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Calvo v. Donelli

April 30, 2007

JULIO CALVO, PETITIONER,
v.
JOHN J. DONELLI, SUPERINTENDENT RESPONDENT.



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

MEMORANDUM AND ORDER

Julio Calvo (hereinafter "petitioner") petitions this Court 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 October 29, 2002, following a jury trial in New York County Court, Nassau County. Petitioner was convicted of criminal possession of a weapon in the third degree (N.Y. Penal Law 265.02[4]), and was sentenced, as a second felony offender, to a determinate term of imprisonment of three years, followed by five years of post-release supervision.

Petitioner challenges his conviction on the following grounds: (1) he was denied effective assistance of appellate counsel, because his appellate counsel failed to raise several constitutional issues on direct appeal and did not address the ineffective assistance of petitioner's trial counsel; (2) his Sixth and Fourteenth Amendment rights to confront and to cross-examine witnesses were denied when the grand jury testimony of witness Jose Londono was admitted as part of petitioner's defense case by stipulation, without petitioner's knowledge, consent and/or waiver; (3) petitioner's Sixth and Fourteenth Amendment rights to be present during all material stages of trial were violated when, during the petitioner's absence, his counsel and the prosecution stipulated to enter Jose Londono's grand jury testimony in lieu of testifying in front of the jury; and (4) his Fifth and Fourteenth Amendment rights to be free of self incrimination were violated when the State's witness, Sergeant Paul Clark, allegedly gave testimony to the grand jury that divulged the petitioner's prior criminal history and falsely claimed that the petitioner was on parole supervision at the time of arrest.

For the reasons stated below, petitioner's request for a writ of habeas corpus is denied.

I. BACKGROUND

A. The Facts

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

At approximately 2:30 a.m. on April 1, 2001, Police Officer Joseph Nocella ("Officer Nocella") stopped in the parking lot of Planet Malibu, a night club in the town of Elmont, in Nassau County, New York. (Trial Transcript (hereinafter "Tr.") at 133.) Upon his arrival, Officer Nocella spoke with Jose Londono ("Londono"), a security guard at the nightclub. (Id.) Londono told Officer Nocella that three individuals, who had been hired as outside security for the musical act performing at the club that evening, had approached the club earlier that evening. (Transcript of Suppression Hearing (hereinafter "Supp. Tr.") at 8.) As the three individuals approached the entrance to the night club, the men were patted down and one was found to be carrying a firearm. (Tr. 180-181.) Londono told the three individuals that firearms were not permitted inside the club. (Id.) In response, the three individuals returned to the white SUV in which they had arrived, then walked back to the club entrance about five minutes later. (Id.) The individuals were patted down again and were found to have no firearms. (Id.)

At approximately 3:36 a.m, after Londono had relayed this information to Officer Nocella, Londono accompanied the officer to the parking lot and showed him the vehicle that the three individuals had returned to after being informed that firearms were not permitted in the club. (Id.) Officer Nocella checked the SUV's registration and found that the vehicle was registered to petitioner. (Tr. 152-153.) Officer Nocella then called his supervisor for assistance. (Tr. 134.) Two sergeants and four additional officers responded to the scene. (Tr. 135.) Sergeant Paul Clark ("Sergeant Clark") was one of the officers who arrived at the location. (Id.)

At approximately 4:30 a.m., after waiting for the three individuals to exit the club, Sergeant Clark and Police Officer Peter Zayaz ("Officer Zayaz") drove over to the white SUV, which was now surrounded by five or six men, including petitioner. (Tr. 66.) Sergeant Clark asked these individuals if they had any weapons, to which they responded "no." (Tr. at 77.) The officers then asked the individuals whether they could search them or pat them down, to which the individuals responded "yes." (Id.) The individuals were patted down and were not carrying any weapons. (Id.) After learning that petitioner owned the SUV, Sergeant Clark asked if he could search the car to see whether there were any weapons in the vehicle. (Tr. 78.) Petitioner gave the officer permission to search his vehicle. (Id.) Upon searching the vehicle, Sergeant Clark found, in the cargo area, an athletic bag that contained a loaded .40-caliber Smith and Wesson gun. (Tr. 83-84.) After retrieving the gun, Sergeant Clark asked petitioner whether the weapon belonged to him. (Tr. 84.) Petitioner denied ownership of the gun. (Id.) Sergeant Clark handed the gun to Sergeant Kuntz, another officer at the scene, to check the serial number of the weapon. (Tr. 85.) Sergeant Clark then explained to petitioner that he would find out who owned the gun, and that if it belonged to petitioner, petitioner should, to save time, tell him who owned the gun. (Id.) Petitioner then admitted that the gun belonged to him. (Id.) Petitioner was then asked if he had a permit or a license to carry the weapon and whether he had any justification for having the gun. (Tr. 86.) Petitioner stated that he did not. (Id.) Petitioner was then placed under arrest and transported to the station house so that his arrest could be processed. (Id.) At approximately 8:40 a.m., Detective Emmanuel Midy met with petitioner and advised him of his constitutional rights. (Tr. 108.) Petitioner indicated that he understood his rights. (Id.) When asked about the weapon that was recovered from his SUV, petitioner indicated that it was his gun, and that it had been located in his gym bag. (Id.) Petitioner claimed that he was holding the gun for his sister, who resides in Florida. (Id.) It was later determined that the gun had been purchased by petitioner's sister, Elissa Calvo, in Florida. (Tr. 109.)

B. Procedural History

Petitioner was charged with one count of criminal possession of a weapon in the third degree (N.Y. Penal Law § 265.02 [4]), and he pleaded not guilty to the charge. After a pretrial motion to suppress was denied, petitioner went to trial in County Court, Nassau County.

On October 29, 2002, following a jury trial, petitioner was convicted of the charge and was sentenced, as a second felony offender, to a determinate term of imprisonment of three years, followed by five years of post-release supervision. Petitioner's sentence was stayed pending appeal.

On March 28, 2003, petitioner filed an appeal raising two claims: (1) that petitioner's consent to the police search of his car had not been voluntary; and (2) that the search of petitioner's car exceeded the scope of his consent. The appellate division affirmed the judgment of conviction in a decision and order dated November 24, 2003. People v. Calvo, 767 N.Y.S.2d 653 (N.Y. App. Div. 2003).

On January 6, 2004, the New York Court of Appeals denied petitioner's request for a stay of the execution of petitioner's sentence pending his application for leave to appeal. On January 7, 2004, petitioner surrendered to the County Court to begin serving his sentence. On March 15, 2004, leave to appeal to the Court of Appeals was denied. People v. Calvo, 810 N.E.2d 917 (N.Y. 2004).

On or about October 1, 2004, petitioner filed a pro se application for a writ of error coram nobis, to obtain a new appeal on the ground that appellate counsel was ineffective because he failed to raise two claims that (according to petitioner) would have resulted in the reversal of his conviction. Petitioner contended: (1) that his appellate counsel should have challenged the pre-trial finding that the police had the requisite level of suspicion to ask for permission to search his vehicle; and (2) that petitioner did not receive effective assistance of trial counsel because, even though the lower court sua sponte considered the above-referenced issue and ruled against petitioner, trial counsel had not raised the claim as a ground for suppression. By decision and order dated March 7, 2005, petitioner's motion was denied. People v. Calvo, 790 N.Y.S.2d 397 (N.Y. App. Div. 2005).

On June 14, 2005, the New York Court of Appeals subsequently denied petitioner's application for leave to appeal from the order of the Appellate Division. People v. Calvo, 834 N.E.2d 1264 (N.Y. 2005).

On August 17, 2005, petitioner filed a pro se motion to vacate the judgment against him pursuant to N.Y. C.P.L. § 440.10, in which he alleged: (1) that the prosecution used fraud and false statements to secure an indictment and subsequent conviction against petitioner; (2) petitioner's right to confront his accuser was violated when Londono's grand jury testimony was admitted at trial without petitioner's consent and in his absence; and (3) petitioner did not intentionally relinquish or abandon his constitutional right to confront and to cross-examine his accuser. On October 31, 2005, petitioner filed an addendum to his earlier motion, in which he argued that the prosecutor, in his summation, had expressed his own personal beliefs, argued facts not in evidence, denigrated petitioner and appealed to the jurors' emotions. Petitioner also claimed that, because he never consented to the search of his car, police testimony to the contrary was fabricated. On February 6, 2006, the County Court denied petitioner's motion except to allow him to proceed as a poor person. Petitioner sought timely leave to appeal from denial of his motion to vacate judgment.

While petitioner's application for leave to appeal was pending, on April 13, 2006, petitioner moved before this Court for a writ of habeas corpus, pursuant to 28 U.S.C. ยง 2254. On May 10, 2006, the court ordered that the petition be held in ...


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