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Jose Diaz, Pro Se v. Louis F. Marshall

July 14, 2011

JOSE DIAZ, PRO SE,
PETITIONER,
v.
LOUIS F. MARSHALL, SUPERINTENDENT, SING SING CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Matsumoto, United States District Judge:

NOT FOR PRINT OR ELECTRONIC PUBLICATION

MEMORANDUM & ORDER

Pro se petitioner Jose Diaz ("petitioner") is incarcerated pursuant to a judgment of conviction imposed in Supreme Court, Kings County. Alleging that his state custody violates his federal and constitutional rights, petitioner seeks relief pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the petition is denied.

BACKGROUND

I. Statement of Facts

Petitioner's imprisonment resulted from his guilty plea to, among other crimes, the murder of Rafael Ferreira ("the victim"). Before pleading guilty, petitioner sought a motion to suppress identification testimony from a pre-arraignment lineup. To determine the admissibility of the lineup identification and whether police had probable cause to arrest petitioner, the Supreme Court, Kings County, conducted a Wade/Dunaway*fn1 hearing, ultimately denying the motion. During the hearing, the following facts were revealed:

On April 3, 1995, petitioner stole beer from a bodega in Brooklyn and made harassing comments to three men working in the store, Marino Fernandez, Edwin Ferreira, and Rafael Ferreira. (ECF No. 27, State Court Record ("State Record"), Ex. A, Transcript of Wade/Dunaway Hearing dated Mar. 11, 1996 ("Wade/Dunaway Tr.") at 6, 45-47.) Petitioner returned to the bodega later that night and spotted Rafael Ferreira getting into a car occupied by the other two men. (Id. at 48.) Petitioner began shooting at the victim. (Id.) The three men, including a mortally wounded Rafael Ferreira, left the scene and drove to the police precinct. (Id. at 45.)

At the precinct, Detective Morris interviewed Marino Fernandez and Edwin Ferreira. (Id.) The two men told Detective Morris about the incident and described the physical appearance of the shooter, whom they knew as "Manny." (Id. at 48-49.) The victim was not able to speak and died moments after arriving at the precinct. (Id.) The next morning, another eyewitness to the shooting came to the precinct and identified the shooter as an individual named Manny. (Id. at 50-51.) All three witnesses knew Manny from their neighborhood. (Id. at 51.) This third witness then called his mother, who informed him that transit officers arrested the same Manny around midnight on April 3 into April 4. (Id. at 52.) The witness relayed this information to Detective Morris. (Id.)

Upon further investigation, Detective Morris discovered that on or about midnight on April 4, transit officers arrested petitioner for jumping over a subway turnstile. (Id. at 17, 52.) Petitioner matched the description of the shooter given by the witnesses. (Id. at 53.) Officer Mack, the officer who brought petitioner to Transit District 32 for processing after he was arrested for turnstile jumping, at all relevant times was unaware of the pending homicide investigation against petitioner. (Id. at 18, 21, 32.) Petitioner was not arraigned or assigned counsel for jumping the turnstile. (Id. at 29, 53.)

Detective Morris removed petitioner from his holding cell, advised him of his Miranda rights, and asked petitioner if his name was Manny, which petitioner answered in the affirmative. (Id. at 53-54.) Detective Morris then conducted a lineup, in which four witnesses positively identified petitioner as the individual they saw shoot the victim, and a fifth witness identified petitioner as the person that he saw running from the scene. (Id. at 59-61.) As a result of the positive identifications, Detective Morris arrested petitioner for homicide. (Id. at 64.) Petitioner did not present any evidence at the Wade/Dunaway hearing. (Id. at 111.)

The court denied petitioner's Wade and Dunaway motions, finding that (1) the police had probable cause to take petitioner into custody for the homicide; and (2) Detective Morris conducted the lineup appropriately. (Id. at 124.) Furthermore, the court held that, at the time of the lineup, no right to counsel had attached because petitioner had not been arraigned on the turnstile jumping charge. (Id. at 125-126.)

II. The 1996 Conviction and Sentence

On March 13, 1996, petitioner pled guilty to murder in the second degree, attempted murder in the second degree, robbery in the first degree, three counts of attempted robbery in the first degree, assault in the second degree, criminal possession of a weapon in the third degree, and petit larceny. (State Record, Ex. A, Transcript of Plea dated Mar. 13, 1996 at 21-22.)

On March 25, 1996, petitioner was sentenced to concurrent prison terms of twenty years to life for the murder conviction, eight to twenty-four years for attempted murder in the second degree and robbery in the first degree, four to twelve years for attempted robbery and criminal possession of a weapon in the second degree, two and one-third to seven years for criminal possession of a weapon in the third degree, and one year for petit larceny. (State Record, Ex. A, Transcript of Sentence dated Mar. 25, 1996 at 13.)

III. Appeal and State Post-Conviction Proceedings

On April 29, 1997, in the Supreme Court, Kings County, petitioner submitted a pro se motion to withdraw his guilty plea, which the court construed as a § 440.10 motion to vacate his judgment of conviction (the "first § 440.10 motion"). (State Record, Ex. B, Affidavit of Defendant Upon Motion to Withdraw Plea of Guilty dated Apr. 29, 1997 ("First § 440.10 Mot." at 1.) Petitioner claimed that he was denied effective assistance of counsel, alleging that his trial counsel coerced petitioner to plead guilty and did not fully inform him that the court might impose an excessive sentence. (Id. at 2.) The court denied the first § 440.10 motion on August 11, 1997, finding that petitioner had "knowingly and voluntarily" pleaded guilty. (State Record, Ex. B, Decision and Order by Judge Ronald J. Aiello dated Aug. 11, 1997 at 4.)

Petitioner, represented by counsel, filed an appeal in the Appellate Division by way of a motion challenging his sentence. (State Record, Ex. C, Notice of Motion dated Jan. 25, 2000 ("Direct Appeal Mot.").*fn2 ) Petitioner sought a reduction of his sentence in the interest of justice, arguing that his sentence was excessive. (Id.) See People v. Diaz, 716 N.Y.S.2d 351 (N.Y. App. Div. 2000). The Appellate Division denied the appeal without opinion and affirmed petitioner's sentence on November 27, 2000. Diaz, 716 N.Y.S.2d at 351. On March 22, 2001, the New York Court of Appeals denied petitioner's application for leave to appeal. People v. Diaz, 96 N.Y.2d 782 (2001).

On December 18, 2001, petitioner filed a second pro se § 440.10 motion to vacate his judgment of conviction (the "second § 440.10 motion"). (State Record, Ex. D, Affidavit in Support of Motion to Vacate Judgment dated Dec. 18, 2001 ("Second § 440.10 Mot.").) In the second § 440.10 motion, petitioner argued that his counsel was ineffective for failing to challenge the identification lineup, which petitioner claims was conducted in violation of his right to counsel and after his unlawful detention by the police. (Second § 440.10 Mot. ¶ 1.) On April 25, 2002, the state court denied the second § 440.10 motion. (State Record, Ex. D, Decision and Order by Judge Michael A. Gary dated Apr. 25, 2002 at 5.) The court ruled that the motion was procedurally barred under N.Y. Crim. Proc. Law §§ 440.10(2)(c) and (3)(c), because petitioner could have raised his claim in his prior motion to vacate the judgment of conviction and on direct appeal and did not do so. (Id. at 3.) Further, the court stated that even if it reviewed petitioner's claim on the merits, it would have denied petitioner's motion to vacate. (Id.) The court reasoned that counsel had raised the issue of whether the right to counsel attached at the lineup, and that counsel did not have to raise the delay in arraignment claim because it was frivolous. (Id. at 4.) On September 4, 2002, the Appellate Division denied petitioner's leave to appeal. (ECF No. 26, Affirmation in Opposition to Petition for a Writ of Habeas Corpus dated Oct. 24, 2008 ("Opp'n") ¶ 17.) See People v. Diaz, No. 2002-04736 (N.Y. App. Div. Sept. 2, 2002). Finally, on October 28, 2002, the New York Court of Appeals dismissed petitioner's application for leave to appeal. People v. Diaz, 98 N.Y.2d 767 (2002).

On May 23, 2002, petitioner moved for writ of error coram nobis in the Appellate Division (the "first coram nobis motion"). (State Record, Ex. F, Affidavit in Support of Application for a Writ of Error Coram Nobis dated May 23, 2002 ("First Coram Nobis").) Petitioner argued that he received ineffective assistance of appellate counsel because his appellate counsel relied solely on his excessive sentence and did not raise the issue that his trial counsel was ineffective for failing to argue that the police denied petitioner his right to counsel when he was not properly arraigned on the turnstile jumping charge. (Id. at ¶¶ 2-3; State Record, Ex. F, Respondent Memorandum of Law in Opposition to Motion for Writ of Error Coram Nobis dated July 11, 2007 ("Resp't Coram Nobis Mem.") at 9.)

On March 20, 2003, while petitioner's first coram nobis motion was pending, petitioner submitted a third pro se § 440.10 motion to vacate his judgment of conviction (the "third § 440.10 motion"). (State Record, Ex. E, Affidavit in Support of Motion to Vacate Judgment dated Mar. 20, 2003 ("Third § 440.10 Mot.").) Petitioner claimed that his conviction should be vacated because (1) the trial court failed to make a Huntley*fn3 ruling on certain statements made by petitioner; (2) he should have been issued a Desk Appearance Ticket for jumping the subway turnstile; and (3) he received ineffective assistance of counsel due to counsel's failure to challenge the admissibility of petitioner's statements and to inquire as to the eyewitnesses' independent knowledge of petitioner. (Id.) On July 23, 2003, the court denied petitioner's motion. (State Record, Ex. E, Decision and Order by Judge Joseph S. Silverman dated July 23, 2003 at 3.) The court held that (1) the claims were procedurally barred because petitioner could have raised them in his prior § 440.10 motions and on direct appeal; (2) the pedigree exception to Miranda applied to the statement made by petitioner regarding his name; and (3) there was no basis to conclude that petitioner received ineffective assistance of counsel. (Id. at 3-5.) On December 19, 2003, the Appellate Division, without opinion, denied petitioner's application for leave to appeal. (Opp'n ¶ 21.) See People v. Diaz, No 2003-08144 (N.Y. App. Div. Dec. 19, 2003).

Still awaiting determination of his petition for a writ of error coram nobis, petitioner moved for a writ of habeas corpus on April 1, 2004. (ECF No. 1, Petition for Writ of Habeas Corpus dated Apr. 1, 2004 ("Pet.").) On July 2, 2007, this court granted respondent's request to hold the petition in abeyance until the New York State courts rendered a final decision on his ...


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