The opinion of the court was delivered by: Baer, District Judge.
Pro se petitioner Juan Herrera seeks a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 challenging his April 13, 1993
conviction for murder in the second degree and arson in the
second degree. Herrera raises the following challenges to his
conviction: (1) that the state trial court erred in admitting
evidence of petitioner's threatening gesture to a State's
witness, (2) that the court's erroneous Sandoval ruling
prevented him from testifying at trial, and (3) that the court's
sentence was excessive. For the following reasons, the petition
On February 24, 1992, petitioner was convicted of murder in
the second degree N.Y. Penal Law § 125.25, and arson in the
second degree, N.Y. Penal Law § 150.15. The judge sentenced
petitioner, a second violent felony offender, to consecutive
prison terms of twenty-five years to life imprisonment for the
second degree murder count and twelve and a half to twenty-five
years for the second degree arson count.
Evidence introduced at trial established that petitioner shot
and killed Roberto Carrion, his roommate and brother-in-law, in
their apartment on February 14, 1992. After the murder, Herrera
set the apartment on fire and left the building. When he
returned, he alerted the Housing Police to the fire and allowed
the police to enter the apartment. After the fire department
arrived and extinguished the fire, a firefighter discovered
Carrion's partially burned body in a rear bedroom of the
apartment. An autopsy revealed that the cause of death was three
gunshot wounds, two to the head and one to the left forearm.
While the fire department and the police investigated the
scene, petitioner made several unsolicited statements to various
police officers regarding his whereabouts earlier that morning.
An autopsy conducted on Carrion's body revealed he had been shot
at a time when petitioner claimed he and Carrion had been alone
in the apartment. Other evidence implicated petitioner including
a fresh burn on his arm that he claimed he received a week
earlier while cooking.
Before trial, the court considered whether evidence of
petitioner's prior convictions was admissible for impeachment
purposes. See People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849,
314 N.E.2d 413 (1974). After reading petitioner's rather
extensive criminal history into the record, the trial court
ruled that petitioner's 1998 conviction for arson in the second
degree was admissible for impeachment purposes but the court
forbid any inquiry into the underlying facts and circumstances
of the conviction.
Herrera did not testify at trial but rested his defense on a
challenge to the reliability of the State's witnesses. The jury
found petitioner guilty of murder in the second degree and arson
in the second degree. On appeal, Herrera argued that the trial
court had erred in admitting evidence of an alleged threatening
made to one of the witnesses, had erroneously ruled that
evidence of prior crimes was admissible for impeachment
purposes, and had abused its discretion in sentencing him to
consecutive terms. The Appellate Division rejected Herrera's
arguments and unanimously affirmed his conviction. See People
v. Herrera, 245 A.D.2d 12, 665 N.Y.S.2d 643 (1997). Petitioner
filed an application for leave to appeal to the New York Court
of Appeals, but his application was denied without comment on
June 8, 1998. See People v. Herrera, 92 N.Y.2d 853,
677 N.Y.S.2d 83, 699 N.E.2d 443 (1998). On April 1, 1999, Herrera
filed this petition.
A federal court's review of state proceedings on a habeas
petition is limited. 28 U.S.C. § 2254(d) precludes federal
habeas relief unless a federal court finds that the state
court's adjudication of the merits of the claims either:
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d)(1), (2); see also Williams v. Taylor,
529 U.S. 362, 390, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Mitchell
v. Herbert, No. 97 Civ. 5128, 1998 WL 186766, at*2 (S.D.N.Y.
Apr. 16, 1998). Petitioners bear the burden of proving
violations of federal law by a ...