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Russo v. Zon

October 26, 2009

CARMEN M. RUSSO, PETITIONER,
v.
ANTHONY F. ZON, RESPONDENT.



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

DECISION AND ORDER

I. Introduction

Pro se petitioner Carmen M. Russo ("Petitioner") has filed a timely petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging the constitutionality of his custody pursuant to a judgment entered November 27, 1995, in County Court, State of New York, Chautauqua County, convicting him, after a jury trial, of Murder in the Second Degree (New York Penal Law ("Penal Law") § 125.25(1)). For the reasons stated below, the petition is denied.

II. Factual Background and Procedural History

A. Introduction

Sometime during the evening of July 11, 1993, Petitioner killed his wife, Sherryl Russo ("Sherryl" or "the victim"), in their home in Sheridan, New York, by stabbing her repeatedly about the neck and body. Trial Transcript [T.T.] of 01/04/94, 6. When state police arrived at the scene, they discovered the victim's dead body in the home's master bathroom. Petitioner was laying nearby, in the master bedroom, with apparently self-inflicted wounds to his neck and wrists. T.T. of 01/04/94, 6-8. Petitioner was taken to Brooks Memorial Hospital, and subsequently transferred, via ambulance, to Erie County Medical Center ("ECMC") due to the nature and severity of his wounds. T.T. of 01/04/94, 6-8, 26. New York State Police Investigator Bernard Feldman ("Feldman") accompanied Petitioner in the ambulance en route to ECMC, and read Petitioner his rights from a Miranda card. T.T. of 01/04/94, 12. At the hospital where he was being treated for his injuries, Petitioner admitted to Feldman that he killed Sherryl. T.T. of 01/04/94, 19-20. Subsequently, Petitioner made similar admissions to two jailhouse informants, Thomas Bartlett, Sr. ("Bartlett, Sr.") and Thomas C. Bartlett, Jr. ("Bartlett, Jr."). T.T. of 09/20/95, 480-559.

A Chautauqua County grand jury charged Petitioner with one count of Murder in the Second Degree.

Before the trial, Petitioner moved to suppress his statements, as well as evidence that had been collected pursuant to a search warrant. A suppression hearing was held on January 4, 1994, and the trial court granted suppression of some of the evidence seized during the execution of the warrant, but denied suppression of Petitioner's statements. See Decision of Chautauqua County Court of 04/15/94 ["Suppression Decision"].

B. Petitioner's Trial

At trial, the prosecution presented the testimony of various New York State troopers and investigators, several technical and medical expert witnesses, and several other individuals who testified to the marital problems between Petitioner and Sherryl.

The prosecution also called Bartlett, Sr., Bartlett, Jr., and Assistant District Attorney Neil Robinson ("Robinson"), who had prosecuted Bartlett, Sr. Robinson testified that Bartlett, Sr. had not received any consideration in return for his testimony against Petitioner.

Petitioner did not testify at trial.

The defense called several witnesses.

The jury convicted Petitioner of Second Degree Murder. On November 27, 1995, Petitioner was sentenced to an indeterminate term of 25 years to life in prison.

C. Petitioner's Motion to Vacate the Judgment

On February 19, 1999, Petitioner moved to vacate his judgment of conviction pursuant to New York Criminal Procedural Law ("C.P.L.") § 440.10. The Chautauqua County Court denied Petitioner's motion to vacate the judgment. See Decision of the Chautauqua County Court of 05/19/99. Petitioner sought permission to appeal the denial of his motion, which was denied on September 10, 1999. See Decision of the Appellate Division, Fourth Department of 09/10/99.

D. Petitioner's Direct Appeal

On direct appeal, Petitioner, through counsel, raised three claims,*fn1 and an additional seven claims*fn2 in a supplemental pro se brief.

On May 2, 2001, the Appellate Division remitted Petitioner's case to the Chautauqua County Court for a reconstruction hearing to determine whether Petitioner was present for pre-trial, sidebar conferences, charge conferences, and handling of jury notes, and, if not, whether only questions of law or procedure were involved such that Petitioner's presence was not requested. People v. Russo, 283 A.D.2d 910, 911 (4th Dep't 2001). The Appellate Division rejected the rest of Petitioner's contentions on the merits. Id. at 911.

A reconstruction hearing was held on July 27, 2001 and January 17, 2002, and the Chautauqua County Court determined that a number of the conferences had taken place close enough to counsel table that Petitioner could hear them, and that all of the conferences concerned legal or scheduling issues at which Petitioner had no right to be present. See Reconstruction Findings of the Chautauqua County Court of 09/09/02.

On February 11, 2004, the Appellate Division unanimously affirmed Petitioner's judgment of conviction. People v. Russo, 4 A.D.3d 777 (4th Dep't 2004). Petitioner made application for leave to appeal to the New York Court of Appeals, which was denied on May 14, 2004. People v. Russo, 2 N.Y.3d 806 (N.Y. 2004).

E. Petitioner's Habeas Corpus Petition

On or about April 25, 2005, Petitioner filed the habeas corpus petition presently before this Court, wherein he makes six claims. All of these claims, with the exception of his ineffective assistance of appellate counsel claim, are exhausted and properly before this Court. See 28 U.S.C. § 2254(b)(1)(A).

III. General Principles Applicable to Habeas Review

A. The AEDPA Standard of Review

Under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), a federal court may grant habeas relief to a state prisoner only if a claim that was "adjudicated on the merits" in state court "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or if it "was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." § 2254(d)(2). A state court decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000). The phrase, "clearly established Federal law, as determined by the Supreme Court of the United States," limits the law governing a habeas petitioner's claims to the holdings (not dicta) of the Supreme Court existing at the time of the relevant state-court decision. Williams, 529 U.S. at 412; accord Sevencan v. Herbert, 342 F.3d 69, 73-74 (2d Cir. 2002), cert. denied, 540 U.S. 1197 (2004).

A state court decision is based on an "unreasonable application" of Supreme Court precedent if it correctly identified the governing legal rule, but applied it in an unreasonable manner to the facts of a particular case. Williams, 529 U.S. at 413; see also id. at 408-10. "[A] federal habeas court is not empowered to grant the writ just because, in its independent judgment, it would have decided the federal law question differently." Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir. 2001). Rather, "[t]he state court's application must reflect some additional increment of incorrectness such that it may be said to be unreasonable." Id.

This increment "need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted).

Under AEDPA, "a determination of a factual issue made by a State court shall be presumed to be correct. The [petitioner] shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see also Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir. 2003) ("The presumption of correctness is particularly important when reviewing the trial court's assessment of witness credibility."), cert. denied sub nom. Parsad v. Fischer, 540 U.S. 1091 (2003). A state court's findings "will not be overturned on factual grounds ...


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