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Polanco v. Rock

June 4, 2010

NELSON POLANCO, PETITIONER,
v.
DAVID ROCK, RESPONDENT.



The opinion of the court was delivered by: Gary L. Sharpe, U.S. District Judge

DECISION AND ORDER

Petitioner Nelson Polanco is an inmate in the custody of the New York State Department of Correctional Services ("DOCS") at Great Meadow Correctional Facility. He was convicted in Albany County Court, by a jury, of second degree attempted murder, second degree kidnapping, first degree robbery (2 counts), first degree assault, second degree robbery, first degree criminal use of a firearm, and third degree criminal possession of a weapon for his role in the abduction, robbery and shooting of Angel Smith ("the victim"). He is presently serving an aggregate determinate term of fifty years in prison. See Dkt. No. 1 at 2-3; Dkt. No. 8, Respondent's Memorandum of Law ("Resp't Mem.") at 2 & n. 1.

Petitioner seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the grounds that: (1) the evidence was insufficient to sustain his conviction on all charges because the victim initially identified someone else as the shooter; (2) the evidence was insufficient to sustain his conviction for kidnapping because there was no proof that Petitioner participated in the abduction of the victim at the location specified in the indictment; (3) counsel was ineffective (Grounds Four and Five); and (4) the trial court improperly denied his motions to vacate his conviction pursuant to New York Criminal Procedure Law ("CPL") § 440.10 without hearings. See Dkt. No. 1 at 6-10, 10-a; Memorandum of Law ("Mem.") at 4-26. For the reasons that follow, the petition is denied and dismissed.

I. RELEVANT BACKGROUND

The Supreme Court of New York, Appellate Division, Third Department, briefly summarized the facts of this case:

Sometime around noon on the day in question, an individual by the name of Tony Kearney, also known as "Lex," was "jumped" by two unknown young boys. Shortly thereafter, Kearney, [Elias] Estrella, [Petitioner] and Edwin Rosado drove around in search of these "kids." After observing Kearney's two assailants riding in a car with the victim, the foursome drove to a nearby residence, retrieved a gun and went back out in search of them, to no avail.

At approximately 10:00 p.m. that night, Estrella and Kearney approached the victim in a vacant lot while [Petitioner] and Rosado waited in a vehicle. Kearney pointed the previously-retrieved gun at the victim and she was forced into the vehicle. They then proceeded to a nearby park where the victim was ordered out of the vehicle and was accused by Kearney of setting him up to be assaulted earlier that day. The victim repeatedly denied any involvement in the earlier incident. Kearney was then content to let the victim go free and she, in fact, began to walk away. [Petitioner], however, objected to her release; thus, at [Petitioner's] insistence, Kearney again pointed the gun at the victim and directed her back into the vehicle. At this time, [Petitioner] repeatedly told the others that the victim "[had] to go," that Kearney "[had] to shoot her" and that, if Kearney was not going to "do it," he would. [Petitioner] also spoke directly to the victim and told her that "she [had] to go." At [Petitioner's] request, Kearney passed the gun to him. The victim was again directed out of the vehicle at gunpoint. In response to the victim's inquiry as to why she had to exit the vehicle, [Petitioner] remarked that he did not want to "shampoo [its] seats in the morning."

Clinging to Estrella, the victim got out of the car at which time Kearney and [Petitioner] began yelling at him to "go in her . . . pockets." The victim herself handed over the small amount of cash on her person while Estrella nevertheless went through her pockets. As Estrella pulled away from the victim, who continued to cling to him for protection, [Petitioner] shot her in the head. This first bullet immediately blinded her. As she lay on the ground, [Petitioner] fired approximately five more shots at her, including one to the chest.

After the men fled and despite her critical injuries, the victim was able to stagger away from the shooting scene where she was ultimately assisted by two bystanders. In the ambulance on route to the hospital, the victim told police that "Lex" (i.e., Kearney) had shot her. Even though she knew this was not accurate, she did so because she did not know the name of anyone else involved and believed, ultimately correctly so, that if the police located Kearney then they would also locate the others, including [Petitioner]. As a result of the barrage of bullets fired at her by [Petitioner], the victim suffered from, among other injuries, shoulder, jaw and skull fractures, a collapsed lung and permanent blindness.

People v. Polanco, 13 A.D.3d 904, 905-06 (3d Dep't 2004). See Trial Tr. at 48-82, 84-93, 123-35, 188-209, 217-77.

Petitioner appealed his conviction, arguing that (1) the evidence was insufficient to support any of the charges, and the verdict was against the weight of the evidence, because the People failed to prove he was the shooter; (2) the evidence was insufficient to establish his guilt of kidnapping because there was no evidence that Petitioner participated in the abduction of the victim at the location specified in the indictment; and (3) the sentence was unduly harsh. See Dkt. No. 9, Ex. A, at 8-21. On December 23, 2004, the Appellate Division affirmed. Polanco, 13 A.D.3d at 904-907. See Dkt. No. 9, Ex. C. Leave to appeal to the New York Court of Appeals was denied on February 28, 2005. Polanco, 4 N.Y. 3d 802 (2005); Dkt. No. 9, Ex. E.

Petitioner then filed a motion to vacate his conviction pursuant to New York Criminal Procedure Law ("CPL") § 440.10 on or about February 16, 2006, in which he argued that trial counsel was ineffective for: (1) failing to cross-examine the victim; (2) failing to permit Petitioner to testify; (3) failing to request that the kidnapping charge be dismissed; and (4) failing to conduct an appropriate summation. Dkt. No. 9, Ex. F. The motion was denied on April 14, 2006. Id. at Ex. G. The Appellate Division, Third Department, granted leave to appeal on June 22, 2006. Id. at Ex. I.

In a decision dated June 12, 2008, the Appellate Division affirmed the denial of Petitioner's section 440 motion, finding that "[m]ost of the allegations of ineffective assistance of counsel pertain to claimed errors that could have been raised in the context of the direct appeal and are therefore not the proper subject of a CPL 440.10 motion." People v. Polanco, 52 A.D.3d 947, 947 (3d Dep't. 2008) (citing CPL § 440.10(2)(c)); see Dkt. No. 9, Ex. O. The Appellate Division also rejected Petitioner's claim that counsel failed to advise him of the right to decide whether to testify because the record showed that Petitioner was aware of his right to testify, chose not to do so, and counsel and Petitioner had "extensive and repeated conversations about the decision to rest without calling any witnesses." Id. (citing CPL § 440.30(4)(c)). The New York Court of Appeals denied leave to appeal on September 18, 2008. See Polanco, 11 N.Y.3d 793 (2008); Dkt. No. 9 at Ex. Q.

Petitioner filed a second section 440 motion on or about May 24, 2007, in which he argued that trial counsel failed to (1) investigate a material witness for the defense, Reverend Keith Davey; and (2) failed to call Davey to support the defense that Petitioner lacked criminal intent. Dkt. No. 9, Ex. R. Petitioner's motion was denied on July 12, 2007. Id. at Ex. S. The court found that, "[a]ssuming that counsel was aware of the existence of this proposed witness and the substance of the proposed testimony, counsel's decision not to call the witness was a strategic decision and there is no basis to find this decision amounted to ineffective assistance of counsel." Id. at 2-3. The court also concluded that Petitioner received meaningful representation, and that counsel pursued a "reasonable defense strategy." Id. at 3. The Appellate Division denied leave to appeal on August 29, 2007. Id. at Ex. U.

This action followed.

II. DISCUSSION

A. Standard of Review

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant habeas corpus relief with respect to a claim adjudicated on the merits in state court only if the adjudication of the claim: (1) was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.*fn1 Schriro v. Landrigan, 550 U.S. 465, 473 (2007)(citing 28 U.S.C. §§2254(d)(1), (2)); Hawkins v. Costello, 460 F.3d 238, 242-43 (2d Cir. 2006), cert. denied 549 U.S. 1215 (2007).

A state court decision violates the "contrary to" clause of section 2254(d)(1) when it "reaches a result opposite to the one reached by the Supreme Court on the same question of law or arrives at a result opposite to the one reached by the Supreme Court on a 'materially indistinguishable' set of facts." Earley v. Murray, 451 F.3d 71, 74 (2d Cir. 2006) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). A federal habeas court may only grant the writ under the "unreasonable application" clause of the section when the state court's decision "identifies the correct rule of law but applies that principle to the facts of the petitioner's case in an unreasonable way." Id. at 74 (citing Williams, 529 U.S. at 413). "The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable - a substantially higher threshold." Schriro, 550 U.S. at 473. Federal habeas courts are also required under AEDPA "to presume the correctness of state courts' factual findings unless applicants rebut this presumption with 'clear and convincing evidence.' " Id. (citing § 2254(e)(1)).

B. Sufficiency of the Evidence

Petitioner argues in Ground One of his petition that the evidence was insufficient to sustain his convictions on any of the charged crimes because the victim initially identified Kearney as the shooter, and her trial testimony that Petitioner was the shooter was therefore unworthy of belief. See Dkt. No. 1 at 6. Petitioner also argues that the victim's explanation for why she identified Kearney as the shooter - because he was the only person she ...


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