The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Petitioner Monica Szlekovics ("petitioner") who is represented by counsel, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging her convictions in Monroe County Court of Murder in the Second Degree, Kidnapping in the First Degree, Kidnapping in the Second Degree, Burglary in the First Degree, and Assault in the First Degree. Following a jury trial before Judge John J. Connell, petitioner was sentenced to an aggregate term of imprisonment of fifty years to life.
II. Factual Background and Procedural History
During the autumn months of 1996, petitioner and her estranged husband Angel Mateo ("Mateo") engaged in series of violent crimes involving kidnappings, assaults, burglaries, and one murder in the City of Rochester. The crime spree was apparently part of Mateo's plan to reunite with Mateo's girlfriend, Cindia Sanchez ("Sanchez"), who had fled their abusive relationship. The convictions stem from three separate but related incidents.
On October 11, 1996, petitioner and Mateo held hostage, terrorized, and threatened to kill Maria Sanchez, Jose Roman, and their four-year old daughter in their Avenue D apartment in the City of Rochester in an attempt to locate Sanchez, Maria Sanchez's sister. T. 262-83, 303-04, 314-28, 354, 431.*fn1
Less than a month later, petitioner, Mateo, and Mateo's half-brother Victor Cordero ("Cordero") abducted a 20-year old mentally ill man named Juan Matos ("Matos") believing Matos might be able to lead them to Sanchez. When Matos proved not to be helpful, the three took him to Mateo's home, covered his eyes with a bandana, and shot him in the head. They covered Matos' head with a plastic bag and left him to die in Mateo's basement. A few hours after the shooting, the three then wrapped the body and dumped it in a lot on Sherer Street in Rochester. Both petitioner and Mateo gave conflicting accounts as to who actually shot Matos. T. 286, 359-69, 367, 418-19, 772, 865, 1189, 1207-10.*fn2
On November 6, 1996, petitioner, Mateo, and Cordero returned to Maria Sanchez's apartment on Avenue D in hopes that her sister would appear. After waiting several hours in the basement, the three decided to take over the first floor apartment, which was occupied by Willie McWilliams ("McWilliams"), his girlfriend, and his young son. The three entered the apartment with guns and handcuffs. Mateo then attempted, unsuccessfully, to cut McWilliams' throat. Although McWilliams was severely injured and had been shot*fn3 during his struggle with Mateo, he ultimately survived and testified about the incident at petitioner's trial. T. 560-85, 759-60, 777-79.
Petitioner was charged with Murder in the First Degree (N.Y. Penal Law ("P.L.") §§ 20.00, 125.27(1)(a)(vii)), Attempted Murder in the First Degree (P.L. §§ 20.00, 110.00, 125.27(1)(a)(vii), Murder in the Second Degree (P.L. §§ 20.00, 125.25(3)), Kidnapping in the First Degree (P.L. §§ 20.00, 135.25(3)), four counts of Kidnapping in the Second Degree (P.L. §§ 20.00, 135.20), two counts of Burglary in First Degree (P.L. §§ 20.00, 140.30(2),(3)) and three counts of Assault in the First Degree (P.L. §§ 20.00, 120.10(1), (4)).
Because Mateo and petitioner gave statements implicating each other, their trials were severed. Petitioner's Reply Memorandum ("Pet'r Mem.") at 18. At petitioner's trial, the prosecution framed their case against her as an accomplice and also with her own independent criminal intent. The prosecution presented evidence that, although petitioner was married to Mateo, Mateo had an intimate relationship with Cindia Sanchez. While Mateo and Sanchez were dating, petitioner frequently accosted Sanchez, at one point spraying mace at her and slashing Mateo's car tires while his vehicle was parked at Sanchez's home. T. 407-10, 429, 438. The relationship between Mateo and Sanchez quickly dissolved, however, as a result of Mateo's abuse towards Sanchez and her children. Sanchez subsequently sought refuge at a battered women's shelter to escape Mateo. T. 410-13, 430.
Not long after, according to petitioner, Mateo was arrested on an unspecified, unrelated offense. He suspected it was petitioner who had informed on him and threatened her with a gun. When petitioner denied having gone to the police, Mateo concluded that it must have been Sanchez who "snitched" and resolved to kill her. T. 1187-88, 1219. It is unclear, however, what Mateo's true objective was in seeking out Sanchez. Nonetheless, the pair ultimately left a bloody trail in Mateo's quest to reach her. The prosecution sought to prove that petitioner was not only involved, but actively participated in each of the crimes, including the murder of Juan Matos.
At trial, petitioner's attorney pursued the affirmative defense of duress, arguing that, because of Mateo's constant violence and abuse toward petitioner, she engaged in the criminal acts for fear of her life. Petitioner knew Mateo had killed before and believed he would not hesitate to do so again. Her addiction to heroin further impeded her ability to flee from Mateo.
Petitioner married Angel Mateo in 1995, two years after the two first met and shortly after Mateo's release from prison. From the inception of their relationship, Mateo was mentally and physically abusive to petitioner, and the abuse became more frequent after the two were married. Two months after the marriage, petitioner separated from Mateo because of his abuse and his "on and off" affair with Janette Sanchez. Petitioner maintained that she sought a divorce, but was not able to obtain one because Mateo refused to cooperate, wanting to maintain a measure of control over her. Despite this, petitioner repeatedly accompanied Mateo in his numerous attempts of searching for Sanchez, because she felt that she "had to." Petitioner continued to use heroin during this time.
With respect to the crimes, petitioner acknowledged her presence, but denied shooting Matos; denied threatening Jose Ramos and his family; and she denied attempting to kill McWilliams. The defense sought to minimize her level of participation and that she did not share the mental culpability of Mateo. To that end, petitioner testified to every episode of abuse at the hands of Mateo and presented a picture of a drug-addicted and fear-driven woman. She did, however, admit that she carried guns and handcuffs to assist Mateo in his various plans. After Matos was killed, petitioner wrapped his body in a blanket and helped dispose of the body behind a factory. Afterward, she cleaned the blood from the basement floor in response to Mateo's instructions. T. 1320-29, 1353-57, 1361-68.
The jury was charged by the trial court on the affirmative defense of duress. Petitioner was acquitted of the intentional murder of Matos, but convicted of his kidnapping and felony murder based on her role in that crime. She was also convicted for the abductions at the Avenue D residence, and the burglary and assault perpetrated against McWilliams. She was acquitted of the attempted murder of McWilliams.
D. Appeal and Post-Conviction Relief
Through counsel, petitioner filed a brief to the Appellate Division, Fourth Department, which unanimously affirmed the judgment of conviction. People v. Szlekovics, 19 A.D.3d 1036 (4th Dept. 2005); lv. denied, 5 N.Y.3d 810 (2006).
Petitioner then filed a motion to vacate the judgment of conviction pursuant to N.Y. Crim. Proc. Law ("C.P.L.") § 440.10 in Monroe County Court on March 6, 2007. See Respondent's Appendix ("Appx.") Vol. II at M, N. That motion was denied on the merits, and leave to appeal that decision was denied by the Appellate Division. Appx. Vol. II at P, T.
In September of 2007, petitioner filed the instant petition for habeas corpus, raising the following grounds for relief:
(1) ineffective assistance of trial counsel; (2) the inconsistent theories of petitioner's culpability presented at her trial and at the separate trial of her co-defendant violated her due process rights; (3) the jury was not properly instructed on the affirmative defense of duress; (4) the prosecution improperly impeached petitioner; and (5) cumulative error should result in a new trial and sentencing. See Amended Petition ("Am. Pet.") 32-69, Pet'r Mem. 1-23 (Dkt. ##7, 17). Petitioner has also filed a motion to expedite the decision granting the instant petition or, in the alternative, to grant the petitioner a Sparman hearing*fn4 to secure testimony from her trial counsel with respect to her ...