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November 15, 2005.

JOSE CARRION, Plaintiff,
WILLIAM E. PHILLIPS, Superintendent, Greenhaven Correctional Facility Defendant.

The opinion of the court was delivered by: PAUL CROTTY, District Judge


Petitioner Jose Carrion petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his March 15, 2001 conviction in New York State Supreme Court, Bronx County, for the crimes of Murder in the second degree and Assault in the first degree. Petitioner is currently serving concurrent sentences of twenty-five (25) years to life for the murder conviction and twenty (20) years for the assault conviction.

Petitioner bases his petition on the sole claim that two of the trial court's evidentiary rulings were so fundamentally unfair that they denied him due process under the Fourteenth Amendment.*fn1 Specifically, petitioner complains that the trial judge erred in ruling that defense counsel's questioning of the prosecution's sole eyewitness about a prior misidentification of another robber in a photo array "opened the door" to otherwise inadmissible testimony by the same eyewitness that he had previously identified petitioner as one of the robbers in a separate mugbook photograph identification. Petitioner also complains that the trial judge erred in permitting petitioner's mug shot photograph to be introduced into evidence. Both rulings were so fundamentally unfair, he argues, and so influenced the jury's verdict, that they violated petitioner's Fourteenth Amendment due process right to a fair jury trial. The Court does not agree and denies the petition for a writ of habeas corpus.


  The Robbery

  Juan Mercedes (a.k.a. "Alberto Nunez") and his employee Juan Ventura, both drug dealers, used apartment 3C at 2675 Morris Avenue in the Bronx to sell drugs. (Trial Tr. ("T.") 94.) On the night of April 20, 1995, while Mercedes and Ventura were in apartment 3C with a customer named Eddie, three intruders forced their way into the apartment and attempted to rob the men of drugs and money.*fn2 (T. 107-08.) One of the intruders was armed with a .38 caliber weapon, while another intruder was armed with a .25 caliber weapon. (T. 109.) Eddie was taken by one of the intruders into the bedroom, where he was beaten. (T. 108, 109.) Mr. Mercedes told the intruders that he did not have any drugs or money in the apartment and tried to flee, but once he got to the hallway the intruder with the .38 caliber weapon started to struggle with Mr. Mercedes. (T. 110-13.) When the intruder could not get Mr. Mercedes back into the apartment, he shot him in the head and chest at close range. (T. 51, 83, 274, 277, 326.) Before the three robbers fled the building, the intruder with the .38 caliber weapon announced, "I am going to kill you now," and shot Mr. Ventura in the buttocks. (T. 116, 117, 319.) Mr. Ventura followed the intruders out of the building and watched them get away, and then told a passerby to call the police because he and his friend had been shot. (T. 120-21.) Emergency medical technicians took Mr. Ventura to Jacobi Hospital to be treated for his gunshot wound. (T. 121.)

  The Investigation

  Officers responded to the scene shortly before midnight. (T. 395) In the early morning hours of April 21, 1995, Detective Ciuffi of the New York Police Department spoke with Mr. Ventura at Jacobi Hospital. (Wade Hearing Tr. 3, Jan. 10, 2001.) Mr. Ventura told the detective that he and his friend had been shot, and that there had been one Hispanic and two black assailants.*fn3 (T. 346, 350.) He identified the Hispanic assailant as the shooter and described the shooter as 20-21 years of age, 5'10" tall, with a goatee, pimples or a mole, and light freckles, and wearing a black "Boss" jacket, black slacks, and a white bandana with black dots.*fn4 (T. 346-47.) To hide his involvement with drug sales at apartment 3C, Mr. Ventura falsely represented to the detective that he encountered the shooter in the fifth floor stairwell, the shooter shouted "Move it, move it," and then shot him. (T. 345, 352.)

  On April 23, 1995, Detective Ciuffi returned to the hospital to question Mr. Ventura further. Mr. Ventura, who was "very belligerent," viewed a photo array of potential suspects and told the detective that one of the men "looked like the one who had the .25" (Trial Tr. 354-55, 427). The detective later learned that Michael Rivera, the man identified by Mr. Ventura, was incarcerated at the time of the shooting so could not have been involved in the crime, as Mr. Ventura had suggested.*fn5 (T. 476-77.)

  On April 28, 1995, Mr. Ventura met with Detective Ciuffi and Detective Ortiz — who spoke Spanish to Mr. Ventura — at the 52nd Precinct to look at more photographs. (Wade Hearing Tr. 4, 5.) Mr. Ventura was still "very belligerent." (T. 461.) Mr. Ventura picked Carrion's photograph out of one of the books and identified him as the Hispanic shooter. (Wade Hearing Tr. 6, 7.) The next day, three detectives met with Mr. Ventura at his home and took Mr. Ventura's statement about the incident and descriptions of the assailants. (T. 462-63.) This time, Mr. Ventura gave a different account of what transpired, admitting that he entered apartment 3C just before the shooting, but stating that he left the apartment before any shots were fired and only heard the gunshot that killed Mr. Mercedes from the lobby. (T. 408-10.) After that meeting, Detective Ciuffi attempted to contact Mr. Ventura on several occasions, because he did not believe that Mr. Ventura was telling the truth about not witnessing Mr. Mercedes's death, but Mr. Ventura did not return the detective's telephone messages. (T. 464, 467.)

  After more than three years had passed, on September 3, 1998, Detective Ciuffi met with Mr. Ventura at the Altona Correctional Facility, where Mr. Ventura was serving a five to ten-year sentence for an unrelated drug crime. (Wade Hearing Tr. 7, 8; T. 95-96.) Mr. Ventura provided Detective Ciuffi a more detailed statement of the crime and description of the assailants. Since he was already in jail for another drug-related crime, and so not worried about possible identification as a drug dealer because he was in apartment 3C with drug paraphernalia, Mr. Ventura cooperated with police and agreed to tell the truth about what happened on the night of April 20, 1998.*fn6 (T. 445-46, 503.)

  On May 17, 1999, Mr. Ventura viewed a six-suspect photo array at the Bronx District Attorney's Office and identified Carrion as the person who shot and killed Mr. Mercedes. (Wade Hearing Tr. 8, 9.) As a result this identification, Detective Ciuffi had Carrion placed in custody. (Wade Hearing Tr. 12.) On May 26, 1999, Mr. Ventura came to the 48th Precinct and viewed a lineup, at which he again identified Carrion as the shooter. (Wade Hearing Tr. 12, 16; T. 146-48.) As a result of this lineup identification, police arrested Carrion in May 1999 and indicted him for the murder of Juan Mercedes and the attempted murder of Juan Ventura.

  The Trial

  A jury trial was held before Judge Steven L. Barrett of the New York Supreme Court, Bronx County, Criminal Term in January 2001. The only evidence linking Carrion to the ...

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