The opinion of the court was delivered by: Berman, District Judge.
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.
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.
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
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.
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
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 then filed a consolidated appeal of both the
judgment of conviction, as well as the denial of his June 1984
CPL § 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 ...