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Torres v. Graham

December 4, 2009

JOSE TORRES, #02-B-0993, PETITIONER,
v.
H. GRAHAM, SUPERINTENDENT OF AUBURN CORRECTIONAL FACILITY, RESPONDENT.



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

ORDER

I. Introduction

Petitioner Jose Torres ("petitioner") filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Supreme Court, Monroe County on one count of Murder in the Second Degree(N.Y. Penal Law § 125.21[1]). Following a jury trial before Justice Francis Affronti, petitioner was sentenced to a period of incarceration of twenty-five years to life.

II. Factual Background and Procedural History

Around 2:00 a.m. on the morning of July 4, 2001, Miguel Cruz ("Cruz" or "the victm") was "hanging out" with three friends on Hollister Street in the City of Rochester, setting off fireworks and drinking beer. T. 407-08, 427.*fn1 A man suddenly ran toward them, and, approaching Cruz from behind, shot him four times, killing him instantly.*fn2 T. 409, 430, 447, 509. The others ducked or fled and the man ran off.

Petitioner was brought to investigators attention in part by a career criminal named James VerNooy,*fn3 who lived in a boarding house on Lake Avenue directly below Stanley Hurlbert. Both Vernooy and Hurlbert testified at trial. Several hours after the shooting at approximately 7:30 a.m., petitioner entered VerNooy's apartment acting "high" and "skitsy." T. 462-63, 474. VerNooy testified that petitioner was a drug abuser and often needed money. T. 490. That morning, petitioner asked VerNooy for money, claiming that he needed it to get out of town because he had killed a man during the night. T. 462-64, 474. VerNooy and Hurlbert were skeptical of petitioner's story until they turned on the local television news channel. When a report came on about the shooting, petitioner said, "Yeah. that's me. I did that." T. 462-63, 476. VerNooy refused to give petitioner money and told him to leave. Later that day, VerNooy discovered that his keys were missing, and that his stereo, television, and other electronics had been taken from his apartment. Finding petitioner's wallet on his couch, VerNooy called police, and petitioner was arrested the next morning.

T. 476-80, 501-02, 570.

After his arrest, Rochester Police investigators met with petitioner at the Rochester Safety Building. Petitioner was apprised of and waived his Miranda rights, and investigators began questioning him about the burglary. Petitioner's wife, Kim Torres, was allowed to briefly see petitioner in the interview room. After an emotional conversation with his wife, petitioner eventually acknowledged responsibility for the burglary and the shooting. Petitioner told investigators that he had an argument with the victim earlier that night at a gas station, in which they had exchanged racial epithets.*fn4 Petitioner, who "had a lot to drink," said that he was still angry, so he and his acquaintance followed the victim's car. They continued to follow Cruz to Hollister Street, where he was standing with his friends, and petitioner shot at Cruz four times. Afterward, petitioner said that he went to the Driving Park Bridge and threw the gun into the river. He then went to VerNooy's apartment, where he stole electronic equipment.

T. 640-41, 646-47. The next afternoon, petitioner showed police where he had thrown the gun from the bridge into the Genesee River. Divers found two bullets and four shell casings. T. 523-28, 535-36, 543-46, 648-49.

Following a jury trial, petitioner was found guilty of second degree murder and was sentenced to 25 years to life imprisonment. Petitioner filed his first motion for vacatur pursuant to New York Crim. Proc. Law ("C.P.L.") § 440.10 on September 12, 2003, alleging ineffective assistance of trial counsel, and that his confession was fabricated by the detectives who interviewed him. See Respondent's Appx. C. The state court denied petitioner's ineffective assistance of counsel claim on the merits, and did not address the issue of his confession. See Decision and Order, No. 01-0543 dated 11/18/2003; Appx. G. Leave to appeal the denial was denied on January 22, 2004. On direct appeal, petitioner raised the following issues: 1) the trial court made an improper Sandoval ruling; 2) the trial court failed to inquire into possible jury taint; 3) prosecutorial misconduct; and 4) the conviction was against the weight of the evidence. The Appellate Division, Fourth Department, unanimously affirmed petitioner's conviction. People v. Torres, 17 A.D.3d 1046 (4th Dept.); lv. denied 5 N.Y.3d 811 (2005).*fn5

On July 13, 2006, petitioner sought a writ of error coram nobis before the state court, alleging ineffective assistance of appellate counsel. That motion was denied. Torres, 32 A.D.3d 1245 (4th Dept. 2006); lv. denied 8 N.Y.3d 991 (2007). Petitioner's second C.P.L. § 440 motion alleging newly discovered evidence was denied on November 20, 2007. See Decision Order, No. 01-0543 dated 11/20/2007; Appx. Z-6. While these motions were pending in state court, petitioner filed a petition seeking habeas corpus relief with this Court pursuant to 28 U.S.C. § 2254. (Dkt. #1). After multiple motions seeking to stay the petition and for extensions of time, petitioner filed an amended petition per the direction of the court. (Dkt. ##25, 26). Petitioner's amended petition is comprised of four claims: 1) ineffective assistance of appellate counsel; 2) insufficiency of the evidence; 3) ineffective assistance of trial counsel; 4) defective Sandoval hearing; and 5) actual innocence. (Dkt. #26). Respondent has filed a response and memorandum of law, opposing the amended petition on procedural grounds and on the merits. (Dkt. #28). For the reasons that follow, the Court finds that petitioner is not entitled to habeas relief.

III. Discussion

A. General Principals Applicable to Federal ...


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