  with the defendant throughout the trial, until and
  unless the defendant's guilt is proven beyond a
  reasonable doubt. That presumption of innocence
  continues right through the trial. It exists at this
  moment and it accompanies you to the jury room, and
  the only way it can be destroyed, the only way it can
  be taken is by all of our agreeing, unanimously, that
  based upon the evidence presented, you are convinced
  beyond a reasonable doubt that the defendant is,
  indeed, guilty. Only if the evidence which you accept
  and believe convinces you beyond a reasonable doubt
  that the defendant is guilty can the presumption be
  discarded and only then can a verdict of guilty be
    This burden remains upon the prosecution throughout
  the trial and never shifts to the defendant. No
  defendant is required to prove his innocence and each
  element of every crime submitted to you must be
  proven beyond a reasonable doubt. . . .

(Tr. 3013-14.)

The judge then spent almost five transcript pages explaining to the jury the proof beyond a reasonable doubt standard:

    So, now I discuss with you the constitutionally
  mandated standard of proof in all criminal cases,
  that of proof of guilt beyond a reasonable doubt. The
  standard required in all criminal cases is proof of
  guilt beyond a reasonable doubt. That standard,
  however, does not require that the People prove guilt
  beyond all doubt. It does not require that the People
  prove guilt to a scientific or a mathematical
  certainty or beyond a shadow of a doubt, whatever
  that means.
    It does require that the People prove guilt beyond
  a reasonable doubt and that is the highest standard
  of proof known to the law. There is no higher
  standard. Our law, therefore, requires that before
  this jury may convict the defendant, each of you must
  be satisfied that the believable evidence is
  sufficient to convince you beyond a reasonable doubt
  that the defendant is, in fact, guilty. . . .
    A doubt of a defendant's guilt to be a reasonable
  doubt must be one for which some reason can be
  given. The doubt to be a reasonable doubt must arise
  either because of the nature and quality of the
  evidence or because of the insufficiency of the
  evidence. . . .
    A doubt of a defendant's guilt is not reasonable
  if, instead of being based upon your evaluation of
  the nature and quality of the evidence and the
  sufficiency, it is instead, based upon a whim or a
  guess or a feeling that a juror may have that's
  unconnected with the evidence in the case. A doubt of
  the defendant's guilt is not reasonable if it is
  based upon a mere desire by a juror to avoid what the
  juror now discovers to be a disagreeable
    I therefore repeat, a doubt of a defendant's guilt,
  in order to be a reasonable doubt, must arise either
  because of the nature and quality of the evidence or
  because of the insufficiency of the evidence in this
    If after doing so you then feel uncertain and not
  fully convinced of the defendant's guilt, and you are
  satisfied that you are acting as a reasonable person
  should act in a matter of this importance, then that
  is a reasonable ...

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