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Ayala v. Ercole

April 17, 2007


The opinion of the court was delivered by: Joseph F. Bianco, District Judge


Oscar Ayala ("petitioner") petitions this Court pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction in state court. Petitioner was convicted in a judgment rendered on January 22, 2001, following a jury trial, in the Supreme Court, Nassau County, of murder in the second degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree. He was sentenced to an indeterminate term of imprisonment of twenty-five years to life.

Petitioner challenges his conviction on the following grounds: (1) the prosecution did not provide legally sufficient evidence to prove petitioner's guilt beyond a reasonable doubt, thus denying him due process of law; (2) petitioner was prevented from cross-examining the prosecution's key witnesses, thus depriving him of his constitutional right to confront the witnesses against him and denying him due process of law; (3) the trial court improperly permitted the prosecution to inquire into petitioner's prior criminal record, thus denying him due process of law; and (4) the prosecution engaged in improper conduct and made inappropriate comments during the course of the trial.

For the reasons set forth below, the petition is denied.


The following facts are derived from the instant petition and the underlying record.

A. Pre-Trial Proceedings

Petitioner was charged with two counts of murder in the second degree (N.Y. Penal Law §125.25[1]), criminal possession of a weapon in the second degree (N.Y. Penal Law § 265.03), and criminal possession of a weapon in the third degree (N.Y. Penal Law § 265.02[4].)*fn1

At a pre-trial Sandoval hearing,*fn2 the court addressed whether to allow questioning, if the petitioner took the stand, related to two of petitioner's four prior convictions. In particular, petitioner had four prior criminal convictions, including a conviction for harassment, a conviction for attempted criminal contempt, and two convictions as a youthful offender. The prosecution requested permission to cross-examine petitioner regarding two of these prior crimes: (1) the underlying facts, but not the disposition, of one of the youthful offender convictions for attempted grand larceny (which involved an attempt to steal a car); and (2) the conviction for attempted criminal contempt (arising from his violation of an order of protection), without going into the facts of the case. The trial judge granted the prosecutor's request as to the attempted criminal contempt conviction, but denied the request as to the youthful offender crime. (Tr. 6-11.) Petitioner's counsel objected to the court's ruling on the attempted criminal contempt conviction. (Tr. 11.)

B. The Trial

(1)The Prosecution Case

Juan Portillo ("Portillo") was a member of the gang Salvadorians With Pride (hereinafter "SWP"). Petitioner was a member of a rival gang, Mara Salvatrucha (hereinafter "MS-13"). Since 1998, SWP and MS-13 have been engaged in a gang war. (Tr. 454.) On the night of October 15, 1999, Portillo was sitting on the front steps of his home in Hempstead, New York. Accompanying him were five friends, Jonas Gutierrez, William Duran, Emerson Castaneda, Francisco Alexander Castro, and Jorge Rivas Ramos ("Gutierrez," "Duran," "Castaneda," "Castro," and "Ramos," respectively). (Tr. 298-99, 346, 358, 381, 390-91, 466, and 497.) During that evening, they observed a car slowly driving by the house several times. (Tr. 301-02, 326-28, 394-95, 467-69, and 501.) The last time the car drove past, it stopped about a block away. (Tr. 471-72.)

Petitioner got out of the car and approached the house on foot. Upon reaching the front of the house, petitioner pulled out a gun and fired five or six shots. (Tr. 352-57, 384, 400-01, 403, 419-20, 473-76, 505-11, 519.) Two bullets struck Portillo, one piercing his intestine in several places. The contents of his intestine spilled into his abdomen, causing a massive infection. (Tr. 535-39.) Portillo's wounds were not immediately fatal; rather, despite multiple surgeries, he died two months later on December 21, 1999, from complications from the gunshot wounds due to infection. (Tr. 540.)

After Portillo's death, the five witnesses came forward identifying petitioner as the shooter. All five had known petitioner prior to the shooting, and all had seen petitioner shoot Portillo.*fn3

(2) The Petitioner's Case

Petitioner testified that he was nineteen years-old at the time of the trial and had joined MS-13 in El Salvador and was still a member. (Tr. 551-52, 569.) Petitioner further testified that he was not an occupant of the car that drove by the house on October 15, 1999, and was not the shooter. (Tr. 553.) Instead, he claimed that he was at home with his girlfriend and his landlord that night. (Tr. 554-55.)

(3) The Verdict and Sentence

On February 21, 2001, petitioner was convicted of murder in the second degree (N.Y. Penal Law § 125.25[1]), criminal possession of a weapon in the second degree (N.Y. Penal Law § 265.03) and criminal possession of a weapon in the third degree (N.Y. Penal Law §§ 265.02[4]). The trial judge sentenced petitioner to a prison term of twenty-five years to life.

C. State Appeals/Post-Judgment Motions

Petitioner appealed his conviction to the New York Supreme Court, Appellate Division, Second Department (hereinafter, the "Appellate Division") arguing, inter alia, that the prosecution had failed to prove his identity as the shooter by legally sufficient evidence, that he was denied his right to confront the witnesses against him, that the trial court's ruling under Sandoval constituted an inappropriate exercise of discretion, and that the prosecutor made inappropriate comments during the trial. The Appellate Division unanimously affirmed the judgment of the trial court on February 14, 2005. (People v. Ayala, 15 A.D.3d 496, 2005 N.Y. Slip. Op. 01209 (N.Y. App. Div. 2005)). On May 6, 2005, an Associate Judge of the New York Court of Appeals denied leave to appeal from the Appellate Division's order. (People v. Ayala, 831 N.E.2d 973 (N.Y. 2005)).

D. The Instant Petition

On April 3, 2006, petitioner filed a pro se petition with this Court for a writ of habeas corpus, raising the four claims he had submitted on direct appeal. This Court issued an Order to Show Cause on April 17, 2006. An opposition was filed on May 17, 2006.


To determine whether a petitioner is entitled to a grant of a writ of habeas corpus, a federal court must apply the standards of review provided in 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, which provides, in relevant part:

(d) 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 court proceedings unless the adjudication of the claim-

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254. "Clearly established Federal law" is comprised of "the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state court decision." Green v. Travis, 414 F.3d 288, 296 (2d Cir. 2005) (quoting Williams v. Taylor, 529 U.S. 362, 412 (2000)).

A decision is "contrary to" clearly established federal law, as determined by the Supreme Court, "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams, 529 U.S. at 413; see also Earley v. Murray, 451 F.3d 71, 74 (2d Cir. 2006). A decision is an "unreasonable application" of clearly established federal law if a state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case." Williams, 529 U.S. at 413; see also Earley, 451 F.3d at 74.

AEDPA establishes a deferential standard of review - "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001) (quoting Williams, 529 U.S. at 411). The Second Circuit has noted that although "[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Gilchrist, 260 F.3d at 93 (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)); accord Earley, 451 F.3d at 74.

When reviewing a habeas petition, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2241; see also Rose v. Hodges, 423 U.S. 19, 21 (1975) (per curiam); Cook v. N.Y. State Div. of Parole, 321 F.3d 274, 277 (2d Cir. 2003). Federal habeas corpus relief does not lie for errors of state law. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (citing Lewis v. Jeffers, 497 U.S. 764, 780 (1990)); see also Pulley v. Harris, 465 U.S. 37, 41 (1984); DiGuglielmo v. Smith, 366 F.3d 130, 136-37 (2d Cir. 2004); Lydon v. Kuhlman, 62 F. Supp. 2d 974, 977-78 (E.D.N.Y. 1999).


A district court shall not review an application for a writ of habeas corpus unless "the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254[b][1]. The procedural bar rule in the review of applications for writs of habeas corpus is based on the comity and respect with which state judgments must be accorded. House v. Bell, ___U.S. ___, 126 S.Ct. 2064, 2076 (2006). Respondent argues that petitioner has failed to exhaust state remedies, and thus, petitioner's legal insufficiency claim and prosecutorial misconduct claim are procedurally barred from habeas review. The legal insufficiency claim was raised on direct appeal, and the Appellate Division explicitly dismissed it as unpreserved under New York law. Ayala, 789 N.Y.S.2d at 439. The prosecutorial misconduct claim was raised on appeal and dismissed, although the grounds for dismissal are unclear.*fn4 Id.

Petitioner's federal claims may be procedurally barred from habeas corpus review if they were decided at the state level on adequate and independent procedural grounds. Coleman v. Thompson, 501 U.S. 722, 729-33 (1991). The purpose of this rule is to maintain the delicate balance of federalism by retaining a state's rights to enforce its laws and to maintain its judicial procedures as it sees fit.

Id., at 730-31.

A. Legally Insufficient ...

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