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Victor Bajana v. Bruce Yelich

August 15, 2012

VICTOR BAJANA,
PETITIONER,
v.
BRUCE YELICH, RESPONDENT.



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

MEMORANDUM AND ORDER

Victor Bajana brings this pro se habeas petition, seeking release from the Bare Hill Correctional Center. Bajana contends that his ongoing detention, stemming from a state court judgment of conviction for robbery and criminal possession of stolen property, violates his Sixth and Fourteenth Amendment rights. For the reasons set forth below, I dismiss the petition.

BACKGROUND

In February of 2009, Bajana and his co-defendant, Francisco Sierra, were tried in the Supreme Court of the State of New York, Queens County, on one count of Robbery in the Second Degree, N.Y. Penal Law § 160.10(1), and two counts of Criminal Possession of Stolen Property in the Fifth Degree, N.Y. Penal Law § 165.40. During trial, the government presented evidence of the following:

At around 2:30 on the morning of February 23, 2008, Narsico Mauricio was walking home from a restaurant in Queens when he was grabbed from behind by two men. One of the men hit Mauricio in the face and restrained him by his neck. The other removed the contents of Mauricio's pockets, which included $1,500 in cash, a wallet with approximately $10 in cash, and a white cellular phone.

Shortly thereafter, three police officers appeared on the scene and approached Mauricio, whose face was bleeding. The officers asked Mauricio what happened. Mauricio, who spoke minimal English, said, "punch, punch," and he made a punching gesture to his face. He then pointed to two men walking away on the same street and said, "them, them."

Mauricio started running towards the men, and the police officers followed. The two men began to walk away rapidly. One of the police officers, Scott Griczewicz, ordered the men to stop and they did so. Another officer, Donald Kipp, saw one of them drop a phone onto the ground. When the officers and Mauricio caught up to the two men, Mauricio repeated, "them, them." Griczewicz placed the two men under arrest. They turned out to be Bajana and Sierra, and Kipp identified Bajana as the one who dropped the phone.

Once Bajana and Sierra were under arrest, Griczewicz searched them and recovered $12 in cash from Bajana's jacket pocket. The bills had red marks on them, as did Bajana's jacket and Bajana's and Sierra's hands. These marks appeared to be blood, and DNA testing on the marks on Bajana's jacket ultimately confirmed that those marks were Mauricio's blood.

Griczewicz retraced the route that Bajana and Sierra had taken. He found a black wallet on the sidewalk. Kipp recovered the dropped cell phone. Mauricio identified both as items that had been taken from him in the altercation.

Bajana and Sierra were transported to a local precinct, processed, and placed in holding cells. At some point while in the precinct, Bajana asked Griczewicz why he had been arrested. Griczewicz replied that he had been arrested for assault. Bajana then explained that Mauricio had approached him and asked him about girls.

At trial, Bajana admitted that he had a confrontation with Mauricio on the night in question. He argued, however, that the case was about a "drunken misunderstanding blown out of proportion" and that he never assaulted Mauricio or stole anything from him. Trial Tr. 300. He highlighted several "inconsistencies" in Mauricio's various accounts of the night in question and suggested they created reasonable doubt regarding Bajana's guilt. Trial Tr. 303.

Bajana and Sierra were convicted on all counts. Bajana was sentenced to one year of imprisonment on each of the two stolen property counts and seven years of imprisonment and five years of post-release supervision for the robbery count. The sentences were ordered to run concurrently.

Bajana appealed his conviction to the Appellate Division, Second Department. Bajana argued that his conviction should be overturned because the prosecutor engaged in misconduct, he received ineffective assistance of counsel, he was arrested without probable cause, his indictment was defective, he gave coerced statements to the police, and DNA testing was not conducted on the marks the police reportedly saw on his hands. The Appellate Division affirmed Bajana's conviction on March 22, 2011. Bajana then sought leave to appeal to the New York Court of Appeals, raising all of the same grounds he raised before the Appellate Division.

His application was denied on June 16, 2011. Bajana filed the instant petition for habeas ...


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