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Gomez v. Taylor

February 17, 2010

ALEX GOMEZ, PETITIONER,
v.
JUSTIN TAYLOR, SUPERINTENDENT, GOUVERNEUR CORRECTIONAL FACILITY, RESPONDENT.



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

MEMORANDUM AND ORDER

Alex Gomez petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, seeking to overturn his conviction in New York State Supreme Court, Queens County, of criminal sale of a controlled substance in the third degree. Gomez claims that he was denied due process because the evidence introduced against him at trial was legally insufficient to justify a guilty verdict. He also claims that he was denied effective assistance of counsel because his lawyer failed to conduct certain investigations or interviews that might have yielded exculpatory information and failed to object to leading questions at both a suppression hearing and his trial. All of his claims are meritless, and I deny his petition in its entirety.

BACKGROUND

The government's evidence at trial established that Gomez sold two packets of cocaine to an undercover police officer as part of a "buy-and-bust" narcotics operation at approximately 5:00 a.m. on December 22, 2004 near the intersection of of 37th Avenue and 80th Street in Queens. The undercover officer initially approached another man, Arley Trujollo, and asked him if he knew of anyone who could sell him cocaine. Trujollo said that a friend of his could, walked the officer around a corner, and gestured to Gomez, who was standing about 25 feet away. The officer then tried to pay Trujollo, but Trujollo would not accept any cash and told him to see Gomez himself. The officer then approached Gomez and asked to buy $40 worth of cocaine. The officer handed Gomez two $20 bills that had been previously photocopied to make a record of their serial numbers. Gomez accepted the cash, turned away from the officer, and then gave him two small bags of cocaine. A second "ghost" undercover officer, assigned to trail the primary undercover officer, witnessed the transaction.

After completing the controlled purchase, the primary undercover officer returned to his car on 76th Street and radioed a description of Gomez and Trujollo and their location to the field team's designated arresting officer, who was waiting nearby in an unmarked car. The arresting officer found four men fitting the primary undercover officer's description and detained all of them, including Gomez and Trujollo. The primary undercover officer and the "ghost" undercover officer then drove by the suspects and, in a radio communication to the arresting officer, identified Gomez and Trujollo as the two men who had sold the primary undercover officer the drugs. The arresting officer then arrested Gomez and searched him. The officer found the two $20 bills that the primary undercover officer had passed in exchange for the cocaine in a pocket of Gomez's jacket.

On January 25, 2006, a jury convicted Gomez of criminal sale of a controlled substance in the third degree. On February 15, 2006, a judge sentenced him to a term of imprisonment of six to twelve years. Gomez raised only one claim on direct appeal: that the evidence adduced at trial was legally insufficient to justify his conviction. The Appellate Division, Second Department, rejected his claim and affirmed his conviction, People v. Gomez, 848 N.Y.S.2d 282 (2nd Dep't 2007), and the Court of Appeals denied him leave to appeal, 10 N.Y.3d 765 (2008).

While his direct appeal was pending, Gomez filed a motion to vacate his conviction pursuant to New York Criminal Procedure Law § 440.10. In his motion, Gomez claimed that his lawyer was constitutionally ineffective for (1) failing to investigate a report prepared by the primary undercover agent in which he described the man who had sold him the drugs as a black male; (2) failing to interview a David Gonzales, who could have provided exculpatory information; and (3) failing to object to leading questions at a suppression hearing, among other reasons. The Supreme Court, Queens County, denied his motion. People v. Gomez, Indictment No. 10315/05 (Oct. 6, 2006). Gomez did not appeal.

After the conclusion of his direct appeal, Gomez petitioned the Appellate Division for a writ of error coram nobis, claiming that his appellate counsel was constitutionally ineffective for failing to raise the ineffective assistance of trial counsel claims he had unsuccessfully pressed in his motion to vacate his conviction, among other reasons. The Appellate Division denied his petition, People v. Gomez, Indictment No. 10315/05 (2nd Dep't Sept. 2, 2008),and the Court of Appeals denied him leave to appeal, Indictment No. 10315/05 (Nov. 28, 2008)

DISCUSSION

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") limits the scope of federal habeas review of claims challenging a state conviction that state courts have adjudicated on the merits. 28 U.S.C. § 2254(d). A federal court may overturn a state court's ruling on the merits of a claim only if the ruling "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Id.

Federal habeas courts do not generally examine claims challenging a state court conviction, even under this deferential standard, unless the petitioner "has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). A claim is unexhausted if a petitioner has failed to fairly present that claim to the highest state court with jurisdiction to hear the claim. See Jones v. Keane, 329 F.3d 290, 295 (2d Cir. 2003).

If an unexhausted claim is inexhaustible because the state court to which the petitioner would have to present the claim to meet the exhaustion requirement would find the claim procedurally barred, it is deemed procedurally defaulted. See Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991).A federal habeas court may review a procedurally defaulted claim only if the petitioner can establish "cause for the default and actual prejudice as a result of the alleged violation of federal law," id. at 750, or a fundamental miscarriage of justice, Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002). Even where exhaustion is still possible, a federal habeas court may simply deny the claim on the merits. See 28 U.S.C. § 2254(b)(2) (authorizing a federal court to deny a habeas petition on the merits, "notwithstanding the failure of the applicant to exhaust the remedies available in the Courts of the State").

A. Insufficiency of Evidence

Gomez claims that the evidence introduced at trial was legally insufficient to prove his guilt. Because Gomez exhausted this claim on direct appeal, I examine it on the merits ...


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