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DIAZ v. GIRDICH

June 1, 2005.

EDDIE DIAZ, Petitioner,
v.
ROY GIRDICH, Superintendent, Upstate Correctional Facility, Respondent.



The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge

REPORT AND RECOMMENDATION

Eddie Diaz, currently an inmate at the Upstate Correctional Facility in Malone, New York, brings this petition for writ of habeas corpus pro se pursuant to 28 U.S.C. § 2254. Following a jury trial in the New York State Supreme Court, Bronx County, Diaz was convicted of one count of Murder in the Second Degree (N.Y. Penal Law § 125.25(2)), three counts of Attempted Murder in the Second Degree (N.Y. Penal Law §§ 110.00, 125.25), and one count of Criminal Possession of a Weapon in the Second Degree (N.Y. Penal Law § 265.03). He was sentenced to prison terms of 25 years to life on the murder count, 5 years on each attempted murder count, and 15 years on the weapon possession count. The attempted murder sentences run concurrently with each other and consecutively to the murder sentence. The weapon possession sentence runs concurrently with the other sentences. For the reasons stated below, Diaz's petition should be denied. I. BACKGROUND

A. Evidence Presented at Trial

  1. The People's Case

  During the summer of 1998, Luis Gomez and Julio Garcia were at a party at Garcia's house. (See Gomez: Tr. 43, 74; Garcia Tr. 243).*fn1 Also present at the party was Miguel Perez, (see Gomez: Tr. 43), who later became Diaz's co-defendant at trial and who was convicted of the same charges. See Transcript, filed December 10, 2004 (Docket #19) ("Tr. #19"), at 222-23. Garcia and Perez got into a fight with one another at the party. (See Gomez: Tr. 43, 77; Garcia: Tr. 214-16). Gomez broke up the fight. (Gomez: Tr. 44; Garcia: Tr. 216). Garcia had seen Perez, whom he knew as "Pinky," several times over a six or seven month period, including after the party. (See Garcia: Tr. 229-30, 243-46).

  In September 1998, Garcia observed Perez and Diaz hanging out together on Bathgate Avenue in the Bronx. (See Garcia: Tr. 247-48). Garcia had previously seen Diaz "around the neighborhood" over a period of several months and knew him by the name of "China." (See Garcia: Tr. 214-15). On October 13, 1998, Garcia observed Perez and Diaz driving on his block. (See Garcia: Tr. 219). At that time, the two men stopped their car, looked at Garcia, and continued on driving. (Garcia: Tr. 219).

  Later that same day, at approximately 4:30 p.m., Gomez, Garcia, and Garcia's young daughter were riding in Gomez's car in the vicinity of 183rd Street and Bathgate Avenue. (See Gomez: Tr. 44-46; Garcia: Tr. 216-17). Gomez was driving the car, and Garcia was in the passenger seat with his daughter. (Gomez: Tr. 46; Garcia: Tr. 217). Garcia saw Perez at the corner of 183rd Street and Bathgate Avenue with several other individuals. (Garcia: Tr. 218). Garcia told Gomez to continue driving, which he did. (Garcia: Tr. 218). Garcia looked back to see two individuals get into a green car and begin "tailgating" them. (Garcia: Tr. 218). Gomez went through the next two lights, but the other car did the same thing. (See Garcia: Tr. 218). At 183rd Street and 3rd Avenue, Gomez could no longer proceed because his car was blocked by traffic. (Garcia: Tr. 218-19). The other car, a green Acura Legend, then pulled alongside Gomez's car approximately two to five feet away. (See Gomez: Tr. 46-48; Garcia: Tr. 219). Perez was driving the Acura and Garcia believed that it was the same car that he had seen Perez driving on previous occasions. (See Garcia: Tr. 219).

  After pulling alongside Gomez's car, Perez said to Garcia, "remember me now you pussy." (Gomez: Tr. 48; accord Garcia: Tr. 219). Garcia pushed his daughter down towards the floor of the car. (See Garcia: Tr. 220). Diaz, who was wearing a black North Face "bubble" vest or jacket, then jumped up on the passenger seat of the car and stuck his head out of the sunroof. (See Gomez: Tr. 49, 62; Garcia: Tr. 220, 237-38). Diaz was not wearing a hood and Garcia observed him from approximately four feet away, although Gomez had some difficulty observing him because Diaz was higher than he was at that point and because Gomez was bent down. (See Gomez: Tr. 67; Garcia: Tr. 221, 238). Diaz then pulled out a gun, cocked it back, and pointed it out of his car. (See Gomez: Tr. 50; Garcia: Tr. 220). Gomez attempted to move his own car forward, but it stalled. (Gomez: Tr. 51; Garcia: Tr. 220). Garcia ducked and Diaz shot at the car several times. (See Gomez: Tr. 51; Garcia: Tr. 220, 240). The car in which Perez and Diaz were driving made a U-turn and left the scene. (See Garcia: Tr. 221-22). None of the three occupants of Gomez's car were struck by any bullets, although the car itself had two or three bullet holes. (See Gomez: Tr. 52-53; Garcia: Tr. 221, 223). A bystander, however, was struck in the head by one of the bullets and killed. (See Gomez: Tr. 51; Garcia: Tr. 221-22, 233-34; Albert: Tr. 32-33; Senzamici: Tr. 257-59; Milewski: Tr. 369, 374). The bystander was identified as Anthony Singleton. (Albert: Tr. 33; Senzamici: Tr. 258; Singleton: Tr. 3-4).

  Following the shooting, Gomez drove his car home. (Gomez: Tr. 52). Neither he nor Garcia immediately contacted the police to report the shooting because they were "scared." (See Gomez: Tr. 63-64, 87; Garcia: Tr. 223, 234).

  On October 17, 1998, the police received a telephone call regarding the Singleton homicide. (Schiffman: Tr. 281). The caller, who identified himself as "Scar Face," named the shooter as "China" and the driver of the vehicle as "Pinky." (Schiffman: Tr. 441, 444). The caller stated that he had seen "China" in a car the previous day and described him as a male Hispanic with green eyes. (Schiffman: Tr. 445-46). Garcia testified that he had called the police identifying himself as "Scar Face" and told them that "somebody had died" and that he knew "who did it." (Garcia: Tr. 252-54).

  On October 29, 1998, Diaz was arrested in connection with Singleton's murder. (See Karpati: Tr. 332-34). As part of the processing of the arrest, Diaz informed police that his alias was "China Man." (Caceres: Tr. 308-09). On the same day he was arrested, Diaz was the subject of two lineups. (See Caceres: Tr. 306). Garcia and Gomez separately viewed the lineups and identified Diaz as the shooter. (See Gomez: Tr. 53-54; Garcia: Tr. 224; Caceres: Tr. 307). Gomez "was sure that [he] picked the right person" at the lineup and did so based on what he observed at the scene. (Gomez: Tr. 68). Gomez and Garcia also looked at photo arrays and Garcia identified the shooter from the photographs. (Gomez: Tr. 72-73; Garcia: Tr. 234).

  From October 30, 1998 to November 2, 1998, Diaz and his "ex-brother-in-law," Rudolpho Ramos, were lodged in the same unit at the Bronx House of Detention. (See Biggs: Tr. 266-67, 272; Ramos: Tr. 109-11). Ramos was Diaz's "ex-brother-in-law" because he was the father of Diaz's sister's child. (Ramos: Tr. 110). Ramos was being held in connection with a drug arrest and Diaz was being held on the charges arising from this case. (Ramos: Tr. 110-11). Ramos testified that he sometimes hit Diaz's sister and that he was once addicted to crack-cocaine. (Ramos: Tr. 122, 125-26).

  While in the Bronx House of Detention, Diaz told Ramos that "they got him for killing some kid" and admitted that he was the one that did the shooting. (Ramos: Tr. 110-11, 115). Diaz explained to Ramos that he had been "hanging out" on 183rd Street and Bathgate Avenue with "his friend" when "some guys they had problems with passed by in [a] car." (Ramos: Tr. 111; accord Ramos: Tr. 113-14). Diaz told Ramos that he followed the individuals in a car and caught up with them at 181st Street and 3rd Avenue, at which point he "jumped out [of] the car and started shooting at the car." (Ramos: Tr. 111-12; accord Ramos: Tr. 114). Diaz also told Ramos that he dismantled the gun and threw it away. (Ramos: Tr. 115). Diaz informed Ramos that he was wearing a grey sweatshirt with a hood over his head and that his clothing would prevent people from being able to identify him. (Ramos: Tr. 133).

  Ramos did not immediately report this conversation to anyone. (See Ramos: Tr. 121, 126). Ramos attended Diaz's arraignment in connection with the murder charge with members of the Diaz family. (Ramos: Tr. 163, 167). After Ramos was arrested on a bench warrant for failing to appear in court, he informed his attorney of the conversation he had with Diaz and provided a statement to the District Attorney's Office. (Ramos: Tr. 126-29). At the time he gave his statement to the District Attorney, Ramos did not have a "deal" with respect to his own case. (Ramos: Tr. 116-17). Subsequently, however, Ramos entered into a written agreement, signed by himself, his attorney, and the ...


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