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Jose Gutierrez v. Mark L. Bradt

October 3, 2012


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


I. Introduction

Pro se Petitioner Jose Gutierrez ("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 May 15, 2003, in New York State, Supreme Court, Monroe County, convicting him, after a jury trial, of Assault in the First Degree (N.Y. Penal Law ("Penal Law") § 120.10[1]). Petitioner was sentenced, as a second felony offender, to a determinate term of 25 years imprisonment, with five years post release supervision.

II. Factual Background and Procedural History

Monroe County Indictment No. 2006-351 charged Petitioner with Murder in the Second Degree (Penal Law § 125.25[1]) and First Degree Assault (Penal Law § 120.10[1]). The charges arose from a shooting incident that occurred at a house party in Rochester, New York on February 24, 2002, in which Petitioner, acting with two others, shot Lazaro Perez ("Perez") and Bernardo Gilbert ("Gilbert") multiple times, seriously injuring Perez and killing Gilbert.

A. The Trial

1. The Prosecution's Case

Perez testified that in 2002, he had known Petitioner (a/k/a Flaco), for about a year from seeing him at various Rochester clubs. Trial Trans. [T.T.] 1218-1221. During that time, Perez saw Petitioner two to three times a week. T.T. 1222. Prior to February 23, 2002, Perez never had any trouble with Petitioner. T.T. 1349. Perez also knew a man called Longo (a/k/a Longuito) from the local bars, and he knew a man called Chamo, who he saw in the clubs once or twice weekly in 2002. T.T. 1240-1242.

At about 3:00 p.m. on February 23, 2002, Perez was outside a store on Clinton Avenue in Rochester with his close friend, Gilbert. T.T. 1223, 1373. Petitioner drove up and called Perez over so that he and Perez could talk without Gilbert's hearing him. Petitioner, who was alone in the car, asked Perez if he had seen an individual called El Gordo, and Perez replied that he had not. T.T. 1223-1224, 1375. Perez noticed a revolver on the passenger seat of the car. T.T. 1226, 1370, 1375. Petitioner then drove away. T.T. 1228.

At about 10:30 p.m. that same day, Jessica Lopez ("Lopez") went to Lisandro's bar where she saw Petitioner and Longuito. T.T. 1756-1757, 1759, 1762. At about 2:00 a.m., Lopez held an after-hours party at her apartment, which was the upstairs unit of a two-apartment residence at 81 Clifford Avenue in Rochester. Lopez sold beer from her refrigerator. T.T. 1772-1773. She saw Petitioner and Longuito in her living room. T.T. 1774.

Perez and Gilbert arrived at the party at 2:30 a.m. He and Gilbert were in the kitchen, where Perez was talking to a woman. T.T. 1246, 1289. Ten minutes later, Petitioner, Longuito, and Chamo came into the kitchen. T.T. 1247. Each man held a pistol or handgun. T.T. 1256, 1445. Petitioner shot Perez in the left hip. Then, from a distance of about four feet, Petitioner shot at Gilbert's eye. T.T. 1250. Chamo or Petitioner shot Perez in the arm as Perez took cover behind the open refrigerator door. T.T. 1250, 1430, 1435-1436. Longuito told Perez not to move and then shot Perez in the hip. T.T. 1252-1253, 1411-1412, 1417. Gilbert fell down and the three men ran downstairs. T.T. 1255, 1433.

Lopez testified that, after she heard a single gunshot, she ran and hid under her bed. T.T. 1759, 1994. Although she had seen Gilbert in her kitchen, she testified that she never saw Petitioner or Longuito in the kitchen, and that she did not know if someone named Chamo was with them. T.T. 1984-1985. When she left her bedroom, she saw Gilbert and Perez in the kitchen. T.T. 1760.

Down the street at 67 Clifford Avenue, Marcel McDowell ("McDowell") was in his grandmother's living room. T.T. 1615, 1617, 1629. From the line of parked cars in the street and the music playing, he knew that someone up the street was having a house party. At about 2:30 a.m., he heard possibly two gunshots. T.T. 1616, 1622. A few minutes later, he saw, from the window, three people running from the house party. One put his hand in his coat "like he had a gun." T.T. 1616-1618, 1650-1655. The three people then entered a two-toned blue truck. T.T. 1648. The truck traveled down Clifford Avenue, passing McDowell's grandmother's house. T.T. 1619. McDowell then saw "a lot of Spanish people" running and yelling from the house party. T.T. 1620-1651. McDowell walked onto his grandmother's porch and called 911. T.T. 1620, 1648.

Officer Dennison Wright right responded to the call and arrived at Lopez's apartment at 2:47 a.m. T.T. 1656-1657, 1692. After a woman at the door told him that two shooting victims were upstairs, Officer Wright went upstairs to the kitchen. T.T. 1658, 1676-1678. He saw Gilbert, laying face down in a pool of blood, convulsing and unable to speak. T.T. 1658-1660, 1677. He saw Perez sitting with his back to an open refrigerator. T.T. 1661-1662. Officer Wright recovered a bullet fragment from near Perez's feet and a slug from the floor next to Gilbert's feet. T.T. 1665-1685, 1688.

Perez was transported by ambulance to Rochester General Hospital. T.T. 1260. There, orthopedic surgeon Terrence Daino ("Daino") observed that Perez sustained a total of five gunshot wounds: one to his right shoulder, one to his right thigh, one to his right tibia and fibula (resulting in a fracture), one to his left thigh (resulting in a fracture to his femur), and one to his left hip (resulting in a fracture). T.T. 1060-1069. Daino testified that Perez would have died of blood loss and/or infection had he not received prompt medical assistance. T.T. 1070-1071. During the six-hour surgery, Daino implanted a rod in Perez's right knee that ran to his ankle to hold the tibia and fibula together. T.T. 1070-1071. He also inserted a rod in Perez's left femur that extended from his hip to his knee to stabilize the fracture. T.T. 1071-1072.

Daino testified further that, as a result of the shooting, Perez had sustained a "long standing injury" to his left hip, and that Perez wore a leg-cast for two months. T.T. 1072. Daino testified that Perez would ultimately suffer from arthritis and bone deterioration. T.T. 1072-1073. Perez was discharged after a 16-day hospital stay, and walks with a cane and takes medication for continuing pain. T.T. 1260-1261.

At the crime scene, Officer Harold Langdon observed a "bullet strike" on top of the kitchen sink, which indicated to him that a bullet struck the wall below the molding. T.T. 1699-1700, 1709-1710, 1824-1825. He and other officers looked inside the wall but they were unable to locate a projectile. T.T. 1709-1710. Officer Langdon found two more holes in the wall, and also located a projectile as well as a copper jacket. T.T. 1710-1712, 1811.

Officer Langdon also observed a bullet hole in the kitchen floor, and dug out a bullet from below the floor. T.T. 1712, 1812. He also found a bullet hole in the stove, and a bullet inside the stove. T.T. 1713, 1834, 1842. Although he saw a bullet hole in the ceiling, he found no corresponding bullet. T.T. 1713-1714, 1812, 1831, 1873. He testified that he found no bullet holes in any other room of the apartment, nor any weapons in any part of the apartment. T.T. 1716-1717.

Dr. Thomas Smith performed an autopsy on Gilbert's body. The autopsy established that Gilbert sustained a back wound that was not medically significant. T.T. 2008, 2017. Another bullet, which caused Gilbert's death, had entered his eye, traveled through his brain and exited his skull. Dr. Smith also recovered a bullet from Gilbert's skull. T.T. 2008, 2015-2017. Dr. Smith testified that based on the powder burn surrounding Gilbert's eye wound, the gun was discharged "a couple of feet and probably at the shorter end of that" away from Gilbert's face. T.T. 2014, 2026.

Firearms examiner Robert Stanton ("Stanton") examined the ballistics evidence recovered by Dr. Smith and Officer Langdon. Stanton testified that, in his opinion, two of the bullets were fired from the same gun to the exclusion of all other firearms. T.T. 1944-1945, 1955. These bullets were fired from a .38 or .357 caliber revolver, which was manufactured by one of five different companies. T.T. 1944. Stanton testified that two additional bullets recovered from the crime scene were of the same caliber as the first set of bullets. According to Stanton, both sets of bullets "ha[d] general rifling characteristics which are consistent with each other but that [he] [had] no way of determining whether they were fired from the same weapon or two different weapons." T.T. 1945-50, 1997.

The bullet recovered from Gilbert's scalp was a .38 caliber "semi-wadcutter type bullet" that was fired from a .38 or .357 caliber handgun. T.T. 1953, 2017. This bullet, however, was deformed, and Stanton therefore could not locate rifling characteristics on it. T.T. 1953, 1956. The bullet was similar to one of the second set of bullets that Stanton examined, in that both were semi-wadcutters and were of the same caliber. T.T. 1954.

On March 3, 2002, New York City Police Officer Thomas Witt was working on the corner of 187th Street and Ballantine Avenue in the Bronx. T.T. 1096-1097. At 7:10 p.m., he saw a black Isuzu Rodeo turn right without stopping at the stop sign at that intersection. T.T. 1099-1100. He and three other officers pulled the Isuzu over and the officers exited their car and began to approach the Isuzu. T.T. 1100-01. As they did, the Isuzu sped away. The officers pursued the Isuzu for three quarters of a mile, as it ran red lights and nearly struck other cars and pedestrians in the crowded area. T.T. 1101-04, 1116. When the Isuzu was trapped in traffic on Fordham Road, the driver and passenger abandoned the car and ran into a clothing store. T.T. 1104-05. The officers arrested them as they pretended to shop for clothes. T.T. 1105-1106. ...

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