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Angel Carrasquillo v. Harold Graham

July 26, 2011

ANGEL CARRASQUILLO, PETITIONER,
v.
HAROLD GRAHAM, SUPERINTENDENT RESPONDENT.



The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge Rochester, New York

DECISION AND ORDER

I. Introduction

Pro se Petitioner Angel Carrasquillo("Petitioner") has filed a timely petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging the constitutionality of his custody pursuant to a judgment entered June 23, 2004, in New York State, Supreme Court, Monroe County (Hon. Stephen R. Sirkin), convicting him, after a jury trial, of Murder in the First Degree (Penal Law § 125.27 [1][a]), two counts of Murder in the Second Degree (Penal Law § 125.25 [1], [3]), two counts of Robbery in the First Degree (Penal Law § 160.15 [4]), and Attempted Murder in the Second Degree (Penal Law §§ 110.00, 125.25 [1]). Petitioner was sentenced to an aggregate term of imprisonment of life without parole.

For the reasons stated below, habeas relief is denied and the petition is dismissed.

II. Factual Background and Procedural History

The charges arise from an incident that occurred on December 30, 2002, in the driveway of 23 Avenue C in the City of Rochester, wherein eighteen-year-old Petitioner killed Roshawn Marble ("Marble") and injured Orado Graham ("Graham") in the course of a robbery.

On the date of the incident, at approximately 8:40 p.m., Marble was talking with his friend, Graham, outside 23 Avenue C when Petitioner and a group of men approached carrying guns. Trial Trans. [T.T.] 223-225, 237-238, 279, 311-314. Petitioner walked up to Marble, pointed a gun at him, forced him back up the driveway, and stated, "[y]ou know the routine so do it." T.T. 238, 315. Marble complied, and positioned himself face-down on his stomach in the driveway while Petitioner and several other men searched Marble's pockets. T.T. 241, 336. Graham could see the men taking Marble's money and other items from his pockets. T.T. 242, 336. As Marble was being robbed on the ground, several of the other men in the group focused their attention on Graham. One held a gun to the back of Graham's neck and another held a gun to his side. T.T. 243. The men searched Graham's pockets, removing his wallet, cash, social security card and other personal identification. T.T. 242-243, 335-336. At some point shortly thereafter, Petitioner directed his attention away from Marble and to Graham. T.T. 244. Petitioner stated, "[t]ell him to shut the F up" and took a swing at Graham, but missed. T.T. 244. Petitioner then turned back to Marble, who was on the ground pleading with Petitioner not to rob him. T.T. 244-245. Graham then heard gunshots and turned to see Petitioner firing at Marble. T.T. 247-248, 254. Graham tried to escape while Petitioner fired at Marble, but Petitioner then turned the gun on Graham. T.T. 248, 337-338. Petitioner shot Graham in the back as he tried to run away. T.T. 248, 338-339.

Sergeant Mark Mariano of the Rochester Police Department ("RPD") was one block away from 23 Avenue C when he received the dispatch for a person shot at that address. T.T. 166-167. Upon arrival, he saw Graham standing near the sidewalk with blood on his shirt. T.T. 167. Graham lifted his shirt for Sgt. Mariano, exposing a gunshot wound. T.T. 168. Sgt. Mariano then observed Marble lying motionless in the driveway. T.T. 167-168. Sgt. Mariano checked for Marble's pulse, but Marble was, in his opinion, already dead. T.T. 168. Sgt. Mariano observed shell casings and a projectile in the driveway near Marble's body. T.T. 178.

Graham was treated at the scene and transported to Rochester General Hospital by ambulance. T.T. 260. On January 9, 2003, Graham underwent surgery to have the bullet removed from his back. T.T. 576-577.

Marble died as a result of his injuries. T.T. 551. An autopsy revealed that the bullet had entered through the right side of Marble's back, passed through both of his lungs and his heart, and exited through the left side of Marble's chest. T.T. 548-549.

Officer Dominick Perrone of the RPD's Technician Unit processed the crime scene the night of December 30, 2002. T.T. 590-592. He collected three spent .380 caliber cartridge casings and one fired projectile from the driveway at 23 Avenue C. T.T. 591-592. John Clark, a Firearms Examiner for the Monroe County Public Safety Laboratory, examined the three .380 caliber cartridge cases and two .380 caliber bullets recovered from the crime scene. T.T. 361. He determined that each of the items had all been fired from the same firearm. T.T. 365-368.

On April 23, 2003, Petitioner was convicted of Criminal Possession of a Weapon in the Third Degree, in an unrelated matter, and sentenced to serve a one-year term of imprisonment. Hearing Mins. [H.M.] 70-71. On June 14, 2003, while serving this sentence in the Monroe County jail, Petitioner had a conversation with inmate Jose Benitez ("Benitez" or "the informant"), who was acting as a confidential informant for the police. During his conversation with Benitez, Petitioner confessed that he had shot and killed someone during the course of a robbery on Avenue C in December of 2002. H.M. 70-71; T.T. 484-488; see also Resp't App. A at 16-40, 144-147. Benitz was wired and his conversation was recorded. T.T. 486.

On June 20, 2003, Investigator Randy Benjamin ("Investigator Benjamin") of the RPD went to the Monroe County jail to interview Petitioner about the instant crimes. H.M. 50-55. Investigator Benjamin advised Petitioner of his Miranda rights, Petitioner indicated that he understood his rights, and waived them. H.M. 55-59. Petitioner denied any involvement in the homicide/robbery at 23 Avenue C and provided only pedigree information, including his date of birth. H.M. 55; T.T. 618-619. When Investigator Benjamin informed Petitioner that his name had surfaced in connection with the murder of Marble and that he had been fingered as the shooter, Petitioner requested an attorney and Investigator Benjamin terminated the interview. See Resp't App. A at 41.

Prior to trial, Petitioner moved to suppress, inter alia, the statements he made to Benitez and to Investigator Benjamin. See Resp't App. A at 144. After conducting a Huntley hearing, the county court denied Petitioner's motion to suppress his statements. With respect to Petitioner's statements to Benitez, the suppression court determined that said statements were not obtained in violation of Petitioner's right to counsel because his right to counsel had not yet attached. See Resp't App. A at 150-151. With respect to Petitioner's statements to Investigator Benjamin, the suppression court determined that: Petitioner voluntarily waived his Miranda rights and initially agreed to speak without an attorney; that when Petitioner requested an attorney, the policebceased speaking with him; and that Petitioner's statements were not coerced. See Resp't App. A at 151-152.

At the close of his jury trial, Petitioner was found guilty of first degree murder, two counts of second degree murder, two counts of first degree robbery, and second degree attempted murder. T.T. 694. He was sentenced to life without parole for the first degree murder conviction, twenty-five years to life for both counts of second degree murder, twenty-five years for both counts of first degree robbery, and twenty-five years for attempted second degree murder. Sentencing Mins. [S.M.] 12-13. The three murder ...


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