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TORRES v. FISCHER

January 12, 2004.

JOSE TORRES, Petitioner, -v.- BRIAN FISCHER, Superintendent, Sing Sing Correctional Facility, Respondent


The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge

REPORT AND RECOMMENDATION

Jose Torres brings this petition for writ of habeas corpus pro se pursuant to 28 U.S.C. § 2254. Following a jury trial in Bronx County Supreme Court, Torres was convicted of one count of Burglary in the Second Degree. He was sentenced as a second felony offender to ten years in state prison. Torres is currently incarcerated pursuant to that judgment in Sing Sing Correctional Facility in Ossining, New York. For the reasons below, the petition should be denied.

I. BACKGROUND

  A. Torres's Trial

  On September 9, 1996, Carmen Madera came home from work to find her bedroom in disarray and some jewelry, compact discs, and clothing missing from her apartment. (Madera: Tr. 555, 557-64). Madera's three children were in the apartment watching television but they had not noticed the missing items. (Madera: Tr. 570-71). Madera called the police and Officer Richard Rogich from the Latent Print Unit responded. (Madera: Tr. 564-65; Rogich: Tr. 498, Page 2 513-14). Upon investigation, Officer Rogich determined that someone had picked the front door lock and entered the apartment. (Rogich: Tr. 514-15). Officer Rogich dusted for fingerprints and was able to lift eight sets of prints from items in the apartment. (Rogich: Tr. 516-26). He also took the fingerprints of Madera and her children so they could be eliminated as perpetrators. (Rogich: Tr. 526-27).

  Detective William Collins of the Latent Print Unit received the prints taken by Officer Rogich the following day. (Collins: Tr. II. 3, 15).*fn1 First, he examined them using a magnifying glass and determined that five of the prints were of no value, meaning they could not be identified under any circumstances. (Collins: Tr. II. 15, 19-21). Detective Collins entered the three remaining prints one-by-one into a computer system called SAFIS (State Automated Fingerprint Identification System), which produces a list of possible matches. (Collins: Tr. II. 22-24). Comparing the latent prints lifted from Madera's apartment to the inked fingerprints on file of the possible matches, Detective Collins identified two of the fingerprints as belonging to Jose Torres. (Collins: Tr. II. 24-26). The third latent print from the apartment did not match any prints on file. Detective Collins also later compared the latent prints from the crime scene to inked prints of Torres taken after his arrest in this case. (Collins: Tr. II. 25-27; Lang: Tr. 487-94). One print, lifted from the side of a jewelry box in Madera's bedroom, matched Torres's left thumb and another, lifted from a different jewelry box also in Madera's bedroom, matched Torres's left ring finger. (Collins: Tr. II. 26-27; Rogich: Tr. 524-26). Page 3

  Madera testified that she did not know Torres or give him permission to enter her home. (Madera: Tr. 568-69). Torres did not call any witnesses.

  The jury found Torres guilty of Burglary in the Second Degree. (Tr. 635). Torres was sentenced to a determinate sentence often years to run consecutively with a previously imposed sentence on another case. (Sentencing Tr. 15-16).

  B. Torres's Direct Appeal

  On appeal to the Appellate Division, First Department, Torres raised the following three issues:
1. Was appellant's conviction against the weight of the evidence when he was only connected to the burglary by a stray fingerprint that was never conclusively tied to him or otherwise adequately explained? (U.S. Const., amends. VI, XIV; N.Y. Const., art. I, § 6).
2. Did the prosecutor violate Batson[v. Kentucky. 476 U.S. 79 (1986)], when she used 90% of her peremptory challenges to strike nine of the 11 black women from the jury panel? (U.S. Const., amend. XIV; N.Y. Const., art. 1, § 11; C.P.L. § 270.25).
3. Was the sentence of 10 years' incarceration consecutive to a previously imposed sentence of 7 !/2 to 15 years' incarceration excessive given defendant's background and the nature of the offense?
Brief of Defendant-Appellant, dated July 2001 ("Pet. App. Div. Brief) (reproduced as Ex. 1 to Affidavit in Opposition to Petition for Writ of Habeas Corpus, filed August 1, 2003 ("Opp. Aff.")), at 2, 11, 19. With respect to the first issue, Torres's brief on appeal also challenged the legal sufficiency of the evidence against him inasmuch as it cited to Jackson v. Virginia. 443 U.S. 307 (1979). See id. at 11. 18.

  On February 14, 2002, the Appellate Division unanimously affirmed Torres's conviction. People v. Torres. 291 A.D.2d 267 (1st Dep't 2002). In holding that "[t]he verdict was not against Page 4 the weight of the evidence," the court stated that "[t]he fingerprint expert sufficiently stated the facts underlying his opinion that two latent fingerprints recovered from the burglarized premises matched those of defendant." Id. at 267. The court declined to review Torres's Batson claim because Torres's arguments that the race-neutral explanations offered by the prosecutor were pretextual were "unpreserved." Id. The court went on to state, "[w]ere we to review these claims, we would find that the court properly found the explanations to be nonpretextual." Id. As for his third claim, the court found no basis for reducing Torres's sentence. Id.

  By letters dated February 26, 2002 and March 4, 2002, Torres sought leave to appeal from the New York Court of Appeals with respect to all of the issues raised in his brief to the Appellate Division. See Opp. Aff. ¶ 8. On May 10, 2002, leave was denied. People v. Torres. 98 N.Y.2d 656 (2002).

  C. The Instant Habeas Petition

  Torres timely filed this petition for writ of habeas corpus on May 12, 2003. He argues that his conviction was against the weight of the evidence, that the evidence adduced at trial was legally insufficient to support his conviction beyond a reasonable doubt, and that the prosecutor's use of peremptory challenges violated Batson. See Petition for Writ of Habeas Corpus, filed May 12, 2003 ("Petition"), at 5-6. Torres has properly exhausted his state law remedies as he has fairly presented the constitutional nature of these claims to each of the state courts. See Dave v. Attorney Gen., 696 F.2d 186, 190-92 (2d Cir. 1982) (en bane), cert. denied, 464 U.S. 1048 (1984). Page 5

 II. STANDARD OF REVIEW

  Under the Antiterrrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a petition for writ of habeas corpus may not be granted with respect to any claim that has been "adjudicated on the merits" in the state courts unless the state court's adjudication: "(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). The Second Circuit has held that for a state court decision to constitute an "adjudication on the merits," the state court need only base its decision on "the substance of the claim advanced, rather than on a procedural, ...


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