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Moreno v. Kirkpatrick

March 23, 2010

VINCENT MORENO, PRO SE, PETITIONER,
v.
ROBERT KIRKPATRICK, RESPONDENT.



The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge

OPINION & ORDER

On May 5, 2006, pro se petitioner sought a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction of murder in the first degree after a jury trial held in Kings County Supreme Court. Petitioner is currently incarcerated serving his sentence of life imprisonment without parole, imposed on September 6, 2002.

The petition alleges that: (1) the trial court erred in refusing to submit to the jury a charge of manslaughter in the first degree as a lesser included offense of murder in the first degree; (2) his sentence is excessive; (3) he did not receive effective assistance of counsel because appellate counsel refused to raise certain issues on direct appeal; (4) he was denied his right to a public trial when his girlfriend was removed from the courtroom during a pre-trial hearing; (5) he was denied a fair trial due to prosecutorial misconduct; and (6) he was denied a fair trial because of the court's derogatory tone and manner towards defense counsel and interference with his examination of a witness. Petitioner asserts two additional ineffective assistance of counsel claims, on the grounds that neither appellate nor trial counsel objected to the omission of a special verdict as to a justification defense from the verdict sheet and the court's improper jury instruction on the defense of justification.

For the reasons set forth below, the petition is denied in its entirety.

I. BACKGROUND

A. Petitioner's Arrest

On October 24, 2000, petitioner and co-defendant approached Joseph Rodriguez while he assisted Joanne Gagliardi with a flat tire in front of Bushwick High School in Brooklyn, New York, where petitioner and co-defendant were students.*fn1 (Trial Tr. at 338, 342-45, 347, 368-69, 373, 381.) During the ensuing confrontation, petitioner shot Rodriguez, who died in the hospital from a single gunshot wound to the neck from a.22 caliber revolver. (Trial Tr. at 184-85, 357, 425, 455, 469, 471-72, 583, 607-09.) Petitioner was arrested two days after the shooting, after telling school psychologist Amy Zimmerman that he had shot somebody during a robbery. (Trial Tr. at 191-92, 488-97, 551.) A Kings County grand jury returned an indictment charging petitioner with one count of murder in the first degree, three counts of murder in the second degree, two counts of attempted robbery in the first degree, one count of attempted robbery in the second degree, one count of criminal possession of a weapon in the second degree, and one count of criminal possession of a weapon in the third degree. (See Aff. of Keith Dolan in Opp. to Pet. for a Writ of Habeas Corpus at ¶ 6.)

B. Pre-trial Proceedings

The court heard extensive testimony at a hearing held over several days, including testimony from Lieutenant John Corbisiero, who testified regarding a police line-up during which two witnesses identified petitioner as the perpetrator of the crimes charged. (Hearing Tr. 2/25/02 at 70-72.) The court also heard from Ms. Zimmerman, who testified regarding her conversation with petitioner during which he admitted to his involvement in the shooting. (Hearing Tr. 5/16/02 at 346-82.) Ms. Zimmerman was asked whether she posted a photograph in her office in which she appeared hugging petitioner. (Hearing Tr. 5/16/02 at 354.) The court interrupted defense counsel's direct examination at this point to order a young woman from the audience to leave the courtroom. (Hearing Tr. 5/16/02 at 354.)

After the close of Ms. Zimmerman's testimony, the prosecutor requested clarification from the court regarding the reasons for the exclusion. (Hearing Tr. 5/16/02 at 384.) The court explained that the woman was asked to leave the courtroom because she said she had the picture that was discussed with Ms. Zimmerman. (Hearing Tr. 5/16/02 at 385.) Emphasizing that "[s]he was quite adam[a]nt and animated in saying 'I seen [sic] the picture,'" the court explained "that reaction forced me... to ask her to leave, because she may be a witness." (Hearing Tr. 5/16/02 at 385-86.) The woman, petitioner's girlfriend, was permitted to return to the courtroom during the trial. (Hearing Tr. 5/16/02 at 386; Trial Tr. at 175-77.) The picture ultimately was introduced as an exhibit during Ms. Zimmerman's trial testimony. (Trial Tr. at 558-59, 565.)

On May 20, 2002, petitioner's trial counsel submitted a letter to the court asserting that the court hampered his pre-trial examination of Ms. Zimmerman by preventing him from establishing that a privilege existed between Ms. Zimmerman and petitioner. (Petioner's Brief in Supp. of Habeas Corpus Petition ("Pet.") Ex. 1 at 3.) The court denied counsel's request that Ms. Zimmerman be recalled so he could complete his examination prior to the commencement of jury selection. (Jury Selection Tr. 5/21/02 at 9.)

C. Trial

The trial began on May 31, 2002. Ms. Gagliardi testified that Rodriguez was helping her change a flat tire when petitioner told him to stand up and turn around. (Trial Tr. at 348.) Petitioner then pointed a revolver at Rodriguez, and told Rodriguez to give him the silver chain he wore around his neck. (Trial Tr. at 350.) When Rodriguez did not comply, petitioner shot him in the neck from a distance of about two to three feet. (Trial Tr. at 351, 412.) The medical examiner ("ME") testified that her autopsy revealed that the bullet was fired from a distance of eighteen to twenty inches and traveled downward from the front to back of Rodriguez's body, probably as Rodriguez stood with his trunk inclined toward the ground. (Trial Tr. at 610-18.) A police detective who interrogated petitioner following the shooting testified that petitioner said he and co-defendant saw a man standing by a car, exchanged glances and then argued, whereupon the man picked up a tire iron and moved toward him. (Trial Tr. at 243-44.) Petitioner claimed he pulled the revolver from his pocket and, as he backed away, the gun "just went off." (Trial Tr. at 244.)

D. Motion for Mistrial, Jury Charges, and Sentencing

Defense counsel moved for a mistrial on June 5, 2002, accusing the court of "hampering, interrupting, and, ultimately, impeding [the defense's] ability to effectively represent [petitioner]." (Mot. for Mistrial, Pet. Ex. 2 at 2.) After hearing argument on June 7, 2002, the court denied the motion, stating that it had provided petitioner with a fair and impartial trial. (Trial Tr. at 686-87.) Defense counsel then asked the court to submit a charge of manslaughter in the first degree to the jury if intentional murder was also charged. (Trial Tr. at 691.) In rejecting the request, the court held that "no reasonable view of the reasonable evidence" could support a finding of manslaughter in the first degree. (Trial Tr. at 892.)

The court submitted the following charges to the jury: (1) felony murder in the first degree, (2) murder in the second degree, (3) felony murder in the second degree, (4) attempted robbery in the first degree, and (5) criminal possession of a weapon in the second degree. (Trial Tr. at 1049-70.) It also instructed the jury on the defense of justification for murder in the second degree, but omitted that defense from the jury's verdict sheet, which was signed by the government and defense counsel. (Trial Tr. at 1054-57.) Following his conviction by the jury of first-degree murder on June 12, 2002, petitioner was sentenced on September 6, 2002 to life without parole. (Trial Tr.at 1103; Sentencing Tr. 9/6/2002 at 21.)

E. Procedural History

1. Direct Appeal

Defense counsel appealed petitioner's conviction on the ground that: (1) the trial court erred in denying petitioner's request to submit the charge of manslaughter in the first degree as a lesser included offense of murder in the first degree, and (2) petitioner's sentence was excessive. On March 7, 2005, the Appellate Division, Second Department, unanimously affirmed defendant's conviction, finding that the trial court had properly denied defendant's request to submit first-degree manslaughter as a lesser included offense because, viewing the evidence in the light most favorable to the defendant, there was no reasonable view that defendant intended to cause serious physical injury to Rodriguez rather than to kill him. See generally People v. Moreno, 16 A.D.3d 438 (2d Dep't 2005). It further concluded that the sentence imposed was not excessive. Id. By certificate dated June 17, 2005, the New York State Court of Appeals denied petitioner's application for leave to appeal. People v. Moreno, 5 N.Y.3d 766 (2005). Petitioner did not seek a writ of certiorari from the U.S. Supreme Court.

2. Two Writ of Error Coram Nobis Petitions

On August 18, 2005, petitioner, pro se, moved for a writ of error coram nobis, claiming he was denied effective assistance of appellate counsel because, on direct appeal, his attorney did not raise: (1) issues petitioner presented to appellate counsel, (2) the trial court's error in removing petitioner's girlfriend from the courtroom, (3) claims of prosecutorial misconduct, and (4) the trial judge's rulings, tactics and demeanor towards defense counsel and interference with the examination of a witness. On December 12, 2005, the Appellate Division unanimously rejected petitioner's application for the writ. People v. Moreno, 24 A.D.3d 571 (2d Dep't 2005) (finding that petitioner "has failed to establish that he was denied the effective assistance of appellate counsel"). Petitioner's request for leave to appeal his denial of a writ of error coram nobis to the New York State Court of Appeals was denied by a certificate dated March 31, 2006. People v. Moreno, 6 NY.3d 836 (2006). Petitioner did not seek a writ of certiorari in the U.S. Supreme Court.

On May 30, 2007, petitioner filed a second pro se petition for a writ of error coram nobis in the Appellate Division, claiming that he was denied effective assistance of appellate counsel in light of appellate counsel's failure to raise ineffective assistance of trial counsel. The Appellate Division denied petitioner's application for the writ on September 11, 2007. People v. Moreno,43 A.D.3d 964 (2d Dep't 2007) (holding that "the appellant has failed to establish that he was denied the effective assistance of appellate counsel"). On December 19, 2007, the New York State Court of Appeals denied petitioner's request for leave to appeal by certificate. People v. Moreno, 9 N.Y.3d 1008 (2007). Petitioner again did not seek a writ of certiorari in the U.S. Supreme Court.

3. Habeas Corpus Petition

The instant petition was filed on May 5, 2006, and subsequently amended to incorporate the claims asserted in the second coram nobis petition. (See Electronic Order dated 4/11/2007.) The case was stayed until November 20, 2008, pending exhaustion of the claims in petitioner's second coram nobis petition. (See Electronic Order dated 11/28/2008).

II. DISCUSSION

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") narrowed the scope of federal habeas review of state convictions entered after 1996 when the state courts have adjudicated a petitioner's federal claims on the merits. Under the AEDPA standard, federal courts may grant habeas relief only if the state court's adjudication on the merits:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the ...


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