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DURAN v. MILLER

June 22, 2004.

RAMON DURAN, Petitioner,
v.
DAVID MILLER, Superintendent, Eastern N.Y. Correctional Facility, Respondent.



The opinion of the court was delivered by: ARTHUR SPATT, District Judge

MEMORANDUM OF DECISION AND ORDER

Ramon Duran ("Duran" or "Petitioner"), appearing pro se, petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the Court denies Duran's petition in its entirety.

  BACKGROUND

  On January 22, 1998, at approximately 10:25am, Ramona Duran ("Ramona"), who is no relation to Petitioner Ramon Duran, was feeding her baby in her apartment in Baldwin, New York, when she heard a knock on her door. Thinking that her husband was coming back, she opened the door and Ramon Duran and his four accomplices pushed their way into her apartment, demanding money from her at gunpoint. The assailants began to tie up Ramona with duct tape as she screamed for her baby and for help from her brother-in-law Anastacio Rodriguez ("Rodriguez").

  Rodriguez came out of the rear bedroom dressed only in his underwear. His attackers forced him back into the bedroom, bound his hands with duct tape, and demanded money from him by pointing a gun to his head. When Duran and his accomplices returned to the main room and proceeded to pillage the apartment, Rodriguez managed to free himself from the duct tape and escaped the apartment from a rear exit. Rodriguez ran down the street in his underwear and screamed for help. Upon noticing that Rodriguez was missing, Duran and his accomplices fled the apartment with approximately $900 in cash and several pieces of personal property.

  From across the street, Kenneth Gasbarro ("Gasbarro") saw the intruders running from the apartment and he decided to follow them. He entered his car, dialed 911, and relayed to the police the license plate numbers of the two cars in which the perpetrators left. One of the licenses plates led police to Jose Gutierrez ("Gutierrez"), who was one of the intruders. Gutierrez confessed to the crimes and implicated Duran and the others.

  After being identified by Gutierrez, Duran was approached by detectives who inquired about his name and informed him that he "had a problem . . . a couple of weeks ago with Jose and his car." Resp't Br. to App. Div. at 6 (citing Hearing Tr. at 43, 243). Duran responded that he owned the car and that he had recently purchased the car from Gutierrez. Insisting that "it's my car, it's my car, I bought it" Id., Duran showed detectives the car. Matching the car to the one used in the robbery, the police arrested Duran.

  After being advised of and waiving his Miranda rights in Spanish, Duran confessed in Spanish to his role and that of his accomplices in entering Ramona's apartment by force and stealing Ramona and Rodriguez's belongings. Detective Robert DePietro, a native Portuguese speaker who was also served as a Spanish/English Interpreter for the Nassau County Police Department, "reduced to writing [Duran's] admission, translating [Duran's] words, verbatim, from Spanish to English . . . [and] then read the statement back to [Duran] in Spanish." Id. at 8. Detective DePietro also read to Duran the following written statement: "I have given this statement to Det. DePietro in Spanish and he has written for me in English, Det. DePietro has read it back to me in Spanish and it is the truth." Pet'r Confession at 2. Duran signed his name after this statement and again at the end of the confession. Detective DePietro also signed the confession as a witness.

  In addition, Detective DePietro showed victim Anastacio Rodriguez "an array of six photographs, including Petitioner's, depicting Hispanic men of similar age and appearance and asked Rodriguez if he recognized anyone." Resp't Mem. at 7. Rodriguez identified Duran as one of the intruders who pointed a gun at him and demanded money.

  Duran was charged with Robbery in the First Degree, Robbery in the Second Degree, Burglary in the First Degree, Burglary in the Second Degree, and Criminal Possession of a Weapon in the First Degree in violation of New York Penal Law §§ 160.15[4], 160.10[1], 140.34[4], 140.25[2], and 265.09[2], respectively. He moved to suppress his confession as involuntary, the recovered "get away" car as illegally seized, and Rodriguez's identification of Duran as his assailant as unduly suggestive. After a pre-trial hearing, the court denied Duran's motion.

  On October 13, 1998, following a jury trial in Nassau County Court (Kowtna, J.), Ramon Duran was convicted of all the counts in the indictment. On April 28, 1999, Duran was sentenced to three concurrent terms of incarceration of twelve to twenty-four years for his convictions for first degree robbery, burglary, and criminal possession of a weapon. He was also sentenced to serve concurrently seven and one half to fifteen years for each of his second degree robbery and burglary convictions.

  Duran directly appealed his convictions, arguing that: "(1) [his] statement was obtained in violation of his constitutional rights because although he was read his rights in Spanish, his statement was written in English, which he could not read; (2) the court erred in not permitting [him] to call Anastacio Rodriguez as a witness at the pre-trial hearing so that he could be questioned about his identification of [Duran] from a photo array; (3) [he] was denied the effective assistance of trial counsel because counsel failed to move to preclude, for lack of notice, an oral statement [Duran] made [about ownership of the getaway car] to the police prior to the arrest; (4) inflammatory remarks made by the prosecutor during his opening, summation, and cross-examination of a defense witness denied [Duran] a fair trial; (5) [his] guilt was not proven beyond a reasonable doubt and the verdict was against the weight of the evidence; and (6) [his] sentence was unduly harsh and should be reduced in the interest of justice." Resp't Aff. at 4.

  On November 13, 2001, the Appellate Division, Second Department, affirmed Duran's convictions. People v. Duran, 288 A.D.2d 319, 734 N.Y.S.2d 451 (2d Dept. 2001). Specifically, the Appellate Division held that Duran's written confession in English was properly admitted into evidence at the trial. By a letter dated November 29, 2001, Duran sought leave to appeal to the New York Court of Appeals and he raised all six arguments from his direct appeal. On January 24, 2002, the New York Court of Appeals denied Duran leave to appeal his convictions. People v. Duran, 97 N.Y.2d 704, 739 N.Y.S.2d 104 (2002). Duran did not seek certiorari review before the United States Supreme Court or file any post-conviction motions.

  On January 17, 2003, Duran filed the instant petition with this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, arguing: (1) the court erred in failing to suppress his confession and that his confession was involuntary because it was written in English and he could not verify its accuracy as he only read Spanish; (2) the court improperly denied his motion to call victim Anastacio Rodriguez to testify at the pre-trial Wade hearing as to his identification of Petitioner; (3) he was denied the effective assistance of trial counsel because counsel did not make a pre-trial motion to preclude the People's use of his oral statements about owning the car identified to be the one used in the robbery and counsel did not effectively cross-examine the detective about these statements; and (4) the prosecutor engaged in misconduct by making inflammatory remarks and deprived Petitioner of his right to a fair ...


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