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Cruz v. Giambruno

September 9, 2009


The opinion of the court was delivered by: Michael A. Telesca United States District Judge


I. Introduction

Petitioner Jose Cruz ("Cruz" or "petitioner") filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Erie County Court on one count each of Arson in the Second Degree (N.Y. Penal Law § 150.15), Reckless Endangerment in the First Degree (Penal Law § 120.25), and Criminal Mischief in the Second Degree (Penal Law § 145.10). Cruz was sentenced as a second felony offender to three concurrent prison terms, the longest of which was eleven years. For the reasons set forth below, Cruz's § 2254 petition is denied and this action is dismissed.

II. Factual Background and Procedural History

Petitioner was convicted on April 30, 2001 following a jury trial before Judge Michael D'Amico. The proof at trial showed that petitioner was romantically involved with at least two women: his fiancee ("Colleen"), with whom he had two children, and another woman, ("Chris") from whom he received financial support. R. 493, 495-96, 505-506.*fn1 With respect to their residences, petitioner lived alone in an apartment at 48 Dart Street in the City of Buffalo, his fiancee lived in another apartment, and his mistress lived with her parents. R. 506. Although petitioner wanted to move in with Colleen, he believed that if he did so, he wouldn't "get money" from Chris. Petitioner was unemployed at the time. R. 496.

Colleen testified at trial that on November 8, 1999, she asked Cruz to go to his apartment to pick up some items for her. Cruz agreed to do so, because it would "give [him] a good story for going back to the house." According to Colleen, petitioner needed an excuse to go to the house because he had wanted to set fire to the apartment. About an hour or so earlier, Cruz brought up the idea of setting the fire, believing that if his apartment burned down he could continue receiving money from Chris, and also move in with Colleen. R. 495-498.

Before Cruz left for his apartment, he asked Colleen for rubbing alcohol or peroxide to "ignite" the fire, and Colleen complied. R. 499-500. Sometime after 10:00p.m. that night, petitioner took a taxi cab from Colleen's apartment to the Dart Street apartment. R. 438-40, 500. He returned to Colleen's house between 11:30p.m. and midnight with a bagful of items that Colleen had asked for. Petitioner told Colleen that "[e]verything's all taken care of" and said, "if anybody asks if I'd been here let them know that I was here already tonight, that I got here earlier." R. 501-503.

Members of the Buffalo Fire Department responded to a call at petitioner's apartment at approximately 11:30p.m. R. 353, 372. Heavy flames were coming out the front window. R. 354, 375. After kicking down the locked front door, firefighters entered the front room and found a sofa engulfed in flames. R. 354, 357. At the rear of the apartment, a pile of clothing and "rubbish" were burning in a closet. R. 358-59. After checking around the outside of the building, the firefighters evacuated a young man from the rear unit. R. 376-77. Upon an investigation of the premises, all natural and accidental causes of the fire were eliminated, and the probable source of ignition was determined to be either a match or a lighter because there were two separate fires inside the dwelling. R. 404, 406.

Colleen testified that on November 9, 1999 she gave a false statement to police regarding Cruz's whereabouts the night of the fire, because she was afraid of Cruz. R. 505, 517. She later gave a second statement to police implicating petitioner in the arson.

R. 522. When petitioner spoke with investigators in late November, he indicated that he had taken a cab to his apartment on the night of the arson. R. 466-67. On or about December 12, 1999, petitioner left Buffalo for Alabama and did not return until May of the following year. R. 506-07. Cruz continued to call Colleen, allegedly threatening her not to testify against him at trial.

R. 514-15. He also requested that Colleen call the residents of the rear apartment of 48 Dart Street, to "talk to [the occupant's] parents to tell them not to have her testify." R. 511. In addition, a jailhouse informant, Donald Dash ("Dash"), testified that petitioner made specific admissions regarding the cause and origin of the fire while being housed at the Erie County Holding Center in November, 2000. R. 545-47.

After rejecting a plea offer to Attempted Arson in the Second Degree, Cruz was convicted on all counts of the indictment by a jury after a four-day trial. The Appellate Division, Fourth Department, unanimously affirmed the judgment of conviction, and leave to appeal to the New York Court of Appeals was denied. People v. Cruz, 300 A.D.2d 1083 (4th Dept. 2002), lv. denied 99 N.Y.2d 627 (2003). Petitioner did not file any other motions for post-conviction relief. Cruz then filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging seven grounds for relief. For the reasons stated below, this petition is dismissed.

III. General Principals Applicable to Habeas Review

A. The AEDPA Standard of Review

To prevail under 28 U.S.C. § 2254, as amended in 1996, a petitioner seeking federal review of his conviction must demonstrate that the state court's adjudication of his federal constitutional claim resulted in a decision that was contrary to or involved an unreasonable application of clearly established Supreme Court precedent, or resulted in a decision that was based on an unreasonable factual determination in light of the evidence presented in state court. See 28 U.S.C. § 2254(d)(1),(2); Williams v. Taylor, 529 U.S. 362, 375-76 (2000).

B. Exhaustion Requirement and Procedural Bar

"An application for a writ of habeas corpus on behalf of a person in custody pursuant to a judgment of a State court shall not be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State. . . ." 28 U.S.C. § 2254(b)(1)(A); see, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 843-44 (1999); accord, e.g., Bossett v. Walker, 41 F.3d 825, 828 (2d Cir.1994), cert. denied, 514 U.S. 1054 (1995). "The exhaustion requirement is not satisfied unless the federal claim has been 'fairly presented' to the state courts." Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir.1982) (en banc), cert. denied, 464 U.S. 1048 (1984).

"It is now axiomatic that 'cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred.'" Dunham v. Travis, 313 F.3d 724, 729 (quoting Coleman v. Thompson, 501 U.S. 722, 750 (1991)). Federal courts may address the merits of a claim that is procedurally barred if the petitioner can "show both cause and ...

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