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Lopez v. Unger

September 30, 2010


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


Sergio Lopez ("Lopez" or "Petitioner"), proceeding pro se, petitions the Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons below, the Petition is DENIED.


I. Factual Background

Shelton Smith ("Smith"), the victim, was employed as a security guard at Roosevelt Field. (Trial Transcript ("Tr.") 221.) On August 2, 2003, when his shift ended between 10:20 and 10:30 p.m., he walked to a bus stop to go home to Queens. (Tr. 221-22.) Smith boarded a bus and after several minutes, he realized he was on the wrong bus. (Tr. 222-23.) He, then, exited at the next stop and headed back to catch the correct bus to Queens. (Tr. 224.) As he jogged back to the bus stop, two males approached him. (Tr. 224.) One of the men, later identified as Lopez, held up his right hand and said: "Stop. I have a gun. Stop. Don't move." (Tr. 225.) Although Smith did not see a gun, as Petitioner's sleeve completely covered his hand, he believed that Petitioner was armed based on his gestures. (Tr. 245-46.) Lopez put his hand in Smith's pocket and asked for his money while the other assailant stood at Smith's left side holding a baseball bat. (Tr. 231-32.)

At this time, a police car approached. (Tr. 242.) Lopez and his cohort began to walk away from Smith. (Tr. 244.) Smith flagged down the police officer and stated that he was being robbed and that the men had a gun. (Id.) Lopez and the other assailant ran. (Id.) The Police Officer, Mark Vitelli, immediately backed up the police car until he was even with the assailants and looked at them. (Tr. 306.) The two men, then ran through yards between houses, while Officer Vitelli stopped his car and pursued them on foot. (Tr. 309.) After running to the side yard, Officer Vitelli radioed for assistance. (Tr. 309.) Officers Philip Kouril and Charles DeCaro responded, and performed a yard-by-yard search for the two men based upon Officer Vitelli's description. (Tr. 346.) Approximately 20 minutes into the search, Officer DeCaro found an individual lying on his belly, face-down behind a barbeque pit in a backyard. (Tr. 347-48.) After Officer Decaro placed the individual in handcuffs, the individual stated, "I got greedy. I fucked up." (Tr. 350.) Officer Decaro identified that individual in court as Lopez. (Tr. 349.) Officer Vitelli and Smith were called to the scene where Lopez was found. (Tr. 248-49, 311.) Officer Vitelli recognized the man as one of the two men he saw running away from him earlier. (Tr. 311-312.) Likewise, Smith recognized the individual as the one who told him he had a gun. (Tr. 249-50.) Both Lopez and Vitelli later identified that person in court as Lopez.*fn1 (Tr. 249-50, 311-12.)

II. Procedural History

Following a jury trial, Petitioner was convicted of one count of Attempted Robbery in the First Degree and two counts of Attempted Robbery in the Second Degree. Subsequently, on February 25, 2005, Lopez, a prior felony offender, was sentenced to ten years for the Attempted Robbery in the First Degree conviction, and concurrent terms of seven years for each Attempted Robbery in the Second Degree conviction, as well as two five-year terms of post-release supervision that would run concurrently with each other.

On appeal to the Appellate Division, Second Department, Petitioner raised the following arguments: (1) the verdict was against the weight of evidence; (2) the trial court's ruling, pursuant to People v. Sandoval, 34 N.Y.2d 371 (1974), deprived him of a fair trial; and (3) the trial court's ruling, pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed. 2d 69 (1986), deprived him of a fair trial. On February 6, 2007, the Appellate Division, Second Department affirmed Lopez's conviction. People v. Lopez, 37 A.D.3d 496 (2d Dept. 2007). The state court held that: (1) the verdict was not against the weight of the evidence; (2) the Petitioner's challenge to the Sandoval ruling was without merit as the lower court properly balanced the "probative value of Defendant's prior crimes on the issue of his credibility" with possible prejudice to Petitioner; and (3) Petitioner's Batson claim was without merit. Id. at 497. Lopez, then, filed a letter requesting leave to appeal to the New York Court of Appeals. In this application, Petitioner submitted only the Batson claim for review. The Court of Appeals denied leave to appeal on June 14, 2007. People v. Lopez, 9 N.Y.3d 847 (2007). On September 28, 2007, Petitioner filed the instant petition that seeks a writ of habeas corpus on the same three grounds previously submitted to the Appellate Division.


I. Federal Habeas Review of State Convictions

Section 2254 provides that a habeas corpus application must be denied unless the state court's adjudication on the merits "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." 28 U.S.C. § 2254(d). "A state court 'adjudicates' a petitioner's federal constitutional claims 'on the merits' when 'it (1) disposes of the claim on the merits, and (2) reduces its disposition to judgment.'" Norde v. Keane, 294 F.3d 401, 410 (2d Cir. 2002) (quoting Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001)).

"Clearly established federal law 'refers to the holdings, as opposed to the dicta, of the Supreme Court's decisions as of the time of the relevant state-court decision.'" Howard v. Walker, 406 F.3d 114, 122 (2d Cir. 2005) (quoting Kennaugh v. Miller, 289 F.3d 36, 42 (2d Cir. 2002)). A decision is "contrary to" established federal law if it either "applies a rule that contradicts the governing law set forth in" a Supreme Court case, or it "confronts a set of facts that are materially distinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [their] precedent." Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 150 L.Ed. 2d 9 (2001) (citing Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed. 2d 389 (2000)). A decision is an "unreasonable application of" clearly established Supreme Court precedent if it "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case." Id. (citing Williams, 529 U.S. at 407-08). Accordingly, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather that application must also be unreasonable." Williams, 529 U.S. at 411.

"[A] determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. ยง 2254(e)(1). As a result, Petitioner bears the burden of "rebutting the presumption of ...

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