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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


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 error harmless.
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 Cir. 2001).

  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 evidence."

  Shabazz v. Artuz, 336 F.3d 154, 161 (2d Cir. 2003) (ellipsis in original) (quoting Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)).

  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 allegedly made.
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 infra.)*fn7

  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 witness stand
(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 a hunter.
(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 officer's valor:

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 reliability.

  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. (See infra.)

  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 issue.

  So Ordered.

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