The opinion of the court was delivered by: Seybert, District Judge
Petitioner Juan Ayala ("Ayala" or "Petitioner") seeks a writ of habeas corpus under 28 U.S.C. § 2254. For the reasons below, Ayala's petition for a writ of habeas corpus is DENIED.
Petitioner was convicted by a jury in the Nassau County Court, Nassau County, on May 19, 2000, of one count of murder in the second degree in violation of New York Penal Law § 125.25(2). Petitioner was sentenced to an indeterminate term of imprisonment of twenty-five years to life.
Ayala appealed his conviction to the Appellate Division, Second Department. On appeal, Petitioner argued that he did not receive a fair trial because the trial court allowed the prosecution to introduce evidence of Petitioner's gang membership, and improperly admitted an eye-witnesses' out-of-court description of the perpetrator.
On October 7, 2002, the Appellate Division, Second Department affirmed Ayala's conviction. People v. Ayala, 298 A.D.2d 397 (N.Y. App. Div. 2002). It held that introduction of Petitioner's gang membership was proper because the "testimony was relevant to establish motive and explain to the jury the sequence of events and the relationship between the defendant and the victim," and admission of the out-of-court description was also proper because it was for a non-hearsay purpose - "to assist the jury in evaluating the witnesses' respective opportunities to observe at the time of the crime, and the reliability of their memories at the time of the identification." Id. at 398. Leave to appeal to the New York Court of Appeals was denied on December 12, 2002. People v. Ayala, 99 N.Y.2d 555, 784 N.E.2d 79, 754 N.Y.S.2d 206 (2002).
On June 3, 2003, Petitioner, proceeding pro se, moved pursuant to C.P.L. § 440.10 to vacate his judgment. Petitioner argued that he was improperly advised of his Miranda warnings, his attorney withheld exculpatory material, he was not provided with a Spanish interpreter upon arrest, his ballistics test was tainted, his fingerprints were illegally obtained, his show-up was unduly suggestive, and he was framed by a detective who was subsequently arrested and convicted on federal drug charges. On September 16, 2003, the Nassau County Court denied Petitioner's motion.
On or about May 27, 2003, Ayala filed a petition for a writ of habeas corpus.*fn1 On September 13, 2004, Petitioner requested that the Court stay his petition while Petitioner returned to state court to exhaust additional claims. The Court granted Petitioner's request on December 23, 2004.
Petitioner retained an attorney, and on May 26, 2005, returned to state court seeking to vacate his judgment of conviction. Petitioner argued that the evidence at trial supported an intentional murder charge, but not a charge of depraved indifference murder, and therefore his conviction for depraved indifference murder should be set aside. On July 27, 2005, the court denied Petitioner's motion on the grounds that it was procedurally barred. On October 7, 2005, the New York State Appellate Division denied Petitioner's application for a certificate of appeal.
On November 3, 2005, this Court granted Petitioner's request to re-open his habeas petition, and granted Petitioner's request to supplement his petition to include the claims in Petitioner's second post-judgment motion.*fn2
Petitioner argues that the trial court introduced prejudicial evidence of Petitioner's gang membership and improperly introduced hearsay testimony identifying Petitioner as the perpetrator, Petitioner received ineffective assistance of counsel at trial, Petitioner's show-up was suggestive, and Petitioner was framed by one of the detectives.
Petitioner's conviction is based on events taking place in Hempstead, New York on May 28, 1999. On that night, Jose Christian Reyes ("Reyes") was standing with five friends, Luis Aguilar ("Aguilar"), James Buckley ("Buckley"), Wilber Alvarez ("Alvarez"), Jose Cruz ("Cruz"), and Carlos Perez ("Perez") in front of an apartment building complex in Hempstead. As the men were talking, two men walked towards them. Aguilar recognized one of the men, later identified as Petitioner, as a member of a street gang known as MS-13. Aguilar was a member of a rival gang, SWP. When ...