United States District Court, S.D. New York
THOMAS P. GRIESA, District Judge.
Petitioner Ernesto Martinez ("petitioner") moves, pro se, to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2254. Petitioner claims that he was denied a fair trial due to an unduly suggestive lineup, and due to ineffective assistance of counsel.
For the reasons that follow, the petition is denied.
On September 22, 2008, petitioner was charged with Robbery in the First and Second Degrees for two separate incidents. The first, which occurred on September 4, 2008, involved a robbery of a victim named Randy Cordero. The second, which occurred on September 11, 2008, involved a robbery of a victim named Ronald Espinal. Both robberies occurred in brightly lit subway cars in New York City.
On August 10, 2009, a jury in New York state court convicted petitioner of one count of Robbery in the First Degree, and one count of Robbery in the Second Degree, relating to the robbery of Espinal. The jury was not able to reach a verdict on the similar robbery charges relating to the robbery of Cordero. However, at sentencing, petitioner pled guilty to one count of Attempted Robbery in the Second Degree relating to Cordero.
The state court sentenced petitioner, as a second violent felony offender, to ten years' imprisonment on the conviction for First Degree and Second Degree Robbery, as well as five years' imprisonment on the attempted robbery count, all to be served concurrently. The court also sentenced petitioner to five years' post-release supervision. Petitioner is currently incarcerated pursuant to this judgment.
Petitioner filed a direct appeal of the judgment, through counsel, arguing that (1) he was deprived of a fair trial based on the introduction of background testimony that petitioner was arrested based on a wanted poster including his name and photograph; and (2) the prosecutor acted as an unsworn witness during summation. On May 3, 2012, the Appellate Division rejected petitioner's claims and affirmed the judgment of conviction, stating that the trial court "properly exercised its discretion in admitting testimony that the police apprehended defendant on a subway train after recognizing him from a wanted poster bearing his photograph, " noting that the trial court provided an appropriate limiting instruction to the jury, and rejecting the remainder of petitioner's arguments. People v. Martinez, 95 A.D.3d 462 (1st Dep't 2012).
On July 18, 2012, a judge of the New York Court of Appeals denied petitioner's application for leave to appeal. People v. Martinez, 19 N.Y.3d 975 (2012). Petitioner's conviction became final 90 days later, on October 16, 2012. Petitioner filed the instant petition within one year of that date, on April 23, 2013, and the petition is therefore timely. See 28 U.S.C. § 2244(d)(1).
In his original April 23, 2013 petition, petitioner claims that he was deprived of a fair trial because of an unduly suggestive lineup. The petition was amended on August 5, 2013, to add a claim for ineffective assistance of counsel.
A. section 2254 Standard of Review
A prisoner in state custody may petition a federal court for a writ of habeas corpus on the ground that his confinement violates the Constitution, laws, or treaties of the United States. Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which amended 28 U.S.C. § 2254, a federal court may not grant habeas relief for any claim adjudicated on the merits in state court unless the petitioner establishes that the state court decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States[, ]" 28 U.S.C. § 2254(d)(1), or was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Id § 2254(d)(2). Under AEDPA, ...