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Juan Acevedo v. John B. Lempke

February 3, 2012

JUAN ACEVEDO, PETITIONER,
v.
JOHN B. LEMPKE, RESPONDENT.



The opinion of the court was delivered by: Pitman, United States Magistrate Judge:

OPINION AND ORDER

I. Introduction

By notice of motion dated July 19, 2011 (Docket Item 10), petitioner seeks (1) to stay consideration of his habeas corpus petition while he exhausts certain claims in state court, and (2) to amend his petition to add those claims. For the reasons set forth below, the motion is denied in all respects.

II. Facts

A. Facts Giving Rise to

Petitioner's Conviction

This proceeding arises out of petitioner's 2007 conviction in the Supreme Court of the State of New York, Bronx County, for murder in the second degree, in violation of New York Penal Law Section 125.25(1). Pursuant to that judgment, petitioner was sentenced to an indeterminate term of imprisonment of 22 years to life. Petitioner is currently incarcerated pursuant to that judgment.

According to the prosecution's brief on direct appeal (Exhibit 2 to the Declaration of Assistant District Attorney Nancy D. Killian, dated Aug. 8, 2011 ("Killian Decl.") (Docket Item 11)), the evidence offered at trial established the following facts. From at least 2000 through 2002, petitioner was romantically involved with and lived with Xiomara Morales; in 2002, they had a child together. Although their romantic relationship ended in 2002, they continued to live together because of the child and petitioner's inability to work as a result of an earlier gunshot wound. They also shared their apartment with six children from their previous relationships.

In 2004, although Morales and petitioner were still sharing an apartment, Morales began dating Domingo Rojas. After Morales and Rojas began dating, Morales asked petitioner to move out, which angered petitioner. In addition, on at least one occasion in 2004, while Morales was speaking with Rojas on the telephone, petitioner brandished a large knife in front of Morales.

In 2005, petitioner and Morales came to an agreement that he would leave Morales' apartment as soon as he was physically able to do so. On April 9, 2005, Rojas accompanied Morales to her apartment, leaving her at the apartment door. After Rojas left, petitioner again brandished a large knife in front of Morales and said "I'm going to kill him." Later that day, Morales spoke to Rojas on the telephone, in petitioner's presence, and arranged to meet him on the corner of the Grand Concourse and Kingsbridge Road. After the call, and while Morales was in the bathroom preparing for her meeting with Rojas, petitioner left the apartment.

At approximately 8:46 that evening, Rojas collapsed on the street and died in the vicinity of the Grand Concourse and Kingsbridge Road. A subsequent autopsy disclosed that a single stab wound to Rojas' neck and severed both his carotid artery and jugular vein. The autopsy also revealed that he had lost a tremendous amount of blood and that both his shirt and jacket were soaked with blood.

Later that evening, petitioner visited the Bronx residence of Alejandro Ruiz, carrying a bag. Petitioner asked Ruiz to keep the bag for him; when Ruiz asked what was in the bag, petitioner told him it contained a knife. Petitioner subsequently asked Ruiz's wife if she had any Clorox. She provided petitioner with a bottle of Clorox which he took into the bathroom. When petitioner left the bathroom, his pants appeared wet, as if he had been trying to clean them.

Thereafter, petitioner returned to Morales' apartment where he was arrested. Subsequent forensic examinations established that Rojas's blood was on petitioner's pants and on the knife he had left with Ruiz. In addition, the prosecution offered evidence that Rojas's fatal injuries were consistent with the knife petitioner left with Ruiz.

Petitioner did not offer any evidence.

B. Prior Proceedings

Petitioner, assisted by counsel, appealed his conviction to the Appellate Division of the New York State Supreme Court, First Department, asserting two claims: (1) that the Trial Court should have charged the jury on the partial defense of extreme emotional disturbance and (2) that the sentence was excessive (Killian Decl., Ex. 1 at i). The Appellate Division rejected both claims and affirmed petitioner's conviction on November 20, 2008. People v. Acevedo, 56 A.D.3d 341, 867 N.Y.S.2d 430 (1st Dep't 2008). The New York Court of Appeals denied leave to appeal on April 20, 2009. People v. Acvedo, 12 N.Y.3d 813, 908 N.E.2d 929, 881 N.Y.S.2d 21 (2009).

On July 12, 2010, the Clerk of the Court docketed petitioner's habeas corpus petition*fn1 (Docket Item 1). The petition appears to assert the same claims petitioner asserted on direct appeal.

In October, 2010, petitioner, proceeding pro se, filed a petition for a writ of error coram nobis with the Appellate Division for the First Department, claiming that his appellate counsel had been ineffective for failing to argue that (1) petitioner was denied Due Process because he was handcuffed during jury selection and trial, and (2) the Trial Court violated New York Criminal Procedure Law Section 310.30 in responding to two notes from the jury (Killian Decl. Ex. 5). The Appellate Division denied the application without opinion on March 22, 2011 (Killian Decl. Ex. 7). The New York Court of Appeals denied leave to appeal from this decision on August 11, 2011. People v. Acevedo, 17 N.Y.3d 812, 954 N.E.2d 92, 929 N.Y.S.2d 801 (2011).

On October 10, 2010, petitioner filed a motion in the Trial Court pursuant to New York Criminal Procedure Law Section 440.10 claiming that (1) trial counsel was ineffective for stipulating to what Detective Joseph White would have testified to had he been called (Killian Decl. Ex. 8 at 6-7); (2) the evidence was insufficient to sustain petitioner's conviction because there was no evidence establishing when or how Rojas' blood came to be on petitioner's pants (Killian Decl. Ex. 8 at 13-16), and (3) the use of a lab technician with no first-hand knowledge of the underlying tests to lay the foundation for the admission of the DNA analyses violated plaintiff's right to confront and cross-examine the witnesses against him pursuant to Melendez--Diaz v. Massachusetts, 557 U.S. 305 (2009) and Crawford v. Washington, 541 U.S. 36 (2004) (Killian Decl. Ex. 8 at 17-25). The Trial Court rejected these claims in a decision issued on March 7, 2011, finding that all of petitioner's claims failed on substantive and procedural grounds (Killian Decl. Ex. 10). Petitioner filed an application to appeal this decision to the Appellate Division; the record does not disclose the outcome of this application (Killian Decl. ¶ 12)

In October 2010, petitioner also sought to stay consideration of his habeas corpus petition pending the exhaustion of his state collateral attacks. I denied that application without prejudice in an Opinion and Order, dated July 1, 2011 (Docket Item 8), finding that petitioner had failed to show good cause for his delay in bringing his state collateral attacks and had also failed to show that his unexhausted claims had merit.

III. Analysis

As I noted in my July 1, 2011 Opinion and Order, although both the Court of Appeals for the Second Circuit and the United States Supreme Court have confirmed that a district court has the power to stay consideration of a state prisoner's petition for a writ of habeas corpus in order to permit the prisoner to exhaust his unexhausted claims, Rhines v. Weber, 544 U.S. 269 (2005); Zarvela v. Artuz, 254 F.3d 374 (2d Cir. 2001), the granting of such stay is not a matter of course.

[S]tay and abeyance should be available only in limited circumstances. Because granting a stay effectively excuses a petitioner's failure to present his claims first to the state courts, stay and abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court. Moreover, even if a petitioner had good cause for that failure, the district court would abuse its discretion if it were to grant him a stay when his unexhausted claims are plainly meritless. Cf. 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State").

Rhines v. Weber, supra, 544 U.S. at 277. The Court in Rhines did not define "good cause," nor has the Court of Appeals for the Second Circuit. Taylor v. Poole, 07 Civ. 6318 (RJH)(GWG), 2009 WL 2634724 at *30-*31 (S.D.N.Y. Aug. 27, 2009) (Gorenstein, M.J.) (Report & Recommendation), adopted, 2011 WL 3809887 (S.D.N.Y. Aug. 26, 2011) (Holwell, D.J.).

Petitioner seeks to stay consideration of his petition while he exhausts a total of four additional claims, namely (1) appellate counsel was ineffective for failing to argue (a) that petitioner was denied due process because he was handcuffed during jury selection and trial, and (b) that the Trial Court violated New York Criminal Procedure Law Section 310.30 in responding to two notes from the jury; (2) trial counsel was ineffective for stipulating to the testimony of a single witness;

(3) the evidence against petitioner was insufficient to sustain the conviction, and (4) the admission of certain DNA evidence without the testimony of the individuals who performed the actual analysis, violated petitioner's Sixth Amendment rights under Melendez-Diaz v. Massachusetts, supra, 557 U.S. 305, and Crawford v. Washington, supra, 451 U.S. 36. As explained below, the first three of these claims plainly lack merit and there is, therefore, no reason to stay consideration of the petition while petitioner exhausts these claims and no reason to permit him to amend his petition to assert these claims.*fn2 With respect to the fourth claim, petitioner has failed to show good cause for his delay in asserting the claim and, therefore, the motion to stay should be denied.

A. Meritless Claims

1. Claims Concerning

Appellate Counsel

In his petition for a writ of error coram nobis, petitioner claimed his appellate counsel was ineffective for failing assert two claims: (1) that petitioner was denied due process because he was handcuffed during jury selection and (2) that the Trial Court violated New York Criminal Procedure Law Section 310.30*fn3 in responding to two notes from the jury (Killian Decl. Ex. ...


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