The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge
Marcos Parreno, proceeding pro se, brings this petition for a writ of habeas corpus challenging his August 2001 conviction in the Supreme Court of the State of New York, New York County, for two counts each of Robbery in the First Degree (New York Penal Law ("N.Y.P.L.") § 160.15(4)), Robbery in the Second Degree (N.Y.P.L. § 160.10), and Unlawful Imprisonment in the First Degree (N.Y.P.L. § 135.10). Parreno was sentenced to concurrent prison terms of fifteen years on each of the robbery counts and 1-1/3 to 4 years on each of the unlawful imprisonment counts. Parreno's conviction was affirmed by the Appellate Division, First Department, and leave to appeal to the New York State Court of Appeals was denied. Parreno is currently incarcerated at Downstate Correctional Facility. The parties have consented to the disposition of this case by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons stated below, the petition is denied.
1. The Prosecution's Case
From February through November 1999, Marcos Parreno -- a native of
Ecuador who speaks no English -- worked as a garage attendant for the
Mallah Organization, which managed several garages in midtown
Manhattan. (Borja: T. 154-56, 170-73; Parreno: T. 359).*fn1
Parreno worked at the Support Parking Garage, on East 52nd
Street; the Newbury Garage, on East 86th Street; and the East River
Garage, on East 72nd Street. (Borja: T. 155-59). At the Support
Parking and East River garages, Parreno worked the overnight shift
alone. (Borja: T. 158-160). At the Support Parking Garage, the night
attendant would store the night's proceeds underneath a garbage bag in
a garbage can under a desk, and the money would be deposited in the
bank every few days. (Borja: T. 157-59). At the East River Garage,
most of the money from the night shift would be stored in a small
metal "cashier box" located in a closet in a room behind the office. A
key to open the box was stored in the space between the box and the
wall, and could be retrieved with a shirt hanger. Approximately $200
was kept in a desk drawer in the office. (Borja: T. 160-62; Arbelaez:
On March 6 or 7, 2000, Parreno called Luis Serna, an attendant with whom he had worked at the Support Parking Garage for "more than a few months," and asked him who was working the overnight shift. Serna told him a new employee, Oscar Osorio, worked that shift. (Serna: T. 182-85). Around the same date, Parreno called Henry Dederle, an attendant with whom he had worked at the East River Garage, and asked him how the employees were doing, and whether everything was "normal." Dederle told Parreno that a new employee had taken Parreno's old shift at the garage. (Dederle: T. 255-57, 261).
At 7:00 or 8:00 p.m. on March 11, 2000, Serna admitted a 1999 Lexus to the Support Parking Garage. When Osorio replaced Serna at 9:00 p.m., the garage's proceeds were in the garbage can. (Serna: T. 183-84, 186, 188). Around this time, Irving Martinez, the doorman of the building diagonally across from the garage, noticed two men standing near his building and looking directly into the garage. (Martinez: T. 193, 195). One man -- whom Martinez later identified in a lineup as Parreno -- was about 5'5" or 5'6" with a "very thin build" and an olive complexion. The other was about 5'8" or 5'9" with a thin build. Both men wore dark pants, dark down jackets, and "rolled up" knit ski masks. (Martinez: T. 194, 195, 199). Martinez watched the men "for a while," and at one point Parreno looked directly at him "for a few seconds." Martinez did not say anything to the men, and eventually went back inside the building. (Martinez: T. 195).
At about 9:05 p.m., Osorio received a phone call from a man with "Hispanic"-accented English, asking him to bring up a car from a monthly rental spot. When Osorio went to retrieve the car, it was not in its space. As he returned to the office, he saw a man, about 5'6" tall, wearing a black mask over his face, black pants, a black shirt, and gloves. The man was holding a silver automatic gun. (Osorio: T. 231-233, 243). When Osorio asked the man, in Spanish, what he wanted, the man ordered him to turn around, at which point Osorio saw a second man behind him. This man was about 5'8" and also wore a mask, black pants, a black shirt, gloves, and was carrying a silver automatic pistol. (Osorio: T. 234). The shorter man then hit Osorio with his gun "very lightly" behind his right ear, and started speaking to him in what Osorio recognized as an Ecuadorian or Colombian accent. The man told Osorio not to move or make noise or he would kill him, but he reassured him that everything would be all right. The men pushed Osorio into the trunk of a car, took his office key, and left without asking him where the garage's money was stored. (Osorio: T. 235-39).
About 35 minutes later, Osorio was helped out of the trunk by two other men, and he immediately called the police. Upon returning to the office, he discovered that the door was open and the money stored in the garbage can and in the desk -- about $3800 in all -- was missing. The 1999 Lexus that Serna had admitted earlier in the evening was also gone. (Borja: T. 166; Osorio: T. 239-41).
At around 10:15 p.m., Alex Arbelaez, the new night attendant at the East River Garage, saw a Lexus being driven "too fast" down a "very narrow" ramp lined with cars, then making a sharp right turn between a line of cars and a support column. (Arbelaez: T. 210-13). Arbelaez thought someone would "have to know the place" to take the turn at that speed. (Arbelaez: T. 213). Two men then exited the car, each wearing a mask, gloves, a black jacket, black pants, and black shoes. The passenger was slightly shorter, and Arbelaez saw that he was carrying a silver pistol. (Arbelaez: T. 213-16). Arbelaez tried to run away, but the shorter man caught him and held the pistol to his neck. The two men then forced Arbelaez into the trunk of a small car. When he argued that he should be placed in a larger trunk, the men told him to "shut the fuck up and get inside the trunk," and the shorter man hit him in the stomach with his gun. (Arbelaez: T. 216-22). The men did not demand money from Arbelaez or ask where it was kept in the garage. (Arbelaez: T. 222).
Arbelaez was released by another customer about 45 minutes later, at which time he discovered that the cash box, which had been full when Arbelaez began his shift, was open. Arbelaez could tell it was opened with a key, since it was "in perfect condition." (Arbelaez: T. 223-226). All the money from the box and some from the desk drawer --about $1500 total -- was gone. (Arbelaez: T. 226; Borja: T. 166).
On March 15, 2000, Detective Michael Kennedy, of the Manhattan Robbery Squad, was investigating the robberies when he learned that the 1999 Lexus taken from the Support Parking Garage on March 11 had been found in Queens, about a block from the address on Parreno's driver's license. (Kennedy: T. 271; 273-75). Kennedy did not know of any other ex-employees of Mallah besides Parreno who worked at both garages and lived in that Queens neighborhood. (Kennedy: T. 331-32).
When Kennedy attempted to locate Parreno, he was told he had gone to Ecuador. Upon Parreno's return, on July 12, 2000, he was detained briefly by customs officials, then released. (Kennedy: T. 278-80). Later that day, and in the presence of counsel, Parreno arrived at the District Attorney's office to discuss what he had been told was a complaint against him for failing to repay a $100 advance on his pay at the garage. (Kennedy: T. 283-84). When Kennedy informed Parreno's lawyer privately that Parreno was actually being investigated for the two garage robberies, the lawyer left the office, talked to Parreno, and returned with papers that Parreno had just handed him. (Kennedy: T. 284). The papers included an Ecuadorian immigration certificate purporting to show when Parreno had entered and departed from Ecuador. There was an entry for March 11, 2000, stating that Parreno had entered Ecuador on a flight from the United States, and there were no entries indicating that he had entered Ecuador at any other time. See Majid: T. 334-37. The papers also included a passport with Parreno's photograph and the name Marcos Giovanny Parreno Carranza, but without any stamps indicating he had entered any country on March 11, 2000. See id. After looking over the documents, Kennedy stated that he believed they were fake, and he arrested Parreno. (Kennedy: T. 288-89).
When Saima Majid, a paralegal in the District Attorney's office, later procured from the United States Embassy in Ecuador a certified copy of the immigration certificate Parreno had turned over to Kennedy, it did not contain any reference to a flight on March 11. (Majid: T. 332-37). Specifically, while Parreno's copy had handwriting on the front indicating that he had entered Ecuador on March 11, the front of the certified copy had no handwriting. Similarly, the back of Parreno's certificate listed a March 11 flight into Ecuador; but while the back of the certified document listed five flights, it did not list a March 11 flight. See Majid: T. 336-37.
Majid also received a certified document from the United States Department of Treasury indicating that in 2000, Parreno had entered the United States through New York on March 4 and July 12. (Majid: T. 338-39). Majid also requested passenger manifests for all airlines that flew between Kennedy Airport, in New York, and Ecuador --specifically those manifests containing the name Marcos Giovanny Parreno Carranza or Marcos Giovanny Parreno. No airline sent her a manifest for March 11, 2000. (Majid: T. 339-40). She did receive a manifest from Grupo Taca, which manages several airlines --specifically, the manifest for Flight 660, from Kennedy Airport to Ecuador on April 10, 2000, which included a passenger named "G. Carranza." (Majid: T. 340-41). A manifest for Flight 660, from Ecuador to Kennedy Airport on July 11, 2000, contained the name "G. Parreno." Since both tickets were purchased with cash, it was not possible to confirm whether either of these passengers was Parreno. (Majid: T. 341-43).
Finally, Majid testified as to the stamps in Parreno's passport indicating his entrances to and exits from the countries he had visited between February 1999 and July 2000. (Majid: T. 343). Of the twelve stamps in the passport, none was dated March 11, 2000. (Majid: T. 345). On cross-examination, Majid testified that the United States does not stamp the passports of people leaving the country. (Majid: T. 355).
Parreno was the only witness called by the defense.
He testified that he flew from New York to Ecuador on the night of March 11, 2000, on an Ecuadoriana Airlines flight scheduled to depart at 11:00 p.m. (Parreno: T. 363-64). He arrived at the airport at about 10:00 p.m. and the airplane left at approximately 12:20 a.m. (Parreno: T. 364). He stated that when he arrived in Ecuador, the Ecuadorian authorities did not stamp his passport because he could not find it. (Parreno: T. 365). Ultimately, he obtained a certificate from "immigration" in Guayaquil, showing that he had arrived on March 11. (Parreno: T. 365). By the time of the trial, Ecuadoriana Airlines had gone out of business and its passenger manifests no longer existed. (Parreno: T. 393).
B. Verdict, Sentence, and Direct Appeal
The jury found Parreno guilty of two counts each of Robbery in the First Degree, Robbery in the Second Degree, and Unlawful Imprisonment in the First Degree. (T. 483-484). He was sentenced on August 16, 2001, to concurrent terms of fifteen years on each robbery count and 1-1/3 to 4 years on the unlawful imprisonment counts. (S. 16-17).
Parreno, through his appellate counsel, appealed his conviction in the Appellate Division, First Department, claiming that (1) his trial counsel was ineffective, (2) the court improperly admitted evidence during the People's direct case refuting his alibi, and (3) the court failed to include an alibi instruction in its charge and erred in including an interested witness charge. See Appellant's Brief, dated Nov. 32 [sic], 2002 (reproduced as Ex. A to Declaration in Opposition to Petition for a Writ of Habeas Corpus, filed Aug. 12, 2005 (Docket #7) ("Opp. Decl.")) ("App. Br."), at 14-22.
The Appellate Division affirmed Parreno's conviction. See People v. Parreno, 306 A.D.2d 176 (1st Dep't 2003). It held that the "totality of the record" established that Parreno received effective assistance of counsel and that the absence of an alibi charge did not deprive him of a fair trial since the "court's charge conveyed the same principles as those underlying an alibi instruction." Id. at 176-77. The court declined to review Parreno's evidentiary and interested witness claims because he had failed to preserve them at trial. Id. at 177.
Parreno sought leave to appeal this ruling to the New York Court of Appeals, which denied leave on October 30, 2003. See People ...