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Cabezudo v. Fischer

December 1, 2009


The opinion of the court was delivered by: Seybert, District Judge


On June 23, 2005, Henry Cabezudo ("Petitioner"), proceeding pro se, filed a petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On April 16, 2007, Petitioner moved to stay the proceedings so that he could present new arguments in state court. This Court granted the stay on October 29, 2007. Petitioner filed his amended habeas petition on October 17, 2008. For the reasons stated below, Petitioner's application is DENIED.


Petitioner Henry Cabezudo attacks a conviction entered against him in the Supreme Court of the State of New York, Suffolk County, on November 23, 1999.

On May 14, 1999, Anne Mazza arrived at work to begin her day as office manager of the Nassau Insurance Company, 1716 Sunrise Highway, Bay Shore, Suffolk County. At approximately 11:30 a.m., Ms. Mazza first encountered Petitioner; while she was on the phone, Petitioner entered Ms. Mazza's office. As she looked at him for some time, Petitioner stared back. Eventually, Ms. Mazza asked Petitioner whether she could help him with anything. Petitioner replied, "Oh, shit" and left the office.

Ten minutes later, Petitioner returned to Ms. Mazza's office, wearing the same clothes, not wearing any disguise, and carrying a gun. As Ms. Mazza was talking on the phone, Petitioner came up to her desk, pointed the gun at her face and told her to hang up the phone. After screaming, Ms. Mazza hung up, and complied with Petitioner's instructions to get on the floor.

Once Ms. Mazza was on the floor, Petitioner demanded money. Ms. Mazza opened her desk, and gave Petitioner a hidden envelope of cash.*fn1 After receiving the envelope, Petitioner became angry at its size -- it was small and did not appear to have a lot of money in it. At trial, Ms. Mazza estimated that there was about $570 cash in the envelope, mostly in denominations of $10 and $20 bills, along with two checks. Ms. Mazza pleaded with Petitioner, telling him that it was all she had, and begging him not to hurt her because she had kids.

After rifling through Ms. Mazza's desk drawers -- to make sure she was telling the truth about the money -- Petitioner demanded her car keys to ensure she did not follow him when he left. Ms. Mazza assured Petitioner she would not follow him, and she also pleaded with him not to take her car. After hesitating for a moment, Petitioner slowly backed out of the office and left. Throughout this ordeal, Ms. Mazza looked at Petitioner's face. After Petitioner left, she hit the silent alarm.

Police Officer John Gagliano was the first to respond. Upon his arrival, after ascertaining that no danger remained, Officer Gagliano found a shaken and crying Ms. Mazza. Soon, Police Officer Charles Mortimer and Detective Theodore Severino arrived to assist Officer Gagliano. The officers and detective were able to coax Ms. Mazza into describing what happened, and obtained a description of the perpetrator.

Later that day, detectives took Ms. Mazza to view a man that was caught a few blocks away from her office to see if he was the perpetrator. When she arrived, Ms. Mazza told the police that the man was not the same one who had robbed her.

The following day, on May 15, 1999, Officer Mortimer and his partner were at a 7-Eleven in Bay Shore, New York. While his partner was getting a soda, Officer Mortimer observed two men standing at the train station, one of whom he knew. The other man, however, fit the physical description of the robbery suspect from National Insurance. After his partner returned, Officer Mortimer apprised him of the situation, and they approached the two men. After approaching the men, the officers asked the men for identification. The unknown man who fit the robber's description was Petitioner Henry Cabezudo.

After Petitioner identified himself, Officer Mortimer asked him some questions. During this time Petitioner was nervous and jumpy. The officers then asked the men if they would consent to a search. After consenting, the officers found crumpled up bills in Petitioner's pockets. At some point, Petitioner turned to the other man, his cousin, and said "Let's get out of here."

On May 24, 1999, Detective Severino visited Ms. Mazza's office. He handed her a folder of photographs and asked her to point out if any of the photographs resembled the person who had robbed her. Ms. Mazza picked Petitioner's picture a few seconds after opening the photo array.

Officer Mortimer arrested Petitioner on May 31, 2009 at his home, and brought him to the Third Precinct. The following day, on June 1, 1999, Ms. Mazza went to the Third Precinct to view a lineup. Viewing the first lineup, Ms. Mazza identified Petitioner as the robber after a few seconds. Then, after reshuffling the lineup participants, Ms. Mazza again picked Petitioner out of the second lineup. After suppression hearings were held, the trial court held that neither the lineups nor photo array were unduly suggestive and that there was no police misconduct.

At trial, Petitioner attempted to establish an alibi defense. Petitioner's brother, David Cabezudo ("David"), is a truck owner-operator employed by Sears. Two weeks after Petitioner's arrest, David came forward and said that Petitioner was helping him with deliveries when the robbery occurred. To support his story, David submitted a form listing Petitioner as a helper on May 14, 1999. But a truck manifest from the same day listed John Rodriguez, David's regular helper, as the delivery person who accompanied David.*fn2 Additionally, the standard paperwork completed following a delivery -- or in this case a failed delivery -- also listed Mr. Rodriguez and David on May 14, 1999.

Petitioner was convicted of one count of Robbery in the First Degree, N.Y. Penal Law § 160.15 and sentenced, as a persistent violent felony offender, to life in prison, with a minimum of twenty-years incarceration.

On appeal, Petitioner raised five issues: (1) the trial court erred by failing to suppress Officer Mortimer's testimony regarding his encounter with Petitioner on the day after the robbery; (2) the trial court should have granted a mistrial when the jury was briefly brought out in Petitioner's absence; (3) Petitioner received ineffective assistance of counsel; (4) the prosecutor's closing argument was improper and prejudicial; and (5) the cumulative errors at trial were not harmless.

The Appellate Division, Second Department affirmed Petitioner's conviction. People v. Cabezudo, 303 A.D.2d 596, 756 N.Y.S.2d 490 (App. Div. 2d Dep't 2003). The Second Department held that Petitioner's claims were without merit. As to the claim of ineffective counsel, the court held that defense counsel "pursued a misidentification defense, which he buttressed with an alibi defense . . . effectively cross-examined witnesses, made cogent and consistent arguments on summation, and filed various . . . motions . . . ." Id. Petitioner sought leave to appeal to the New York Court of Appeals on April 2, 2003, which was denied on September 15, 2003. See People v. Cabezudo, 100 N.Y.2d 618, 799 N.E.2d 624, 767 N.Y.S.2d 401 (2003).

Petitioner filed a Motion to Vacate Judgment in County Court, Suffolk County, on August 17, 2004, on the grounds of newly discovered evidence and ineffective assistance of counsel. The County Court, on October 27, 2004, denied Petitioner's motion because the evidence was not newly discovered, and the arguments concerning counsel's competency were rejected on appeal. The County Court denied Petitioner's motion for reargument on December 23, 2004. Petitioner then filed a motion for leave to appeal the October 27, 2004 decision, which the Appellate Division, Second Department denied on March 15, 2005.

Petitioner filed his original petition for a writ of habeas corpus on June 23, 2005. Petitioner's filing consisted of a resubmission of Petitioner's Appellate Division brief, including all state-court captions. The issues raised were, thus, identical to those raised in the Appellate Division. Petitioner then moved to stay the petition on April 16, 2007 to return to state court and exhaust additional claims. This Court granted the stay on October 29, 2007.

Petitioner then filed a motion for a Writ of Error Coram Nobis in the Appellate Division, Second Department claiming ineffective assistance of appellate counsel. The Appellate Division denied Petitioner's application on May 13, 2008. People v. Cabezudo, 52 A.D.3d 814, 856 N.Y.S.2d 866 (App. Div. 2d Dep't 2008). Thereafter, the New York Court of Appeals denied Petitioner's application for leave to appeal. People v. Cabezudo, 11 N.Y.3d 786, 896 N.E.2d 98, 866 N.Y.S.2d 612 (2008).

On October 17, 2008, Petitioner returned to this Court and filed an amendment to his habeas petition. In addition to the earlier claims, Petitioner now also alleges that appellate counsel was ineffective because: (1) appellate counsel failed to preserve and raise on direct appeal trial counsel's failure to investigate and present exculpatory evidence relating to a potential alibi witness; (2) appellate counsel failed to preserve and raise on direct appeal trial counsel's failure to use legal citations in his C.P.L. ยง 330.30 motion; (3) appellate counsel failed to identify which constitutional ...

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