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Mazariego v. Kirkpatrick

United States District Court, E.D. New York

July 26, 2017

Joni Mazariego, Petitioner,
v.
Michael Kirkpatrick, Superintendent, Respondent.

          Petitioner is proceeding pro se.

          Respondent is represented by John B. Latella and Tammy J. Smiley, Assistant District Attorneys, Nassau County District Attorney's Office.

          MEMORANDUM AND ORDER

          JOSEPH F. BIANCO United States District Judge

         Joni Mazariego (hereinafter “petitioner” or “Mazariego”) petitions this Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his conviction in state court. Petitioner was found guilty of manslaughter in the first degree, in violation of N.Y. Penal Law § 125.20[1]; gang assault in the first degree, in violation of N.Y. Penal Law § 120.07; and attempted assault in the second degree, in violation of N.Y. Penal Law §§ 110.00/120.05[2]. Mazariego was sentenced to concurrent determinate sentences of twenty years on the manslaughter and the gang assault charges, as well as a concurrent indeterminate term of one and one-third to four years on the attempted assault charge, with a period of five years' post-release supervision. The gang assault conviction was later reduced to attempted gang assault in the first degree, in violation of N.Y. Penal Law §§ 110.00/120.07. Petitioner was resentenced to fifteen years on this amended charge, with five years' post-release supervision, to run concurrently with the sentences for the other charges, which were not disturbed.

         In the instant habeas petition, petitioner challenges his conviction, claiming that his constitutional rights were violated on the following grounds:[1] (1) he was denied effective assistance of trial counsel when counsel failed to request a charge for the lesser included offense of manslaughter in the second degree; (2) his conviction for attempted assault in the second degree was against the weight of the evidence; (3) he was prejudiced at trial by the testimony of a nonexpert, whom the trial court wrongly deemed an expert; (4) his conviction for manslaughter in the first degree was not supported by legally sufficient evidence and was against the weight of the evidence; and (5) he should have been resentenced on the manslaughter in the first degree and attempted assault in the second degree counts when he was resentenced on the attempted gang assault in the first degree count. (Pet. at 3-6.)

         For the reasons discussed below, petitioner's request for a writ of habeas corpus is denied in its entirety.

         I. Background and Procedural History

         A. Background

         The following facts are adduced from the instant petition and underlying record.

         Petitioner's conviction arose from a gang-related altercation. On December 23, 2010, Mazariego and some of his fellow MS-13 gang members went to the El Pacifico bar in Hempstead, New York. (T.[2] 475-76, 638-39.) Erik Miranda (“Miranda), John Pareja (“Pareja”), and Plutarco Galindo (“Galindo”), members of the Sur Trece gang, were also at the El Pacifico bar that evening. (Id. 607-12.) Soon after arriving at the bar, petitioner and his friends noticed Galindo and Pareja and “threw” MS-13 gang signs at them. (Id. at 611-12.) Mazariego and his fellow gang members believed that Galindo and Pareja were members of the 18th Street Gang, a rival of MS-13. (Id. at 612.) Soon after the gang signs were thrown, Galindo, Pareja, and Miranda left the bar. (Id. at 613-16.) Petitioner and his fellow gang members followed the Sur Trece gang members out of the El Pacifico and attacked them. (Id. at 616-21.) Petitioner was seen on a surveillance video pulling what looked like a knife from his pocket, motioning as if he was opening the knife, and seconds later making stabbing motions towards Galindo. (People's Exh. 3.) The video also shows that petitioner appeared to be wearing an Ace bandage on his hand throughout the altercation. (T. 441.) Galindo later died from blood loss resulting from a perforated heart, which was caused by stab wounds. (Id. at 490-91.) During the brawl, Pareja was also stabbed, and Miranda was punched and hit with a belt. (Id. at 640-42.) At trial, Antonio Gutierrez, an acquaintance of Mazariego, testified that petitioner admitted to him that he had “killed somebody” at the El Pacifico Bar. (Id. at 564.) Furthermore, Detective Gonzalo Londono of the Nassau County Police Department, who has extensive experience investigating MS-13 and other gangs, testified at trial to explain the events that took place at the El Pacifico bar. (Id. at 409-73.) The trial court deemed Londono an expert in MS-13. (Id. at 419.)

         Following a jury trial, petitioner was convicted on May 9, 2012 of manslaughter in the first degree (N.Y. Penal Law § 125.20[1]); gang assault in the first degree (N.Y. Penal Law § 120.07); and attempted assault in the second degree (N.Y. Penal Law §§ 110.00/120.05[2]). (T. 820-22.) During the trial, the prosecutor requested that petitioner be charged with manslaughter in the first degree and gang assault in the second degree as lesser included offenses to murder in the second degree and gang assault in the first degree, respectively. (Id. at 663-64.) Petitioner's attorney joined in this request and made no additional request for additional lesser-included offense charges. (Id. at 675-76.)

         On July 18, 2012, petitioner was sentenced to concurrent determinate sentences of twenty years on the manslaughter in the first degree count and the gang assault in the first degree count, with a period of five years' post-release supervision. (Sentencing Tr., ECF No. 5-10, at 15-16.) Further, petitioner was sentenced to an indeterminate term of one and one-third to four years on the attempted assault in the second degree count, with all counts to run concurrently. (Id. at 16.)

         B. Procedural History

         On August 19, 2013, petitioner appealed to the Supreme Court, Appellate Division, Second Judicial Department. He argued that:

(1) gang assault in the first degree was not proven beyond a reasonable doubt; (2) defense counsel rendered ineffective assistance by failing to request the lesser-included offense of manslaughter in the second degree; (3) the conviction for attempted assault in the second degree was against the weight of the evidence; (4) the trial court erred in deeming Detective Londono an expert, which made Londono's testimony improper bolstering or opinion evidence; and (5) there was insufficient evidence to convict petitioner of manslaughter in the first degree and the conviction on that count was against the weight of the evidence. (See Petitioner's Appellate Division Br., ECF No. 5-11.) On May 28, 2014, the Appellate Division reduced the conviction for gang assault in the first degree to attempted gang assault in the first degree and otherwise affirmed the judgement of the trial court. See People v. Mazariego, 986 N.Y.S.2d 235 (A.D.2d Dep't 2014). The case was then remanded for resentencing on the attempted gang assault count only. Id. On May 28, 2015, petitioner was denied leave to appeal to the New York State Court of Appeals. See People v. Mazariego, 25 N.Y.3d 1074 (2015).

         On June 26, 2014, petitioner was resentenced to fifteen years in prison and five years' post-release supervision on the attempted gang assault count, to run concurrently with the other convictions, which were not disturbed. (See Minutes of Resentencing, ECF No. 5-18.) On February 22, 2016, petitioner appealed from his resentencing to the Appellate Division, arguing that the trial court was in error by failing to resentence petitioner on all the counts of which he was convicted. (See Petitioner's Appellate Division Sentencing Br., ECF No. 5-19.) However, on October 12, 2016, the Appellate Division held that petitioner was not entitled to be resentenced on the manslaughter in the first degree and attempted assault in the second degree counts. See People v. Mazariego, 38 N.Y.S.3d 820 (A.D.2d Dep't 2016). Petitioner did not seek leave to appeal to the New York Court of Appeals.

         C. The Instant Petition

         On April 20, 2016, while his second appeal was pending with the Appellate Division, petitioner filed for habeas corpus relief in this Court (the “Petition”). Petitioner claimed that he is entitled to relief because: (1) defense counsel provided ineffective assistance by failing to request a lesser-included charge of manslaughter in the second degree; (2) the conviction for attempted assault in the second degree was against the weight of the evidence; (3) Detective Londono's testimony was improperly admitted, which constituted improper bolstering; and (4) the conviction for manslaughter in the first degree was not supported by sufficient evidence and was against the weight of the evidence. (See Pet. at 3.) Petitioner also raised the ground that his sentence should be vacated because petitioner was not resentenced on the counts of manslaughter in the first degree and attempted assault in the second degree. (Id. at 6.) As petitioner acknowledges, that claim was still pending in the Appellate Division when it was submitted in the Petition. (Id. at 7.) Petitioner also abandoned his federal habeas claim that the conviction for gang assault in the first degree was not proven beyond a reasonable doubt. (Id. at 8.)

         On May 10, 2016, this Court filed an Order to Show Cause ordering the respondent to reply to the Petition within thirty days from the filing of the Order. (ECF No. 4.) On June 9, 2016, respondent filed in this Court a motion to dismiss the Petition because it contains both exhausted and unexhausted claims. (ECF No. 5.) On January 9, 2017, this Court denied the motion and stayed the Petition on the conditions that petitioner file any motions not yet filed in state court within thirty days and that petitioner return to federal court by advising the Court in writing within thirty days after exhausting state remedies. (ECF No. 6.)

         In a letter dated January 21, 2017, petitioner wrote to this Court to request that this Court order the Appellate Division to forward him both the decision and the order on the appeal from his resentence. (ECF No. 7.) On January 27, 2017, this Court declined to direct the Appellate Division to do so, but it continued the stay of the Petition, pending the exhaustion of petitioner's state remedies. (ECF No. 8.) In a letter dated March 10, 2017, petitioner wrote to this Court to declare that he had exhausted his state remedies. (ECF No. 9.) On March 21, 2017, this Court vacated the stay of the Petition and allowed respondent forty-five days to reply to the Petition. (ECF No. 10.) On May 3, 2017, respondent filed its brief in opposition to the Petition. (See Resp't Br., ECF No. 11.) On May 24, 2017, petitioner filed his reply. (ECF No. 13.)

         The Court has fully considered the parties' submissions, as well as the underlying record.

         II. Standard of Review

         To determine whether petitioner is entitled to a writ of habeas corpus, a federal court must apply the standard of review set forth in 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act (“AEDPA”), which provides, in relevant part:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented by the State court proceedings.

28 U.S.C. § 2554. “Clearly established Federal law” is compromised of “the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision.” Green v. Travis, 414 F.3d 288, 296 (2d Cir. 2005) (quoting Williams v. Taylor, 529 U.S. 362, 412 (2000)).

         A decision is “contrary to” clearly established federal law, as determined by the Supreme Court, “if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts.” Williams, 529 U.S. at 413. A decision is an “unreasonable application” of clearly established federal law if a state court “identifies the correct governing legal principles from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case.” Id.

         AEDPA establishes a deferential standard of review: “a federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decisions applied clearly established federal law erroneously or incorrectly. Rather, that application must be unreasonable.” Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001) (quoting Williams, 529 U.S. at 411). The Second Circuit added that, while “[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence.” Id. (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)). Finally, “if the federal claim was not adjudicated on the merits, ‘AEDPA deference is not required, ...


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