United States District Court, E.D. New York
MEMORANDUM & ORDER
R. Korman United States District Judge.
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.
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.
Orlando's Confrontation Clause Rights
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.
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.
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.
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.
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
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)).
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.
“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 ...