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Perez v. Cully

United States District Court, W.D. New York

April 27, 2017

EDWIN PEREZ, Petitioner,
v.
MALCOLM R. CULLY, SUPERINTENDENT, Respondent.

          DECISION AND ORDER

          HON. MICHAEL A. TELESCA United States District Judge

         I. Introduction

         Proceeding pro se, Edwin Perez (“petitioner”), petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is incarcerated pursuant to a judgment entered April 5, 2006, in Monroe County Court (Sirkin, J.), following a jury verdict convicting him of first-degree manslaughter (N.Y. Penal Law § 120.20(1)). Petitioner was sentenced to fifteen years in prison followed by five years of post-release supervision.

         II. Factual Background and Procedural History

         The evidence presented at trial established that on the night of September 16, 2005, petitioner and an accomplice, Anthony Ott, approached and attacked Travis Gray and Hank Hogan as they walked through the parking lot of a bar located in Rochester, New York. Petitioner and/or his co-defendant Ott stabbed Gray eight times, resulting in injuries that caused Gray's eventual death. Two knives were found by police in petitioner's car, one of which tested positive for Gray's blood on the blade and petitioner's DNA on the handle. A jury convicted petitioner of first-degree manslaughter as noted above.

         Petitioner filed a direct counseled appeal to the New York State Supreme Court, Appellate Division, Fourth Department, arguing that (1) the evidence was legally insufficient to support the verdict and trial counsel was ineffective for failing to preserve this claim; (2) the trial court did not properly instruct the jury or respond to its notes on accessorial liability by not charging the jury that it must acquit petitioner of manslaughter if it acquitted Ott of murder and by not specifying the mens rea required to convict petitioner, and counsel was ineffective for failing to preserve this issue; (3) the hearing court violated New York Criminal Procedure Law (“CPL”) § 710.60(6) when it failed to make findings of fact and conclusions of law in denying petitioner's suppression motion, and the trial court violated New York Judiciary Law § 21 when it adopted the hearing court's decision without a separate hearing; (4) the indictment was improperly transferred from Supreme Court to County Court and then improperly transferred back to Supreme Court, and thus the presiding trial court lacked jurisdiction over the case; and (5) petitioner's sentence was harsh and excessive.

         On April 1, 2011, the Fourth Department unanimously affirmed petitioner's conviction. See People v. Perez, 89 A.D.3d 1393 (4th Dep't 2011), rearg. denied, 92 A.D.3d 1267 (4th Dep't 2012), lv. denied, 18 N.Y.3d 961. The Fourth Department found that petitioner's claim that the evidence was legally insufficient was unpreserved and, in any event, meritless, and held that trial counsel could not be held ineffective for failing to preserve this meritless issue. Perez, 89 A.D.3d at 1393. The Court found that petitioner's claim regarding a jury instruction for shared intent lacked merit, holding that because “the court sufficiently explained the applicable legal principles to the jury, it was not bound to charge the jury as defense counsel proposed[.]” Id. (quoting People v. Leach, 293 A.D.2d 760, 761 (2002), lv. denied, 98 N.Y.2d 677).

         The court also rejected petitioner's claim that the trial court violated Judiciary Law § 21, holding that the record demonstrated that the suppression hearing was properly litigated and denied by the hearing court. Finally, the court found petitioner's remaining claims - that the trial court failed to properly instruct the jury that the jury must acquit him of manslaughter if it convicted his co-defendant of murder; the case was improperly transferred between Supreme and County Court; and the hearing court violated CPL § 710.70(6) - unpreserved for review.

         On April 11, 2013, petitioner filed a pro se motion for a writ of error coram nobis with the Fourth Department, alleging ineffective assistance of appellate counsel for failure to raise issues including (1) the prosecutor's failure to secure petitioner's presence at a second grand jury presentation; (2) the trial court's improper handling of jury notes during deliberations; and (3) ineffective assistance of trial counsel. On June 7, 2013, the Fourth Department summarily denied petitioner's coram nobis motion. See People v. Perez, 107 A.D.3d 1502 (4th Dep't 2013), lv. denied, 21 N.Y.3d 1076.

         The instant petition argues that (1) the evidence was legally insufficient to support the conviction; (2) the trial court failed to properly instruct the jury on accessorial liability and did not properly respond to the jury's note requesting clarification of that principle; (3) both the hearing and trial court failed to outline their findings of fact and conclusions of law in denying petitioner's motions to suppress; (4) trial counsel was ineffective for (a) failing to make a pretrial motion to dismiss the manslaughter indictment after petitioner was denied the right to testify before the grand jury, (b) failing to insist upon a written decision on his suppression motion, (c) failing use petitioner's hospital records to show that he had a pre-existing injury, (d) making improper comments during summation, and (e) failing to object to the trial court's handling of the jury notes during deliberations; and (5) appellate counsel was ineffective for failing to argue that (a) the prosecutor erred in not producing petitioner at the second grand jury presentation, (b) the trial court improperly handled the jury's notes during deliberation, and (c) petitioner's trial counsel was ineffective due to these errors.

         III. Standard of Review

         The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) applies to this petition. AEDPA “revised the conditions under which federal courts may grant habeas relief to a person in state custody.” Kruelski v. Connecticut Super. Ct. for Judicial Dist. of Danbury, 316 F.3d 103, 106 (2d Cir. 2003) (citing 28 U.S.C. § 2254). Under AEDPA, a federal court may grant a writ of habeas corpus under 28 U.S.C. § 2254 only if the state court's adjudication of the petitioner's claim on the merits is “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 involved an “unreasonable determination of the facts” in light of the evidence presented. 28 U.S.C. § 2254(d)(2).

         IV. Grounds Asserted in the Petition

         A. ...


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