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SAMPER v. GREINER

May 16, 2005.

CARLOS SAMPER, Petitioner,
v.
CHARLES GREINER, Superintendent, Sing Sing Correctional Facility, Respondent.



The opinion of the court was delivered by: ALVIN HELLERSTEIN, District Judge

OPINION AND ORDER DENYING HABEAS CORPUS

Petitioner was convicted of murder in the second degree after trial before a court and jury and by judgment of the Supreme Court, New York County, filed February 23, 1993. The murder had occurred on the streets of Washington Heights, in Manhattan, in the early morning hours of July 26, 1990. Petitioner is serving an indeterminate term of twenty-five years to life.

All post-conviction procedures granted by the laws of New York State have been exhausted. By Opinion and Order filed March 1, 2002, I denied the petition for a writ of habeas corpus. Samper v. Greiner, No. 00 CIV. 1401(AKH), 2002 WL 334466 (S.D.N.Y. Mar. 1, 2002). The Second Circuit limited appeal to the issue of the constitutional adequacy of trial counsel's representation, vacated the judgment I had entered and remanded for further factual development consistent with its rulings. Id., 74 Fed. Appx. 79, 2003 WL 21938757 (2d Cir. Aug. 13, 2003.)

  Following issuance of the Mandate, I appointed CJA-qualified counsel. However, Petitioner's family asked that he be represented by Eleanor Jackson Piel, Esquire, and I granted the request. Ms. Piel, with characteristic zeal, has represented her client ably and indefatigably, presenting affidavits, calling witnesses over three sessions, and successfully contending for a telephone deposition of a material witness sworn in Colombia and questioned and transcribed from New York, New York, the transcript of which has been filed. Ms. Piel, and the Assistant District Attorney, Susan Axelrod, Esquire, have now filed their briefs, and I have fully considered their arguments and the record.

  I hold that the determination of the New York State courts did not involve "an unreasonable application of . . . clearly established Federal law," in that Petitioner did not satisfy his burden to show that his trial counsel failed to provide a constitutionally adequate defense. See 28 U.S.C. § 2254(d); Strickland v. Washington, 466 U.S. 668 (1984). I believe, and I therefore find, that it is not reasonably probable that presentation of the alibi witnesses or two additional witnesses would have changed the jury's verdict.

  The Facts of Record

  Humberto Valdez was shot and killed in cold blood at approximately 1:45 a.m. on July 26, 1990 on St. Nicholas Avenue, between 184th and 185th Streets. He had just exited the El Baturro nightclub, where he was a bodyguard and supplier of drugs to one of the owners. He was with two other men, Boulevard*fn1 Pena and the club bouncer, Antonio. Pena supplied drugs to Valdez and lived with Valdez and his wife and two daughters.

  Valdez was shot with a .45 pistol, twice in the head, both at very close range. The gunman appeared from behind a van across the street, approached Valdez, avoided Valdez's efforts to wrestle away the gun and dodge the bullets, shot Valdez, and fled the scene. Pena also had fled, but identified Petitioner, Samper, as the killer. The only other eyewitness was Denise Valdez.

  Denise Valdez was the daughter of the slain man, and Pena's friend, perhaps an intimate friend. She had gone to the club that night with her father and Pena. She had taken heroin a little earlier, and Pena had had drinks. Just before the shooting, she had left the club to use a nearby street telephone to call a friend, but claimed at trial to have seen the shooting and to have recognized Samper, first in the club, then outside the club pointing his gun at her father, wrestling to keep possession of it, and killing her father. She claimed also to have seen an employee of the club, Arturo Soriano, come out of the club, hit her father from the rear, and enable Samper to kill him. Soriano and Samper drove away together. Pena, on the other hand, although testifying that Humberto Valdez (the slain man), Antonio (one of the club bouncers), and he were engaged in a conversation; that "Humberto was on my right, leaning on the same car that I was leaning [on] also"; and that he saw in detail Humberto's struggling motions with Petitioner over the gun, claimed not to "recall" whether anyone else, including presumably Soriano, was around.*fn2

  Denise Valdez left the scene, raced home in a taxicab, obtained her own gun, and sought to locate Samper while driving through the neighborhood streets in the company of her mother and sister and a friend. She intended to kill Samper if she found him.

  Pena stayed in the Valdez apartment, called "911," and gave a vague and general description of the assailant. Denise Valdez also declined to identify the assailant, even to her mother. Pena also declined to tell the police that he had been with Denise Valdez in the club immediately before the shooting.

  By the time of trial, the police and Assistant District Attorney had won over Pena's and Denise Valdez's reluctance, and both testified that Samper was the assailant. The motivations of both were suspect, and their credibility, compromised. Denise Valdez had a record of two prior felony narcotics convictions in New York, and a ten-year unserved probationary term in Texas for a narcotics conviction in that State, and had solicited help from New York City detectives and the Assistant District Attorney to alleviate her problems. Pena persisted in being unable to identify Samper through several line-ups and photo-sessions, even though he later claimed that he was able to identify him all along, declining to do so because of fear for his own safety. Finally, Pena was won over by the promise of an Assistant District Attorney to allay concerns about safety and to help Pena avoid deportation. Pena declined Samper's telephone offers of financial help and legal assistance with immigration if he persisted in not identifying him. But Pena and Denise Valdez continued to waver, and it took a threat of perjury and payments of $4,000 to $5,000 by the District Attorney's office and an offer of a free airplane ride to Santo Domingo before Pena agreed to be a witness for the prosecution. Pena also had outstanding bench warrants issued against him, and he benefited in the punishment he received by interventions by the Assistant District Attorney and by $5 placed in his commissary account. And Pena was given a two-week, expense-paid stay in New York during the Samper trial.

  Samper's trial lawyer effectively impeached Pena and Denise Valdez with all this, and more, information, and effectively argued to the jury that their testimony lacked credibility. My earlier opinion, and that of the Court of Appeals, described and noted the jury's concerns about the credibility of the prosecution's witnesses and the issue of reasonable doubt thereby raised. The jurors had to reason their way through the potential of deadlock, and were ...


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