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Casado v. Sheehan

United States District Court, W.D. New York

May 30, 2017

JOSE CASADO, 09-B-2428, Petitioner,
v.
MICHAEL SHEEHAN, Superintendent of Five Points Correctional Facility, Respondent.

          DECISION AND ORDER

          HON. MICHAEL A. TELESCA United States District Judge.

         I. Introduction

         Jose Casado (“petitioner”), proceeding pro se, petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is incarcerated pursuant to a judgment entered August 3, 2009, in New York State Supreme Court, Monroe County (Doyle, J.), following a jury trial, in which he was convicted of attempted aggravated murder of a police officer (N.Y. Penal Law §§ 110.00, 125.26), attempted aggravated assault on a police officer (N.Y. Penal Law §§ 110.00, 120.11), and criminal possession of a weapon in the second degree (N.Y. Penal Law § 265.03). Petitioner is currently serving an aggregate prison sentence of 40 years to life.

         II. Procedural History

         Following his conviction, petitioner filed a direct counseled appeal to the New York State Supreme Court, Appellate Division, Fourth Department, in which he argued that (1) his indictment was rendered duplicitous by facts established at trial and (2) the trial court improperly allowed the People to present evidence of prior bad acts. On October 5, 2012, the Fourth Department unanimously affirmed petitioner's judgment of conviction. See People v. Casado, 99 A.D.3d 1208 (4th Dep't 2012), lv. denied, 20 N.Y.3d 985. As relevant here, the Fourth Department found that “inasmuch as the evidence establishe[d] only a single act of attempted aggravated murder and attempted aggravated assault as against Officer Hickey, i.e., the two shots defendant fired directly at Officer Hickey, . . . counts one and two of the indictment were not rendered duplicitous by the trial testimony.” Id. at 1210.

         On March 2, 2014, petitioner filed a motion to vacate the judgment of conviction pursuant to New York Criminal Procedure Law § 440.10. Petitioner argued that trial counsel was ineffective for failure to (1) negotiate a plea bargain; (2) request a jury charge on a lesser included offense; and (3) object to prosecutorial misconduct on summation. On July 17, 2014, Justice Doyle denied petitioner's CPL 440.10 motion, finding that petitioner “fail[ed] to allege sufficient facts to support his claim and [the allegations were] conclusory in nature.” SR, Exh. J.[1] Moreover, as the prosecutor pointed out in opposition to petitioner's motion, petitioner was not extended a plea offer due to the nature of the charges against him. Justice Doyle denied petitioner's argument that defense counsel failed to object to prosecutorial misconduct because it was record-based but had not been raised on direct appeal. Id. (citing CPL § 440.10(2)(c)).

         The instant petition (doc. 1) contends that (1) the indictment was rendered duplicitous by facts established at trial (ground one); (2) trial counsel was ineffective for failing to (a) preserve a claim regarding the duplicitous indictment; (b) negotiate a plea bargain; (c) consult petitioner before deciding not to request a jury charge for a lesser included offense; and (d) failing to object to prosecutorial misconduct (grounds two and three); and (3) the trial court refused to hold an evidentiary hearing and refused to assign counsel to represent petitioner on his collateral attack on the judgment (ground four). For the reasons discussed below, the petition is dismissed.

         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. Duplicitous Indictment

         As discussed above, the Fourth Department rejected petitioner's claim that his indictment was rendered duplicitous by the facts established at trial. In that case, as in this petition, petitioner argued that the two shots he fired in the direction of the police officer victim were separate incidents and it was impossible to determine the particular act for which the jury convicted him. The Fourth Department correctly found that the two shots constituted a single act and the indictment was therefore not duplicitous. See United States v. Kurniawan, 627 F. App'x 24, 27 (2d Cir. 2015) (“[T]his court has long held that acts that could be charged as separate counts of an indictment may instead be charged in a single count if those acts could be characterized as part of a single continuing scheme.”) (internal quotation marks and citation omitted).

         In any event, “[p]rocedural rules create the prohibition of duplicitous counts - there is no constitutional right against duplicity per se. In New York, this rule is found in [CPL §] 200.30(1), which specifies that ‘[e]ach count of an indictment may charge one offense only.'” Jones v. Lee, 2013 WL 3514436, *7 (S.D.N.Y. July 12, 2013). “Such state law requirements cannot be considered by federal courts on habeas review.” Id. A duplicitous count violates a defendant's constitutional rights only where it violates “the Sixth Amendment's guarantee that an accused may be adequately informed of the nature and the cause of the accusation and the Fifth Amendment's interdiction against double jeopardy.” Id. (internal quotation marks omitted) (quoting United States v. Kearney, 444 F.Supp. 1290, 1292 (S.D.N.Y. 1978) (quoting U.S. Const. amend. VI)). Petitioner has not, and cannot, show that the indictment faired to inform him of the nature of the accusation against him with regard to these charges. Accordingly, his claim is dismissed.

         B. Ineffective ...


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