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Wright v. Griffin

United States District Court, E.D. New York

November 1, 2017

EARL WRIGHT, Petitioner,
v.
SUPERINTENDENT T. GRIFFIN, Respondent.

          ORDER

          ERIC N. VITALIANO UNITED STATES DISTRICT JUDGE

         A state prisoner, petitioner Earl Wright appears pro se seeking a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254. (ECF No. 1 ("Pet.").) For the reasons set forth below, the writ is denied and the petition is dismissed.

         Background [1]

         At approximately 4:30 a.m. on July 29, 2005, Honoria Cuenca, who lived with her boyfriend, Guido Arevalo, [2] and their two children in Queens, left her apartment to use a pay phone in front of a laundromat that was adjacent to her building. (Trial Transcript, May 11-13, 17, 18, 20, 24, 2010 ("Tr."), 281-82, 291-93, ECF Nos. 7-2 to 7-6.) Her errand was ordinary enough: to call Arevalo, to ask when he would be home, and to go back to the apartment. (Id.)

         Like many multiple dwellings in New York City, exterior exit doors are self-locking. That was the case both with the door leading from the exterior of Cuenca's building to a vestibule and with the door leading from the vestibule to the street. (Tr. 287-88.) When Cuenca set out to phone her husband, the inner vestibule door locked behind her. (Tr. 293.) The outer door, due to a malfunction, may have failed to close completely as Cuenca left the building. (Tr. 287.) In any event, at trial, Cuenca could not recall whether the outer door closed or locked when she went outside to use the phone. (Tr. 293-94.)

         After completing the phone call, Cuenca returned to her building. (Tr. 296.) Inside the vestibule, but short of the inner door, she was overtaken by a male assailant. (Tr. 296.) He grabbed her, covered her mouth and held "something cold" to her neck that she "thought... was a knife" (she never actually saw the object during the assault). (Tr. 296-97, 302.) Threatening to harm her with the object that he held to her neck, the assailant ordered Cuenca not to scream, choked her with his hands and threw her to the floor. (Tr. 297-98.) Despite Cuenca's struggles, he undid her shorts and underwear, pushed her face to the side and inserted his fingers into her vagina and then penetrated her vagina with his penis. (Tr. 297-300.) Once the sexual assault was finished, the assailant forcefully removed a necklace and anklet from his victim. (Tr. 300-01.) As he darted out, the assailant told Cuenca to return to her apartment, not to turn around and brazenly warned her that "next time" she "should be careful." (Tr. 300-01.)

         When Arevalo returned from work, nearly an hour after the assault, Cuenca told him that she had been mugged, because she was too ashamed to tell him the truth. (Tr. 303, 337.) He called the police and then went to the vestibule where he found a pen on the floor. (Tr. 338-39.) He turned the pen over to the police when they arrived. (Tr. 338-40.) Cuenca was then transported by ambulance to Elmhurst General Hospital, where a sexual assault evidence collection kit was taken by Elmore Siong, a physician's assistant. (Tr. 304-05, 340, 361-62, 385-86.) Siong reported that he had observed various injuries: bruises on her inner thighs; abrasions on her cervix, neck and back; and tenderness to her neck and trachea. (Tr. 377-84, 391-94.) At trial, Siong offered his observations and his medical opinion that the injuries were consistent with sexual assault. (Tr. 394.)

         On July 30, 2005, the Office of Chief Medical Examiner ("OCME") received the sexual assault kit taken from Cuenca at the hospital. (Tr. 416, 430.) The vaginal swab obtained from Cuenca contained sperm. (Tr. 432.) Because Arevalo and Cuenca had sexual relations less than 72 hours prior to the rape, he submitted to a buccal swab. (Tr. 305-06, 340-41.) The husband's buccal swab was received by OCME on August 3, 2005. (Tr. 430.)

         On a more traditional investigatory track, the victim tried to describe and identify the assailant. Cuenca told the police that the man who raped her was a "[b]lack man ... 35 or 40 years old ... like from the Dominican Republic like Sammy Sosa ... [and] a little taller than [her]." (Tr. 307-08.) On at least three occasions, Cuenca went with Detective James O'Boyle, who worked at the Queens Special Victims office, to a precinct house to look at photos. (Tr. 220, 227, 308.) During the course of those sessions, she looked at approximately 3, 000 photos, but was unable to identify her assailant. (Tr. 227-28.) She explained that she could not identify the attacker because she "didn't really look at his face" during the incident. (Tr. 309.) After Cuenca failed to identify her attacker, the case was closed pending DNA results. (Tr. 228.)

         The case lay dormant until a lead turned the spotlight on Wright. (Id.) The case was reopened in February 2008. (Id.) As part of the reopened investigation, Wright's DNA was compared to the sperm sample taken from Cuenca's vaginal swab. (Tr. 447.) According to Nana Lamuse-Smith, an OCME criminalist, who analyzed the results of this DNA testing and who was qualified at Wright's trial as an expert witness in the field of forensic biology, the DNA profile of the major contributor to the rape kit sample taken from Cuenca, in her opinion, matched that of Wright. (Tr. 448-49.)

         In a backfire strategy, petitioner sought to stop the trial before it got started. He moved "to dismiss the indictment for denial of the right to a speedy trial pursuant to CPL 30.20; Civil Rights Law Sec. 12; USCA Const. Amend. 6, 14, CPL 30.30." (ECF No. 7 at 6 ("30.30 Motion").) Supreme Court, Queens County denied the motion on October 29, 2009. (Id.) Supreme Court calculated that, "at best the People would be charged with the 14 days of pre-readiness delay and ... no more than 82 days [of post-readiness delay], a period considerably less than that which would be needed under either CPL 30.20, CPL 30.30(1)(a) or CPL (2)(a)." (Id. at 10.) The effort to avert trial had failed.

         Trial began on May 11, 2010 before Justice Michael B. Aloise, sitting with a jury. (Tr. 1.) At his option, Wright represented himself, with the aid of stand-by counsel appointed by the trial court. (Tr. 1-2.) Just short of two weeks later, on May 24, 2010, the jury found Wright guilty of rape in the first degree (N.Y. Penal Law § 130.35 [1]), robbery in the first degree (N.Y. Penal Law § 160.15[3]), burglary in the first degree (N.Y. Penal Law § 140.15[3]), and sexual abuse in the first degree (N.Y. Penal Law § 130.65[1]). (Tr. 554-55.) On June 21, 2010, Justice Aloise sentenced petitioner, in principled part, to consecutive terms of 25 years on the rape, robbery and burglary counts and seven years on the sexual abuse count. (Sent. Tr. 14-15., ECF No. 7-6.)

         On July 2, 2010, petitioner appealed his conviction to the Appellate Division, Second Department, including some points addressed to the peculiar power of the Appellate Division to modify an excessive sentence in the interests of justice. (Notice of Appeal, July 2, 2010 ("Appeal Notice"), ECF No. 7 at 1; Brief for Defendant-Appellant, April 20, 2012 ("Appellant Br."), ECF No. 7 at 82-131.) Petitioner, now represented by counsel, raised five claims: (1) the convictions for robbery in the first degree and burglary in the first degree should be reduced to robbery in the third degree and burglary in the third degree, because there was insufficient evidence to prove that Wright threatened the use of a dangerous instrument, (2) the evidence underpinning the burglary conviction was insufficient because there was no proof that the vestibule was a "dwelling, " (3) his speedy trial motion was improperly denied, (4) deprivation of a fair trial due to prosecutorial misconduct and (5) the sentence imposed was excessive. (Appellant Br.) Additionally, Wright raised three more claims in a pro se supplementary brief: (1) the wrongful admission of evidence that the trial court had previously ordered precluded, (2) the People's failure to comply with their CPL § 240.20 discovery obligation, and (3) improprieties relating to the DNA evidence introduced at trial. (Defendant-Appellant pro se Supplemental Brief, ("Appellant Suppl. Br."), ECF Nos. 7 at 207-23, 7-1 at 1-17.)

         During the pendency of his direct appeal, on September 22, 2011, petitioner filed a pro se motion to vacate the judgment of conviction in Supreme Court. (ECF No. 7 at 11-12 ("Motion to Vacate Judgment").) In line with CPL § 440.10(2)(b), that motion was denied on January 12, 2012, because the claims it presented could, and must, be resolved on direct appeal. (EFC No. 7 at 36-39, Memorandum Denying CPL § 440.10 Motion, January 12, 2012 ("440.10 Denial").)

         Wright fared no better on direct appeal. The Second Department affirmed the judgment on October 9, 2013, without modification. People v. Wright, 110 A.D.3d 836, 836, 972 N.Y.S.2d 660 (2d Dep't 2013). The state court found the insufficiency of the evidence claim to be "unpreserved for appellate review" and, in any event, meritless. Id. The same fate befell the claim regarding misconduct in the prosecutor's opening and closing arguments. Id. at 837. Finding that Wright's sentence was not excessive, it was not disturbed. Id. Lastly, in a blurred ruling, the Second Department held that the remaining contentions raised in Wright's pro se supplemental brief, as well as those raised in counsel's main brief, were "either unpreserved for appellate review and, in any event, without merit, or based on matter dehors the record." Id.

         Leave to appeal to the Court of Appeals was denied on December 27, 2013. People v. Wright, 22 N.Y.3d 1045, 4 N.E.3d 390, 981 N.Y.S.2d 378 (2013).[3]

         About a year after leave was denied, on December 29, 2014, Wright filed for federal habeas relief. Read liberally, see Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007), his petition presses eight grounds for relief: (1) a violation of the speedy trial rules, (2) prosecutorial misconduct relating to statements made during opening and closing arguments, (3) use of evidence precluded by state law (CPL § 710.30), (4) violation of pretrial disclosure rights under state law and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), (5) insufficiency of the evidence, (6) the sentence was excessive and improperly ran consecutively, rather than concurrently, in violation of the Double Jeopardy Clause, (7) the People's use of false and misleading evidence and (8) prejudice from the People's violation of various rules of professional conduct. (Pet.)[4]

         Standard of Review

         Under the Antiterroism and Effective Death Penalty Act ("AEDPA"), a writ of habeas corpus shall not issue with respect to any claim that was adjudicated on the merits in state court unless the state court's decision (1) "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) "was based on an unreasonable determination of the facts in light of the evidence presented" in state court. 28 U.S.C. § 2254(d); see also Gutierrez v. McGinnis,389 F.3d 300, 304 (2d Cir. 2004) (describing this standard as "AEDPA deference"). AEDPA's deferential review applies whenever a state court disposes of a state prisoner's federal claim on the merits, regardless of whether it gives reasons for its determination or refers to federal law in its decision. See Harrington v. Richter,562 U.S. 86, 100, 131 S.Ct. 770, 785, 178 L.Ed.2d 624 (2011); Sellan v. Kuhlman,261 F.3d 303, 312 (2d Cir. 2001). "Section 2254(d) reflects the view that habeas corpus is a 'guard against extreme malfunctions in the state criminal justice systems, ' not a substitute for ordinary error correction through appeal." Harrington, 562 U.S. at 102-03 (quoting Jackson v. Virginia,443 U.S. 307, 332 n.5, 99 S.Ct. 2781, 2796 n.5, 61 L.Ed.2d 560 (1979) (Stevens, J., concurring in judgment)). Review under AEDPA "demands that state-court decisions be given the benefit of the doubt." Hardy v. Cross,565 U.S. 65, 66, 132 S.Ct. 490, 491, 181 L.Ed.2d (2011) (per curium) (quoting Felkner v. ...


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