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Isaias Bermudez, Pro Se v. James T. Conway

August 30, 2012

ISAIAS BERMUDEZ, PRO SE,
PETITIONER,
v.
JAMES T. CONWAY, SUPERINTENDENT,
RESPONDENT.



The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge:

OPINION & ORDER

Pro se petitioner Isaias Bermudez filed this Petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (See generally Petition ("Pet."), Doc. Entry No. 1.) Petitioner was convicted of Criminal Possession of a Weapon in the Second Degree, in violation of New York Penal Law § 265.03. (Spanakos-Orfan Affidavit, ("Resp. Aff."), Doc. Entry No. 8, ¶ 3.) The state court sentenced Petitioner as a second felony offender, to a definite term of imprisonment of ten years. (Id.) The Petition is construed as raising the following claims: (1) Petitioner's statutory and constitutional speedy trial rights were violated; (2) Petitioner's conviction is unsupported by the record; (3) Petitioner's conviction was obtained with uncorroborated accomplice testimony in violation of N.Y. Criminal Procedure Law § 60.22; (4) Petitioner was improperly indicted; (5) Petitioner was denied a fair trial as the trial court failed to instruct the jury on circumstantial evidence; (6) the state failed to meet its discovery obligations as set forth under N.Y. Criminal Procedure Law §§ 240.44 and 240.45; (7) prosecutorial misconduct; (8) ineffective assistance of counsel; and (9) actual innocence. Respondent opposes each of these grounds. (Respondent's Memorandum in Opposition ("Resp. Opp."), Doc. Entry No. 8.)

For the reasons set forth below, the Petition is denied in its entirety and is dismissed with prejudice.

BACKGROUND

On December 7, 2000, police officers in a patrol car responded to a 911 call regarding an attempted robbery and met with an individual named Alex Perez on the corner of 110th Street and Jamaica Avenue, in the 102 Precinct in Queens, New York. Within minutes, a livery cab driver approached them motioning for them to follow him. They followed the driver to 86th Avenue, where the driver pointed towards the sidewalk. The police found Petitioner and David Pabon hiding underneath vehicles parked on the street. Petitioner had a knife around his waistband. The police located a pistol underneath the vehicle that concealed Petitioner, within arm's reach of where Petitioner was hiding. Petitioner and Pabon were charged with one count of Attempted Robbery in the First Degree in violation of N.Y. Penal Law § 110/160.15[2], two counts of Attempted Robbery in the Second Degree in violation of N.Y. Penal Law § 110/160.10[1], [2A], and one count of Criminal Possession of a Weapon in the Second Degree in violation of N.Y. Penal Law § 265.03[2]). (See Indictment, Queens County Indict. No. 3918-2000.) Pabon pled guilty to Attempted Robbery in the First Degree and Criminal Possession of a Weapon in the Second Degree and received a sentence of a term of imprisonment of three and one-half years.

I. Pre-Trial Proceedings

Petitioner elected to proceed to trial and, prior to trial, engaged in motion practice. On November 13, 2002, Petitioner, who was represented by counsel, filed a pro se motion seeking dismissal on the ground that the delay in prosecuting his case violated his speedy trial rights guaranteed under the Sixth Amendment of the U.S. Constitution and N.Y. Criminal Procedure Law § 30.30. The trial court denied his motion with leave to file again upon consultation with counsel. See People v. Bermudez, Indict. No. 3918-2000, Order dated Nov. 20, 2002. On January 13, 2003, counsel filed a brief on behalf of Petitioner, charging the state with 231 days of delay and seeking dismissal under the Sixth Amendment and N.Y. C.P.L. § 30.30. The trial court denied the motion, finding no speedy trial violations as the state was only responsible for 152 days of delay. See People v. Bermudez, Indict. No. 3918-2000, Order dated Feb. 27, 2003.

On June 24, 2002, Petitioner appeared with counsel before the trial court for an omnibus suppression hearing to address the photo array identification of Petitioner, the line-up identification of Petitioner, and the conversations between Petitioner and law enforcement officers after his arrest. (See June 24, 2002 Hearing Transcript, Indict. No. 3918-2000.) The hearing was continued to July 2, 2002. (See July 2, 2002 Hearing Transcript, Indict. No. 3917-2000, 3918-2000.) None of the parties have provided the Court with the rulings from this hearing nor are they discernible from the record submitted by respondent in connection with its opposition. Nonetheless, it does not appear that these rulings are essential to the resolution of Petitioner's claims.

On March 6, 2003, the trial court heard arguments and issued a Sandoval ruling.*fn1 The trial court held that the state could ask the Petitioner about: (1) a 1995 New York felony conviction for possession of a controlled substance; and (2) a 1998 Florida conviction for two felonies and one misdemeanor. (Trial Transcript ("Tr."), Indict. No. 3918-2000, 29:13-30:21.) With respect to these prior convictions, the trial court held that the state could inquire as to whether Petitioner was convicted of felonies and misdemeanors on those dates, but could not ask about the "underlying acts or the specific crimes." (Tr. 30:1-4.) Additionally, prior to the start of the trial, the state dismissed all of the counts against Petitioner, except for Criminal Possession of a Weapon in the Second Degree. Petitioner's counsel requested a ruling that would prohibit the state from asking any witnesses about the events underlying the armed robbery, and the trial court reserved its ruling. (Tr. 12:20-23.) The trial court later ruled that the state could not ask witnesses about the prior assault and attempted robbery that occurred on the night of Petitioner's arrest. (Tr. 71:16-17.)

II. The State's Case

The state called Detective Matthew Rottas as its first witness. Detective Rottas was the police officer who responded to the 911 call that ultimately led to Petitioner's arrest. (Tr. 287:15-348:8.) On the night of Petitioner's arrest, Detective Rottas and his supervisor, Lieutenant Chris Beyers, arrived on the scene of the crime and spoke with Alex Perez. They then followed the livery driver to 86th Avenue, and walked up and down the block looking for potential suspects. They saw Petitioner's legs sticking out from underneath a parked motor vehicle and ordered Petitioner to present himself. (Tr. 300:20-301:33.) Petitioner remained silent and did not move. (Tr. 301:4-12.) Detective Rottas pulled Petitioner from underneath the vehicle and arrested him. (Tr. 301:13-22.) Petitioner was wearing a dark hooded sweatshirt and black gloves. (Tr. 308:1-4; 310:1-8.) Detective Rottas searched Petitioner and found a knife. (Tr. 328:2-8.)

Lieutenant Beyers pulled a second individual, David Pabon, from underneath the other end of the vehicle and arrested him. (Tr. 308:16-309:10.) Detective Rottas then used a flashlight to search underneath the vehicle and found a firearm. (Tr. 328:9-21.) The firearm contained five bullets, four in the magazine and one in the chamber, and the safety lock was off. (Tr. 330:15-24.) Detective Rottas did not check the firearm for fingerprints. (Tr. 335:2-5.) The firearm was found within arm's reach of where Petitioner was hiding. (Tr. 336:1-9.) Detective Rottas estimated that Pabon was found no less than eight feet away from the firearm. (Tr. 336:10-12.) Detective Rottas admitted that he did not check their hands for gunshot residue. (Tr. 341:23-342:1.) In a case like this, in which a firearm is located, but was not used in connection with a homicide or serious assault, the crime lab does not conduct fingerprint analysis. (Tr. 424:16-425:3.)

Detective Rottas admitted that neither he nor any other members of the police saw Petitioner touching the firearm before he was pulled from underneath the vehicle. (Tr. 339:17-19, 340:1-3, 340:22-341:1, 417:14-21.) Detective Rottas indicated that both Petitioner and Pabon were pulled from underneath the same vehicle. (Tr. 344:9-11.) Lieutenant Beyers testified for the state and clarified that Pabon's feet were underneath the same car as Petitioner, but that the majority of his body was underneath a second car that was parked next to the car concealing Petitioner. (Tr. 418:13-21.) In fact, Pabon's arms and hands were underneath the vehicle in front of the vehicle concealing Petitioner and the firearm. (Tr. 426:10-427:3.)

The state also called Detective John Cuebas, the officer who worked for the New York City Police Department Firearm Analysis Unit and who analyzed the firearm. During his investigation, Detective Cuebas was unable to trace ownership of the firearm. However, on the day that he testified, he received a report from the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") indicating that the weapon was owned by an individual located in Virginia, who was neither Petitioner nor Pabon. (Tr. 392:20-394:3.)

At the conclusion of the state's case, defense counsel moved to dismiss the charge against Petitioner, contending that the state failed to establish that Petitioner knowingly possessed the firearm. (Tr. 433:1-434:2.) The trial court denied the motion. (Tr. 434:22-435:1.)

III. Defense Case

Petitioner testified at his trial. (Tr. 436:25-450:17, 462:17-484:20.) Additionally, Petitioner called Pabon to testify on his behalf. (Tr. 491:19-538:4.)

A. Petitioner's Testimony

During direct examination, Petitioner testified that, on the night in question, he was hiding underneath a vehicle at 2:00 A.M. with Pabon. (Tr. 438:14-22; 439:17-22.) Petitioner stated that he and Pabon were facing each other underneath the vehicle. (Tr. 440:24-441:10; 442:12-14.) He explained that he was carrying a knife and that, when he and Pabon saw the police, they were "scared," and hid underneath the vehicle "like a reflex or like an instinct." (Tr. 439:23-440:13.) Petitioner stated that he carried the knife because he had been unarmed when assaulted a month before, and had suffered serious injuries. (Tr. 440:14-20.) Petitioner testified he did not know that Pabon possessed a firearm on that particular day, but that he had seen Pabon with firearms in the past. (Tr. 445:15-446:5.)

During direct examination, Petitioner's attorney solicited the following testimony:

Q: Mr. Bermudez, in your lifetime, have you ever been arrested?

A: Yes, sir.

Q: How many times have you been convicted of a crime?

A: Twice.

Q: And were those crimes felonies or misdemeanors? A: Felonies.

Q: Both of them?

A: Yes, sir.

Q: And were you twice convicted by a jury or did you plead guilty?

A: I plead[ed] guilty.

Q: And why is that, sir?

A: I was guilty.

Q: On both occasions?

A: Yes, sir. (Tr. 437:16-438:9.)

Petitioner testified during cross-examination that he and Pabon were walking on the street at that hour because they were on their way to meet with two female friends of Pabon's. (Tr. 448:13-449:19.) The prosecutor asked Petitioner how long it took him to get from the neighborhood where he and Pabon lived to the location where he was arrested, and he estimated it took one to two hours. (Tr. 450:3-5.) The prosecutor then asked ...


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