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Martinez v. Berbary

November 18, 2010

JOHNNY MARTINEZ, 02-B-1549, PETITIONER,
v.
JAMES BERBARY, SUPERINTENDENT, COLLINS CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Michael A. Telesca United States District Judge

ORDER

I. Introduction

Pro se petitioner Johnny Martinez ("petitioner") has filed a timely petition for habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Monroe County Supreme Court of Criminal Possession of a Controlled Substance in the First Degree (former N.Y. Penal L. § 220.21(1)) and Conspiracy in the Second Degree (N.Y. Penal L. § 105.15) following a jury trial before Justice David Egan. Petitioner was sentenced as a second felony offender to a determinate term of imprisonment of twelve years for the possession charge, concurrent to four and one-half to nine years on the conspiracy charge.*fn1

II. Factual Background and Procedural History

On November 28, 2001, Rochester police officers executed a search warrant at 47 Lime Street in Rochester, New York. Underneath a floorboard in the attic, police found a bag containing over thirteen ounces of a substance containing cocaine. Also recovered from the house was an electronic scale and $900 in cash. Trial Tr. 195-210, 246-248, 254-256, 269-277, 300-313.

Petitioner, his girlfriend Santrese Jones ("Jones"), their infant daughter, and Jones' teenage brother, Lamar occupied 47 Lime Street. During the search, police located a portable safe in the kitchen that contained personal documents bearing petitioner's name and listing his address as 47 Lime Street. Upon his arrest, petitioner told police that he lived at the Lime Street residence. Trial Tr. 199-200, 269-270, 277, 278-287, 594, 598-599, 608-609, 681.

Pedro Peguero ("Peguero") testified that sometime around July 1, 2001, he agreed to sell petitioner three kilograms of cocaine for $75,000. David Barrios Canal ("Canal") was instructed by Peguero to deliver the cocaine to petitioner and collect the money. On July 3, Canal's car was stopped by police, who recovered $80,000 from a hidden compartment in the car. According to Peguero, a portion of that money was petitioner's partial payment for the cocaine delivered to him by Canal. On July 16, 2001, Pegeuro was arrested and charged with distribution of cocaine. Trial Tr. 516-519, 569-570.

Based in part on the information obtained from Peguero, police began investigating petitioner and obtained a wiretap authorization to monitor his phone calls made from a cellular phone. They also conducted periodic surveillance of petitioner. Trial Tr. 333-334, 336-338, 352, 506-507, 533, 550, 600, 648-649. That investigation ultimately culminated in the search of 47 Lime Street in November of 2001 pursuant to a search warrant.

Petitioner testified in his own behalf at trial, denying that he lived at the residence where the cocaine was seized by police. Jones and another individual, Shon Bradley, also testified for the defense.

Following the jury's guilty verdict, petitioner was sentenced as a second felony offender to concurrent terms of imprisonment, the longest of which being fifteen years to life. Trial Tr. 775, Sentencing Tr. 6. Petitioner was resentenced in 2005 on the possession charge to a determinate term of twelve years. Resentencing Tr. 8-13.

Petitioner appealed his conviction to the Appellate Division, Fourth Department, on the following grounds: (1) the trial court erred in denying petitioner's motion challenging the legality of the search warrant; (2) the trial court erred in admitting records for which no proper foundation was laid; (3) the trial court erred in permitting expert testimony regarding the recorded telephone conversations; (4) the jury's verdicts were against the weight of the evidence and not supported by legally sufficient evidence; and (5) cumulative trial errors deprived petitioner of a fair trial.

Respondent's Appendix ("Appx.") A. The Fourth Department unanimously affirmed the judgment of conviction. People v. Martinez, 39 A.D.3d 1246 (4th Dept. 2007), lv. denied, 9 N.Y.3d 878 (2007).

Petitioner now seeks a writ of habeas corpus, raising a number of grounds for relief, including ineffective assistance of trial counsel, Fourth Amendment violations, evidentiary errors, and legal insufficiency and weight of the evidence. See Petition ("Pet.") 2-3, 17; Petitioner's Memorandum ("Pet'r Mem.") 2-24.

For the reasons that follow, I find that petitioner is not entitled to the writ, and the petition is dismissed.

III. Discussion

A. General Principles Applicable to Federal Habeas Review

1. Standard of Review

To prevail under 28 U.S.C. ยง 2254, as amended in 1996, a petitioner seeking federal review of his conviction must demonstrate that the state court's adjudication of his federal constitutional claim resulted in a decision that was contrary to or involved an unreasonable application of clearly established Supreme Court precedent, or resulted in a decision that was based on an unreasonable factual determination in light of the evidence ...


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