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Leah Faria v. Ada Perez

August 31, 2012


The opinion of the court was delivered by: Roslynn R. Mauskopf, United States District Judge.


On May 17, 2000, after trial in the New York State Supreme Court, Queens County, a unanimous jury found petitioner Leah Faria ("Petitioner") guilty of second degree murder and numerous other crimes relating to the killing of Marlin Brown. On June 7, 2000, the trial court sentenced Petitioner to an aggregate term of 21-1/2 (twenty-one and one-half) years to life in prison. On June 8, 2004, after her unsuccessful direct appeal in state court, Petitioner, proceeding pro se, filed this timely petition for a writ of habeas corpuspursuant to 28 U.S.C. § 2254. The petition and supporting papers are now before the Court, together with the State's opposition papers and Petitioner's Traverse. For the reasons stated below, Petitioner's application for habeas relief is DENIED, and the Petition is DISMISSED.


In the early morning hours of August 13, 1996, Marlin Brown ("Brown") was shot to death in a basement beneath one of the buildings in the LeFrak City apartment complex in Corona, Queens, New York. During the course of the subsequent investigation by the New York City Police Department ("NYPD"), the police came to focus on Petitioner as a suspect in the homicide, ultimately arresting her on July 9, 1997. Within hours of her arrest, Petitioner confessed to the shooting.

The State charged Petitioner with numerous crimes in connection with the homicide, including second degree murder, criminal possession of a weapon, and tampering with physical evidence.

A. The Trial

Following hearings and jury selection, Petitioner's trial began on May 9, 2000 and ended with the jury's verdict on May 17, 2000. The prosecution presented 14 witnesses, including seven NYPD officers and detectives with various roles in the police investigation, a forensic pathologist, and six civilian witnesses. The defense called no witnesses.

1.Marcia Jarrett, Linda Fleming, and Carl Bogle

Three of the prosecution's witnesses, Marcia Jarrett ("Jarrett"), Linda Fleming ("Fleming"), and Carl Bogle ("Bogle"), testified about some of the events that took place in the days leading up to the homicide, including interactions between Petitioner and Brown.

a.Jarrett's Testimony

Jarrett, a Brooklyn resident and an employee of the New York City Administration for Children's Services, was Brown's girlfriend and the mother of his son. (Transcript of the Record ("Tr.") at 1094.) Prior to Brown's death, the two had been in a relationship for about three and a half years. (Id.) Brown and Jarrett maintained separate apartments; Jarrett lived in her own apartment in Bushwick, Brooklyn, while Brown lived with his mother and brother in LeFrak City. (Id. at 109--96.) In the months immediately prior to the homicide, while pregnant with the couple's son, Jarrett spent a great deal of time at Brown's apartment. (Id. at 1098.) During that period, the couple socialized frequently with Vanessa Faria (Petitioner's sister) and her boyfriend, Carl Bogle.

(Id. at 1098--1100.) Vanessa Faria and Bogle lived in the same building as Brown and Jarrett, and, in visiting Vanessa Faria and Bogle, Jarrett and Brown became acquainted with Petitioner. (Id.)

Jarrett testified that the last time she saw Brown alive was on August 10, 1996. (Id. at 1100.) After the two spent the day together, Brown left Jarrett and went to visit Linda Fleming,*fn1 his cousin. (Id. at 1101.) The next day, Jarrett received a call from Petitioner. Petitioner was upset and uttering the name "Poon"-a sobriquet for Cecil Evans ("Evans"), Petitioner's then-boyfriend and the father of her son. (Id. at 1102; see also id. at 795--800, 1143--44.) Petitioner asked Jarrett where she could find Brown, explaining that she "wanted to ask him about some sneakers." (Id. at 1102.) Although Jarrett pressed for more information, Petitioner declined to provide any. (Id.) Jarrett told Petitioner that Brown was at Fleming's house and gave her Fleming's phone number. (Id.)

The last time that Jarrett spoke to Brown was at around midnight on the night of his death. (Id. at 1105.) Brown called Jarrett from his sister's apartment in LeFrak City. (Id. at 1106.) Brown said that he had something to tell Jarrett, and that there had been "some drama," and made plans to come to her house. (Id.) Brown never arrived at Jarrett's apartment because he was killed later that night.

b.Fleming's Testimony

Fleming, Brown's cousin, lived in Brooklyn and was in her early twenties. (Id. at 1115--16.) Fleming testified that she was very close to Brown and saw him nearly every day. (Id. at 1117.) On August 11, 1996, Brown was visiting Fleming at her apartment. (Id.) At around 9:00 p.m., Petitioner called Fleming's home phone and asked to speak to Brown. (Id. at 1117--18.) Brown took the call but became agitated and ended the phone call within a few minutes. (Id. at 1118, 1122--23.) When the phone rang a second time, Brown answered and immediately hung up. (Id. at 1123.)

c.Bogle's Testimony

Carl Bogle testified that during the time period relevant to the trial, he had been living in LeFrak City with Petitioner, Donna Faria (Petitioner's mother), Vanessa Faria (Petitioner's sister), Winston Bogle (Bogle and Vanessa Faria's son), and Petitioner's son. (Id. at 1129, 1137.) Bogle testified that prior to Brown's death, the two men had a "very good friendship" and saw each other frequently. (Id. at 1130.)

On August 12, 1996, Bogle returned home in the evening after spending the day with friends. (Id. at 1137--38.) Petitioner was in the apartment. (Id.) Later that evening, Brown came to the apartment. (Id. at 1139.) Brown told Bogle that he was there to talk to Petitioner concerning "[s]omething about . . . sneakers." (Id.) Brown's visit was somewhat exceptional in that he had never before come to the apartment to see anyone other than Bogle. (Id. at 1142--43.) Bogle went to bed shortly after Brown's arrival. (Id. at 1145.)

2.Cesar Ponce

Cesar Ponce ("Ponce") is a livery cab driver based out of Corona, Queens. (Id. at 652.) On the night of the homicide, Ponce was working a shift beginning at 6:00 p.m. on August 12, 1996 and ending at approximately 7:00 a.m. on August 13, 1996. (Id. at 654.) At around midnight, Ponce was directed to pick up a passenger at one of the LeFrak City buildings for a trip to Brooklyn. (Id. at 655.) Ponce arrived at the building and parked outside the exit door. (Id. at 656.) Ponce observed a young woman standing against the wall, looking at his car. (Id.) Ponce later identified the woman as Petitioner. (Id. at 662.) Ponce testified that Petitioner did not approach his car right away, but instead remained standing against the wall. (Id. at 656.) After five to eight minutes, a young man entered the car through the rear door. (Id. at 656, 688.) At that point, Petitioner also entered the vehicle and sat next to the young man in the back seat. (Id.)

The male passenger told Ponce to drive to Brooklyn. (Id at 656.) Ponce drove eastbound on the Horace Harding Expressway and then got on the Grand Central Parkway heading south, toward Brooklyn. (Id.) Once Ponce entered onto the Grand Central Parkway, Petitioner told him to take the first exit, at Jewel Avenue. (Id. at 657.) After Ponce exited at Jewel Avenue, Petitioner instructed him to make a number of turns through local streets, ending up back at the service road from which they first exited the Grand Central Parkway. (Id. at 658.) Petitioner then told Ponce to back up, which he did, at which point Petitioner told him to pull over and park in the middle of the block on 112th Street. (Id. at 658--59.)

After parking, Ponce became nervous that his passengers might try to rob him. (Id. at 661.) Ponce turned around as Petitioner opened the door. (Id. at 659.) As Ponce was looking at her, Petitioner told him to turn off the light in the car. (Id.) Ponce explained that he could not turn off the light because the door was open. (Id. at 660.) At that point, Petitioner asked the male passenger to come with her. (Id. at 660--61.) After Petitioner repeated her request for what could have been two additional times, he complied, and the two left the car and proceeded toward a building complex. (Id. at 660--61, 673.) Ponce grew more suspicious of a possible robbery attempt and started to drive away. (Id. at 661) The male passenger approached the car and told Ponce to stop before he could drive away. (Id.) Ponce quickly remembered that the male passenger had left a bag in his car, so he stopped. (Id.) Both passengers then reentered the car, and the male passenger said, "forget it, let's go to Brooklyn." (Id.) Ponce refused. (Id.) The male passenger then told Ponce to take them both back to LeFrak City, and Ponce complied. (Id.) The entire trip lasted between 30 and 40 minutes. (Id. at 678.)

3. Arsen Babakhanov

Prosecution witness Arsen Babakhanov testified that at the time of the homicide, he lived on the first floor of the LeFrak City building where Brown was shot. (Id. at 1157--58.) Babakhanov's apartment was on the first floor, directly above the basement. (Id. at 1158.) Babakhanov testified that at approximately 1:00 a.m. on August 13, 1996, he heard two gunshots. (Id. at 1159.) Approximately two minutes later, Babakhanov heard three additional gunshots. (Id. 1159, 1164.)

4. Police Officer Walter Warkenthein and Detective Michael Janazzo

Two police witnesses, Police Officer Walter Warkenthein and Detective Michael Jannazzo testified about their observations at the crime scene on the night of the homicide.

a.Warkenthein's Testimony

Warkenthein, a police officer in the 110th Precinct in Queens, was on a uniformed patrol assignment on the night of the homicide. (Id. at 742--43.) At approximately 1:45 a.m. on August 13, 1996, Warkenthein responded to a call at the LeFrak City building located at 98-15 Horace Harding Expressway. (Id. at 743.) Warkenthein and his partner were the first officers on the scene. (Id. at 744.) The officers went directly to the basement of the building, where they discovered Brown's body. (Id.) Warkenthein observed that Brown had been shot several times and appeared to ...

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