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August 2, 2000


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


I. Introduction

Pro se petitioner Severino Diaz ("Petitioner" or "Diaz") seeks a writ of habeas corpus under 28 U.S.C. § 2254, challenging his 1982 murder (second degree) conviction in New York State Supreme Court, New York County.*fn1 N.Y. Penal Law § 125.25. Diaz was sentenced to an indeterminate prison term of fifteen years to life, and is currently incarcerated in Sing Sing Correctional Facility in Ossining, New York. Petition at 2;*fn2 Aff. in Opp. ¶ 4.*fn3

Diaz asserts the following challenges to his conviction: (1) the crime was not proven beyond a reasonable doubt; (2) improper "bolstering" at trial of the eyewitness testimony of Carlos Cabreja ("Cabreja"); (3) improper introduction at trial of evidence that Diaz fled to Florida; and (4) denial of Petitioner's N.Y.Crim. Proc. Law ("CPL") § 440.10 motion without conducting a hearing. Petition at 5-6.

Respondent asserts that Diaz's claims are all "unexhausted" within the meaning of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Title I, § 106(b), Pub.L. No. 104-132, 110 Stat. 1214 (April 24, 1996), because (i) they were not specifically raised in Petitioner's motion, dated June 2, 1986, for leave to appeal his conviction to the New York State Court of Appeals, see Respondent Exhibit K, and, (ii) alternatively, they were never raised in Petitioner's direct appeal, dated July 1985, to the Appellate Division, First Department, as issues of a constitutional dimension. Aff. in Opp. ¶ 25-32.*fn4 Respondent also argues that Diaz's claims are without merit. Id. at. ¶ 33.

For the reasons set forth below, the writ is denied and the Petition is dismissed.

II. Background

Diaz was found to be involved in an incident on December 15, 1980, at the corner of 173rd Street and St. Nicholas Avenue in Manhattan, in which he shot and killed Ernesto Luciano ("Luciano"). Id. at ¶ 14. Luciano was out drinking with some friends at a bar, "Las Tres Copas." Id. After leaving the bar, Luciano went to "Viente de Mayo," a restaurant next door. Id. While there, Luciano, who was drunk, became angry and began yelling at a waitress. Id. Petitioner, who was also in the restaurant, interceded and punched Luciano twice, causing his eye to bleed. Id. Luciano then challenged Petitioner to fight him outside.

The two men began to fight; Luciano swung at Petitioner but missed him. Id. at ¶ 15. Petitioner, according to an eyewitness, pulled a gun from his waistband and shot Luciano. Id. Petitioner then fled on foot with another man. Id. Luciano died the next day, December 16, 1980, from a gunshot wound in the lower back. Id. At the time of his death, he also had a laceration over his right eye and bruises on his head. Id.

Carlos Cabreja, an eyewitness to the shooting, told detectives that the gunman was a Cuban named "Severino" or "Soriano," whom he saw almost every day. Id. at ¶ 16. Cebreja described "Severino" as being approximately 40 years old; having a fair complexion; as five feet, seven or eight inches tall; weighing approximately 160 pounds; with hair that went straight back and was balding on top. Id.

The next day, Detective Michael Fletcher began searching for the Petitioner. Id. at ¶ 17.

Shortly after the killing, Diaz left New York for Florida, allegedly "to renew his drivers [sic] license." Petition at 6. On May 14, 1981, Detective Fletcher saw Petitioner entering a car in front of "Las Tres Copas;" the car bore Florida license plates. Aff. in Opp ¶ 17. Detective Fletcher arrested Petitioner and advised him of his Miranda rights. Id. He then asked Petitioner if he was in the area of the bar on the night of the shooting. Petitioner denied that he was in the bar or in the area. Id. Several other witnesses, however, including Hugo Roman, the manager of the bar, testified that Diaz was in the area on the night of the killing. Roman 448-451.

At the trial, Cabreja testified that he saw Petitioner shoot and kill Luciano. Cabreja 270-272. Petitioner's attorney contended that Cabreja had misidentified Petitioner. Aff. in Opp. at ¶ 18. Despite repeated questions on cross-examination and re-cross-examination, Cabreja maintained that he knew the identity of the killer (Petitioner), and, in fact, was familiar with Petitioner because he saw him almost every day and he'd "taken him certain places" in his cab. Cabreja 313-314, 360. Detective Fletcher testified that after he met with Cabreja on December 16, 1980, he immediately began looking for Petitioner. He also testified that he was unable to locate Petitioner at his last known address or anywhere in the neighborhood after the shooting; that he looked for Petitioner in Florida; and that other detectives assisted him in his search. In his testimony, Fletcher also repeated some of the conversation that he had with Cabreja, identifying the Petitioner as the killer.

At the trial. Petitioner's attorney introduced pictures of a man named Miguel Esteves ("Esteves") into evidence, and claimed that Esteves was the actual killer. Aff. in Opp. ¶ 18. At the conclusion of the case, Esteves was introduced as a "physical exhibit," i.e., he stood up in court before the jury but never testified, invoking his 5th Amendment privilege. Id. Also at trial, the prosecution introduced evidence that Petitioner disappeared from his neighborhood shortly after the Luciano shooting and that, when arrested, Petitioner claimed that he was not at the scene of the crime. The evidence of Petitioner's flight to Florida, as well as his false statements that he was not at the scene of the crime, were introduced as evidence of "consciousness of guilt." See Resp. Exh. H at 31. Petitioner did not request a jury instruction regarding consciousness of guilt evidence and one was not given.

Petitioner was convicted on December 3, 1981.

Post-Verdict and Post-Judgment Motions

Petitioner made three motions to set aside the verdict or vacate the judgment of conviction. First, on January 18, 1982, Petitioner moved, prior to sentencing, pursuant to CPL § 330.30, to set aside the verdict on the ground of newly discovered evidence.*fn5 Petitioner's motion included an affidavit by Diogenes Tavares, stating that Petitioner did not commit the crime. On January 22, 1982, the trial court orally denied Petitioner's motion on the ground that the information contained in Tavares' affidavit was, in fact, known to the defense before trial.

On September 3, 1982, Petitioner filed a motion, pursuant to CPL § 440.10, to vacate the judgment of conviction. This motion repeated the defense theory that Esteves was the real killer. Attached to the motion was an affidavit from Antonio Gomez, which stated that Esteves had killed Luciano. An evidentiary hearing was held on the motion and Gomez was called as a witness. The hearing ended after Gomez disavowed his affidavit. Aff. in Opp. ¶ 8. On March 2, 1983, the trial court denied Petitioner's motion. Petitioner sought leave from the New York State Supreme Court, Appellate Division, First Department ("Appellate Division") to appeal. On May 31, 1983, the Appellate Division denied Petitioner's application.

Third, in June 1984, Petitioner filed a second CPL § 440.10 motion to vacate the judgment of conviction. On August 15, 1984, the trial court rendered an oral decision denying Petitioner's motion without a hearing.*fn6 On September 14, 1984, Petitioner moved in the Appellate Division for leave to appeal the trial court's denial of the June 1984 CPL § 440.10 motion, and to consolidate that appeal with Petitioner's (then) pending direct appeal of the judgment of conviction. On October 11, 1984, the Appellate Division granted Petitioner's application.

Petitioner then filed a consolidated appeal of both the judgment of conviction, as well as the denial of his June 1984 CPL ยง 440.10 motion, to the Appellate Division. In a brief filed in July 1985, Petitioner asserted four claims: (i) that the trial court had improperly refused to hold a hearing on his June 1984 motion to vacate the judgment of conviction; (ii) that his guilt was not proven beyond a reasonable doubt; (iii) that the testimony of the arresting officer impermissibly "bolstered" an eyewitness' (Cabreja's) identification testimony; and (iv) that he was denied a fair trial by the admission of evidence ...

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