United States District Court, S.D. New York
August 3, 2005.
JOSE YAPOR, Petitioner,
WILLIAM MAZZUCA, Respondent.
The opinion of the court was delivered by: RICHARD CASEY, District Judge
MEMORANDUM & ORDER ADOPTING REPORT & RECOMMENDATION
Petitioner Jose Yapor ("Petitioner"), proceeding pro se, filed
this petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254 (2000). The case was referred to Chief Magistrate Judge
Andrew J. Peck who, by Report and Recommendation ("Report") dated
April 19, 2005, recommended that the petition be denied.
Petitioner objects to the Report in its entirety. For the reasons
set forth below, the Court adopts the Report and denies the
The Court briefly recounts the relevant facts here. In February
1997, Petitioner was working as a cashier at the Inwood Pool Hall
("Hall") in Manhattan when he was involved in an altercation with
Welcar Dominguez, a regular patron of the Hall. During the
altercation, Petitioner drew a gun and had to be restrained by
others in the Hall. In the weeks following the incident,
Dominguez passed by the Hall and stared at Petitioner.
On April 20, 1997, Dominguez and five friends were drinking and
playing dice across the street from the Hall. The Hall's owner,
Geromino Landestoy, approached Dominguez and asked him to stop
coming to the Hall because he was making Petitioner nervous.
Petitioner then went outside and an argument between Petitioner
and Dominguez ensued. While the nature and specifics of the
exchange are unclear, immediately following the argument
Petitioner shot and killed Dominguez. Petitioner fled to Orlando,
Florida, where he turned himself in to the police four days
later. Petitioner was charged with second degree murder, second
degree attempted murder, second degree assault, second degree
criminal possession of a weapon, and first degree reckless
endangerment under New York law.
A. Petitioner's State Trial Proceedings
During evidentiary hearings before trial, the trial court ruled
that the prosecution could introduce evidence that: (1)
Petitioner had a gun on his person during the February 1997
altercation with Dominguez for the purpose of demonstrating
intent; and (2) Petitioner's wife was arrested for drug
possession for the limited purpose of demonstrating that her
arrest was not a ploy to "smoke out" Petitioner. Defense counsel
objected to both rulings. With respect to the testimony at trial relating to Petitioner's
wife's arrest, the judge gave a limiting instruction and told the
jury it could not consider her arrest as evidence of the
At trial, the prosecution called Milagros Rivera Hernandez as a
fact witness. On cross examination, defense counsel asked
Hernandez if she had "hear[d] that [Petitioner] had a bad
reputation for peaceableness?" Report at 6. The court allowed the
prosecution, on re-direct, to challenge Hernandez's credibility
as a character witness and ask her if she had "heard that
[Petitioner] . . . was fired from the [Sheraton] hotel because he
was violent." Report at 7. After the prosecutor's question, the
court immediately gave the jury a limiting instruction that the
prosecutor's question was "only to show [Hernandez's] ability to
accurately reflect the [Petitioner's] reputation. Report at 7
(quoting Tr. 520). Defense counsel thereafter sought to introduce
a letter from the employment agency that assigned Petitioner to
the Sheraton Hotel. The court excluded the letter, reasoning its
limiting instruction would prevent the jury from considering the
question about the Sheraton incident for its truth. The judge
repeated the limiting instruction to the jury at the conclusion
of the trial.
At the pre-charge conference, the court granted defense
counsel's request that the jury be instructed on the defenses of
extreme emotional disturbance and self defense. Defense counsel
did not object to the substance of the court's instructions on
these topics. During its deliberation, the jury sent a number of
notes to the judge. The judge responded to all the notes, again,
without objection from defense counsel.
The jury found Petitioner guilty of first degree manslaughter,
second degree possession of a criminal weapon, and first degree
reckless endangerment. At sentencing, defense counsel remarked
that the jury had "found room to make allowances here," and he
asked that "the [c]ourt continue on that road laid out by the
jury [by] . . . add[ing] the touch of mercy. . . ." Report at 15.
The judge sentenced Petitioner to twelve and one-half to
twenty-five years on the first degree manslaughter count, to run
concurrently with the sentences of seven and one-half to fifteen
years on the second degree possession of a weapon count and two
and one-third to seven years on the first degree reckless
endangerment count. The sentence for each count was the maximum
permissible under the law.
B. Petitioner's Direct Appeal
In his appeal to the First Department, Petitioner claimed that:
(1) he was denied a fair trial when the trial court allowed a
character witness to be cross-examined without a good faith basis
about Petitioner's termination from a job; (2) he was denied his
right to due process and a fair trial when the trial court
admitted evidence that his wife had been arrested for a drug
crime; (3) he was denied a fair trial when the trial court
allowed the prosecutor to introduce evidence that Petitioner had
possessed a gun during a prior altercation with the decedent; (4)
he was deprived of his right to a jury verdict because of
erroneous jury instructions on extreme emotional disturbance and
self defense; (5) he received ineffective assistance of trial
counsel at sentencing; and (6) his sentence to the maximum term
was excessive and should be reduced. The First Department affirmed Petitioner's conviction and
declined to reduce his sentence. People v. Yapor,
764 N.Y.S.2d 261 (1st Dep't 2003). The First Department held that the
evidentiary rulings challenged by Petitioner were "appropriate
exercises of discretion by the trial judge," Petitioner received
effective counsel, and that there was no basis to reduce his
sentence. Id. at 262. Petitioner's application for leave to
appeal to the New York Court of Appeals was denied. People v.
Yapor, 775 N.Y.S.2d 798 (2003).
A. Standard of Review
The court reviews de novo all portions of the magistrate's
report to which there are objections. 28 U.S.C. § 636(b)(1)(C)
(2000). Section 2254 of title 28, as amended by the Antiterrorism
and Effective Death Penalty Act of 1996 ("AEDPA"), provides that:
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
(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)(1)-(2).
A state court decision is barred from habeas review when it has
been adjudicated on the merits in the state court, with res
judicata effect, and is neither contrary to, nor an unreasonable
application of, clearly established federal law as determined by
the Supreme Court. Medellin v. Dretke, 125 S.Ct. 2088, 2091
(2005) (citing 28 U.S.C. § 2254(d)(1)). It is the state court's
ultimate decision, and not its reasoning, which determines
whether the decision is on the merits. Sellan v. Kuhlman,
261 F.3d 303, 311-12 (2d Cir. 2001). Therefore, "even if the state
court does not explicitly refer to either the federal claim or to
relevant federal case law," the deferential review standard
applies. Id. at 312; see also Bell v. Cone, 125 S. Ct. 847,
85 (2005) ("Federal courts are not free to presume that a state
court did not comply with constitutional dictates on the basis of
nothing more than a citation."); Early v. Packer, 537 U.S. 3, 8
(2002) (holding that a state court is not required to cite
Supreme Court cases, or even be aware of them, to be entitled to
AEDPA deference, "so long as neither the reasoning nor the result
of the state court decision contradicts them.").
A state court's decision will only be deemed "contrary to"
clearly established federal law if the state court: (1) "arrives
at a conclusion opposite to that reached by [the Supreme] Court
on a question of law"; or (2) "confronts facts that are
materially indistinguishable from a relevant Supreme Court
precedent and arrives at [an opposite] result." Williams v.
Taylor, 529 U.S. 362, 405 (2000). A state court's decision is
based on an "unreasonable application" if it "correctly
identifies the governing legal rule but applies it unreasonably
to the facts of a particular prisoner's case." Id. at 407-08.
Finally, a federal court deciding a habeas claim must presume that the state court's factual findings are correct, unless the
petitioner rebuts the factual findings by clear and convincing
evidence. See 28 U.S.C. § 2254(e)(1).
B. Petitioner was Not Denied Due Process
Petitioner asserts that his Fifth Amendment due process rights
were violated when the state trial court (1) allowed a character
witness to be questioned about Petitioner's termination from a
previous job; (2) admitted evidence that his wife had been
arrested for an unrelated drug crime; and (3) allowed the
prosecution to introduce evidence that Petitioner had a gun
during a prior altercation with the decedent.
As noted, habeas relief is limited to those situations where
there has been a violation of a constitutionally protected right.
28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 68 (1991)
(emphasizing "that it is not the province of a federal habeas
court to reexamine state-court determinations on state-law
questions"). Generally, state court rulings on evidentiary issues
are a matter of state law and do not raise constitutional issues.
As demonstrated in the Report and a review of his objections,
Petitioner did not meet his "very heavy burden of establishing
the deprivation of a constitutional right" with respect to these
rulings. Benitez v. Senkowski, No. 97 Civ. 7819 (DLC), 1998 WL
668079 at *4 (S.D.N.Y. Sept. 17, 1998). Accordingly, his dispute
with the trial court's evidentiary rulings cannot provide a basis
for federal habeas relief.
C. Petitioner's Erroneous Jury Charge Claim is Barred
Petitioner argues that his constitutional rights were violated
when the trial court erroneously charged the jury regarding
extreme emotional disturbance and self defense. Because
Petitioner did not object to the court's instructions during the
trial, this claim is procedurally barred from federal review.
"Failure to comply with a state procedural rule bars federal
habeas corpus review unless the Petitioner can show `cause' for
his failure to comply with the state rule and actual `prejudice'
created by the default." Coleman v. Thompson, 501 U.S. 722, 750
(1991); see also Parilla v. Goord, No. 02 Civ. 5443 (WHP),
2005 W1 1422132, at *11 (S.D.N.Y. June 20, 2005) (same). The
Second Circuit has explained that "federal habeas review is
foreclosed when a state court has expressly relied on a
procedural default as an independent and adequate state ground,
even where the state court has also ruled in the alternative on
the merits of the federal claim." Velasquez v. Leonardo,
898 F.2d 7, 9 (2d Cir. 1990).
Under New York law, generally, "points which were not raised at
trial may not be considered for the first time on appeal."
People v. Thomas, 429 N.Y.S.2d 584, 586 (1980) (citing C.P.L. §
470.05(2)). Neither defense counsel nor Petitioner himself
objected to either the judge's charge to the jury or the
supplemental instructions given in answer to the jury's questions
that arose during deliberations. Failure to object at trial when
required by C.P.L. § 470.05(2) is an adequate and independent
state ground to bar federal habeas review. See Wainwright v.
Sykes, 433 U.S. 72, 87 (1977) ("[Petitioner's] failure to timely
object . . . amounted to an independent and adequate state
procedural ground which would prevent direct review here."). In addressing Petitioner's erroneous jury charge claims, the
First Department stated they were "unpreserved and we decline to
review them in the interest of justice. Were we to review these
claims, we would reject them." Yapor, 764 N.Y.S.2d at 262. In
his objection to the Report, Petitioner correctly asserts that
when "a state court uses language such as `[t]he defendant's
remaining contentions are either unpreserved for appellate review
or without merit,' the validity of the claim is preserved and is
subject to federal review." Fama v. Comm'r of Corr. Servs.,
235 F.3d 804, 810 (2d Cir. 2000). Here, however, the First Department
clearly and unambiguously rejected Petitioner's claim on
independent and adequate state procedural grounds, and therefore,
federal habeas review is procedurally barred. See, e.g., id.,
at 810-11 ("[W]here a state court says that a claim is `not
preserved for appellate review' and then ruled `in any event' on
the merits, such a claim is not preserved"). Since Petitioner
presents no evidence of cause, prejudice or a fundamental
miscarriage of justice, his erroneous jury charge claim is
D. Petitioner's Ineffective Counsel Claim is Denied
To succeed on a Sixth Amendment ineffective assistance of
counsel claim, Petitioner must be able to show that his counsel's
performance fell below an objective standard of reasonableness,
and that there was a reasonable possibility that, but for
counsel's errors, the result of the case would have been
different. Strickland v. Washington, 466 U.S. 668, 687-88
(1984). There is a strong presumption that counsel's performance
was within the wide range of reasonable professional assistance.
"A court hearing an ineffectiveness claim must consider the
totality of the evidence before the judge or jury." Id. at 689.
"[T]here is no reason for a court deciding an ineffective
assistance claim . . . to address both components of the inquiry
if the defendant makes an insufficient showing on one." Id. at
Petitioner claims that his trial counsel was ineffective at
sentencing because he failed to argue for leniency and made no
mention of the mitigating factors in Petitioner's case. Counsel
did, however, remind the court that the jury had found that
Petitioner had not acted intentionally, and that the act came
from an emotionally disturbed state. Further Petitioner's defense
counsel argued for leniency. Counsel's acknowledgment of the
seriousness of Petitioner's actions prior to asking for leniency
represented a reasonable strategy that did not fall below the
level of constitutional sufficiency. See Perez v. Greiner, 01
Civ. 5522 (AKH), 2002 WL31132872 at *7-8 (S.D.N.Y. Sept. 25,
2002) (finding no ineffective assistance where defense counsel's
strategy was to try not to further alienate the judge with
unsupportable allegations that his client was a `family man').
The fact that counsel did not advocate the mitigating factors
Petitioner asserts he should have is a tactical decision
reasonably based on the relative strength of those claims as
compared to their potential to cause further damage to
Petitioner's case. See, e.g., Perez, at *8 (finding that
defense counsel is not obligated to set forth potentially
mitigating factors "where he has made a tactical decision that to
do so would only prejudice his client") (citations omitted).
Even if counsel's performance was deficient at sentencing,
Petitioner has not shown that he was prejudiced. The trial judge
at sentencing appeared constrained by the limits of the jury's
verdict with respect to the maximum sentence he could legally
impose on Yapor: If . . . the power were given to me to sentence the
defendant to life, I would not have hesitated to give
it . . . [T]he law does give me the power to impose a
very substantial sentence on this defendant . . .
[T]he facts of this case prove beyond any question
that a maximum sentence is appropriate. There is no
room for mitigation beyond the mitigation already
given by law under a manslaughter first degree
Report at 15. Accordingly, Petitioner has failed to make a
showing of ineffective assistance of counsel.
E. Petitioner's Excessive Sentence Claim is Denied
Petitioner contends that his sentence of twelve and one half to
twenty-five years, the statutory maximum for first degree
manslaughter, should be reduced because he turned himself in to
the authorities, admitted his culpability, expressed remorse, and
did not have a history of violent criminal behavior. This
excessive sentence claim does not provide a basis for habeas
relief because "[n]o federal constitutional issue is presented
where, as here, the sentence is within the range prescribed by
state law." White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992).
Here, it is undisputed that Petitioner's sentence was within the
range prescribed by state law. First degree manslaughter is a
Class B felony, N.Y. Penal Law § 125.20, and for a second felony
offender the court can impose a maximum sentence of twelve and
one half to twenty-five years. N.Y. Penal Law §§ 70.06(3)(b),
(4)(b). Because Petitioner's sentence is within the statutory
range, it is not reviewable by this court for excessiveness.
See White, 969 F.2d at 183 ("No federal constitutional issue
is presented where . . . the sentence is within the range
prescribed by state law.").
For the foregoing reasons, the petition for a writ of habeas
corpus is denied. Further, the Court declines to issue a
certificate of appealability because Petitioner has not made a
"substantial showing of the denial of a constitutional right."
See 28 U.S.C. § 2253(c); see also Slack v. McDonald,
529 U.S. 473, 484 (2000). The Clerk of the Court is directed to close the
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