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Velazquez v. Artus

United States District Court, W.D. New York

March 11, 2015

DALE ARTUS, Respondent.


MICHAEL A. TELESCA, District Judge.

I. Introduction

Proceeding pro se, Luis Velazquez ("Velazquez"), filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that he is being unconstitutionally detained in Respondent's custody. Petitioner is incarcerated pursuant to a judgment, entered on June 8, 2007, in Monroe County Court (Keenan, J.) of New York State, following a jury verdict convicting him of Murder in the Second Degree (N.Y. Penal Law ("P.L.") § 125.25(1)), Criminal Possession of a Weapon in the Second Degree (P.L. § 265.03(2)), and two counts of Criminal Possession of a Weapon in the Third Degree (P.L. § 265.02(1), former (4)).

II. Factual Background and Procedural History

On August 11, 2006, Petitioner indicted by a Monroe County grand jury on two counts of murder in the second degree (intentional and felony murder), one count of criminal possession of a weapon in the second degree, and two counts of criminal possession of a weapon in the third degree. The indictment alleged that, on June 27, 2006, Petitioner, either alone or with others, in the course of a robbery or attempted robbery, intentionally caused the death of Noel Olmeda Ortiz ("Ortiz") by shooting him with a firearm.

At Petitioner's trial, the prosecution called Ortiz's common-law wife, Linda Torres ("Torres"), who testified that she lived at 115 Murray Street, in apartment #2, with Ortiz and her two children. Torres estimated that she had known Petitioner for about 8 months, having met him at church when they first arrived in the United States from Puerto Rico. At some point, Torres and Petitioner had argued over some work had failed to perform on her car. Although Petitioner and his wife had made up with Torres, she nevertheless stopped attending church. Ortiz, however, continued to attend church and socialize with Petitioner.

On June 27, 2006, at about 1:30 p.m., Ortiz came home and ate lunch, after which the whole family laid down to take naps. At about 2:38 p.m., Ortiz received a call on his cell phone. Torres heard him walk to the back of the apartment, open the door, and close the door. She then heard yelling and the sounds of pushing, scuffling, and fighting, so loud that the walls "tremble[d] like if the house was fighting with something." T.255.[1]

Upon hearing several gunshots, Torres got out of bed and ran to the back stairway. She opened the door and looked down from the top of the stairs and saw Petitioner, wearing a white t-shirt and blue pants, holding a pistol and standing over Ortiz, who was lying on the floor, bleeding. T.255-56. Petitioner looked up at Torres, who yelled at him, demanding to know what he had done and stating she was going to call the police. Petitioner pointed the gun at Torres but said nothing. At that point, Torres' children were standing behind her. Petitioner grabbed a black bag that was lying on the second step from the bottom of the stairs and the keys to Torres's car. Petitioner then left the apartment through the back door.

From a window in the back hallway, Torres watched as Petitioner unlocked the door to her van. Just then, a black van with tinted windows backed into the driveway towards their garage. Petitioner jumped into the van on the passenger side, and the van drove away. Torres ran out to the street, screaming for help.

Meanwhile, a neighbor, Della Smith ("Smith"), was sitting on her porch at 83 Masseth Street when she heard two "pops" and "then three more[.]" T.241. When Smith looked to the corner of Murray and Masseth Streets, she saw "a car facing out from that [i.e., Torres's] driveway, and a guy came running out of the back of the building and around the front of that vehicle into the passenger's side[.]" T.242. Smith could not see the face of the man who was running, but he appeared to be "a light-skinned black or a Spanish person" in his twenties, about 5'4" or 5'5" tall and 180 pounds, and wearing baggy pants, an oversized white T-shirt, and a backwards baseball cap. He was holding one hand close to his side. T.243-44.[2]

When Torres ran outside into the street, she encountered her neighbor Eileen Gates ("Gates"). Gates was unable to understand Torres, who was speaking rapidly in Spanish. Gates and another neighbor went over to Torres's apartment at 115 Murray Street to try to find out what was happening. There Gates found Ortiz "sitting on his legs in a fetal position[.]" T.234. Gates asked him his name but got no response, although she did feel a pulse. While she was speaking on the phone with the 911 operator, Gates ceased to detect any pulse.

Officers Glaze and Hinman of the Rochester Police Department arrived on the scene where several neighbors directed them to apartment #2 at 118 Murray Street. There they found Ortiz being tended to by Gates. Officer Hinman saw one spent shell casing on the stairs and two on the floor near Ortiz.

During their investigation of the crime scene, the police found a wrapped-up, brick-shaped package underneath Ortiz's body, which contained 2.18 pounds, or approximately one kilogram, of cocaine.[3] At the top of the stairwell, "directly above where the subject was found, " the police found a plastic bag which contained $5, 320 in cash and "dummied up large rolls of money[.]" T.341-43, 415, 473. Newspaper had been cut into the shape of bills and rolled into the interior of the money bundles to make it appear as though the bag contained $20, 000 to $40, 000 in cash. The police also recovered five spent.40-caliber casings and four projectiles.

During the autopsy of Ortiz, the coroner found five gunshot wounds but could not determine the order in which the bullets had been fired. One shot ("Bullet A") had entered and exited the left cheek, then passed into the left chest just below the collar bone, tearing a hole in the aortic arch before exiting through the right mid-back. T.504-05. Stippling on Ortiz's forehead, around the eye, indicated "a close range of fire, perhaps up to a couple of feet away." T.508-10. According to the coroner, this bullet caused lethal injuries. Bullet B, which had inflicted non-lethal injuries, had been fired at a slightly further distance than Bullet A. It entered through Ortiz's left ear, traveled into his upper neck, and exited his upper back. Bullet C had entered "just to the left of midline on the chest[, ]... fairly low down on the chest[.]" T.520. That shot had penetrated the liver, and had exited the lower back. The large abrasion mark around the entrance wound from Bullet C indicated that it had been inflicted at close range and was, "in fact, ... a contact wound[.]" T.521-22; 461. Bullet D paralleled Bullet C's trajectory and exited close to Ortiz's kidneys. Bullets C and D were fatal since they both lacerated the liver, causing internal bleeding. Bullet E entered "the palm side of the left forearm, " shattered "the bones of the forearm right where they join the elbow, " and then exited from the elbow. Toxicology testing revealed the presence of cocaine in Ortiz's system. There was no doubt, however, that the cause of death was multiple gunshot wounds.

The county firearms examiner determined that the five shell casings all were.40-caliber. Three of the casings had been fired from one.40-caliber semi-automatic pistol, while two of the casings both had been fired from a different pistol (either a.40-caliber or 10 millimeter handgun). Two of the four.40-caliber projectiles recovered at the scene had been fired from the same Smith & Wesson.40-caliber handgun, or the same 10 millimeter handgun. T.455. The remaining two projectiles were "fired.40 caliber class bullet[s]" that had been fired from a different gun than the first two projectiles. However, the firearms examiner "could not determine if they [the latter two projectiles] were fired from the same gun, although they had the same rifling characteristics present[.]" T.456-57. Without being able to examine the firearms themselves, the firearms examiner could not determine whether the projectiles had been fired from the same guns that had discharged the casings. The bullet hole in the gray sweater worn by Ortiz at the time of his death was consistent with the type of hole created by a close contact gunshot. T.460-61.

Petitioner was apprehended in Springfield, Massachusetts on July 17, 2006, when officers there spotted a vehicle matching the description that had been broadcasted by the Rochester police. When the Springfield officers drove by the vehicle, Petitioner "quickly turned away from" the officers and pulled in front of an auto-detailing shop. Petitioner jumped out of the car and ran into the shop. After obtaining the owner's permission to search the building, the officers found Petitioner inside one of the vehicles with the seat reclined all the way back. Petitioner gave his name ...

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