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SPERINGO v. MCLAUGHLIN

April 25, 2002

FRANK SPERINGO, PETITIONER,
V.
HERBERT MCLAUGHLIN, SUPERINTENDENT OF HUDSON CORRECTIONAL FACILITY DEFENDANT.



The opinion of the court was delivered by: VICTOR Marrero, United States District Judge.

      DECISION AND ORDER

Petitioner Frank Speringo ("Speringo"), represented by counsel, filed a petition for habeas corpus for relief from his New York state conviction of manslaughter and third degree assault. The State of New York (the "State") opposed his petition. For the foregoing reasons, Speringo's petition is denied.

I. BACKGROUND

Speringo was charged with second-degree murder and first-degree assault on October 25, 1996. The State's case against Speringo was that on September 17, 1996, after drinking alcohol, Speringo, an off-duty New York City police officer, carried his loaded gun into a restaurant in the Bronx. There he continued to drink alcohol, precipitated a fight with Enrique Paulino ("Paulino") and shot two other restaurant patrons. In that incident, Maria Rivas ("Rivas") was fatally shot and Robert Castillo ("Castillo") was wounded. On September 26, 1996, Speringo was convicted of lesser included charges: second-degree manslaughter and third-degree assault.

At trial, and over Speringo's trial counsel's ("Trial Counsel") objections, the State introduced Section 105-01 of the Police Department's Patrol Guide which provides that officers are authorized to carry guns while off-duty but are recommended not to carry them when the officer intends to drink alcoholic beverages (the "Patrol Guide"). (Trial Transcript ("Tr.") at 428-29, 779-80.) The Court permitted its introduction as relevant to show whether Speringo had a conscious disregard for a known risk. (Tr. at 435.)

According to restaurant personnel who testified at trial, Speringo already had been drinking before he arrived at the restaurant between 4:30 and 5 a.m. on September 17, 1996, with Ramon Vargas ("Vargas") and another man. Despite the restaurant's rule against serving alcohol at that hour, the waitress served the group drinks perhaps because Speringo was a police officer. (Tr. at 281-83.) At neighboring tables sat Paulino and his companions. Although none knew the precise cause, Speringo subsequently started a fight with Paulino that resulted in the shooting of Rivas and Castillo, two other restaurant customers.

According to the testimony of three witnesses — Paulino, Carlos Sanchez ("Sanchez") and Elvis Paulino ("Elvis") — Speringo first tripped Paulino as he passed Speringo's table. Vargas diffused the situation by explaining that Speringo was merely drunk and the men shook hands. After that interaction, Speringo threw ice at Paulino. In response, Paulino approached Speringo to ask: "what's wrong with him." Speringo responded by grabbing Paulino's shirt and the two fell down. (Tr. at 140.) Bystanders shouted warnings that Speringo was a cop and the men were separated by other customers, including Paulino's companions. Indeed, it appeared that the crowd drew back from Speringo upon learning that he was a police officer. After the two were separated, Paulino looked down to straighten his shirt. When he looked up, Paulino saw Speringo pointing a gun at the head of Sanchez. (Tr. at 141, 319, 822.) Paulino grabbed Speringo's arm, bent it upward, and the gun fired a shot that struck Rivas and Castillo. (Tr. at 141.) Paulino, with the aid of his brother Elvis and the restaurant's manager, disarmed Speringo. The manager confiscated the gun. At that point Paulino and his friends left.

According to the State's ballistics evidence, Rivas and Castillo were both hit by a single bullet. The bullet wounded Castillo in the arm before fatally wounding Rivas in the head. The ballistics report further indicated that the bullet removed from Rivas's body was consistent with those fired from Speringo's gun. (Tr. at 777-78.) Results of a fingerprint report were introduced at trial: seven latent fingerprints were found on Speringo's gun but only two could be used for identification purposes. (Tr. at 742.) Neither fingerprint matched Speringo's. (Tr. at 729, 734.)

Speringo put on a defense. First, he testified and admitted to having had alcohol that night. (Tr. at 877, 883-84, 915.) He denied tripping or throwing ice at Paulino. (Tr. at 892.) He stated that Paulino approached him aggressively and grabbed Speringo's shirt, causing him to slip off his chair. The two men fell to the floor. On the floor, Paulino hit Speringo a couple of times and Elvis kicked him. (Tr. at 892-94.) Also while he was on the floor, Speringo's shirt came undone and his gun was revealed. Paulino attempted to take the gun when Speringo pushed him off. Speringo stood up carrying the gun with his finger on the safety guard. (Tr. at 894-98.) He was surrounded by Paulino, Elvis and their companions when Paulino grabbed at the gun and put his finger on the trigger. During the struggle between Speringo, Paulino and Sanchez, the gun went off. (Tr. at 899-400.) Speringo argued that he was not the one who killed Rivas or Castillo.

After the shooting, Speringo went to Columbia Presbyterian Hospital. There was no evidence that he saw a doctor for treatment of injuries he suffered from the fight or to evaluate whether he was under the influence of alcohol. Trial Counsel introduced photographs of Speringo's injuries taken at some point after the fight.

Robert Gianelli ("Gianelli"), executive officer of the New York City Police Department's Special Operations Division, also appeared for the defense. Gianelli testified that, at Columbia Presbyterian Hospital several hours after the shooting, he met with Speringo and found him fit for police duty rather than inebriated.

Trial Counsel did not call Vargas as a witness. According to Speringo, Trial Counsel did not personally interview Vargas prior to making the decision not to call Vargas. However, Trial Counsel did have a private investigator working for the defense interview Vargas.

During summation, the State focused on the jury's role in evaluating witness credibility. In that vein, the prosecutor commented on the "honesty and the decency" of the restaurant employees who testified. (Summ. at 30.) He opined on the interests and motivations of each witness, and vouched for the credibility of other witnesses called by the State (Summ. at 7, 38-40, 42, 52, 63-64). Finally, the prosecutor commented on Speringo's testimony and credibility. (Summ. at 7, 67-95.) The jury returned a verdict on the lesser included charges.

Speringo filed a direct appeal raising four issues, whether: (1) testimony regarding the Patrol Guide concerning the carrying of weapons by officers who are off-duty, which provisions are precatory, was properly received into evidence; (2) the evidence was sufficient to sustain the verdict; (3) the prosecutor's summation constituted misconduct; and (4) the sentence was excessive. of these direct appeal issues, Speringo raises only the first and third in his habeas petition.

On appeal, Speringo first argued that the Patrol Guide evidence should not have been introduced in a criminal prosecution to show a standard of conduct. (See Defendant Appellant's Brief, at 15-18 (relying on New York state law).) This error was not harmless, he reasoned, because "instead of focusing on what happened, the jury was told to focus instead on whether defendant violated an internal "rule.'" (Id. at 18.)

The State opposed Speringo's direct appeal, relying only on New York state law in its brief. The New York State Supreme Court, Appellate Division, denied Speringo's appeal. In particular, it found that the Patrol Guide evidence was properly admitted into evidence and that Speringo's challenge to the State's summation was not preserved for appeal. Nevertheless, the Appellate Division commented that were it to reach those claims, it would find that:

[T]he challenged comments were responsive to the defense summation and were based on the evidence, and that, since defendant presented a defense, the People properly commented on defendant's failure to call the father of his girlfriend [Vargas].

People v. Speringo, No. 9967/95, Slip. Op. at 2 (N.Y. App. Div. 1st Dep't Feb. 23, 1999) (the "Direct Appeal"). Speringo sought to appeal the issue of the introduction of the Patrol Guide into evidence. The New York Court of Appeals denied Speringo permission to appeal. See People v. Speringo, No. 9967/95, Slip. Op. at 1 (N.Y. May 5, 1999.)

Speringo obtained new counsel and brought a collateral attack in New York State Supreme Court, New York County, to vacate the judgment, made pursuant to N.Y. Crim. Proc. L. ("CPL") § 440.10 and 440.30, asserting that (1) Speringo was denied effective assistance of trial counsel in violation of the Sixth Amendment to the United States Constitution and Article 1, Section 6 of the New York State Constitution and (2) Speringo was denied access to exculpatory evidence allegedly contained in the fingerprint report, in violation of the disclosure requirement set forth in Brady v. Maryland, 373 U.S. 83 (1963). The State opposed Speringo's collateral attack.

The State Supreme Court denied Speringo's collateral attack in its entirety. See People v. Speringo, No. 9967/95, Slip Op. at 2 (N.Y. Sup.Ct. July 24, 2000) (the "Collateral Attack"). The Supreme Court found that, even though the fingerprint report was not listed on the Voluntary Disclosure Form or the Rosario material list of prior statements made by witnesses for the prosecution, see Peogle v. Rosario, 173 N.E.2d 881 (N.Y. 1961), "the transcript of the trial makes perfectly clear that counsel had received this fingerprint report and had decided to exploit the State's failure to determine to whom the two prints "of value' belonged, since they did not belong to defendant." Collateral Attack at 3.

Speringo moved for leave to appeal. The Appellate Division, First Department, denied Speringo leave to appeal. See People v. Speringo, No. M — 4768, Slip. Op. at 1 (N Y App. Div. 1st Dep't Sept. 28, 2000). On October 23, 2000, Speringo filed the instant petition.

II. DISCUSSION

Speringo's petition for the extraordinary relief of habeas corpus is governed by 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act (hereinafter "AEDPA"). Under AEDPA, a federal court may not grant a writ of habeas corpus with respect to any claim that was "adjudicated on the merits" in the state court unless the state court decision is either contrary to clearly established federal law or involved an unreasonable application of clearly established federal law, as determined by the United States Supreme Court. See 28 U.S.C. § 2254 (d); Morris v. Reynolds, 264 F.3d 38, 46 (2d Cir. 2001) (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)).

Clearly established federal law refers to the holdings only, not the dicta, of the United States Supreme Court. See Morris, 264 F.3d at 46. The state court's application of clearly established federal law must be objectively unreasonable, not merely erroneous. See Williams, 529 U.S. at 387 n. 14; accord Clark v. Stinson, 214 F.3d 315, 320-21 (2d Cir. 2000)

A. PROCEDURAL DEFAULTS

Speringo seeks habeas corpus relief on four legal theories. First, he claims that his Sixth Amendment right to effective assistance of counsel was denied by Trial Counsel's failure to: (1) obtain a copy of, and request sanctions for the State's failure to produce, the fingerprint report; (2) order particular individuals to submit their fingerprints for comparison purposes; (3) personally interview a witness before deciding against calling the witness; (4) obtain hospital records or witnesses; (5) object to the Prosecution's summation; and (6) request a justification defense charge. As ...


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