United States District Court, E.D. New York
April 28, 2004.
PEDRO GARCIA, Petitioner,
CHARLES GREINER, Superintendent, Green Haven Correctional Facility, Respondent.
The opinion of the court was delivered by: JOHN GLEESON, District Judge
MEMORANDUM AND ORDER
Pedro Garcia petitions for a writ of habeas corpus, challenging
his convictions in state court. On March 26, 2004, I held oral
argument, in which Garcia participated by telephone conference.
The petition is denied for the reasons set forth below.
BACKGROUND The government's evidence at trial established that, on
February 12, 1995, Garcia went on a shooting rampage. He shot and
killed his wife, Evelyn, in front of their four-year-old
daughter, Venus. He shot Evelyn's son, Michael Alicea, in the
face at point-blank range and then shot her nephew, David Alicea,
in the arm. Within minutes, the police responded to the crime
scene, learned from the surviving victims that Garcia was the
shooter, and arrested him.
Garcia was charged with murder in the second degree, two counts
of attempted murder in the second degree, two counts of assault
in the first degree, assault in the second degree, criminal
possession of a weapon in the second degree, and reckless
endangerment in the first degree.
Before the jury was charged, defense counsel moved for a
mistrial based on the prosecutor's conduct during summation.
Defense counsel claimed that the prosecutor deprived Garcia of a
fair trial by, among other things, attempting to appeal to the
emotions of the jury, introducing evidence outside the record,
denigrating defense counsel and vouching for the government's
witnesses. The trial judge denied this motion.*fn1
The jury found Garcia guilty of murder in the second degree,
one count of attempted murder in the second degree (relating to
Michael Alicea), assault in the first degree, criminal possession
of a weapon in the second degree, and reckless endangerment in
the first degree. He was acquitted of the second count of
attempted murder (relating to David Alicea), and of second degree
assault. Garcia was sentenced, as a second felony offender, to
consecutive prison terms of twenty-five years to life on the
murder conviction, twelve and one-half to twenty-five years for
the attempted murder conviction, seven and one-half to fifteen
years for the first-degree assault conviction, and from three and one-half to seven years for the
reckless endangerment conviction. Additionally, he was sentenced
to a concurrent prison term of seven and one-half to fifteen
years for the weapons conviction.
Garcia, through counsel, appealed to the Appellate Division,
Second Department. Appellate counsel argued that Garcia should
receive a new trial because prosecutorial misconduct during the
summation deprived him of a fair trial. In particular, counsel
alleged that the prosecutor improperly: (1) argued facts not in
evidence (i.e., that Garcia was on parole at the time of the
shooting, and that he was using drugs in violation of parole);
(2) tried to appeal to the emotions of the jury; (3) denigrated
defense counsel by belittling his arguments; (4) shifted the
burden of proof to the defense; and (5) vouched for the
credibility of government witnesses.
The Appellate Division rejected all of these challenges and
affirmed Garcia's conviction on January 31, 2000. People v.
Garcia, 702 N.Y.S.2d 847 (2d Dep't 2000). The court stated:
The defendant's contention that reversal is required
due to the prosecutor's improper summation is largely
unpreserved for appellate review. In any event, the
challenged comments do not require reversal. A
prosecutor has broad latitude during summation,
particularly when responding to defense counsel's
summation, and here the prosecutor's statements were,
for the most part, fair comment on the evidence, or
fair response to the defense summation, which
extensively attacked the credibility of the People's
witnesses. Furthermore, the evidence of the
defendant's guilt was overwhelming, rendering any
Id. (internal citations omitted). The Court of Appeals denied
Garcia's application for leave to appeal on April 11, 2000.
People v. Garcia, 94 N.Y.2d 947 (2000). Garcia then filed a
motion for reconsideration, pro se. The Court of Appeals
granted reconsideration, but denied the application once again on
June 29, 2000. People v. Garcia, 95 N.Y.2d 835 (2000).
On February 15, 2001, Garcia filed a pro se petition for a
writ of habeas corpus in this Court, on the same grounds raised by his appellate counsel
on direct appeal.
A. The Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA") has narrowed the scope of federal habeas review of
state convictions where the state court has adjudicated a
petitioner's federal claim on the merits. See
28 U.S.C. § 2254(d). Under the AEDPA standard, which applies to habeas
petitions filed after AEDPA's enactment in 1996, the reviewing
court may grant habeas relief only if the state court's decision
"was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court of the United States." 28 U.S.C. § 2254(d)(1). The Supreme
Court has interpreted the phrase "clearly established Federal
law" to mean "the holdings, as opposed to the dicta, of [the
Supreme Court's] decisions as of the time of the relevant
state-court decision." Williams v. Taylor, 529 U.S. 362, 412
(2000); see also Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d
A decision is "contrary to" clearly established federal law, as
determined by the Supreme Court, if "the state court arrives at a
conclusion opposite to that reached by [the Supreme Court] on a
question of law or if the state court decides a case differently
than [the Supreme Court] has on a set of materially
indistinguishable facts." Williams, 529 U.S. at 413. A decision
is an "unreasonable application" of clearly established Supreme
Court law if a state court "identifies the correct governing
legal principle from [the Supreme Court's] decisions but
unreasonably applies that principle to the facts of [a]
prisoner's case." Id. "In other words, a federal court may
grant relief when a state court has misapplied a `governing legal
principle' to `a set of facts different from those of the case in
which the principle was announced.'" Wiggins v. Smith,
539 U.S. 510, 123 S.Ct. 2527, 2535 (2003) (quoting Lockyer v. Andrade,
538 U.S. 63, 76 (2003)). Under the latter standard, "a federal habeas court may not
issue the writ simply because that court concludes in its
independent judgment that the relevant state-court decision
applied clearly established federal law erroneously or
incorrectly. Rather, that application must also be unreasonable."
Gilchrist, 260 F.3d at 93 (citing Williams, 529 U.S. at 411);
see also Yarborough v. Gentry, 124 S.Ct. 1, 4 (2003) (per
curiam) ("Where . . . the state court's application of governing
federal law is challenged, it must be shown to be not only
erroneous, but objectively unreasonable."); Wiggins, 123 S.Ct.
at 2535 (same). Interpreting Williams, the Second Circuit has
added that although "[s]ome increment of incorrectness beyond
error is required . . . the increment need not be great;
otherwise, habeas relief would be limited to state court
decisions so far off the mark as to suggest judicial
incompetence." Gilchrist, 260 F.3d at 93 (citing Francis S. v.
Stone, 221 F.3d 100, 111 (2d Cir. 2000)).
This standard of review applies whenever the state court has
adjudicated the federal claim on the merits, regardless of
whether it has alluded to federal law in its decision. As the
Second Circuit stated in Sellan v. Kuhlman:
For the purposes of AEDPA deference, a state court
"adjudicate[s]" a state prisoner's federal claim on
the merits when it (1) disposes of the claim "on the
merits," and (2) reduces its disposition to judgment.
When a state court does so, a federal habeas court
must defer in the manner prescribed by
28 U.S.C. § 2254(d)(1) to the state court's decision on the
federal claim even if the state court does not
explicitly refer to either the federal claim or to
relevant federal case law.
261 F.3d 303
, 312 (2d Cir. 2001).
In addition, a state court's determination of a factual issue
is presumed to be correct, and is unreasonable only where the
petitioner meets the burden of "rebutting the presumption of
correctness by clear and convincing evidence."
28 U.S.C. § 2254(e)(1).
However, "even in the context of federal habeas, deference does
not imply abandonment or abdication of judicial review. . . . A federal
court can disagree with a state court's credibility determination
and, when guided by AEDPA, conclude the decision was unreasonable
or that the factual premise was incorrect by clear and convincing
Shabazz v. Artuz, 336 F.3d 154, 161 (2d Cir. 2003) (ellipsis
in original) (quoting Miller-El v. Cockrell, 537 U.S. 322, 340
B. Garcia's Claims of Prosecutorial Misconduct*fn2
Garcia claims that his right to a fair trial was violated by
the prosecutor's misconduct during summation. I disagree.
Habeas relief based on a claim of prosecutorial misconduct
during summation is unavailable unless the misconduct "so
infected the trial with unfairness as to make the resulting
conviction a denial of due process." Donnelly v. DeChristoforo,
416 U.S. 637, 643 (1974); see also Pimentel v. Walsh, No. 02
Civ. 570, 2003 U.S. Dist. LEXIS 19677, at *19-*20 (S.D.N.Y. Nov.
4, 2003) ("To obtain relief on a prosecutorial misconduct claim,
a habeas petitioner must show that `the prosecutor engaged in
egregious misconduct . . . amounting to a denial of
constitutional due process.'" (ellipsis in original) (quoting
Floyd v. Meachum, 907 F.2d 347, 353 (2d Cir. 1991))). "It is
not enough that the prosecutor's remarks were undesirable or even universally condemned." Darden v. Wainwright, 477 U.S. 168, 181
(1986). Rather, a petitioner "must demonstrate that he suffered
actual prejudice because the prosecutor's comments during
summation had a substantial and injurious effect or influence in
determining the jury's verdict." Bentley v. Scully,
41 F.3d 818, 824 (2d Cir. 1994).*fn3
In evaluating the propriety of allegedly improper remarks,
courts should consider whether the comments manipulated or
misstated evidence, and whether they implicated other specific
rights of the accused, such as the right to counsel or the right
to remain silent. Darden, 477 U.S. at 182. The habeas court
should also consider the severity of the prosecutor's conduct,
the measures, if any, that the trial court took to remedy any
prejudice, and the certainty of conviction absent the
prosecutor's remarks. See Bentley, 41 F.3d at 824.
Garcia complains of five different missteps by the
prosecutor.*fn4 I will address each one in turn.
1. Evidence Outside the Record Garcia contends that the prosecutor violated the trial court's
Molineux ruling*fn5 by injecting prejudicial evidence into
his closing argument that was not before the jury during trial.
Specifically, Garcia contends that the prosecutor improperly
stated that Garcia was on parole and that he faced a violation of
parole for his use of drugs.
The alleged misconduct grew out of a statement by Garcia's
wife, Evelyn, that was admitted to prove Garcia's motive to
murder her. David Alicea (Evelyn's nephew) testified that, on the
day before the shooting, he overheard Evelyn tell Garcia that she
was "calling his parole officer Monday morning because he's back
on that shit again." (Tr. at 1168.) At that time, the court
instructed the jury that,
[T]he alleged statement is only being offered by the
prosecutor to try to establish a motive for the
crime. . . .
[Y]ou must determine what, if anything, is meant by
the statement allegedly made by Evelyn Garcia to the
defendant. Under any circumstances, if you find that
[it] was in fact made, it must not in any way be
considered by you that the defendant may have had a
propensity to commit any crime or crimes.
It should be noted that the statement allegedly made
is not being offered to establish the truth of the
fact as asserted, only that it was allegedly made at
that time and place.
(Tr. at 1169.)
The challenged portions of the prosecutor's summation regarding
Garcia's purported motive are as follows:
This defendant was very angry because he knew that
he was on parole and that his wife was going to
report him to his parole officer because "he was
back on that shit again." You determine what that means. You determine what
consequences it has if your parole officer knows
you're "back on the shit again."
* * *
He took his wife's threats very seriously because on
Monday his parole officer was going to be called
and he was going to be reported and he was going to
go back to jail.
(Tr. at 1533-34, 1537) (emphasis added).
Garcia complains that the italicized remarks in the excerpts
quoted above improperly asserted that he in fact was on parole.
He further argues that this was an improper injection of a
prejudicial fact that was not in the record, since the victim's
threat that she would call Garcia's parole officer was not
admitted to prove the truth of the matters asserted by her.
Viewed from my perspective on habeas review, the trial court's
limiting instruction regarding the threat was imprecise. The
threat contained two implied statements of fact: (1) Garcia had a
parole officer; and (2) Garcia was on drugs again.*fn6 The
truth of the first of those facts was integral to the
admissibility of Evelyn's threat. That is, if Garcia were not
even on parole, Evelyn's threat that she would report his drug
use to his parole officer would not give rise to a motive to
murder. Indeed, the reason the threat was probative of motive is
that Garcia was indisputably on parole.
The same cannot be said for the implied assertion that Garcia
was using drugs again. The truth of that statement was not
integral to the admissibility of the threat, because even a false
accusation that Garcia was using drugs could get him in trouble
again with his parole officer. The limiting instruction should
have been explicitly addressed only to this implied statement. Because the probative value of Evelyn's threat to report Garcia
existed only if he was actually on parole, and he was in fact on
parole, Garcia's challenges to this aspect of the summation are
not forceful. While the prosecutor technically went outside the
record when speaking the words italicized in the above-quoted
excerpts from the summation, there could not have been any harm.
The jury in Garcia's case would plainly have surmised, correctly
and despite any limiting instruction, that he was on parole. If
he were not, his lawyer would simply have dismissed Evelyn's
threat as a motive by pointing out that there was no evidence
that Garcia even had a parole officer, thus there was no need to
silence Evelyn. Any claim that the prosecutor's statements in
this regard prejudiced the jury seriously underestimates the
intelligence of jurors.
In any event, any error was rendered harmless by the court's
jury instructions at the time the evidence was admitted (see
supra), and during its final charge to the jury:
You have heard testimony from David Alicea about a
conversation that allegedly took place between
Pe[dro] Garcia and Evelyn Garcia . . . where she
stated, in words or substance, that she was tired of
him using the "shit" and that she would report him to
his parole officer because of that.
First, the alleged statement is only being offered by
the prosecutor to try to establish a motive for the
crime, though motive, as I will instruct you, is not
an element which must be established by the
prosecution, it can be helpful to assist you in
determining why the occurrence took place.
It should also be noted that the statement allegedly
made is not being offered to establish the truth of
the fact as asserted, only that the statement was
Next, you must determine what, if anything, was meant
by the statement made by Evelyn Garcia, if in fact
she made that statement. Under any circumstances, if
you find a statement was made, it may not be
considered by you to show the defendant may have had
a propensity to commit any other crime or crimes.
(Tr. at 1664-66). The court also instructed that whatever either
counsel said in opening or closing statements did not constitute
evidence. (Tr. at 1634-35.) Moreover, any prejudice would have been dissipated by the overwhelming evidence of Garcia's guilt,
as discussed below in more detail. (See Part B.6
2. Inflaming the Jury's Passions
Garcia argues that the prosecutor's remarks unfairly sought to
appeal to the emotions of the jury. The following is but a
sampling of the remarks that Garcia criticizes:
This is a case about a husband shooting down his wife
in the presence of his little girl.
(Tr. at 1535.)
And then [Venus has] to come back to court and [she
has] to relive . . . what happened, what this
defendant's actions caused. And it's because of his
actions, that Venus Garcia had to get up on this
(Tr. at 1542-43.)
It was his actions that put that little girl on the
stand It was his actions that deprived this little
girl of growing up with a loving mother.
(Tr. at 1591.)
[If the jury did not convict] [h]e gets away with one
of the most brutal, horrendous crimes imaginable.
(Tr. at 1547.)
It's early, you're sleeping. If you're a hunter, when
is the opportune time to strike. When is the best
time to get your prey: When they're defenseless, when
they're unarmed, when they're unaware. And that's
what this defendant was thinking that morning. He was
(Tr. at 1554-55.)
That's the type of intent you're dealing with here:
an evil mind, an evil intent. . . .
(Tr. at 1590.)
These and other similar comments in the summation are not
constitutionally troublesome. The evidence established that
Garcia committed exceptionally brutal and heinous crimes:
shooting his wife, point-blank, in front of several family
members, and then shooting two of those family members. A
prosecutor is not prohibited from graphically summarizing graphic
and disturbing testimony. See Darden, 477 U.S. at 180
(holding that the prosecutor's offensive comments reflecting an
emotional reaction to the case were not enough to infect the
trial with unfairness as to make the resulting conviction a
violation of due process.)
However, there were other comments that, in my opinion,
constituted improper (although not constitutionally defective)
conduct, and thus are worth noting here. Telling the jury that
Evelyn "spoke" to it through her autopsy (Tr. at 1547), was
wholly inappropriate, as was the assertion that Venus had more
courage than Garcia. Similarly, the prosecutor's "acting out" by
jumping around the courtroom, lying down on the floor in front of
the jury, and pointing a gun at the jury yelling "boom, boom,"
was inappropriate. On the other hand, some superficially improper
remarks were fair comment. For example, the challenged statement,
"Michael Alicea just saw his mother killed. Put yourselves in
that situation, if you could imagine what the horror was at that
point" (Tr. at 1564), responded to the defense's remark that the
witnesses were not credible because they could not remember details.
Not all of these errors by the prosecutor strike me as
prejudicial to Garcia. Although its difficult to recreate a trial
based on the cold record, some of the prosecutor's antics no
doubt made him seem ridiculous to the jury. In any event, given
the overwhelming evidence of guilt, as set forth below, the
misconduct does not warrant the grant of habeas relief.*fn8
3. Denigrating the Defense
Garcia claims that the prosecutor denigrated the defense and
defense counsel with various comments throughout summation, none
of which I find to be constitutionally significant.
For example, Garcia asserts that the prosecutor reduced defense
counsel's questioning of Detective Austin's failure to locate
prints on the murder weapon to an unfounded attack on the
The defense says to you, oh, why would Detective
Austin fingerprint a gun if in all the crime scenes
he's been to he's not found fingerprints[?]
Well let's examine what the defense says to you. If
the gun wasn't fingerprinted, as Detective Austin
testified that it was and was in his report, what
argument would the defense make to you[?]
Ladies and gentlemen of the jury, why didn't [the
detective] fingerprint the gun?
See, you can't win; you do too much, you lose.
(Tr. at 1548-49.) These statements were fair comment by the
prosecutor on the defense's summation. In his closing, defense
counsel argued that the fingerprint team (including Detective Austin) was inexpert and that its investigation was suspect:
"Detective Austin was quick to point out, oh, I've never lifted
any fingerprints from a weapon, from a gun. If he's never done
it, why did he bother to do it this time[?]" (Tr. at 1485.)
Defendant went on to argue that the fingerprint team failed to
fingerprint the drug-filled strongbox that was found in David's
room, and that Detective Austin "didn't bother" to see if there
was any gun powder residue on Garcia's hands. (Tr. at 1487.) In
light of this direct attack on Detective Austin and the
investigation, the prosecutor justifiably tried to deflect
attention from Detective Austin's level of expertise and
Garcia also objects to what he believed to be the prosecutor's
mockery of defense counsel's "dog case." The record reflects
that, soon after the officers arrived at the house where the
shootings occurred, they shot the dog that was inside. In his
summation, defense counsel dwelled on the dog shooting in an
attempt to indirectly discredit Venus's testimony that the
bedroom door was open and that she saw defendant shoot Evelyn.
Defense counsel posited that the dog (a pit bull) would have
taken action during Garcia's shooting if the door had been open.
(Tr. at 1516-17.) In response to this commentary, the prosecutor
asked the jury: "Is this a dog case[?]" and "Would you want to
spend another two weeks here listening to how the dog was shot
afterwards[?]" (Tr. at 1576-77.) I find this to be a fair (albeit
not very persuasive) response to the defense counsel's summation.
The prosecutor can properly ask the jury not to be side-tracked
by certain evidence and certain issues to focus on the issues
that make out the prosecution's case.
4. Shifting the Burden of Proof
Garcia maintains that the prosecutor shifted the burden of
proof to the defense when he argued that "the best that the
defense can come up with" was to argue that the dresser in
David's room could not have fallen on both Phillip Erdaide
(Evelyn's nephew) and Janet Garcia Caraballo (David's girlfriend), and thus implying
that either one or both of them lied during their testimony to
the jury. (Tr. at 1541.) I do not find Garcia's argument to be
persuasive. To the extent that there was any burden shifting, the
court immediately gave a curative instruction (see id.
("Sustained. . . . The defendant doesn't have to come up with
anything.").) Furthermore, this comment was a fair response to
defense counsel's insinuations that these witnesses were lying.
5. Vouching for One's Own Witnesses
Garcia contends that the prosecutor vouched for his own
witnesses when he told the jury that "the evidence is damning in
this case. . . . The evidence in this case is overwhelming. It
doesn't get stronger than this" (Tr. at 1536-37), and when he
said of the prosecution witnesses with criminal records, "I don't
care if they were all convicted of ten murders," (Tr. at 1584).
These arguments are unpersuasive. The prosecutor did not vouch
for his witnesses. Rather, he was trying to respond to and
counter the defense's attempts to depict the prosecution
witnesses as untrustworthy due to their criminal histories.
(See, e.g., Tr. at 1509-10 (Defense Counsel: "[David's past
crimes] ha[ve] a lot to do with David Alicea. It has a lot to do
with what kind of person he is and whether he puts his interests
above those leading a law-abiding and legitimate life. It has a
lot to do with that, and it has a lot to do with what kind of
person he is and whether or not he would stop and blink before
coming into this courtroom and telling you something that wasn't
true."); see also id. at 1468 (explaining that the
prosecution witnesses acted with feigned emotion during their
direct examinations "because they were [at trial] as part of, in
effect, a staged production. They were trying to grip [the jury]
with emotion.").) The prosecutor was merely trying to
rehabilitate his witnesses after these attacks on their
credibility, which is unobjectionable. (See, e.g., Tr. at 1584 (Prosecutor:
"regardless of [the witnesses'] background[s], [the jury]
deserve[s] . . . to hear from every one of them."); see also
id. at 1562 (explaining to the jury that any inconsistencies
between the witnesses' testimony "breath[ed] life into the
testimony" because it demonstrated that the stories were not made
up and rehearsed).)
6. Curative Instructions and the Strength of the Evidence
Finally, even assuming that the prosecutor's summation was
improper, the combination of the trial court's curative
instructions to the jurors and the overwhelming evidence of
Garcia's guilt rendered any error harmless.
At the end of summations, the court instructed the jurors that
the summations were not evidence (Tr. at 1634), that they should
not draw any inferences from what the attorneys said because it
was not evidence (Tr. at 1635), and that the trial evidence
should control the deliberations, "regardless of what either
attorney or either side may have said about the facts and even
regardless of what  the Court, may have said about the facts,"
(Tr. at 1637). The court also explained that the defendant is
entitled to every favorable inference that could reasonably be
drawn from the evidence (Tr. at 1640), and that it was the jury's
function to evaluate the evidence, consider the trial testimony,
analyze the exhibits, and determine the defendant's guilt without
sympathy, prejudice, vengeance or bias. (Tr. at 1640-41.)
More importantly, the evidence of Garcia's guilt at trial was
overpowering.*fn9 It overwhelmingly established that Garcia
shot his wife, Evelyn, twice in the head. He then turned the gun
on David and Michael Alicea, injuring both of them. Four
eye-witnesses testified that Garcia shot Evelyn. (Tr. at 793
(Phillip Erdaide); Tr. at 1363-65 (Venus); Tr. at (Michael); Tr.
at 1143 (David).) A fifth eye-witness, Janet Carraballo (David's
girlfriend), testified that on the morning of the shooting, she awoke to the sound of a gunshot, and
when she looked up she saw Garcia holding the gun and Evelyn
lying on the floor. (Tr. at 963-964, 968.) An examining doctor
confirmed that the gun's muzzle was between eighteen and
twenty-four inches from Evelyn when the gun was fired. (Tr. at
1400.) The eyewitness testimony also established that Garcia put
a loaded gun to Michael's face and fired. (Tr. at 976, 1266-67.)
The eyewitness testimony further established that Garcia shot
through the bedroom door, behind which David, Michael and Janet
were barricading themselves, and thereby shot David's arm. (Tr.
at 798, 970, 1159, 1265-66.) Furthermore, the forensic evidence
supported the accounts given by these witnesses as there were
numerous bullet holes in David's bedroom door and spent shells
throughout the house. (Tr. at 691, 703-05.)
Under these circumstances, I cannot say that the state court's
ruling that any error was harmless was an unreasonable
application of federal law. Indeed, I am convinced that Garcia
received a fair trial, if not a perfect one, and is not entitled
to habeas relief on the ground of prosecutorial misconduct.
For the foregoing reasons, the petition is denied. Because
Garcia has failed to make a substantial showing of a denial of a
constitutional right, no certificate of appealability shall