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Orlando v. Nassau County D.A. Office

United States District Court, E.D. New York

March 29, 2017

MARK ORLANDO, Petitioner,


          Edward R. Korman United States District Judge.

         The evidence presented at trial demonstrated that, just after 8:30 PM on December 3, 2004, near a self-storage facility in Island Park, New York, Herva Jeannot shot Bobby Calabrese in the head three times, killing him. Jeannot then climbed into the passenger seat of a vehicle driven by petitioner Mark Orlando, who drove him away from the scene of the crime. Calabrese had ventured out to Island Park to collect a gambling debt from Orlando, who had racked up $17, 000 in sports betting losses over the course of the two weeks prior to the killing. Shortly after the killing, Jeannot disposed of the unfired ammunition from his gun by tossing it out of Orlando's car window over the side of a bridge on the Loop Parkway, and then disposed of his firearm by tossing it over the side of a bridge on the Wantagh Parkway. Orlando then drove Jeannot home.

         After a jury trial, Orlando was convicted of Intentional Murder in the Second Degree, see N.Y. Penal Law § 125.25(1) (McKinney 2017), and sentenced to imprisonment of twenty-five years to life. The Appellate Division affirmed. People v. Orlando, 61 A.D.3d 1001 (N.Y.App.Div. 2009), leave to appeal denied, 13 N.Y.3d 837. Orlando's petition asserts a variety of grounds for relief, each of which is without merit.


         I. Orlando's Confrontation Clause Rights

         On December 9, 2004, Mark Orlando was arrested and taken to police headquarters in Mineola, New York for questioning. Orlando initially told detectives that he and Jeannot had met up with Calabrese on the night of December 3, but that Orlando had paid Calabrese $17, 000 to settle a debt and then parted ways with him. Calabrese's lifeless body was found shortly after Orlando claimed to have paid him. Detective McGinn, who was interrogating Orlando, did not believe this implausible story. In order to get at what really happened to Calabrese, McGinn told Orlando that police officers were questioning Jeannot, and that Jeannot would probably tell them a “truer” version of events. Tr. Min. 621. Orlando, though, did not change his account. Detective McGinn then told Orlando that the police had a videotape that proved Orlando was lying about the location of his meeting with Calabrese, and that Jeannot had told police where the murder weapon was. Still, Orlando did not change his account. It was not until McGinn told Orlando that Jeannot had made a statement, in which he alleged that Orlando paid him to kill Calabrese, that Orlando changed his story.

         In summary, Orlando told Detective McGinn that on December 3, Jeannot had agreed to accompany him to meet Calabrese. Later that day, Orlando and Jeannot arrived at the location that Orlando had selected to meet Calabrese. After they parked, Jeannot stepped out of the car, stating that he had to use the bathroom. While Jeannot was supposedly using the bathroom, Bobby Calabrese arrived. Orlando and Calabrese each got out of their cars, met, and hugged. Following a short conversation, Orlando handed Calabrese the $17, 000 that he owed. Suddenly, Orlando heard a shot and saw Calabrese fall to the ground. He saw Jeannot run over to Calabrese's car and close the door, then return to where Calabrese had fallen and shoot him twice more. Jeannot and Orlando then got back into Orlando's car. They did not drive away, however. Instead, Orlando stopped the car next to Calabrese's body, and Jeannot got out and attempted to fire the gun at Calabrese again, but it would not fire. Jeannot then grabbed the $17, 000 that Orlando had given to Calabrese, got back into the car, and Orlando drove the two of them away from the scene of the crime. Before Orlando dropped Jeannot off at his house, Jeannot threatened that, if Orlando told anyone what had happened, Jeannot would kill Orlando's wife. Jeannot kept the entire $17, 000 stolen from Calabrese.

         The prosecutor argued that it was Detective McGinn's statement to Orlando, informing him that Jeannot had implicated him in the murder, which finally caused Orlando to change his story and admit to being present for the killing and driving the getaway car. In support of that argument, the prosecution sought to introduce testimony of Detective McGinn to that effect. Over objection, McGinn was permitted to give the following testimony:

I left the [interrogation] room at about 6:50 [AM]. I went back into the room at about ten minutes to eight. About 7:50 in the morning. And I told [Orlando] at this point that Herva Jeannot was, in fact, talking to the other detectives. He had given a statement and he had implicated himself in the murder. He said that he was the murderer, but that Mark Orlando had paid him to do it.

         Tr. Min. 623-24. Consistent with the purpose for which it was admitted, the trial judge gave the following limiting instruction: “You're to consider this testimony only when considering the circumstances under which the defendant himself may have made statements and for no other purposes. You are to completely disregard any statement allegedly made by Herva Jeannot when considering evidence against the defendant.” Id. The trial judge repeated the instruction when he charged the jury. Id. at 930.

         On appeal, relying principally on Bruton v. United States, 391 U.S. 123 (1968), Orlando argued that Jeannot's out-of-court statement, as recounted by Detective McGinn, constituted a violation of his Sixth Amendment right to confront and cross-examine the witnesses against him. The District Attorney argued, in response, that McGinn's testimony regarding what he told Orlando about Jeannot's confession was necessary to enable the jury to understand what had caused Orlando to abandon his blanket denial of any involvement in the murder, and admit that he had been present and helped dispose of evidence. The Appellate Division, relying on Tennessee v. Street, 471 U.S. 409 (1985), and its state court progeny, denied relief.

         Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), Pub. L. No. 104- 132, 110 Stat. 1214 (1996), habeas corpus relief is available only when a state court judgment is “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1) (emphasis supplied). “[C]learly established Federal law, as determined by the Supreme Court, ” means “holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000). A decision is an “unreasonable application” of clearly established federal law if a state court “identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. at 413. It is worth emphasizing that “a state court's ‘unreasonable' application of law is not synonymous with an ‘incorrect' or ‘erroneous' decision.” See Jackson v. Conway, 763 F.3d 115, 135 (2d Cir. 2014) (quoting Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). Thus, “[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

         In Bruton, the Supreme Court held that “there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.” Bruton, 391 U.S. at 135. Specifically, the Court recognized that situations where “the alleged accomplice . . . does not testify and cannot be tested by cross-examination” are precisely the type of “threats to a fair trial [against which] the Confrontation Clause was directed.” Id.

         Nevertheless, “the use of testimonial statements for purposes other than establishing the truth of the matter asserted” is not barred by the Confrontation Clause. See Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004) (citing Tennessee v. Street, 471 U.S. at 414). In Tennessee v. Street, the Supreme Court recognized that, in some contexts, the prosecution may introduce an alleged accomplice's confession for a “legitimate, nonhearsay purpose.” 471 U.S. at 417. In Street, “[t]he State's most important piece of substantive evidence was [defendant's] confession.” Id. at 415. The defendant attempted to undermine the strength of that evidence by arguing that his “confession” did not reflect his recollection of what had happened, but rather that the police had forced him to repeat the confession of his alleged accomplice. Id. The prosecution sought to introduce the accomplice's confession to prove that there were differences between the two confessions, thereby demonstrating that the defendant's argument was based on a lie. According to the Street Court, “[h]ad the prosecutor been denied the opportunity to present [the accomplice's] confession in rebuttal so as to enable the jury to make the relevant comparison, the jury would have been impeded in its task of evaluating the ...

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