The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.
On November 17, 2006, Crispin Guity ("Petitioner") brought this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his imprisonment for convictions on November 14, 2003 of attempted murder in the second degree, criminal possession of a weapon in the second degree, and assault in the second degree, following jury trial in New York State Supreme Court, Bronx County.*fn1
In his pro se petition, Petitioner re-asserts two of the claims he raised on direct review: "1) the jury's verdict was not based on proof beyond a reasonable doubt and was against the weight of the evidence, thus depriving Petitioner of due process, since there was no physical evidence linking Petitioner to the crimes, no motive for the attacks, and the complainants gave inconsistent reports about the attacks; and 2) it was error for the Government to impeach its rebuttal witness with Grand Jury testimony in the absence of a limiting instruction that such evidence was for impeachment only, and did not constitute evidence in chief." (Petition at 5.)
In an order, dated February 13, 2007, this Court concluded that the petition should not be summarily dismissed. The Court ordered Respondent to file an answer to the petition no later than March 15, 2007, and Petitioner to file reply papers by April 16, 2007. After this Court granted two written requests for extension of time to file a response, Respondent filed an affidavit and memorandum of law in opposition to the petition on June 27, 2007. Although given until October 1, 2007 to respond, Petitioner has not filed reply papers. For the reasons set forth below, the petition is denied. Background
At Petitioner's trial, the Government presented evidence that on May 7, 2002 Petitioner repeatedly stabbed Pedro Hernandez and ordered the shooting of Alexander Gomez. Mr. Hernandez testified at trial that he had previously known Petitioner from seeing him occasionally on Ellis Avenue in the Bronx. (Tr. 35-39, 85-86.)*fn2 Mr. Hernandez also testified that about two years before his testimony at trial, Mr. Hernandez had a conversation with Petitioner's girlfriend, Emily. (Id. at 43.) Mr. Hernandez testified that he had never spoken to, or had any disagreement, with the Petitioner. (Id. at 43, 87.)
Mr. Hernandez also testified that on May 5, 2002, Mr. Hernandez saw the Petitioner, Emily, and her brother, Alex Ramirez, on the corner of Virginia and Ellis Avenues in the Bronx. (Id. at 42, 45, 116-117, 133.) According to Mr. Hernandez, Petitioner then called Mr. Hernandez over, but Mr. Hernandez was nervous because Petitioner was with three people and Mr. Hernandez was alone, so Mr. Hernandez simply walked away without incident. (Id. at 36-37, 41, 43, 45, 86-87, 116-17.)
On May 7, 2002, at about 8:30 p.m., Mr. Hernandez was outside his apartment building when Petitioner approached him and asked if he had a "burner," meaning a gun. (Id. at 34-35.) Mr. Hernandez testified that he said "no," at which point Petitioner "reached," and Mr. Hernandez fled. (Id.) Mr. Hernandez said he ran to a Laundromat on Newbold Street while Petitioner, along with Frankie Ramirez, who is Emily's brother, gave chase and followed Mr. Hernandez into the Laundromat. (Id. at 44-45.) Mr. Hernandez testified that Petitioner repeatedly stabbed him in the face, shoulder, and head while Mr. Ramirez held Mr. Hernandez down and used profanity while accusing Mr. Hernandez of some type of involvement with Mr. Ramirez's family. (Id. at 48, 68.) Mr. Hernandez said he saw his friend, Alex Gomez, try to come inside the Laundromat. (Id. at 72-73.) According to Mr. Hernandez, Petitioner then approached Mr. Gomez outside the Laundromat, put the knife in front of Mr. Gomez's face, and asked him if he "want[ed] some." (Id. at 72-74.) Mr. Hernandez then heard Petitioner say to an unidentified man in the street near a pay phone, "bust him, bust him," meaning shoot him. (Id. at 74-75.) Mr. Hernandez heard shots and observed Mr. Gomez run away. (Id. at 75.) After being taken to the police precinct in an ambulance, Mr. Hernandez had his face stitched at Jacobi Hospital. (Id. at 51-54.)
At trial, Mr. Gomez corroborated Mr. Hernandez's testimony. Mr. Gomez testified that, on May 7, 2002, he saw a group of men chasing Mr. Hernandez. (Tr. 140.) Mr. Gomez ran after Mr. Hernandez and the individuals, and saw Mr. Hernandez in the Laundromat on the floor in a fetal position, being held and kicked by one person, and being stabbed by Petitioner. (Id. at 141.) Mr. Gomez stated that he tried to open the door to the Laundromat, but was unable to because Petitioner was blocking the door. (Id. at 142.) Initially, Petitioner's back was facing Mr. Gomez, but when Mr. Gomez attempted to open the door, Petitioner turned around, opened the door, and grabbed Mr. Gomez's chest. (Id. at 144.) Mr. Gomez said he had never seen Petitioner before that day. (Id. at 143). Mr. Gomez testified that Petitioner, who was holding a knife, asked him if he "wanted some," and that Petitioner ordered an individual behind Mr. Gomez to "bust him." (Id. at 147.) Mr. Gomez turned around, heard a gunshot, and saw an individual with a gun right in his face; however, Mr. Gomez was unable to identify the gunman. (Id.) At that point, Mr. Gomez smacked Petitioner's hand off his chest, and ran. (Id. at 148.) Mr. Gomez heard gunshots as he was running, and felt a burning sensation on his left leg from a gunshot wound. (Id. at 149.) Mr. Gomez ran home, and was soon thereafter treated at Jacobi Hospital for his injury. (Id. at 151.)
When Mr. Hernandez initially spoke with law enforcement after the incident, he was uncooperative. (Tr. 220, 226.) Mr. Hernandez only told Detective Richard Biglin that one black man, who was wearing a fitted hat, assaulted him. (Id. at 251-52.) Mr. Hernandez did not mention that there was another person involved, or that he had previously seen the individuals who attacked him. (Id. at 232.) Mr. Hernandez admitted that he was not completely honest with law enforcement, but said that he was nervous because his family lived in the same building as Frankie Ramirez. (Tr. 52, 83-84.)
Mr. Gomez was also interviewed by Detective Biglin, and Mr. Gomez informed law enforcement that two black men and one Hispanic man were involved. (Tr. 280.) Mr. Gomez did not mention that any of the individuals were wearing a hat. (Id. at 267.) Two days later, on May 9, 2002, Mr. Hernandez testified that he went to the precinct to tell Detective Biglin that he "wanted to tell the truth," because he found out his friend, Mr. Gomez, was shot. (Tr. 54, 134.) Mr. Hernandez mentioned that Frankie Ramirez was one of the perpetrators, and that "Tupac" had cut him on his face. (Id. at 54, 127.)*fn3
On re-direct examination, Detective Biglin also testified that during his second interview with Mr. Hernandez, Mr. Hernandez told him Mr. Hernandez was afraid because his family lived near one of the assailants. (Id. at 278.) However, Mr. Hernandez did not tell the police that Petitioner had a large scar on his face. (Id. at 97.) At trial, Detective Barry Sullivan testified that Petitioner has a scar on the side of his face, spanning from the left temple, down the side of his left ear, to below his left ear. (Tr. 316.) On May 23, 2002, both Mr. Hernandez and Mr. Gomez were brought to the precinct to identify the perpetrator in a lineup. Petitioner was placed in a lineup with four fillers, who were all men were wearing hats "because they had different hairstyles." (Id. at 290.) Mr. Hernandez and Mr. Gomez separately identified Petitioner as the assailant. (Id. at 292.)
Petitioner called Lilliam Moraza as a defense witness. Ms. Moraza had been Petitioner's friend since he was thirteen years old. (Tr. 344.) Since 1998, Ms. Moraza resided in Bethlehem, Pennsylvania, and testified that Petitioner frequently visited her family in Pennsylvania. (Id. at 348-351.) She testified that Petitioner was close friends with her children, that Petitioner was once arrested in Pennsylvania for possession of a controlled substance, and that she posted bail for him in the Pennsylvania case. (Id.) Ms. Moraza said that Petitioner came to her house in Pennsylvania on May 6, 2002, the day before his May 7, 2002 court date for the case in which she posted bail. (Id.) She testified that on May 7, 2002, Petitioner came back to her apartment after his court date around 2:00 or 3:00 p.m. (Id. at 356.) She also testified that she and Petitioner talked about his case for a while, and then Petitioner took a nap, ate something, went outside, and returned to her apartment at 6:00 p.m. (Id. at 359.) On cross-examination, she maintained that Petitioner never left her throughout the evening of May 7, 2002. (Id. at 363-64.) However, she admitted that she told the Grand Jury that Petitioner arrived at her house on May 6, 2002 between 8 p.m. and 9 p.m., but that at trial on direct examination, she stated he arrived between 6:30 and 7 p.m. (Id. at 352-53, 388.) Similarly, the acknowledged that she told the Grand Jury that Petitioner returned to her house from court on May 7, 2002 around 3 or 3:30 p.m., but that at trial on direct examination, she said he had arrived between 2 p.m. and 3 p.m. (Id. at 389-90.) Although she remembered details about May 7, 2002, she could not remember each and every time Petitioner visited her in Pennsylvania, or the last time Petitioner visited her before May 7, 2002. (Id. at 383-84.) At trial, Ms. Moraza stated she learned Petitioner was arrested about a week or two after he left her home in Pennsylvania on May 8, 2002.*fn4 (Id. at 406-407.) However, before the Grand Jury, she testified that she learned Petitioner was arrested two or three days after Petitioner left her home, and that she spoke to him the weekend after May 7, 2002. (Id. at 408.) Ms. Moraza also admitted that she suffered from agoraphobia, a panic disorder, and was taking Klonopin at the time of trial, at the time of her Grand Jury testimony, and on May 7, 2002. (Id. at 346, 374, 388.) She acknowledged that she was aware that drowsiness, confusion, and forgetfulness are all side effects of Klonopin. (Id. at 373.)
Following Ms. Moraza's testimony, the Government called Kevin Smalls as a rebuttal witness. Mr. Smalls testified that he knew Petitioner for about fifteen years. (Tr. 432.) Mr. Smalls testified that on May 7, 2002, he did not see Petitioner in a fight on Virginia Avenue in the Bronx. The Government then confronted Mr. Smalls with his testimony before the Grand Jury in Frankie Ramirez's case, in which he stated that Petitioner was in the fight on May 7, 2002. (Id. at 434-37.) Mr. Smalls acknowledged his prior testimony, but said he had been mistaken when he testified in front of the Grand Jury. (Id. at 437-39.) Defense counsel did not request a limiting instruction that the Grand Jury testimony could only be used to impeach Mr. Smalls' trial testimony, and could not be used as evidence of the truth of the matter asserted therein. The trial court did not independently provide such a limiting instruction. During summation, the Government referenced the substance of Mr. Smalls' Grand Jury testimony stating "[t]he law tells you that one witness is enough if you believe that witness. Well, you have two. You have got one witness in Pedro Hernandez who knows him and you have got one witness in Alexander Gomez who will never forget him, not even mentioning Kevin Smalls for a minute, his Little League coach who two weeks after the incident testified in a Grand Jury under oath before God that he was there.the question you ask yourselves is did a mistake happen here, are both Pedro Hernandez and Alexander Gomez and Kevin Smalls wrong." (Tr. 464, 469-70.) After the charge, the jury took one day to convict Petitioner of acting in concert with another in the attempted murder in the second degree of Mr. Gomez, and of criminal possession of a firearm in the second degree, as well as of assault of Mr. Hernandez in the second degree with a knife. (Id. at 547.)
On appeal, the Supreme Court of New York, Appellate Division, First Department, unanimously denied the two claims Petitioner raises in his habeas petition. The state appellate court found that: the verdict was based on legally sufficient evidence and was not against the weight of the evidence. Issues of credibility and identification, including the weight to be given to inconsistencies in testimony were properly considered by the jury and there is no basis for disturbing its determinations. As the People concede, since the crime was committed prior to the effective date of the legislation providing for imposition of a DNA databank fee, that fee should not have been ...