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August 29, 2005.


The opinion of the court was delivered by: DENISE COTE, District Judge


Pro se petitioner Angel Hernandez ("Hernandez") has applied for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, to vacate his conviction following trial of second degree murder and second degree criminal possession of a weapon. The petitioner alleges that he was denied his due process right to a fair trial when the trial court refused to seek clarification of a particular jury note and gave "an overbroad response to the note which unnecessarily repeated prejudicial testimony."

  Hernandez's petition was referred to Magistrate Judge Theodore H. Katz for a Report and Recommendation. On March 31, 2005, Judge Katz issued a Report and Recommendation ("Report"). Following extensions, Hernandez's objections to the Report were received on May 17, 2005. For the reasons stated herein, the Report is adopted, and the petition is denied.


  The relevant facts are set forth in the Report and summarized here. On March 2, 1991, at around 1:00 p.m., Hernandez had an argument with Charles Ashe, Jr. ("Ashe") as the two were standing on the corner of Southern Boulevard and Crotona Park East in the Bronx. This argument was witnessed by three individuals: Linda Copeland ("Copeland"), who knew Hernandez as her brother was a friend of his and who was unloading groceries from a taxicab when she observed Hernandez and Ashe arguing; Orlando Eshezabal ("Eshezabal"), who was standing nearby and knew both men; and Crystal Ramos ("Ramos"), who had known Hernandez for three or four years and was sleeping in her second-floor apartment when she was awoken by the argument, which she then observed from her living room windows.

  During their argument, Hernandez called Ashe a "pussy," to which Ashe replied, "Fuck you" and demanded of Hernandez, "What are you going to do?" At that point, Hernandez stepped back, reached in the waist band of his pants, and drew a gun. Holding his hands above his head, Ashe backed up against a building. Hernandez then shot Ashe from a distance of eight to ten feet away. At Eshezabal's direction, Ashe ran toward the entrance of 1816 Crotona Park East. After hearing the first shot, Copeland ran up the first three steps of 1816 Crotona Park East, where from she "peeked out to see Ashe running toward the building, and heard more shots." At around the same time, Eshezabal, who had run around the corner, heard two more shots and subsequently saw Hernandez fire two additional shots at Ashe. Eshezabal went to call the police, during which he heard yet another shot, while Copeland ran inside 1816 Crotona Park East, where she saw Ashe "enter and go up approximately six steps, before falling backward." Eshezabal subsequently found Ashe "laying in front of the steps."*fn1

  At approximately 2:15 p.m., Hernandez arrived at the apartment of his then-girlfriend, Karan Culbreath ("Culbreath"), a police officer, and asked her if a person could be charged with murder if there were witnesses but no weapon. Hernandez admitted to Culbreath that he had killed someone and asked for her assistance in disposing of his gun, a .357 magnum Smith and Wesson revolver. Hernandez undressed and placed his clothes in a garbage bag and then wrapped his gun in a white towel. After placing both the towel and the garbage bag in a duffel bag, he instructed Culbreath to dump the duffel bag in a river or lake. Hernandez requested that after she disposed of the duffel bag, Culbreath return to the apartment to drive him to the airport so that he could escape to Puerto Rico. Instead of following Hernandez's instructions, however, Culbreath went to the home of her father, a detective with the transit police, and together, they went to the 71st Precinct.

  Hernandez's gun was examined by two N.Y.P.D. detectives, Kevin Barry, an expert in firearms identification and operability, and Anthony Tota, who specializes in ballistics and microscopic analysis of ballistics materials. Detective Barry found the gun to be operable and determined that there had been discharge from all six chambers. Using the bullet and bullet fragments recovered from the crime scene, Detective Tota concluded that Hernandez's gun had fired the recovered fragments.

  Trial Proceedings

  On the second day of jury deliberations, the jurors sent a note to the trial court, which requested, inter alia, a "[r]ereading of [Copeland's] testimony of what she heard of the argument when she got out of the cab -> to when she reached the three steps." Arguing that the note did not mention what Copeland saw, but merely referred to what she heard, Hernandez's counsel first requested that the trial court restrict its readback to what Copeland testified she heard. The trial court rejected this request, noting that "[p]art of the argument, if in fact the allegations of the witness are to be believed," is that "she also saw the individual she identified as your client take out a gun and fire the gun into somebody." The trial court continued: When somebody takes out a gun and shoots somebody else, that's part of an argument, I believe. It's part and parcel of the discussion. I mean, that's what they are concerned with here. They want to know what she heard of the argument when she got out of the cab, and then there is an arrow to when she reached the three steps. They are looking for her testimony on the matter. What rational reason would the Jury be only concerned with the words but not the whole scene?

 The trial court then observed that "in the absence of absolute clarity," it was preferable to "include rather than exclude portions of the read back." As a result, the trial court ruled that it would "locate on direct and cross that portion of this woman's testimony which starts at the point where she arrives in the cab and the argument ensues to the point where she reaches the three steps and thereupon retreats into the apartment building and no longer hears the argument."

  Hernandez's counsel then asked the trial court to consider "asking the Jury in light of the defense objection to clarify what they mean by argument." The trial court replied that it would "not seek any further clarification" and noted that "[i]f something is in the record, it is no great sin in [the jury] hearing it." Acknowledging that Hernandez's counsel had preserved an exception to the read-back, the trial court then instructed counsel for Hernandez and the state's counsel to discuss which pages could be read back to the jury and further concluded that the jurors were entitled to rehear closing arguments. At this point, Hernandez's counsel requested that the record reflect his exception to the court's ruling both as to "not clarifying the note and now allowing the summations of both sides." It is not clear from the record which portions of Copeland's testimony were read back to the jury. Instead, the trial record simply reflects that the court reporter read back what was requested.

  The jury having found Hernandez guilty of second degree murder and second degree criminal possession of a weapon, on September 9, 1999, he was sentenced to concurrent terms of imprisonment ...

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