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Morenito v. Fischer

January 12, 2006

SANTOS CORNELIO MORENITO, PETITIONER,
v.
BRIAN FISCHER, SUPERINTENDENT, RESPONDENT.



The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge

DECISION AND ORDER

INTRODUCTION

Petitioner, Santos Cornelio Morenito ("Morenito"), filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Monroe County Court on charges of criminal possession of a controlled substance in the first degree, criminal sale of a controlled substance in the third degree, and conspiracy in the second degree. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(c).

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

During the month of April 1997, members of the Rochester Police Department's Special Investigation Unit were assigned to execute a court-ordered eavesdropping warrant on cell phone number (716) 766-0164. T.477. Officer Joseph Celorio ("Celorio"), an experienced undercover narcotics officer, was assigned to work the warrant. He listened to all of the intercepted phone calls and testified that many of the calls were "coded," meaning that they were phrased in the jargon used by individuals engaged in drug-trafficking. Based upon his training and experience, Celorio was able to interpret much of the jargon used on the calls. Most of Celorio's interpretations were corroborated by visual surveillance conducted by the police. In addition, the testimony of Morenito's co-defendant, Pastor Rivera ("Rivera"), corroborated Celorio's interpretation of the messages contained within the phone conversations.

According to Celorio, several of the initially intercepted phone calls revealed communications between Morenito and unknown males in the New York City area in which Morenito attempted to determine the availability and price of a kilo of cocaine. T.604-610.*fn1 For instance, Celorio testified that on May 2, 1997, at 12:39 p.m., Morenito called a number in New York City and was advised by the person who answered the phone that there was cocaine available. Morenito was told that he should come down to take a look at it before deciding whether he wanted it. Morenito responded that he would drive down to the City either that night or the next day. T.616-20.

Celorio testified that immediately after that call, Morenito called an unidentified female and requested the pager number of "Elvido." T.620, 635. Several phone calls were exchanged between Morenito and Elvido. During one of them, they agreed to meet on May 2nd. T.637. On May 3rd at 10:50 p.m., Morenito called a number in New York City and informed the person who answered that he was going to be taking a trip there. T.639.

Co-defendant Rivera admitted during cross-examination that he was Elvido and the during the May 2nd meeting, he agreed to drive Morenito to New York City. According to Rivera, the purpose of the trip was for Morenito to go clothes-shopping. T.902-03, 908. Rivera said that Morenito offered to pay him $200 plus his expenses to drive him down to New York City. T.915. Rivera testified that they drove to New York City on May 3rd, arriving at about 1 p.m. They went to a restaurant to eat, and then Morenito borrowed Rivera's car for about three and a half hours.

T.904. 913.

When Morenito returned, he told Rivera that he was not going to buy clothes after all and that he would see him (Rivera) back in Rochester. T.905. Rivera testified that he was unaware that any cocaine was placed in his vehicle.

T.905.

Rivera was arrested on May 4, 1997, at about 12:05 a.m. after his vehicle was stopped by the police on Route 490 in the City of Rochester, shortly after he exited the New York State Thruway. T.788. The car was confiscated as evidence and the police obtained a search warrant for the vehicle. During their search of the car, the police found a hidden compartment controlled by a hydraulic lift. Activation of the lift opened the compartment and revealed a kilo of cocaine secured therein. T.790-91. A search of Rivera's apartment revealed a .380 caliber handgun and a bottle of inositol, a vitamin B supplement and a chemical commonly used as a cutting agent when packaging cocaine for re-sale. T.866. Rivera could not explain how the inositol or the handgun came to be in his house. T.929, 931.

After Rivera's arrest, the wiretap on Morenito's phone remained in place and several more calls were intercepted. In one conversation, Celorio heard Morenito ask the female whom he previously had contacted on May 2nd what had happened to Elvido. T.642. She responded by asking Morenito to come over to her house. After Morenito continued to press her concerning Elvido's whereabouts, she relented and told him that Elvido had been caught. T.642. Morenito hung up and immediately called Mani's Grocery Store. The man who answered the phone asked Morenito how things were going and whether "it was all there," meaning, did the cocaine package arrive intact, to which Morenito responded, "no." T.645. On May 4th at about 12:00 p.m., Morenito called another male and told him that he "did not have anything to eat." Viewing this statement in the totality of the circumstances, Celorio determined that Morenito meant that he recently had suffered an economic loss. T.654, 658.

Morenito was arrested on May 6, 1997; a wallet, a pager instrument, and a cellular telephone were seized from his car and confiscated as evidence. T.828. A bottle of acetone, a chemical commonly used to "re-rock" cocaine before packaging it for sale, was found at Morenito's house. When Morenito was taken in for booking, Celorio asked him pedigree questions necessary in order to complete his prisoner data report. After he began speaking to Morenito, Celorio immediately recognized Morenito's voice as being the same voice that he had listened to about 150 times while the ...


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