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Hernandez v. Uhler

United States District Court, E.D. New York

August 25, 2017

Javier Hernandez, Petitioner,
v.
Donald Uhler, Superintendent, Respondent.

          MEMORANDUM AND ORDER

          Joseph F. Bianco, United States District Judge

         On November 8, 2015, Javier Hernandez (hereinafter “petitioner” or “Hernandez”) petitioned this Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his conviction in New York State Court. On May 12, 2008, following a jury trial, petitioner was convicted of two counts of Criminal Sexual Act in the First Degree (N.Y. Penal Law (“NYPL” § 130.50); one count of Attempted Rape in the First Degree (NYPL § 130.35); one count of Sexual Abuse in the First Degree (NYPL § 130.65); and one count of Endangering the Welfare of a Child in the First Degree (NYPL § 260.10). (T.[1] 4/8/08 at 24-25.) Petitioner was sentenced in the aggregate to a determinate period of incarceration of twenty-two years followed by five years of post-release supervision. (S.[2]18.)

         Petitioner argues that he received ineffective assistance of trial counsel because his attorney failed to: (1) call petitioner's roommate as an alibi witness; (2) make a pretrial motion to dismiss the indictment or to suppress petitioner's incriminating statements; (3) hire an expert to refute the prosecutor's witness on Child Sexual Abuse Syndrome; (4) attack the credibility of prosecution witnesses; (5) object to alleged bolstering and hearsay testimony; and (6) object to prosecutorial misconduct. As set forth below, the Court denies the petition in its entirety.

         I. Background

         A. Facts

         The following facts are adduced from the petition, respondent's answer, and the underlying record.

         During the summer of 2006, EO, the victim, lived with her grandparents, Fred and Olga Ortiz, in their house along with her mother, Ana, and two brothers, David and Daniel. (T. 3/31/08 at 16-17.) Petitioner also lived in the house, sharing the basement with Cecil Ortiz (“Cecil”), EO's uncle. (Id. at 17-18, 44.) The three children slept in a bedroom on the second floor. (Id. at 27.)

         Around 11:00 p.m. on August 15, 2006, petitioner entered the children's upstairs bedroom, calling EO by name. (Id. at 36-37.) At that time, EO was sleeping next to her brother David on the top level of her bunk bed. (Id. at 37.) Hernandez grabbed EO by the arm, took her down to the basement, and sexually assaulted her, though no vaginal penetration occurred. (Id. at 39-40, 47-52.) EO managed to kick Hernandez and run upstairs. (Id. at 51-52.) EO encountered David on the stairs, but told him not to say anything about the incident because she feared for the health of her pregnant mother, Ana. (Id. at 54-55.) The following day, Hernandez gave EO $80 and told her not to discuss what happened. (Id. at 58.)

         On October 23, 2006, after Ana had given birth, EO informed her mother about the incident. (Id. at 61, 193-94.) After that conversation, Ana confronted petitioner, who denied any wrongdoing. (Id. at 196.) She then took EO to Dr. Sara Schwartz, a gynecologist, for an examination, but EO did not describe the incident in detail to Dr. Schwartz. (Id. at 61-62, 203.) During the physical examination of EO, Dr. Schwartz found no indication of trauma or sexual assault. (Id. at 203.)

         Two weeks later, EO described the incident to her mother in more detail. (Id. at 64, 204.) Afterward, Ana informed EO's father in Florida. (Id. at 205.) He then contacted a relative in New York who requested to speak to EO at her school. (T. 3/28/08 at 113-14.) The school denied him access to EO, but a counselor spoke with her after hearing from the relative. (Id. at 113-17; T. 3/31/08 at 65-67.) Shortly thereafter, the counselor contacted Ana, who came to the school, and the two of them accompanied EO to the police station. (T. 3/28/08 at 114-17; 3/31/08 at 65-67, 206-07.) EO gave a statement to a detective about the sexual assault. (T. 3/31/08 at 67; 3/27/08 at 106-07.) EO initially stated that the assault occurred in July or August before narrowing the date down to a few days before EO went to Florida, which put the assault around August 15, 2006. (T. 3/27/08 at 113-14.) Later, Ana returned to the police station with David, who gave a statement to the same detective. (T. 3/28/08 at 19.) Fred Ortiz, EO's grandfather and the homeowner, called petitioner and told him not to return to the house. (T. 3/31/08 at 210-112; T. 4/1/08 at 135.) Petitioner later agreed to meet the detective at the police station, but the police were unable to locate him and believed that he left the state. (T. 3/27/08 at 117-19; 3/28/08 at 13-15; 3/31/08 at 216.)

         A second examination of EO occurred at the Children's Advocacy Center in Central Islip, New York. (T. 3/28/08 at 16; 3/31/08 at 68-69, 213.) The examination was conducted by Marie Marino, a pediatric nurse practitioner and forensic medical examiner. (T. 4/2/08 at 47-48.) Based upon a review of police documents, Marino ascertained that EO did not have prior trauma or infection to the anal or genital area and had not suffered from chronic constipation. (Id. at 72, 77.) Since EO did not have a history of chronic constipation, Marino opined that the anal scarring she observed during the examination was the result of penetrating blunt force trauma. (Id. at 155-57.) This injury was consistent with the position EO claimed she was in when the sexual assault occurred. (Id. at 158-59.)

         On April 19, 2007, petitioner was located in New Orleans and returned to New York. (T. 3/28/08 at 26-28.) He was arrested and brought to the Riverhead Jail in New York, where he twice called Fred Ortiz and asked for forgiveness. (T. 4/1/08 at 135-36.)

         On May 12, 2008, the jury found petitioner guilty of two counts of Criminal Sexual Act in the First Degree (NYPL § 130.50), one count of Attempted Rape in the First Degree (NYPL § 130.35), one count of Sexual Abuse in First Degree (NYPL § 130.65), and one count of Endangering the Welfare of a Child in the First Degree (NYPL § 260.10). (T. 4/8/08 at 24-25.) He was sentenced in the aggregate to twenty-two years' imprisonment followed by five years of post-release supervision. (S. 18.)

         B. Procedural History

         1. State Court Proceedings

         Petitioner appealed his conviction to the Supreme Court, Appellate Division, Second Department, arguing that: (1) there was insufficient evidence to support his conviction; (2) the verdict was against the weight of the evidence; and (3) his sentence was vindictive and excessive. (Pet., ECF No. 1, at 1.) On October 18, 2011, the Appellate Division affirmed the conviction. People v. Hernandez, 88 A.D.3d 907 (N.Y.App.Div. 2011) (“Hernandez I”). It first held that petitioner's argument about the sufficiency of the evidence was unpreserved, but, in any event, the evidence was legally sufficient to establish guilt beyond a reasonable doubt. Id. at 907. The court further concluded that the verdict was not against the weight of the evidence and that the sentence was neither vindictive nor excessive. Id. Petitioner applied for leave to appeal to the New York State Court of Appeals, which was denied on December 16, 2011. See People v. Hernandez, 18 N.Y.3d 959 (2011).

         Petitioner then brought a motion to vacate his conviction pursuant to CPL § 440.10. (Pet. 1.) He argued that defense counsel was ineffective because he failed to (1) call his roommate as an alibi witness, (2) move to suppress appellant's statements to Fred Ortiz, (3) properly attack the credibility of prosecution witnesses or object to alleged prosecutorial misconduct and certain testimony, and (4) hire an expert witness to rebut the People's expert on Child Sexual Abuse Syndrome. (Id. at 1-2.)

         The County Court denied the motion. (Id. at 2.) The court determined that there was sufficient evidence presented that petitioner's roommate was out of town on the night of the assault so that counsel's failure to call him as an exculpatory witness could not amount to ineffective assistance of counsel. (Resp.'s Ans., ECF No. 9, at 3.) The court further found that it was procedurally barred from reviewing the remaining claims because the issues were record-based and inappropriate for collateral review. (Id.)

         On appeal, the Appellate Division remanded to the County Court the petitioner's ineffective assistance of counsel argument based on counsel's failure to consult or hire an expert witness on Child Sexual Abuse Syndrome. See People v. Hernandez, 125 A.D.3d 885, 887 (N.Y.App.Div. 2015) (Hernandez II). Specifically, the court held that

the defendant's contention that his trial counsel was ineffective in failing to consult or hire an expert witness on the issue of child sexual abuse syndrome, so as to refute the testimony of the People at trial, was of the type that properly may be raised in the context of a motion pursuant to CPL 440.10. Accordingly, that part of the defendant's motion was not procedurally barred by CPL 440.10(2)(c).

Id. The Appellate Division affirmed the remainder of the County Court's decision. Id. The Court of Appeals denied leave to appeal. People v. Hernandez, 26 N.Y.3d 968 (2015).

         Reviewing the claim based on defense counsel's failure to consult with an expert, the County Court determined that counsel was not ineffective. In particular, it found that petitioner failed to “demonstrate his initial burden” because he did not demonstrate that an expert could rebut the assertions of the prosecution expert or that he was prejudiced by the absence of such testimony. (People v. Hernandez, __Misc.3d__, Ind. No. 940/2007 (County Ct. Suffolk County September 15, 2015) (Kahn, J.) (Hernandez III).) The court noted that the prosecution's expert offered only “a general explanation of the possible behaviors exhibited by the child victim and did not offer an impermissible opinion on the issue of whether [petitioner] committed the sex crimes charged in the indictment.” Id. The court also noted that “[d]efense counsel cross examined the witness, called into question her testimony, and called his own medical expert to rebut the allegations of the child victim and the People's expert.” Id. Petitioner did not seek leave to appeal that decision to the Appellate Division.

         2. The Instant Petition

         On November 8, 2015, pursuant to 28 U.S.C. § 2254, petitioner filed a pro se Petition for a Writ of Habeas Corpus with this Court, arguing that he received ineffective assistance of counsel at the trial level. (ECF No. 1.) Respondent filed an answer and memorandum of law in opposition to the petition on March 1, 2016. (ECF No. 9.) The Court has fully considered the submissions and arguments of the parties.

         II. Standard of Review

         To determine whether a 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 contrary to, or involved an unreasonable determination of the facts in light of the evidence ...

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