The opinion of the court was delivered by: Frank Maas, United States Magistrate Judge.
TO THE HONORABLE JED S. RAKOFF
REPORT AND RECOMMENDATION
Petitioner Danny DeJesus ("DeJesus") brings this habeas corpus proceeding, pursuant to 28 U.S.C. § 2254, to challenge his conviction on one count of Murder in the Second Degree following a jury trial in Supreme Court, New York County. On June 11, 1993, Justice Howard E. Bell, before whom the case was tried, sentenced DeJesus as a second felony offender to an indeterminate term of twenty-three years to life. (Pet. ¶¶ 1-3, 4, 6).
During the four years that this proceeding has been pending, DeJesus has filed an original petition, a supporting memorandum of law, and a motion to amend his petition. Following the granting of that motion, DeJesus also served (but did not file) an amended petition and an amended memorandum of law. His pleadings indicate that these later papers are intended to supplement, rather than to supersede, his original submissions. Although the record is at times confusing, it appears that he now contends that: (a) there was insufficient evidence to establish that he was an accomplice; (b) the court's circumstantial evidence charge was improper; (c) his trial counsel was laboring under a conflict; and (d) his trial and appellate counsel were ineffective.
DeJesus brings his petition pro se, with the exception of his claim that his trial counsel had a serious conflict of interest, which was briefed by Peter Enrique Quijano, Esq., a member of this Court's Criminal Justice Act Panel, who was appointed to represent DeJesus pursuant to 18 U.S.C. 3006A and 28 U.S.C. § 2254(h). (See Docket Nos. 21, 24).
For the reasons that follow, DeJesus' petition should be denied. Additionally, DeJesus should be denied a certificate of appealability because he has failed to make the substantial showing of the denial of a constitutional right required by 28 U.S.C. § 2253(c)(2).
The People's proof at trial would have permitted a reasonable juror to find as follows:
On July 20, 1991, after seeing DeJesus "roll by" in a jeep, Evelyn Morales approached him to ask for drugs that she could sell on Rutgers Street. (A. 58-59, 61/ T. 485-86, 489; Answer Ex. B at 5).*fn1 In response, DeJesus supplied Morales with two "bundles" of crack vials, worth approximately $50 per bundle. (A. 62/T. 490). Morales sold one of the bundles while DeJesus was watching her, but consumed a portion of the second bundle herself after he left. (A. 62-63/T. 490, 493). To make up for the resulting shortfall in revenue, Morales divided her remaining crack into additional vials which she sold "short." She also obtained cash advances for crack to be delivered at a later date. (A. 63-64/T. 493-94).
Subsequently, Morales met with DeJesus in his building to give him the money she had collected. (A. 65-66/T. 495-96). When DeJesus asked why it had taken so long to sell the second bundle, Morales lied, claiming that Robert Gist, a competing drug dealer, was selling crack in the vicinity at a lower price and had taken away her business. (A. 66/T. 496). In response, DeJesus told Morales that Gist was not supposed to be "out there" and had been "warned." (A. 66, 68/T. 496-97). He stated further that he was going to call "Wilbur." (A. 68/T. 497). Previously, DeJesus had told his former girlfriend, Elizabeth Jimenez, that if he caught Gist on the block, "he was going to take him off the block." (Answer Ex. A (Appellant's Br. on Appeal) at 6 (citing T. 696, 697, 735, 738)).
After Morales left DeJesus' building, she walked to "The Lane," a "shrub lined walkway" between Rutgers and Pike Streets, where she met with Gist, Jimenez, and a man named "Gordy." (Id. Ex. B (Resp't's Br. on Appeal) at 6 (citing T. 498-99)). After a while, Morales noticed a black Jeep with a covered top on Madison Street. (A. 83-84/T. 501-02). Wilbur Hernandez, a man named "Bruno," and a third unidentified man were inside the Jeep. (Id.). Morales then left the area because she was afraid that the men were going to "rough [Gist] up and rob him." (A. 84/T. 502).
Jimenez and Gordy subsequently walked to the Madison Street entrance to The Lane. (A. 89/T. 689). From there, Jimenez saw DeJesus walking in the opposite direction before stopping next to a taxicab to speak with the driver. (A. 101/T. 692). Jimenez then saw DeJesus raise his arms over his head in a "stretch[ing]" motion. (Id.).
Moments later, as Hernandez and Bruno walked toward Gist, Hernandez shot him six times. (A. 100/T. 693). Hernandez and Bruno then ran from the scene in the direction of the Jeep. (A. 114-a, 114-b, 115/T. 503-05). After the shooting, Morales walked over to Gist, whose body was "jumping up and down." (A. 116, 122/T. 506-07). She then went to a store across the street to purchase a soda. (Id.). Morales met up with DeJesus soon after buying the soda and asked "why that had to happen to [Gist]." (A. 122/T. 507). DeJesus replied that "he was warned and he knew that he did not have to be there." (Id.).
The following day, after interviewing Morales, the police arrested DeJesus and read him his Miranda rights. (A. 159/T. 601). After DeJesus requested a lawyer, the police stopped interrogating him. (A. 159, 161-a, 168/T. 601-02, 609). Prior to being transported to Central Booking, however, DeJesus requested permission to make a phone call to his wife. (A. 168/T. 602). During the ensuing conversation, Detective Donald Cronin overheard DeJesus instruct his wife to "call Wilbur [and] have him get in touch with [someone whose name Cronin could not hear] because he is my witness." (Id.). Detective Cronin also heard DeJesus tell his wife, "I was talking to him." (Id.). Another detective, Detective Walsh, also was present during the call; he testified that DeJesus told his wife, "[J]ust tell Wilbur. He will take care of it." (A. 167/T. 620).
While he was waiting to be photographed at Central Booking, DeJesus spoke to Detective Cronin about his employment and family. (A. 172/T. 604). In the course of his unsolicited statements, DeJesus mentioned his prior work, stating to Detective Cronin, "[i]f I would have had that [trucking] job I wouldn't be here right now." (Id.). Detective Cronin testified that DeJesus also volunteered information about Gist's murder, commenting, "It was messy. It bothered me. He was warned. It shouldn't have happened." (Id.).
The sole defense witness was Gist's first cousin, William Jackson, who testified that he and Gist had been in the drug business together, and that they both knew Hernandez. (A. 202, 207/T. 756-57). On cross-examination, Jackson testified that he also had seen DeJesus and Hernandez together up until a year before the shooting. (Id.).
3. Conviction and Sentence
The jury found DeJesus guilty of Murder in the Second Degree. (Pet. ¶ 2). Thereafter, on June 11, 1993, Justice Bell sentenced DeJesus, as a second felony offender, to an indeterminate prison term of twenty-three years to life. (Id. ¶ 3).
B. Subsequent Procedural History
In February 1998, the Legal Aid Society filed an appellate brief on behalf of DeJesus, which advanced the sole claim that the trial court had erred by failing to give the jury a circumstantial evidence charge in a case which was entirely circumstantial. (See Answer Ex. A). On December 3, 1998, the Appellate Division unanimously affirmed DeJesus' conviction on the ground that his guilt was proven by both direct and circumstantial evidence, which "eliminate[d] any necessity for a circumstantial evidence charge." People v. DeJesus, 682 N.Y.S.2d 33 (1st Dep't 1998). The court also noted that there was "overwhelming evidence of [DeJesus'] guilt." Id. By letter dated January 25, 1999, DeJesus' appellate counsel sought leave to appeal to the New York Court of Appeals on DeJesus' behalf. (Answer ¶ 8). That application was denied on June 21, 1999. People v. DeJesus, 93 N.Y.2d 969 (1999).
2. Motion to Vacate Judgment
On December 23, 1999, DeJesus filed a pro se motion to vacate his judgment of conviction pursuant to Section 440.10 of the New York Criminal Procedure Law ("C.P.L."). (Resp't's Supplem. Mem. Ex. A). DeJesus raised four grounds for relief: (a) the prosecutor's failure to turn over notes of a witness's prior statement pursuant to Rosario;*fn2 (b) prejudicial comments by the prosecutor during summation; (c) insufficiency of the evidence; and (d) ineffective assistance of trial counsel. (Id. at 1). With respect to the last of these claims, DeJesus contended that his trial counsel had failed to (a) object to the accomplice liability charge; (b) object to the court's refusal to allow further re-cross-examination of Detective Cronin; (c) withdraw despite a clear conflict of interest; (d) seek a severance so that he and Hernandez would be tried separately; or (e) probe the improper conferral of a benefit --various packs of cigarettes -- on Morales, who was a key prosecution witness. (Id. at 19-49). The conflict of interest claim was based on matters which DeJesus accurately characterized as "dehors the record" -- namely, the fact that DeJesus' trial counsel had represented Bruno on unrelated charges in Kings County at the same time that he was representing DeJesus. (Id. at 35).
On February 15, 2000, Justice Dora L. Irizarry denied DeJesus' motion to vacate judgment because "sufficient facts appear[ed] on the record of the trial proceedings to have permitted adequate appellate review of the issues raised in the instant motion." (Resp't's Supplem. Mem. Ex. B).
On or about March 6, 2000, DeJesus filed an application pursuant to Section 460.15 of the C.P.L. seeking leave to appeal to the Appellate Division from the denial of his motion to vacate the judgment of conviction. (Id. Ex. C). In those papers, DeJesus did not cite as a basis for relief his allegation that his trial counsel had a conflict of interest. (Id.).
On April 20, 2000, the Appellate Division denied DeJesus' application for leave to appeal from Judge Irizarry's February 15th order. (Resp't's Supplem. Mem. Ex. E).
3. Writ of Error Coram Nobis
On May 27, 2000, DeJesus submitted a motion to the Appellate Division for a writ of error coram nobis, in which he claimed that he was denied his right to the effective assistance of counsel because his appellate counsel failed to challenge the sufficiency of the proof establishing his guilt and the ineffectiveness of his trial counsel. (Answer Ex. F). This application was denied on May 3, 2001. People v. DeJesus, 726 N.Y.S. 2d 43 (1st Dep't 2001) (table).
DeJesus' habeas petition was timely received by the Pro Se Office of this Court on October 4, 2001. (See Docket No. 2). The sole ground that he initially raised was that his appellate counsel was ineffective because he failed to raise trial counsel's ineffectiveness as an issue on appeal. (Pet. ¶ 12).
Thereafter, on April 30, 2003, the Court granted DeJesus' motion for leave to file an amended petition. (Docket No. 14). DeJesus subsequently served an amended petition and amended memorandum of law on or about June 16, 2003, although it does not appear that these documents ever were filed.*fn3 In his amended petition and memorandum, DeJesus raises a series of claims concerning the sufficiency of the trial evidence, the correctness of the jury charge, trial counsel's conflict of interest, and the allegedly ineffective assistance that he received from trial and appellate counsel.
Because the conflict of interest question appeared colorable and potentially required a hearing, I directed that Mr. Quijano be appointed to represent DeJesus. On January 5, 2005, Mr. Quijano submitted a memorandum of law, in which he argued that DeJesus' conviction should be set aside because of his trial counsel's conflict of interest.*fn4
A habeas corpus petition is not a vehicle to relitigate every issue previously determined in state court. Herrera v. Collins, 506 U.S. 390, 401 (1993). Rather, a state prisoner seeking habeas relief under Section 2254 must show that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The petitioner bears the burden of proving, by a preponderance of the evidence, that his rights have been violated. Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997).
Section 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), provides, in part, 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 ...