The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Pro se petitioner Jimmy Hernandez ("petitioner") seeks relief pursuant to 28 U.S.C. § 2254 alleging that his conviction of Arson in the First Degree (N.Y. Penal L. § 150.20(1)), Reckless Endangerment in the First Degree (N.Y. Penal L. § 120.25), and Criminal Mischief in the Second Degree (N.Y. Penal L. § 145.10) was unconstitutionally obtained. The judgment of conviction of the Erie County Court followed a jury trial before Judge Michael L. D'Amico. Petitioner was subsequently sentenced to aggregate terms of imprisonment, the longest of which was twenty-five years to life.
II. Factual Background and Procedural History
A. Trial, Verdict, and Sentence
During the early morning hours of June 7, 2003, the Tenth Street home of John Shepherd ("Shepherd") and Linda Mae Spoerle ("Spoerle") on Buffalo's west side was struck with several Molotov cocktails, causing approximately $30,000 in damage. On February 5, 2004, petitioner was charged in a three-count indictment of Arson in the First Degree (N.Y. Penal L. § 150.20(1)), Reckless Endangerment in the First Degree (N.Y. Penal L. § 120.25), and Criminal Mischief in the Second Degree (N.Y. Penal L. § 145.10).
Prior to trial, Wade and Huntley hearings were conducted, after which the trial court denied petitioner's suppression motions with the exception of one statement made by petitioner in June, 2003. See Decision and Order, Supreme Court, Erie County (Rosetti, A.J.), No. 04074-2003 dated 8/20/2004.
The first witness to testify at petitioner's fourth trial*fn1
was Shepherd, who had resided at 48 Tenth Street since 1990.
Shepherd testified that around 3:00am on the morning of June 7, 2003,
while he was at work, he received a frantic phone call from his wife.
He rushed to his home, which was approximately ten blocks from his
business, and saw his house on fire. He ran inside the house to find
his wife in the front vestibule, covered in soot and looking for their
cat. He testified that the house was full of thick, black smoke. The
fire was eventually put out by members of the Buffalo Fire Department,
and the damage was estimated at approximately $30,000. T. 494, 495,
Shepherd testified that he suspected his next-door neighbor, "Guerro", was involved with the fire because Shepherd had previously reported him to the Drug Enforcement Agency in 2002 for what he thought was "heavy drug activity." Shepherd stated that he often saw people coming and going from Guerro's house at all hours of the day and night; people screaming and banging on Guerro's door loudly at 3:00 and 4:00am. T. 505-06.
Sandra Vega, a neighbor of Shepherd's, testified that she lived at 45 Tenth Street for thirteen years and was friendly with Shepherd and his wife, who lived across the street. Mrs. Vega stated that on June 7, 2003 around 3:00am, she heard a girl yelling outside. When she looked outside, she observed a "red reflection" from the fire, and a "girl and two guys" on the street. According to Mrs. Vega, the girl was "yelling for if [sic] anybody was at home get out and she kept repeating that." She testified that she saw petitioner standing with the girl, and that he walked away from the group toward Carolina Street. T. 522-26.
Mrs. Vega's husband, Francisco Vega, a City of Buffalo fireman, also testified at petitioner's trial. Mr. Vega stated that petitioner did some odd jobs for him during the summer of 2003, and that he knew him from the street. He further testified that he knew petitioner did work for Guerro, Shepherd's neighbor. Mr. Vega stated that on June 6, 2003, he saw petitioner with Guerro, staring at Shepherd's house at 48 Tenth Street, for about fifteen minutes.
On the following morning of June 7, Mr. Vega again saw petitioner talking with Guerro. T. 536, 539-41.
The prosecution's next witness was convicted felon*fn3 Robert Rodriguez ("Rodriguez"), who worked as a roofer and handyman in the Tenth Street area during June of 2003. According to Rodriguez, at some point in late May or early June petitioner approached him and stated that he received an offer to burn the house at 48 Tenth Street for $500 because the people who lived there were "snitches". A few weeks after the fire, Rodriguez encountered petitioner again on Tenth Street. He recalled that, "I just asking [sic] if he did that. (Indicating) I was pointing like that. I said, you did that? He said yeah, but he [Guerro] still owe me money." T. 545-49.
After the fire, Rodriguez was arrested for felony possession of heroin. The charge was later reduced to a misdemeanor, to which he pleaded guilty. Because his parole was violated as a result of the arrest, Rodriguez was sentenced to 90 days at the Willard Shock Drug Treatment program. Rodriguez testified that the misdemeanor plea offer was not a result of negotiations with the District Attorney's office, and that he was reluctant to testify for the prosecution in petitioner's case because he did not want to "put [his] family in danger." Rodriguez had to be subpoenaed to court, and stated that he felt like he was "pushed" to testify by the District Attorney's office. He also stated that at the beginning of the investigation, he had voluntarily provided information regarding the fire. T. 551-54.
Next, Maricelis Dominguez ("Dominguez") who lived a few blocks from the Tenth Street area on Maryland Street, testified that she, her boyfriend Josue Rivera, and a man she knew as "Richard" were standing on the corner of Tenth and Virginia Streets sometime after 2:30am on the morning of June 7, 2003. Shortly before 3:00am, Dominguez heard the sound of windows breaking. The three ran over to see Shepherd's house on fire. Dominguez then started knocking on the door of the house, telling Spoerle to "come out because her house was on fire." According to Dominguez, Spoerle "looked a little bit confused and was looking for her cat and I told her she had to come out, so she grabbed her phone and she started calling someone." A short time later, petitioner appeared, sweating and out of breath. After the fire trucks arrived, Dominguez testified that petitioner "smoothly walked away." T. 574-76, 578-79, 581, 594.
Dominguez also recalled seeing petitioner later in the morning, during daylight hours. According to Dominguez, she saw petitioner standing across the street from Shepherd and Spoerle's house with Guerro, and overheard petitioner asking Guerro for money because he "didn't do the job for nothing." Dominguez acknowledged during direct examination that she had been arrested numerous times for prostitution, giving false names, and drugs, and that she used to buy heroin from Guerro. She also admitted that she used two bags of heroin about three hours before the fire. T. 579, 581, 585.
The prosecution then called Buffalo Fire Department Investigator James O'Neill ("Inv. O'Neill"), who had inspected the Tenth Street home after the fire was extinguished. There, Inv. O'Neill discovered evidence that Molotov cocktails were used to start the fire, which included broken glass bottles, pools of petroleum, and broken bottle necks with cloth material used as a wick protruding out. No discernable fingerprints were recovered, however, DNA present on one of the bottlenecks matched that of petitioner's live-in girlfriend, Veronica Sanchez ("Sanchez"). T. 602-605, 611, 628-29, 642-43, 645, 647.
On January 20, 2004, Inv. O'Neill interviewed petitioner and Sanchez regarding the fire. Petitioner told the investigator that prior to the fire, he was doing work at the home of Francisco and Sandra Vega. Petitioner stated that he and Sanchez went home to their apartment on Whitney Place and Carolina Street, but did not recall when they returned home, or what time he went to bed. Petitioner told Inv. O'Neill that he was in bed, Sanchez woke up, and there were sirens. He never got out of bed, never looked out the window, and did not realize there was a fire until the following day. T. 637-38.
Over defense counsel's objection, Inv. O'Neill was permitted to testify to petitioner's previously suppressed statements from June, 2003. Inv. O'Neill stated that when he spoke to petitioner "right after the fire" on June 25, petitioner told him that he did not remember where he was the night of the fire, that he was staying with his brother at the Perry Projects*fn4 , and had not been on Tenth Street in the months preceding the incident. T. 656-666.
Angel Gonzalez ("Gonzalez") also lived on Tenth Street in June of 2003. Gonzalez testified that he left his house at 24 Tenth Street after he heard fire truck sirens. While outside of his house, he observed petitioner running from the front of 45 Tenth Street toward Carolina Street. A week after the fire, Gonzalez saw petitioner at the Hispanics United church, where petitioner told him that he was paid by Guerro to start the fire. Gonzalez, a convicted drug dealer and drug user, stated that he was not offered anything in exchange for his testimony at trial, despite having a pending B felony drug charge against him. T. 668-73.
The jury found petitioner guilty as charged. On July 18, 2005, petitioner was sentenced as a second felony offender to an indeterminate prison term of twenty-five years to life on the arson count, concurrent to two indeterminate terms of three and one-half to seven years on the lesser counts. S.9.
Through counsel, petitioner filed a brief in the Appellate Division, Fourth Department, raising the following points for appeal: (1) the trial court abused its discretion in granting the prosecution's mistrial motion, allowing the fourth trial to commence and thereby denying petitioner of his rights to due process, a fair trial, and protection from double jeopardy; (2) the admission into evidence of petitioner's previously suppressed statements denied petitioner his rights to a fair trial, due process, to confront witnesses, and to be free from unreasonable search and seizure; (3) the verdicts were against the weight of the evidence and the evidence was legally insufficient; (4) the evidence in the first two trials was legally insufficient and the fourth trial therefore violated petitioner's right to be free from double jeopardy; (5) petitioner was not properly afforded his rights to due process, a fair trial, and the effective assistance of counsel; and (6) the sentences were unduly harsh and excessive. Pet'r Appellate Br.; Resp't Exhibits ("Ex.") B. The Appellate Division unanimously affirmed the judgment of conviction. People v. Hernandez, 46 A.D.3d 1388 (4th Dept. 2007). Petitioner sought leave to appeal to the New York Court of Appeals on all of the issues presented in his appellate brief, with the exception of (6), the challenge to the duration of his sentence. Ex. C. Leave to Appeal was denied on March 21, 2008. People v. Hernandez, 10 N.Y.3d 811 (2008).
C. Post-Conviction Relief
Petitioner then moved pro se in state court to vacate the judgment of conviction pursuant to N.Y. Crim. Proc. L. § 440.10, on the ground that his trial counsel was ineffective for failing to preserve certain issues for appellate review. See § 440.10 Mot., No. 04074-2003, dated 6/5/2009 (Ex. D). Specifically, petitioner contends that his trial court was ineffective for failing to preserve the following issues: prosecutorial misconduct on summation; improper polling of the jury; and the improper denial of a missing witness charge. The county court found that because his underlying contentions were meritless, petitioner could not prevail on a claim of ineffective assistance of trial counsel. The motion was denied. See Mem. and Order, Erie County Court (D'Amico, J.), No. 04074-2003, dated 9/25/2009 (Ex. D). According to the petition, petitioner did not seek leave to appeal this determination in the Appellate Division, Fourth Department. See Petition ("Pet.") ¶ 11(c)-(d).
D. Federal Habeas Corpus Proceeding
Petitioner then filed the instant pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this Court, alleging the following grounds for relief: (1) the trial court abused its discretion in granting the prosecution's mistrial motion, allowing the fourth trial to commence and thereby denying petitioner of his rights to due process, a fair trial, and protection from double jeopardy; (2) the admission into evidence of petitioner's previously suppressed statements denied petitioner his rights to a fair trial, due process, and to confront witnesses; (3) the evidence was legally insufficient to support the conviction; and (4) denial of the effective assistance of counsel. Pet. ¶ 12(A)-(D) & Attach.
For the reasons that follow, the Court finds that petitioner is not entitled to the writ, and the petition is dismissed.
A. General Principles Applicable to Federal ...