United States District Court, S.D. New York
April 6, 2005.
JESUS MELENCIANO, Petitioner,
JAMES C. WALSH Respondent.
The opinion of the court was delivered by: HAROLD BAER, JR., District Judge[fn*] [fn*] Michelle Hwang, a spring 2005 intern in my Chambers, and currently a second-year student at Fordham University School of Law, provided substantial assistance in the research and drafting of this Opinion.
OPINION & ORDER
Jesus Melenciano ("Melenciano") petitions this Court, pursuant
to 28 U.S.C. § 2254 (d)(1) and (d)(2), for a writ of habeas
corpus. Petitioner claims that: (1) Detective McCarthy's trial
testimony constituted impermissible hearsay; (2) the trial court
failed to conduct a proper inquiry into alleged premature jury
deliberations, (3) an ineffective assistance claim in that trial
counsel failed to: (i) make a Batson challenge during the jury
selection and (ii) report the allegation that two jurors made
racial slurs during a witness' testimony; and, (4) that the
evidence upon which Petitioner was convicted failed to prove
beyond a reasonable doubt that he was guilty of second degree
murder. For the following reasons, Jesus Melenciano's petition
for habeas corpus is DENIED.
A. Factual Background
On July 10, 1993, Nereida a.k.a. LaChina Lorenzo ("Lorenzo")
was on 167th Street between Jerome and River Avenues when she
witnessed four shooters approach and murder Vallejo. (Tr. at
57:23 58:1; 60:25 61:15.) Lorenzo recognized two of the
shooters Jesus Melenciano and his brother. (Tr. at 61:16
62:16; 63:22 24.) According to Lorenzo, Jesus Melenciano and
his brother followed Vallejo until he reached a van, and once
behind the van, Melenciano shot him. Lorenzo witnessed Vallejo
fall to the ground after additional shots were fired. (Tr. at
64:1 65:17; 109.)
Meanwhile, Juan Rivera ("Rivera"), the other victim, was in
front of a public telephone booth on 167th Street when he was
shot on the right side of his chin and on the left side of his neck. (Tr. at 197:22 198:3; 201:13 202:8; 209:16 210:12.)
Rivera did not see the shooters, but noticed that the bullets had
been fired from the direction of 167th Street and River
Avenue. (Tr. at 202:13 24.).
The evening of the murder, Detective McCarthy interviewed
Lorenzo and she failed to mention that she recognized the
shooters. (Tr. at 114:15 20.) Instead, she informed the
detective that she immediately ran into the building when she
heard the shots. (Tr. at 348:16 25.) Later, on July 12, 1993,
Lorenzo recanted her story and provided Detective McCarthy with
the first names of two shooters, and showed him where Jesus
Melenciano lived.*fn1 (Tr. at 66:14 16.). Subsequently, on
July 27, 1993, Lorenzo identified Jesus Melenciano as the shooter
in a lineup and he was arrested. (Tr. at 70:4 23; 337:19
B. Procedural History
On May 25, 1995, a Bronx County jury found Petitioner guilty of
Murder in the second degree, N.Y.P.L. § 125.25, Attempted
Murder in the second degree, N.Y.P.L. §§ 110/125.25, and
Criminal possession of a weapon in the second degree. N.Y.P.L. §
265.03. (Tr. 698:18 699:1.) New York State Supreme Court Judge
Marcus sentenced Petitioner, a repeat felony offender, to prison
terms of 25 years to life for the crime of Murder in the second
degree, 6 to 12 years for the crime of Attempted Murder in the
second degree, and 6 to 12 years for the crime of Criminal
possession of weapon in the second degree, to run concurrently.
Sentence, People v. Melenciano (Ind. No. 5540-93) (Jun. 12,
Petitioner appealed to the New York State Supreme Court,
Appellate Division, First Department, which affirmed the
[Melenciano's] verdict was based on legally
sufficient evidence and was not against the weight of
the evidence. There is no basis upon which to disturb
the jury's determinations concerning credibility. The
court was not obligated to discharge a juror who gave
indications of a hope and/or expectation that
deliberations would not continue overnight. The court
conducted a suitable inquiry wherein the juror
unequivocally stated that she was nevertheless
willing to be sequestered and that she had an open
mind about the case. Defendant's remaining
contentions are unpreserved and we decline to review
them in the interest of justice.
People v. Melenciano, 721 N.Y.S.2d 537
, 537 (1st Dep't 2001).
Leave to appeal was denied by the New York Court of Appeals. See People v. Melenciano,
96 N.Y.2d 922 (2001).
On January 2, 2001, Petitioner filed a pro se motion to
vacate his conviction pursuant to N.Y. Crim. Proc. Law ("C.P.L.")
§ 440.10 and alleged ineffective assistance of counsel. Judge
Marcus denied the motion. Dec. & Or., People v. Melenciano
(Ind. No. 5540-93) (Apr. 25, 2002). The Appellate Division denied
Petitioner's application for leave to appeal the denial of his
motion to vacate. See People v. Melenciano (Ind. No. 5540-93)
(Jun. 27, 2002) ("I, Eugene L. Nardelli, a Justice of the
Appellate Division, First Judicial Department, do hereby certify
that, upon application timely made by the above-named defendant
for a certificate pursuant to Criminal Procedure Law, section
460.15, and upon the record and proceedings herein, there is no
question of law or fact presented which ought to be reviewed by
the Appellate Division, First Judicial Department, and permission
to appeal from the order of the Supreme Court, Bronx County,
entered on or about April 25, 2002, is hereby denied.").
Petitioner filed the instant petition for habeas corpus on
October 22, 2002 in the United States District Court for the
Southern District of New York. (Dckt. 2.)
C. Exhaustion of State Remedies
Federal habeas relief will not be granted unless the
petitioner has exhausted the remedies available at the state
level. See 28 U.S.C. § 2254(b)(1)(A); Wilkinson v. Dotson,
125 S.Ct. 1242, 1245 (2005). In particular, a petitioner must
fairly present the factual and legal premises of his claims to
the highest court of the state and must alert the state court of
the constitutional nature of his claims. See Williams v. Walsh,
No. 02 Civ. 7633, 2004 WL 275489, at *2 (S.D.N.Y. Dec. 1, 2004)
(Baer, J.). Here, a review of Petitioner's prior submissions and
record demonstrates the exhaustion of the remedies available in
state court. See Staley v. Greiner, No. 01 Civ. 6165, 2003 WL
470568, at *5 (S.D.N.Y. Feb. 6, 2003) (citing Klein v. Harris,
667 F.2d 274 (2d Cir. 1981) ("no appeal to the New York Court of
Appeals lies from an order denying a motion for leave to appeal
to the Appellate Division")).
II. STANDARD OF REVIEW
Section 2254(d) of Title 28 of the United States Codes, as
amended by the Antiterrorism and Effective Death Penalty Act of
1996 ("AEDPA"), provides:
An application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of a
State court shall not be granted with respect to any
claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim (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). In accordance with the "unreasonable
application" clause, habeas relief is available only if state
court's application of the law was "objectively unreasonable."
Williams v. Taylor, 529 U.S. 362
, 410-411 (2000). A federal
court must presume a state court's factual findings to be
correct, unless the petitioner rebuts the factual findings by
clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).
A. Detective McCarthy's Inferential Hearsay
Federal courts will not review a question of federal law
decided by a state court if the state court's decision rested on
both (1) an "independent" state law ground and (2) the state
law ground was "adequate" to support the judgment. See, e.g.,
Coleman v. Thompson, 501 U.S. 722, 729 (1991); see Cotto v.
Herbert, 331 F.3d 217, 238 (2d Cir. 2003). However, an exception
to the independent and adequate state ground doctrine exists.
Federal courts' review of procedurally defaulted claims is
permitted where a petitioner "can demonstrate cause for the
default and actual prejudice as a result of the alleged violation
of federal law, or demonstrate that failure to consider the
claims will result in a fundamental miscarriage of justice."
Coleman, 501 U.S. at 750; see also Dixon v. Miller,
293 F.3d 74 (2d Cir. 2002).*fn2
I. Independent State Grounds
It is clear that the Appellate Division denied Petitioner's
hearsay claim solely on independent state law grounds. While
the Appellate Division's decision made no specific reference to
New York's contemporaneous objection rule,*fn3 Respondent's
brief included an argument that Petitioner's hearsay claim should
be denied in accordance with the contemporaneous objection rule.
(See Aff. in Opp'n, Ex. 2. Resp'ts Br., at 21.) It is well
established that "silent affirmance is presumed to be based on an
adequate and independent state procedural ground, unless there is
"good reason" to question this." Elliott v. Kuhlmann, No. 97 Civ. 2987, 2004 WL 806986, at *10 (S.D.N.Y. Apr. 9, 2004)
(citing to Coleman, 501 U.S. 722, and Quirama v. Michele,
983 F.2d 12 (2d Cir. 1993)). Here, as in Quirama and Elliot,
Petitioner failed to present a "good reason" to determine that
the Appellate Division rejected Petitioner's hearsay claim on the
merits, rather than on the asserted procedural ground. The
affirmation of Petitioner's conviction should be construed as an
implicit acceptance of the State's argument that Petitioner's
claim is procedurally barred pursuant to New York law.
Moreover, a brief statement by the state court that an issue is
"unpreserved" is sufficient to serve as an independent state
procedural bar. See Williams, No. 02 Civ. 7633, 2004 WL
2754859, at *3 (Baer J.). As such, the Appellate Division's
decision, which states that Petitioner's "remaining contentions
are unpreserved," was sufficient to show that the Appellate
Division was relying on an independent state ground. See Ayala
v. Walsh, No. 02 Civ. 6319, 2005 WL 292751 at *3, (S.D.N.Y. Feb.
7, 2005) (denied habeas relief of the petitioner's claim based
on the Appellate Division finding that "remaining contentions are
2. Adequate State Grounds
A state procedural bar is "adequate" when based on a "firmly
established and regularly followed" state rule. Cotto,
331 F.3d at 238-39. However, the Second Circuit has articulated a narrow
exception. A state procedural bar is insufficient to bar federal
review when the petitioner sufficiently demonstrates that the
"asserted state grounds are inadequate to block adjudication of
the federal claim" or "the exorbitant application of a
generally sound rule renders the state ground inadequate." Id.
at 239 (citing Lee v. Kemna, 534 U.S. 362, 381
(2002)).*fn4 For this limited exception to apply, the court
must evaluate three factors:
(1) [W]hether the alleged procedural violation was
actually relied on in the trial court, and whether
perfect compliance with the state rule would have
changed the trial court's decision; (2) whether state
case law indicated that compliance with the rule was
demanded in the specific circumstances presented;
and (3) whether petitioner had substantially
complied with the rule given the realities of trial,
and, therefore, whether demanding perfect compliance
with the rule would serve a legitimate governmental
Cotto, 331 F.3d at 240 (emphasis added) (citations omitted).
Here, Petitioner's impermissible hearsay claim was adjudicated
on "adequate" state grounds and the exception articulated in Cotto does not apply.
First, whether the state court relied on New York's
contemporaneous objection rule is "less applicable" here because
"the lack of a contemporaneous objection would not, almost by
definition, be mentioned by the trial court" and "involves a
certain degree of speculation." Id. at 242-243. "[T]he purpose
of the contemporaneous objection rule is to give the trial court
a clear opportunity to correct any error." Id. Had Petitioner
timely raised his objection, the trial court may well have
arrived at a different conclusion. Id. Petitioner, however,
failed to make a timely objection and, consequently, failed to
put the trial court on notice. Accordingly, the trial court's
failure to recognize New York's contemporaneous objection rule,
and whether perfect compliance with the rule would have changed
the trial court's decision, are not helpful to the Petitioner.
Id. at 243.
Second, state case law demonstrates that there was a failure of
compliance with the state rule. See People v. Aponte,
759 N.Y.S.2d 486, 488-89 (1st Dep't 2003). Under New York law, "in
order to preserve [an] inadmissible hearsay claim for appellate
review," the defendant "was required to object at trial to the
alleged admission of the hearsay testimony." Soto v. Greiner,
No. 02 Civ. 2129, 2002 WL 1678641, at *12 (S.D.N.Y. Jul. 24,
2002). Here, however, Petitioner failed to object
contemporaneously to Detective McCarthy's alleged hearsay
Third, the state interest behind the contemporaneous objection
rule is "to ensure that the parties draw the trial court's
attention to any potential error while there is still an
opportunity to address it." Cotto, 331 F.3d at 245.
Petitioner's claim does not present sufficient justification to
overcome the state interest in efficient trial procedure. In
fact, Petitioner's failure to comply with the contemporaneous
objection rule was a strategic decision designed to further the
examination of Detective McCarthy. See Dec. & Order, People v.
Melenciano at *7-8 (Ind. No. 5540-93) (Apr. 25, 2002).
Accordingly, Petitioner failed to substantially comply with the
state procedural rule, and compliance serves a legitimate
governmental interest. See Garcia v. Lewis, 188 F.3d 71, 78 (2d
In accordance with the independent and adequate state grounds
doctrine as articulated by the Supreme Court in Coleman and
interpreted by the Second Circuit in Cotto, Petitioner's first
claim for habeas corpus, that Detective McCarthy's testimony
consisted of impermissible hearsay, is barred from federal review.*fn5
3. Exception to the Independent and Adequate State Grounds
Petitioner maintains that his counsel's failure to object to
Detective McCarthy's impermissible testimony was the "cause" for
the procedural default. To excuse any default, Petitioner must
demonstrate "cause" and "prejudice", or show that "failure to
consider the claims will result in a fundamental miscarriage of
justice." Coleman, 501 U.S. at 750; see also Lee v. Kemna,
534 U.S. 362, 387 (2002). The Second Circuit has determined that
a strategic decision cannot constitute prejudice because it is a
"conscious, reasonably informed decision made by an attorney with
an eye to benefiting his client." Pavel v. Hollins,
261 F.3d 210, 218 (2d Cir. 2001). The failure to object to McCarthy's
testimony constituted a strategic decision designed to minimize
the overall impact of his testimony and benefit Petitioner. See
Dec. & Order, People v. Melenciano (Ind. No. 5540-93) (Apr. 25,
2002) at *7-8. Indeed, the court will not disturb counsel's
decision because it was "strategic" and the sort of "conscious,
reasonably informed decision made by an attorney with an eye to
benefiting his client that the federal courts have denominated
"strategic" and been especially reluctant to disturb." Pavel,
261 F.3d at 218. Petitioner has failed to demonstrate "a
fundamental miscarriage of justice, where a constitutional
violation has probably resulted in the conviction of one who is
actually innocent." Dixon v. Miller, 293 F.3d 74, 81 (2d Cir.
Accordingly, the exception to the independent and adequate
state ground doctrine does not apply to Petitioner's claim and is
barred from federal review.
B. Premature Jury Deliberation and Court's Inadequate
Before summations and the court's final jury instruction, a
juror informed a court officer that she would not stay at the
hotel during deliberations and subsequently failed to bring the
necessary clothing for an overnight deliberation. (Tr. 522:6
10; 523:19 22.) The trial judge inquired: "Now, I heard from
one of the court officers that you made a statement yesterday
about not going to the hotel." (Tr. 523:19 524:2.) The juror
answered, "Well, we all " but did not complete her sentence.*fn6 Id. She then explained that her
comment to the court officer was "a figure of speech." Id.
Petitioner maintains that the juror's comments indicate that the
questioned juror and other jurors engaged in premature
deliberations and that the court's failure to conduct an in
camera inquiry of the jurors constituted a violation of
Petitioner's Sixth Amendment due process rights.
Where the trial court "instructs a jury to refrain from
premature deliberation. . . . and the jury nonetheless discusses
the case before the close of trial, that premature jury
deliberation may constitute juror misconduct." United States
v. Cox, 324 F.3d 77, 86 (2d Cir. 2003) (emphasis added). The
court's "investigation of juror misconduct or bias is a `delicate
and complex task.'" Id. (citing United States v. Abrams,
137 F.3d 704, 708 (2d Cir. 1998) (per curiam). The trial court is
afforded broad flexibility due to its unique position to observe
the jury on a daily basis, United States v. Peterson,
385 F.3d 127, 134 (2d Cir. 2004), and the court's treatment of juror
misconduct and its decision on a jury's impartiality are reviewed
for abuse of discretion only, and "only if juror misconduct and
actual prejudice are found." Cox, 324 F.3d at 86 (emphasis
Despite the trial court's undisputed instructions to jurors
that they should "keep an open mind" during the trial and not to
discuss the case amongst each other until the deliberation began
(Voir Dire Tr. 383:10 384:14), a juror engaged in a
conversation with a court officer. (Tr. 521:17 522:2.) With
Petitioner and his trial counsel's consent, and in the presence
of the prosecutor, the trial court conducted an adequate inquiry
of the juror and determined that the juror did not engage in
premature deliberation. (Tr. 522:4 525:25.) While Petitioner's
trial counsel indicated that he believed the juror was lying to
the court, "a court should generally presume that jurors are
being honest" absent contrary evidence. Id. at 87.
Here, the court did not abuse its discretion by accepting the
juror's account and, therefore, the trial court reasonably
concluded that the juror was impartial. See United States v.
Thai, 29 F.3d 785, 803 (2d Cir. 1994).
C. Ineffective Assistance Of Counsel
Petitioner also asserts that ineffective assistance of counsel
was the cause for the lack of: (1) a Batson challenge during
the jury selection and for not reporting allegations of racial
slurs made by two jurors; and, (2) an objection to court's inadequate
inquiry of premature jury deliberations.
According to Strickland, a petitioner is required to (a)
establish that "under prevailing norms of practice," the
representation "fell below an objective standard of
reasonableness," and (b) "affirmatively prove prejudice."
Strickland v. Washington, 466 U.S. 668, at 687 88, 693 94
(1984). To satisfy the second Strickland requirement, "[t]he
defendant must show that there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the
proceeding would have been different." Holland v. Jackson,
124 S.Ct. 2736, 2738 (2004) (quoting Strickland). Further, the
reviewing court must "recognize that counsel is strongly presumed
to have rendered adequate assistance and [to have] made all
significant decisions in the exercise of reasonable professional
judgment." Strickland, 466 U.S. at 690; see also Brown v.
Senkowski, No. 97 Civ. 3682, 2004 WL 2979792, at *22 (S.D.N.Y.
Dec. 14, 2004).
1. Failure to Make a Batson Challenge
First, Petitioner claims that ineffective assistance of counsel
led to the failure to make a Batson objection to the
government's exclusion of Hispanic jurors. To sustain a Batson
claim on habeas review, a petitioner must demonstrate a prima
facie Batson violation. See Overton v. Newton, 295 F.3d 270 at
278-280 (2d Cir. 2002) (a petitioner bears "the burden of
articulating and developing the factual and legal grounds
supporting his Batson challenge before the trial court").
Here, the trial court noted that the State used four of nine
peremptory challenges it exercised against prospective Hispanics
jurors while defense counsel used six of his thirteen peremptory
challenges it exercised to exclude all the remaining Hispanic
jurors. See Dec. & Order, People v. Melenciano (Ind. No.
5540-93) (Apr. 25, 2002) at *8 9 ("there is no indication that
the defendant's claim that the People excluded all Hispanics from
the jury is true"). Petitioner failed to present a scintilla of
evidence that the Government's peremptory challenges were
utilized in a manner that would maintain a prima facie Batson
challenge. Moreover, the absence of juror diversity alone is
insufficient to satisfy the prima facie Batson requirement.
See United States v. Udogwu, No. 03 Civ. 422, 2003 WL 21344749,
at *2 (S.D.N.Y. Jun. 9, 2003) (holding there was no basis for
trial counsel to raise a Batson challenge where the petitioner
claimed the jury was "monochromatic" when, in fact, the jury
consisted of at least two Hispanic names and an Asian name and
also other prospective minority jurors were dismissed during
voir dire at defendant's request or with their consent). Indeed,
trial counsel's failure to pursue a meritless Batson challenge
cannot be the foundation for Petitioner's ineffective assistance
counsel. See Curry v. Burge, No. 03 Civ. 901, 2004 WL 2601681,
at *33 (S.D.N.Y. Nov. 17, 2004).
Accordingly, Petitioner's ineffective assistance of counsel
based on the failure to make a Batson challenge is DENIED.
2. Juror Racism
Petitioner also claims that ineffective assistance of counsel
led to the failure to report allegations of racial slurs made by
two jurors. To satisfy the prejudice requirement, a petitioner
"must present evidence, not mere conclusory allegations" that
trial counsel overlooked juror's racist comments. See, e.g.,
Brown v. Artuz, 124 F.3d 73, 80 (2d Cir. 1997) ("[E]ven if
Brown's conclusory allegation raised an issue on the performance
prong of Strickland . . . Brown cannot satisfy the prejudice
prong of the Strickland test"); see also United States ex.
rel. Cross v. DeRobertis, 811 F.2d 1008, 1016 (7th Cir. 1987)
(when "allegation of ineffectiveness of counsel centers on a
supposed failure to investigate, we cannot see how . . . the
petitioner's obligation can be met without a comprehensive
showing as to what the investigation would have produced").
Assuming arguendo that two jurors made racially charged
comments about a witness on the stand, there is no evidence that
the verdict would have been different. See Brown,
124 F.3d at 81. In the absence of any contrary evidence, it is presumed that
the trial counsel's decision was sound trial strategy that
constitutes objective performance. See Yarborough v. Gentry,
540 U.S. 1, 8 (2003) ("When counsel focuses on some issues [and
excludes] others, there is a strong presumption that he did so
for tactical reasons rather than through sheer neglect"); see
also Jacobs v. Horn, 395 F.3d 92, 118 (3d Cir. 2005) (finding
that trial counsel's failure to ask questions about racial
prejudice amongst potential jurors was, absent any record to the
contrary, a sound trial strategy). Indeed, trial counsel
reasonably concluded that that the trial court was aware of
jurors' racial comments and any motion would do more harm than
Petitioner failed to demonstrate actual bias or objectively
unreasonable performance by his trial counsel and, therefore, his
ineffective assistance of counsel claim is DENIED.
3. Premature Jury Deliberation
Lastly, this Court has already concluded that a juror did not
engage in premature jury deliberation and the trial court did conduct an adequate
investigation of the juror misconduct. Where the underlying claim
is without merit, the claim of ineffective assistance of counsel
for not raising the issue during the trial is, likewise,
meritless. See United States v. Arena, 180 F.3d 380, 396 (2d
Cir. 1999) (Counsel's "failure to make a meritless argument does
not amount to ineffective assistance."); see also Muniz v.
United States, No. 04 Civ. 10209, 2005 WL 589396, at *5
(S.D.N.Y. Mar. 14, 2005) (the same). As such, his premature jury
deliberation ineffective assistance of counsel is also DENIED.
D. Sufficiency Of Evidence and Guilt Not Proven Beyond
Petitioner maintains that his murder conviction was against the
weight of the evidence and his guilt was not proven beyond a
reasonable doubt. In particular, Petitioner maintains that a sole
identifying witness' statements to police were insufficient, her
testimony at trial contained numerous inconsistencies and
falsehoods, and no other evidence linked him to the crime.
Evidence is sufficient to support a conviction if "after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt."
Jackson v. Virginia, 443 U.S. 307, 319 (1979); see United
States v. Espaillet, 380 F.3d 713, 718 (2d Cir. 2004) (same).
The Second Circuit has held that the "assessments of the weight
of the evidence or the credibility of witnesses are for the jury
and not grounds for reversal on appeal." Maldonado v. Scully,
86 F.3d 32, 35 (2d Cir. 1996). In addition, "the testimony of a
single, uncorroborated eyewitness is generally sufficient to
support a conviction." United States v. Danzey, 594 F.2d 905,
916 (2d Cir. 1979).
This Court agrees with the Appellate Division's holding "the
verdict was based on legally sufficient evidence and was not
against the weight of the evidence. There is no basis upon which
to disturb the jury's determinations concerning credibility."
People v. Melenciano, 281 A.D.2d 255 (1st Dep't. 2001). Lorenzo
witnessed Petitioner and his brother approach Vallejo hiding
behind a van and fired their guns at him. (Tr. at 64:12 65:17.)
She also witnessed Vallejo fall to the ground after he was shot
again. (Tr. at 109:1 19.) Rivera simultaneously heard shots
being fired and was struck in the chin and neck by bullets. (Tr.
at 197:22 198:3; 201:13 202:8; 209:16 210:12.) Medical and
ballistic witnesses corroborated the testimony of Lorenzo that
Vallejo had been shot multiple times. (Tr. at 297:7 298:23;
390:3 14.) Lastly, while there were inconsistencies in
Lorenzo's testimony, it was a matter of credibility for the jury
Accordingly, the evidence was constitutionally sufficient for a
rational trier of fact to conclude that Petitioner was guilty of
Murder in the second degree and Attempted Murder in the second
degree. Therefore, Petitioner's final claim for habeas relief is
For the aforementioned reasons, Jesus Melenciano's petition for
habeas relief is DENIED. The Clerk is instructed to close this
motion and any other open motion, and remove this case from my
IT IS SO ORDERED.