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Flores v. Ercole

October 7, 2010


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


DORA L. IRIZARRY, United States District Judge

Petitioner Antonio Flores, pro se,*fn1 seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (See generally Docket Entry No. 1 ("Pet.").) Petitioner challenges his New York state court convictions by claiming that: (1) the trial court improperly admitted expert witness testimony on gang violence, in violation of his First Amendment right to freely associate and in violation of his Fourteenth Amendment Due Process rights; (2) the trial court improperly imposed consecutive sentences, in violation of the Fifth and Eighth Amendments; and (3) his trial counsel was ineffective, in violation of the Sixth Amendment as established by Strickland v. Washington, 446 U.S. 668, 690--91 (1984). (See generally Pet.; see also Docket Entry No. 8 ("Reply").)

The Kings County District Attorney, as counsel for Respondent, opposes each claim alleged in the petition. (See generally Docket Entry No. 5 ("Resp.").) For the reasons set forth below, the petition is denied in its entirety.


The facts established at trial demonstrated that on the night of December 22, 2003, Petitioner and an accomplice named Carlos Cruz*fn2 ("Co-defendant") attended a party at a club in Brooklyn, New York. (Tr. 519; 524; 529--38; 542--43; 549.) At approximately 2:00 AM the next morning, Petitioner and Co-defendant fired into a crowd of people outside the club. One of their bullets struck Sergio Hernandes in his jaw. (Id. at 449--51.) Two struck Javier Garcia in the torso, passing completely through his body. (See id. at 454; 461--62.) Olivia Garcia was hit once in her torso and once in her head. (Id. at 474.) Hernandes and Javier Garcia survived their gunshot wounds; Olivia Garcia did not.

Nearby police officers who had heard the shots pursued Petitioner and Co-defendant as they fled the scene of the shooting. (Tr. 156--64; 181.) Five to seven minutes later, after observing the two men run up a fire escape approximately one block from the club, police arrested both men on a rooftop as they attempted to break into a skylight. (Id. at 191--98; 216; 227; 269; 287--92.)

Detectives recovered six shell casings (one 9mm casing and five .380 caliber casings) from the scene of the shooting. (Tr. 237--38; 241--46; 257--60.) Detectives also recovered a .380 caliber semi-automatic handgun and a 9mm semi-automatic handgun from the street down which Petitioner and Co-defendant ran while fleeing from the scene. (Id. at 165--66; 175--77; 210; 609-- 14.) A doctor recovered two .380 caliber bullets from Olivia Garcia's body during an autopsy.*fn3

(Id. at 477; 500--01.) Ballistics experts concluded that these bullets and the spent casings all came from the two handguns found near the scene of the shooting. (Id. at 503--09.)

Petitioner and Co-defendant were tried together, but before separate juries. At the trial, an eyewitness who had identified Petitioner as one of the shooters in a line-up again identified him before Petitioner's jury. (Tr. 102--03; 112--13; see also id. at 378.) Another eyewitness, who had previously identified Co-defendant as one of the shooters in a line-up, identified Co-defendant before the other jury.*fn4 One of the surviving victims testified that Co-defendant was at the club prior to the shooting, and identified Co-defendant as one of the shooters. (Id. at 532, 543.)

As evidence that gang tensions motivated the shooting, the prosecution offered testimony that Hernandes had asked the club DJ to offer a "shout-out" to the Sombras (a Mexican gang) over the microphone, and the DJ complied. (Tr. 520, 525.) Hernandes and Javier Garcia then asked the DJ to offer a "shout-out" to "Los Primos" (another Mexican gang), but the DJ declined this request. (Id. at 530, 540.) The prosecution offered further evidence that both Petitioner and Co-defendant were members of Chicano Nation, and that this gang had a rivalry with Sombras and Los Primos. (Id. at 641--45, 653, 662.) An expert witness for the prosecution testified that a "shout-out" made on behalf of one gang in the presence of another gang can lead to acts of violence, and had sparked prior shootings in the New York area. (Id. at 646.)

The jury convicted Petitioner of Murder in the Second Degree (N.Y. Penal Law § 125.25[1]), Attempted Murder in the Second Degree (N.Y. Penal Law §§ 110/125.25[1]), Assault in the Second Degree (N.Y. Penal Law § 120.05[2]), Reckless Endangerment in the First Degree (N.Y. Penal Law § 120.25), and Criminal Mischief in the Fourth Degree (N.Y. Penal Law § 145.00[1]). The trial court sentenced Petitioner to consecutive prison terms for the murder of Olivia Garcia (24 years), the attempted murder of Javier Garcia (20 years), and the assault of Sergio Hernandes (7 years). (Sentencing Tr. 21--22.) The trial court also sentenced Petitioner to three-and-a-half to seven years of imprisonment on the reckless endangerment charge and one year of imprisonment on the criminal mischief charge, both running concurrently with each other and the other sentences. (Id. at 22.)

Petitioner subsequently challenged his conviction and sentences, and the New York State appellate courts affirmed them in their entirety. See generally People v. Flores, 46 A.D.3d 570 (2d Dep't 2007), lv. denied 10 N.Y.3d 765 (2008). Specifically, the Appellate Division, Second Department ("Appellate Division") held that his "challenge to the admission of expert testimony regarding the customs and practices of Mexican-American gangs is without merit," as it "was relevant to the issue of . . . motive and was a necessary background to explain to the jury the sequence of events." Flores, 46 A.D.3d at 571 (citations omitted). The Appellate Division further upheld the imposition of consecutive sentences "because the offenses were separate and distinct acts, notwithstanding that they occurred in the course of a continuous incident . . . . Moreover, the sentence imposed was not excessive." Id. at 571--72 (citations omitted). Finally, the Appellate Division held that Petitioner's "contention that he was denied the effective assistance of counsel is without merit." Id. at 571 (citations omitted). Petitioner did not seek a writ of certiorari from the United States Supreme Court, and timely filed the instant petition on February 9, 2009.


A. Legal ...

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