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Perez v. Cunningham

September 17, 2009


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



Raymond Perez, a prisoner incarcerated in the Woodbourne Correctional Facility pursuant to a judgment of the New York State Supreme Court, Kings County, petitions for a writ of habeas corpus under 28 U.S.C. § 2254. After a jury trial in 2005, Perez was convicted of first-degree manslaughter for stabbing a man to death on a Brooklyn street in 1985. Appearing pro se, Perez contends primarily that the prosecutor made improper arguments when summing up the People's case. Oral argument, at which Perez appeared by teleconference, was held on September 10, 2009. For the reasons set forth below, the petition is denied.


A. The Offense Conduct

Perez's conviction arose out of an altercation just south of Prospect Park. The evidence at trial established that on the afternoon of September 16, 1985, Perez was in a fourth-floor apartment at 55 Parade Place belonging to his cousin, Sully Bermudez. Bermudez and another cousin, Julio Rodriguez, were also present. At approximately 3:30 p.m., they looked down and saw Armando Javier Concepcion on the street. Concepcion pointed a finger up to Perez and beckoned him to come down. Perez told Rodriguez and Bermudez that he had to "go talk to that guy," and the three men went downstairs to meet Concepcion. Tr. 262.

On the street, Perez and Concepcion exchanged harsh words, and their quarrel soon devolved into a fistfight. With some difficulty, Rodriguez and Bermudez broke up the brawl, but the disagreement continued. Concepcion said something like, "if you [are] man enough, you got to move from here, because I'm going to get you,"*fn1 or "if you're a man, you'll stay right here and if you're not, you'll move away, you'll move from the block."*fn2 As Concepcion walked away, Perez pulled out a butterfly knife*fn3 and stabbed Concepcion in the back. Concepcion turned around and tried to grab the knife, but Perez continued to stab him.

After receiving two knife wounds to the front of his chest and two to the back, Concepcion died from his injuries.

Perez apparently fled to the Dominican Republic a few hours after the stabbing. Though he later returned to the United States and was arrested on various unrelated charges in New York and Florida, he escaped arrest for Concepcion's stabbing for almost two decades because of a clerical error. In April 2004, however, the NYPD resumed its investigation into Perez's whereabouts and determined that he was incarcerated in a federal prison in New Jersey.

B. The Trial Proceedings

On October 1, 2004, fully nineteen years after the incident, Perez was indicted on two counts of second-degree murder. The trial judge, Justice Demarest, later dismissed one of the murder counts because the evidence before the grand jury was insufficient to support a finding of depraved indifference. Perez's trial on the remaining murder charge -- intentional murder -- began on March 29, 2005.

At trial, Rodriguez and Bermudez each testified that Perez stabbed Concepcion after an argument between the two men. The defense theory was that, notwithstanding this testimony, neither of the witnesses actually saw the stabbing. On cross-examination, Perez's counsel sought to impeach Rodriguez by pointing to an alleged inconsistency between his trial testimony and a statement he gave to police shortly after the incident. In the statement, Rodriguez had said that Concepcion told Perez he was going to "kill" him shortly before the stabbing. Tr. 260.

During his summation, the prosecutor observed that, while Perez's counsel had used Rodriguez's statement to the police to cross-examine him on the content of Concepcion's threat, the defense lawyer had not used the statement to impeach Rodriguez's testimony that Perez stabbed Concepcion in the back. The prosecutor then invited the jury to infer that Rodriguez had told the police exactly that in 1985. Additionally, later in the summation, the prosecutor referred to the length of time between the incident and the trial, noting that Concepcion had been dead for twenty years, and that his family had been without him for that period of time. The defense attorney objected to both of these statements, and moved for a mistrial based on the statement about Concepcion's family, but the court overruled the objections and denied the motion for a mistrial.

The jury acquitted Perez of the murder charge, but convicted him of the lesser-included offense of first-degree manslaughter. Justice Demarest imposed a sentence of ...

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