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Shomo v. Zon

August 1, 2008

JOSE SHOMO, PETITIONER,
v.
ANTHONY ZON, SUPERINTENDENT, WENDE CORRECTIONAL FACILITY RESPONDENT.



The opinion of the court was delivered by: John F. Keenan, United States District Judge

MEMORANDUM OPINION & ORDER

Petitioner Jose Shomo ("Shomo" or "Petitioner") brings this pro se application for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his state court conviction of murder in the second degree (N.Y. Penal Law § 125.25(1)) and criminal possession of a weapon in the second degree (N.Y. Penal Law § 265.03(2)), on the ground that he received ineffective assistance of appellate counsel. For the reasons set forth below, the petition is denied in its entirety.

BACKGROUND

On the morning of September 18, 1999, Shomo, a 39-year-old Manhattan resident, murdered Freddy Perdermo ("Perdermo") during a heated argument in the stairwell of their Manhattan apartment building at 2195 Seventh Avenue. On September 24, 1999, Shomo was charged by Indictment Number 7349/99 with two counts: murder in the second degree and criminal possession of a weapon in the second degree. After a jury trial in New York State Supreme Court, New York County (Obus, J.), Shomo was convicted of both counts. He was sentenced, as a persistent violent felony offender, to concurrent, indeterminate terms of 25 years to life.

The following facts, relevant to the instant petition, were established at trial.

On the evening of September 17, 1999, Shomo was in his fourth-floor apartment with his girlfriend, Tanya Gonzalez ("Gonzalez"). Twice during the night, Shomo responded to knocks on the apartment door and spoke with a man whom Shomo later told Gonzalez was his superintendent, Perdermo. On the morning of September 18, Perdermo again knocked on the door and Shomo went to speak with him. A few minutes later, Shomo and Perdermo became engaged in a loud argument in the hallway outside Shomo's apartment.

Shomo's neighbor, Joseph Ellams ("Ellams"), lived on the fourth floor and heard Shomo and Perdermo yelling at each other in Spanish right outside his door. Shortly thereafter, Shomo returned to his apartment and took a small, black gun from inside a pack. Shomo returned to the hallway and resumed the argument with Perdermo. Gonzalez heard a "pow," followed by the sound of someone tumbling down the stairs (Tr. 552, 594, 622-23)*fn1 , while Ellams heard a "pop." (Tr. 443, 477-80.) Shomo then returned to the apartment, stowed the gun in the pack, and left again. When he returned, he had a spent bullet casing between his teeth. He exclaimed to Gonzalez, "I laid one right on his mother fucking forehead." (Tr. 552-54.)

Gonzalez and Shomo quickly dressed and fled the apartment and the building. On the way out, Gonzalez saw Perdermo lying on the third-floor landing. Shomo and Gonzalez took a taxi to Gonzalez's apartment at 1030 Bayto Avenue, in the Bronx. During the cab ride, Shomo told Gonzalez that if the police questioned her, she should tell them that he was at her apartment that morning.

About seven or eight minutes after he heard the "pop," Ellams walked out of his apartment and saw Perdermo lying on the landing at the bottom of the stairs with a gunshot wound to the head. Ellams asked someone to call 911. Emergency medical technicians arrived on the scene and saw Perdermo lying unconscious in a large pool of blood. Perdermo's head was bleeding heavily, and one paramedic saw brain matter on Perdermo's forehead and a bullet wound on the left side of Perdermo's forehead. Perdermo was pronounced dead a short time later.

Four police officers and Detective Edward Clifford ("Clifford") also responded to the scene, and Ellams told them about the dispute between Shomo and Perdermo. Because the police beleived that Shomo was still in his apartment, the Emergency Services Unit (the "ESU") was called to make a forced entry. The ESU officers did not hear an answer to their knocks and yells, so they forcibly removed the peephole and inserted a looking device into Shomo's apartment. The door was then forced open, and ESU officers secured the scene and found nobody home. Clifford then searched the apartment and found an envelope addressed to Shomo on the night stand, which he seized. Clifford left to procure a search warrant, and an officer was posted at the front door to guard the premises until the search warrant was issued and executed. Another detective later recovered a pair of sunglasses between Shomo's floor and the one below it.

Early that evening, Clifford returned to Shomo's apartment with the search warrant and found an open box of .25 caliber American Eagle bullets in the top drawer of a nigh stand. He also located Shomo's caller ID box, and he discovered a phone number that appeared at least a dozen times and was later determined to be Gonzalez's number.

After arriving at Gonzalez's apartment that morning, Shomo admitted to Gonzalez's sister, Jakeline Gonzalez ("Jakeline") that he had shot Perdermo and discussed the circumstances surrounding the shooting. The argument between Shomo and Perdermo involved sunglasses Perdermo had sold to Shomo for three dollars but wanted back. A few hours later, Jakeline observed Shomo remove a gun from his pack.

Shomo went back to his apartment in Manhattan that night, arriving after the police had left. He retrieved his caller ID box, clothes, and toiletries, then returned to Gonzalez's apartment. Around midnight, Clifford and other detectives arrived at Gonzalez's apartment after having found the address associated with her phone number, discovered Shomo sleeping in a bedroom, and arrested him.

After being taken to the 32nd precinct station, Shomo waived his Miranda rights and signed a form with his left hand. He then gave a statement in which he stated that he left his apartment around 7:25-7:30 a.m. to go to Gonzalez's apartment and remained there all day. He told Clifford he had no knowledge pf Perdermo's murder.

Clifford returned to Gonzalez's apartment around 2 a.m. to interview her. Initially, Gonzalez corroborated Shomo's story. Clifford told Gonzalez that the statement sounded scripted and falsely told her a witness had reported that a woman of Gonzalez's description had fled the scene at the time of the shooting. Clifford then informed Gonzalez that the shooting victim was dead, and she began crying. Clifford then brought Gonzalez to the 32nd precinct, where she gave a statement implicating Shomo in the shooting.

On September 19, 1999, New York City assistant medical examiner Amy Hart performed an autopsy on Perdermo and concluded he was killed by a gun placed against his forehead at the time he was shot. She classified the manner of death as homicide. In January 2000, Federal Bureau of Investigation examiner Kathleen Lundy compared the bullet removed from Perdermo's head with the bullets seized from Shomo's apartment and concluded that the lead in the fired bullet was analytically indistinguishable with eleven bullets she examined from the box of American Eagle .25 caliber bullets, concluding that all of the bullets came from the same source and an American Eagle .25 caliber bullet had killed Perdermo.

Prior to trial, Shomo moved to controvert the search warrant and suppress evidence recovered from his apartment, including a box of ammunition. The motion was denied. Shomo also moved to proceed pro se, and after an inquiry, Justice Berkman granted his request and appointed counsel to be his legal advisor.

In addition, before trial, petitioner alerted the trial court and the prosecution that he intended to raise the defense that he was physically impaired in his left arm and hand, unable to handle or fire a gun, and therefore incapable of having shot Perdermo. Based on this notice, the court granted the People permission to offer evidence that Shomo had been observed, on occasions prior to Perdermo's murder, handling and firing a gun. Other evidence was introduced at trial regarding the dexterity of Shomo's left arm and hand, while Shomo also produced witnesses on that subject.

At trial, Jacqueline Shomo Moore ("Moore"), Shomo's sister, was permitted to testify that in June 1999, Shomo came to visit her and, as he stood outside her building, took out a gun from his pants, fired it three times and ran around a corner. In July 1999, former live-in superintendent Oliver Ford Jr. ("Ford") had a conversation with Shomo in front of their building at 2195 Seventh Avenue. Ford informed Shomo that there were "thieves and all kinds of bad people in the building," and that he should be careful. Shomo answered that he had it "under control," and with his left hand pulled out a silver gun with a black handle from his pants. (Tr. 356-57, 359.) Ford, a Vietnam veteran familiar with guns, believed the gun was a .25 caliber automatic and asked Shomo what type of gun it was. Shomo confirmed the gun was a "two five." (Tr. 355, 357, 359, 361-63.)

Following his conviction and sentencing, Shomo timely appealed to the Appellate Division, First Department, in a brief filed by court-appointed attorney Steven N. Feinman, Esq. ("Feinman"). Shomo asserted that the trial court improperly admitted evidence of uncharged bad acts and that the court improperly adjudicated him as a persistent felony offender. On March 27, 2003, the Appellate Division affirmed Shomo's conviction. People v. Shomo, 757 N.Y.S.2d 272 (1st Dep't 2003). On May 29, 2003, the New York Court of Appeals denied Shomo's motion for leave to appeal. People v. Shomo, 100 N.Y.2d 542 (2003).

On May 28, 2003, Shomo filed pro se an application for a writ of error coram nobis, alleging that his appellate attorney had rendered constitutionally ineffective assistance. Specifically, petitioner contended that his convictions would have been reversed if counsel had included the following claims on appeal: (1) there was no probable cause for the police search of petitioner's apartment; (2) the search warrant that directed the police to search petitioner's apartment alleged inadequate probable cause; (3) the trial court failed to transcribe proceedings relating to the basis for a search warrant pursuant to New York Criminal Procedure Law § 690.40; (4) the People failed to disclose certain material pursuant to Brady v. Maryland, 373 U.S. 83 (1963), and People v. Rosario 9 N.Y.2d 286 (1961); (5) there was no pretrial hearing regarding confirmatory identifications of petitioner; (6) the People failed to provide notice with respect to those identifications pursuant to New York Criminal Procedure Law § 710.30(1)(b); (7) the People failed to prove his guilt beyond a reasonable doubt; and (8) testimony from Ford regarding petitioner's prior bad acts was improperly admitted. On October 23, 2003, the Appellate Division unanimously denied Shomo's coram nobis application. People v. Shomo, 767 N.Y.S.2d 65 (1st Dep't 2003).

On or about June 15, 2004, Shomo petitioned the Southern District of New York for a writ of habeas corpus, repeating the claims in his coram nobis application to the Appellate Division. On March 31, 2005, the Court dismissed Shomo's application without prejudice after finding that Shomo had failed to seek leave to appeal the Appellate Division's denial of his coram nobis petition and therefore had not exhausted his ...


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