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MORALES v. GREINER

May 2, 2005.

HERBERT MORALES, Petitioner,
v.
CHARLES GREINER, Superintendent, Sing Sing Correctional Facility, Respondent.



The opinion of the court was delivered by: FREDERIC BLOCK, District Judge

MEMORANDUM & ORDER

Pro se petitioner Herbert Morales ("Morales") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 following his 1985 conviction in the New York Supreme Court, Suffolk County, for murder and attempted robbery. Thirteen years after his conviction, Morales filed this habeas petition on October 13, 1998,*fn1 raising the following claims: (1) the admission of incriminating statements made by Morales violated his Fifth Amendment privilege against self-incrimination, (2) a witness committed perjury, (3) the prosecutor failed to disclose impeachment material, (4) the prosecutor failed to disclose a crime-scene videotape in accordance with New York's disclosure law, and (5) he was denied effective assistance of trial counsel. For the reasons set forth below, his petition is denied.

  I.

  It is well settled that "federal habeas relief is not available unless `the applicant has exhausted the remedies available in the courts of the State.'" Jones v. Keane, 329 F.3d 290, 294 (2d Cir. 2003) (quoting 28 U.S.C. § 2254(b)(1)(A)). Morales's first claim has two components, which relate to statements he made to the police before and after he received notice of his Miranda rights. With respect to his pre-Miranda statement, his claim was presented to and rejected by the Appellate Division, Second Department on direct appeal, see People v. Morales, 133 A.D.2d 281 (2d Dep't 1987), and was fully exhausted when the New York Court of Appeals affirmed the Appellate Division. See Resp't's Aff. at 17 ("Leave to appeal to the New York State Court of Appeals was denied on October 19, 1987."). Although neither party raises the issue, it does not appear that he has exhausted his claim regarding his post-Miranda statements; nonetheless, the Court may deny it on its merits. See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State."); Pratt v. Greiner, 306 F.3d 1190, 1197 (2d Cir. 2002) ("A district court also may . . . deny a petition on the merits even if it contains an unexhausted claim.").

  Morales raised his second claim in a New York Criminal Procedure Law § 440.10 motion, which was rejected by the County Court of Suffolk County, see People v. Morales, No. 251-84 (County Ct. June 20, 1988), and was fully exhausted when the Appellate Division denied leave to appeal. See Resp't's Aff. at 18 ("On August 1, 1990, Associate Justice Stanley Harwood of the Appellate Division denied leave.").*fn2 He raised his third claim in a second 440.10 motion, which was also rejected by the County Court of Suffolk County, see People v. Morales, No. 251-84 (County Ct. Apr. 4, 1989). Although neither party raises the issue, it is unclear whether Morales appealed, and hence whether he exhausted this claim. His fourth claim was raised in a third 440.10 motion, which was also rejected by the County Court of Suffolk County, see People v. Morales, No. 251-84 (County Ct. Feb. 13, 1998), and was fully exhausted when the Appellate Division denied leave to appeal. See Resp't's Aff. at 19 ("On April 10, 1998, Associate Justice Gloria Goldstein of the Appellate Division denied leave to appeal from the February 13 order."). His fifth claim was raised in a fourth 440.10 motion, which was again rejected by the County Court of Suffolk County, see People v. Morales, No. 251-84 (County Ct. Mar. 19, 2004), and was fully exhausted when the Appellate Division denied leave to appeal. See People v. Morales, No. 251-84 (2d Dep't May 20, 2004).

  II.

  Only federal issues may be raised on habeas review. See 28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 68 (1991). Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), when a federal claim has been "adjudicated on the merits" by a state court, the state court's judgement is entitled to substantial deference. See 28 U.S.C. § 2254(d). "[A] state court adjudicates 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." Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001) (citations and quotations omitted).

  For claims "adjudicated on the merits," habeas relief may not be granted unless the state court decision (1) 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) 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). A state court decision is "contrary to" clearly established federal law "if the state court applies a rule that contradicts the governing law set forth" in Supreme Court precedent or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives" at a different conclusion. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court decision involves an "unreasonable application" of clearly established federal law if it unreasonably applies Supreme Court precedent to the particular facts of a case. See id. at 409. This inquiry requires a court to "ask whether the state court's application of clearly established federal law was objectively unreasonable," not whether the application was erroneous or incorrect. Id. In that respect, the standard to be applied "falls somewhere between merely erroneous and unreasonable to all reasonable jurists." Wade v. Mantello, 333 F.3d 51, 57 (2d Cir. 2003) (quoting Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000)). However, the "increment [of incorrectness beyond error] need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Eze v. Senkowski, 321 F.3d 110, 125 (2d Cir. 2003) (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).

  A state court determination of a factual issue is presumed to be correct. 28 U.S.C. § 2254(e)(1). The determination is unreasonable only where the petitioner meets his or her burden of "rebutting the presumption of correctness by clear and convincing evidence." Id.; see also Francis S., 221 F.3d at 114.

  III.

  A. Incriminating Statements

  Morales's argument that the trial court erroneously admitted incriminating statements made by Morales is predicated on the following facts. On February 6, 1984, Morales's mother thrice contacted Joseph Villanti ("Villanti"), a police officer who was an acquaintance of hers, in regard to her son's possible involvement in the murder of Paul Costallos ("Costallos") during an attempted robbery of a gas station; on her third contact, she informed Villanti that her son intended to surrender himself. At her request, Villanti and Morales's mother drove in his personal vehicle to a subway station to pick up Morales. During the return car ride, Morales's mother asked Morales about his involvement in the robbery and murder; in response, Morales admitted that he was involved and explained that the gun had discharged when Castallos reached for it. Villanti never administered Miranda warnings and "purposefully" remained silent throughout the return car ride because he "was not going to talk to him [in] reference to the case." Tr. at 28.*fn3 Thereafter, upon arriving at the police station, another police officer placed Morales under arrest and read him his Miranda rights; Morales agreed to waive his rights. Initially, he reiterated that he was involved and that Castallos reached for the gun, but now claimed that an accomplice, Robert Gallino ("Gallino"), panicked and shot Castallos. Morales admitted, however, that the gun that was used belonged to him. Eventually, he admitted that he — not Gallino — had shot Castallos. The trial court allowed both the pre-Miranda and post-Miranda statements to be placed in evidence. The Appellate Division held that "the introduction at trial of [the] incriminating statements . . . does not mandate reversal of his conviction." Morales, 133 A.D.2d at 282.

  1. The Pre-Miranda Statement

  Morales argues that his statement to Villanti was admitted in violation of his Miranda rights because it was the product of custodial police interrogation that was not preceded by notification of those rights. Under Miranda v. Arizona, 384 U.S. 436 (1966), custodial interrogations are prohibited without prior warning of the Fifth Amendment privilege against self-incrimination. The Supreme Court has defined the term "interrogation" to include both "express questioning" and "any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Rhode Island v. Innis, 446 U.S. 292, 301 (1980). "The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police." Id. In Arizona v. Mauro, 481 US 520 (1987), the Supreme Court held that the mere presence of an officer did not constitute interrogation when the officer expressly permitted a defendant's wife to speak with her husband who was accused of murdering their son, but the officer insisted upon remaining present during the conversation. The Supreme Court explained that the officer asked "no questions about the crime ...


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