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Garcia v. Graham

July 31, 2008

FRANCISCO GARCIA, PETITIONER,
v.
HAROLD D. GRAHAM, SUPERINTENDENT, AUBURN CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: John Gleeson, United States District Judge

MEMORANDUM AND ORDER

Francisco Garcia petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for murder in the second degree, attempted murder in the second degree, reckless endangerment in the first degree, and criminal possession of a weapon in the third degree. Appearing pro se, Garcia raises numerous challenges to his conviction. For the reasons stated below, the petition is denied.

BACKGROUND

A. The Offense Conduct

This case arises out of a June 9, 1996 multiple shooting. The government's evidence at trial established that in the evening on that date, Garcia and an unapprehended man walked up to Francisco Incarnacion, Jose Luis Tapia, Juan Anaya, Fabiola Garcia, Miguel Kempis, Kempis's wife, and a child, who were sitting on the steps of 32-52 32nd Street and adjoining buildings in Queens. Garcia pointed to the group and said "These are them." The other man pulled out a pistol and fired five or six shots at the individuals on the steps, hitting Tapia and Anaya, who died, and Incarnacion, who survived. After the shooting, Garcia and his associate walked casually away. Acting on a witness's tip identifying Garcia by a nickname, the police went to an apartment Garcia had stayed at briefly and found a probation card he had left behind, bearing his name.

On December 14, 1996, Garcia was arrested for breaking into a car. Though Garcia gave the police the alias "Carlos Estrada," a fingerprint check revealed his identity. Garcia, who had been struck in the head with a baseball bat by the car's owner, was taken to the hospital in police custody and later returned to the precinct.

When Garcia returned to the precinct, he was given Miranda warnings and made the following statement regarding the June 9, 1996 shooting: On June 7, 1996, his friend Augustine told him that Augustine's brother was beaten up. Garcia, walking in that area, then saw several men with blood on their shirts. When Garcia asked them why they had bloodstains on their clothes, they cursed at him and told him it was none of his business. On June 9, 1996, Garcia was approached at an area laundromat by several men, possibly including the ones who he had seen with blood on their shirts. The men cursed at him and one hit him. One gestured as if he had a gun but did not pull it out. Garcia left the laundromat, afraid, and was approached by an individual who he had seen talking to Augustine. This individual, whose name Garcia did not know, said that he had heard about Garcia's problems and that he would accompany Garcia to talk to the people on a nearby corner and straighten out the problems. Garcia and the individual approached the people on the corner, who were sitting on the steps of 32-52 32nd Street. Garcia said that the people sitting on the steps were the ones who had hit him earlier. The other individual pulled out a gun and "sprayed the whole crowd, he fired at everybody at the crowd." Tr. 706. Garcia had not known that this individual was armed. He ran away together with the shooter.*fn1

B. The Procedural History

1. Trial and Sentencing

Garcia was charged in New York Supreme Court, Queens County with two counts of intentional murder in the second degree, two counts of depraved indifference murder in the second degree; one count of attempted murder in the second degree; two counts of assault in the second degree; one count of reckless endangerment in the first degree; one count of criminal possession of a weapon in the second degree; and one count of criminal possession of a weapon in the third degree. Garcia was tried and convicted of the depraved indifference murder, attempted murder, reckless endangerment, and criminal possession of a weapon in the third degree charges. He was acquitted of the intentional murder and criminal possession of a weapon in the second degree charges.

As a second felony offender, Garcia was sentenced to indeterminate terms of imprisonment of twenty-five years to life on each murder conviction and a determinate term of twenty years on the attempted murder conviction. These sentences ran consecutively, producing a term of imprisonment of seventy years to life. Additionally, he was sentenced to concurrent prison terms of three and one half to seven years on the reckless endangerment conviction and five years on the weapon conviction.

2. Direct Appeal

Garcia appealed his conviction on December 3, 2001, claiming through his assigned attorney: (1) that the trial court erred in granting the government's reverse-Batson objection to two of his peremptory challenges and in seating the two jurors; (2) that the identification procedures and his post-arrest statements should be suppressed as fruits of an unlawful seizure; and (3) that his sentences were excessive and should be either reduced or run concurrently.

He also submitted a pro se brief arguing that his pretrial counsel and his trial counsel had both been ineffective due to (1) failing to communicating with him sufficiently; (2) failing to adequately investigate the case; (3) failing to call two pertinent witnesses; (4) failing to request a Mapp hearing and never objecting to the arresting detective's translation of Garcia's written post-arrest statement; (5) conducting an inconsistent defense at trial; (6) being unprepared for effective cross-examination; (7) failing to read his pro se motions; and (8) failing to object to the court's jury charge.

The Appellate Division, Second Department affirmed Garcia's conviction on March 17, 2003. People v. Garcia (Garcia I), 756 N.Y.S.2d 492 (2d Dep't 2003). It rejected his suppression claim as unpreserved and without merit, found his pro se claim of ineffective assistance of counsel to be mostly unreviewable on direct review and meritless to the extent it was reviewable, and rejected his claim of an excessive sentence and his reverse-Batson claim on the merits. Id. at 492. Garcia sought leave to appeal to the Court of Appeals, which denied his application on July 18, 2003. People v. Garcia (Garcia II), 100 N.Y.2d 580 (2003) (Rosenblatt, J.).

3. First Coram Nobis Application

On September 30, 2003, Garcia moved pro se for a writ of error coram nobis, claiming that his appellate counsel was ineffective for failing to argue that: (1) the trial court erred in denying his request for a missing witness charge; (2) the trial court erred in failing to charge the jury that his mere presence at the scene of the crime was insufficient evidence that he was involved in the crime; (3) the trial court erred in failing too charge the jury that it must consider the attempted murder and reckless endangerment charges in the alternative; and (4) the evidence was insufficient to support his conviction.

The Appellate Division denied his motion on March 29, 2004. People v. Garcia (Garcia III), 773 N.Y.S.2d 588 (2d Dep't 2004). The Court of Appeals denied his request for leave to appeal on June 10, 2004. People v. Garcia (Garcia IV), 3 N.Y.3d 639 (2004) (Ciparick, J.).

4. Second Coram Nobis Application

On April 14, 2005, Garcia submitted a second pro se petition for a writ of error coram nobis, claiming that his appellate attorney was ineffective for failing to argue that: (1) the consecutive sentences Garcia received constituted a different theory than the state's initial theory in charging him; (2) Garcia did not have fair notice of the charges against him; and (3) the consecutive sentences violated the Double Jeopardy Clause.

The Appellate Division denied Garcia's motion on September 12, 2005. People v. Garcia (Garcia V), 800 N.Y.S.2d 646 (2d Dep't 2005). On December 27, 2005, the Court of Appeals denied Garcia's request for leave to appeal. People v. Garcia (Garcia VI), 6 N.Y.3d 753 (2005) (Graffeo, J.).

5. Third Coram Nobis Application

On February 3, 2006, Garcia submitted a third pro se application for a writ of error coram nobis, arguing that his appellate counsel was ineffective for failing to argue that: (1) there was insufficient evidence supporting the theory of depraved indifference murder as opposed to intentional murder; (2) trial counsel was ineffective for failing to argue that the verdict was repugnant (i.e., inconsistent); (3) the prosecutor made improper remarks in summation. Garcia then retained an attorney, who made a supplemental motion restating several of Garcia's claims and adding the claim that (4) trial counsel was ineffective for failing to argue that there was insufficient evidence to support his conviction for depraved indifference murder under People v. Hafeez, 100 N.Y.2d 253 (2003).

On March 20, 2007, the Appellate Division denied Garcia's third coram nobis application, People v. Garcia (Garcia VII), 830 N.Y.S.2d 910 (2d Dep't 2007), and the Court of Appeals denied his request for leave to appeal on June 20, 2007, People v. Garcia (Garcia VIII), 9 N.Y.3d 843 (2007) (Read, J.).

6. Section 440.10 Motion

On March 12, 2007, Garcia moved to vacate his conviction under N.Y. Crim. Proc. Law § 440.10, claiming that People v. Hafeez, 100 N.Y.2d 253 (2003), People v. Payne, 3 N.Y.3d 266 (2004), and several other depraved indifference murder decisions rendered the evidence insufficient to support his conviction on those counts. The New York Supreme Court denied Garcia's § 440.10 motion on June 26, 2007, finding his claim procedurally barred by N.Y. Crim. Proc. Law § 440.10(2)(c) because he could have raised this claim on direct appeal but failed to. People v. Garcia (Garcia IX), No. 232/97, slip op. (N.Y. Sup. Ct. June 26, 2007). On October 23, 2007, the Appellate Division denied his request for leave to appeal.

7. Federal Habeas Petition

Garcia filed this petition on August 27, 2007, claiming that he is entitled to a writ of habeas corpus under 28 U.S.C. § 2254 on the following grounds:*fn2 (1) the trial court deprived him of due process by granting the government's reverse-Batson challenge to his use of peremptory challenges; (2) the evidence was legally insufficient to support his depraved indifference murder convictions; (3) his depraved indifference murder conviction was against the weight of the evidence; (4) appellate counsel provided ineffective assistance because he failed to argue that the evidence was legally insufficient to support Garcia's depraved indifference murder convictions; (5) appellate counsel provided ineffective assistance because he failed to argue that Garcia's depraved indifference murder conviction was against the weight of the evidence; (6) appellate counsel provided ineffective assistance because he failed to argue that the verdict was inconsistent; (7) appellate counsel provided ineffective assistance because he failed to argue that trial counsel provided ineffective assistance when he failed to object to the inconsistent verdict; (8) appellate counsel provided ineffective assistance because he failed to argue that the prosecutor's remarks at summation constituted prosecutorial misconduct; (9) appellate counsel provided ineffective assistance because he failed to argue that the trial court erred by not giving a missing witness charge; (10) appellate counsel provided ineffective assistance because he failed to argue that the trial court erred by refusing to charge the jury that Garcia's mere presence was insufficient evidence to prove his involvement in the crime; (11) appellate counsel provided ineffective assistance because he failed to argue that Garcia was deprived of fair notice of the charges against him when the trial court imposed consecutive sentences on a theory different than the prosecution's earlier theory; and (12) appellate counsel provided ineffective assistance because he failed to argue that the imposition of consecutive sentences for the same act violated the Double Jeopardy Clause.*fn3

DISCUSSION

A. The Legal Standards for ยง ...


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