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Hernandez v. Unger

United States District Court, E.D. New York

December 27, 2019

CHARLES HERNANDEZ, Petitioner,
v.
D.M. UNGER, Superintendent, Respondent.

          MEMORANDUM & ORDER

          RAYMOND J. DEARIE, UNITED STATES DISTRICT JUDGE.

         Before the Court is the application of petitioner Charles Hernandez for a writ of habeas corpus pursuant to 28 U.S.C. §2254.

         A gunfight in the courtyard of a Coney Island housing project, at approximately 4:00 a.m. on September 19, 2004, resulted in the death of two young men, Allen Lewis and Yusuf McEaddy. As a result of his role in this incident, Hernandez was charged with one count each of intentional and depraved-indifference second-degree murder as to Lewis, one count of second-degree reckless manslaughter as to McEaddy, and one count each of criminal possession of a weapon in the second and third degrees ("CPW2" and "CPW3," respectively).

         Hernandez's first trial in Kings County Supreme Court ended in a hung jury. He testified as his retrial and admitted that he shot Lewis but claimed he did so in self-defense. At the close of the evidence the court dismissed the reckless manslaughter charge and submitted the remaining charges to the jury, who acquitted Hernandez on both theories of the murder of Lewis while convicting him on the two weapons counts. At the time of the gunfight, Hernandez was on parole from a prior conviction for first-degree assault. Because he also had a prior conviction for CPW2, Hernandez was adjudicated a second violent felony offender and sentenced to 15 years on CPW2 and 7 years for CPW3, to run concurrently. He was paroled in late 2018.

         Hernandez's application for habeas relief advances two principal themes pled as eight separate claims. His first two claims allege that his CPW convictions "resulted in a miscarriage of justice" and that he was "deprived of a fair trial." Petition at 7. His remaining five claims challenge, on due process, fairness, and statutory grounds, the validity of his adjudication as a second violent felony offender. Id. As discussed below, none of these claims presents a basis for habeas relief.

         Accordingly, the application for a writ of habeas corpus is denied and the petition is dismissed.

         BACKGROUND

         A. Trial

         Trial eyewitnesses to the shootout included two women, Shaquil Butler and Sandra Vicks, whose apartments overlooked the partially lit courtyard where the violence occurred. According to Butler, Hernandez emerged from a building and opened fire first, striking Lewis, who stumbled, fired back once and tried to run, when Hernandez then fired again, between four and eight times. Hernandez then went towards Lewis's body, lying motionless on the ground; Butler watched Hernandez strike Lewis in the face with his gun and then stomp on him repeatedly.

         Next, Butler noticed a second person (the other shooting victim) lying on the ground closer to the boardwalk side of the courtyard. She then saw Hernandez also take notice and run to see whether that other victim was alive. Hernandez then returned to Lewis's body, picked up Lewis's gun, and hit him with it again, saying "this is all your fault." Trial Transcript ("T.") at 331. The other witness, Vicks, testified that she saw Hernandez firing several shots toward Lewis and that he looked enraged. She did not see Lewis or anyone shooting a weapon. After calling 911 and returning to her window, Vicks saw two bodies on the ground; Hernandez was next to one of them, pulling that victim's jacket while kicking him and telling him to wake up. Vicks also saw Hernandez with a gun still in his hand go toward a nearby group of onlookers and tell them to get help, and watched Hernandez leave and return to the courtyard several times.[1]

         The prosecution also called victim Lewis's mother, Joyce Ealey, who testified that before the shootout Hernandez, her son, and she were among the guests at a large party that ended abruptly after a dispute arose between two other youths. She had urged her son-ultimately without success-not to go outside, where she feared the conflict would escalate. She did not witness the gunfight but when she heard the shots she immediately feared for her son.

         Police responding to the report of a shooting and the involvement of a black male dressed in army camouflage fatigues saw a man matching this description (later identified at Hernandez) running from the courtyard. Seeing the police, Hernandez tossed the two weapons he was carrying over a fence into the bushes-a Glock .9-millimeter gun and an Intratec-9 handgun. Police promptly recovered both guns as they arrested Hernandez.

         The ballistics evidence generally corroborated the prosecution's account. Inter alia, eleven cartridge cases were recovered from the scene; ten had been fired from the Glock handgun-the weapon Hernandez admits using-while the eleventh was fired from the Intratec-9-the weapon attributed to Lewis. T. S26-556.[2]

         Hernandez, in his testimony, placed himself at the same party Ealey described. He was there with McEaddy (the other eventual shooting victim), who was his friend since childhood.

         Hernandez testified that he was unarmed, and that as McEaddy and he left the party, they were ambushed by Lewis and his two companions, Brian and Mike. Lewis and Brian each pulled out a gun (Brian's was the Intratec-9 that was later recovered). Suspecting Mike was also about to pull out a gun, Hernandez "hit him" and "rushed him and his back went up against the gate," causing Mike to "drop" his gun, which Hernandez then retrieved as Mike fled. T. 611. (This was the Glock .9 millimeter that Hernandez later tossed as the police arrived). Lewis then began shooting at Hernandez; Hernandez first testified that he had no "independent recollection of pulling a trigger," and then admitted, "I shot back at him." (T. 610). The following ensued:

Q: And on that date, there came a time when you came in to possession of a loaded handgun, correct?
A: Yes.
Q: And you then used that handgun, you pointed it and you fired it at Alan Lewis...?
A: Yes.
Q: And you pulled the trigger, you fired it more than once, right?
A: Yes. (T. 612-13).

         Hernandez then admitted the essence of much of what Vicks and Butler had said happened next: namely, that after he was done firing the weapon, he ran over to McEaddy's body, then back to Lewis's, and seeing that he was also dead, picked up the Intratec-9 handgun lying nearby and struck Lewis with it, hitting him in the face and chest several times. T. 613-14.

         Finally, Hernandez admitted that after leaving the courtyard, when he reached the front side of the building still dressed in head-to-toe camouflage, he had that Intratec-9 in one hand and .9 millimeter Glock (which he'd taken from Mike and used to kill Lewis) in the other.[3]

         B. Sentencing

         At sentencing, the prosecution filed a statement reporting that Hernandez was convicted in 1992 in Kings County Supreme Court of CPW2 and assault in the first degree, and incarcerated from May 1992 through September 2003-facts that Hernandez confirmed upon the court's inquiry. Sentencing Transcript ("ST.") at 3. The court then adjudicated Hernandez a second violent felony offender pursuant to N.Y. Penal Law §70.04.

         The court permitted Ealey to speak about the impact of her son's death. She described Lewis as "innocent" and told Hernandez she hoped he would "rot in hell" and that he "deserve[d] to be behind bars in a cage." ST. at 5. Hernandez expressed remorse that "[t]wo people lost their lives over something senseless." Id. at 8. He again stated that he "didn't go looking for any trouble" and that he "did not possess a gun before th[e] incident took place." Id. at 8-9.

         The sentences required by the second violent felony offender statute were eight to fifteen years for CPW2 and five to seven years for CPW3. N.Y. Penal Law § 70.04 (3)(b)-(c) (eff. until Sept. 2020). The prosecution requested the maximums.

         Before imposing sentence, the Court remarked that "[t]his is the classic case that illustrates what's wrong with people having guns," and that "[t]wo young men lost their lives needlessly." ST. at 9. The court also told Hernandez that "what [he] did was pretty egregious, having these guns and firing that number of shots in that housing project at that time." Id. at 10. The court then imposed the maximum terms but declined the state's request that they run consecutively, remarking to Hernandez, "I'm going to run those sentences concurrently because the evidence established the second gun you possessed was in the possession of someone else and you picked it up after the shooting." Id. at 11.

         C. Appeal

         Of the grounds Hernandez raised on direct appeal, relevant here is his claim that the verdicts were inconsistent in that the murder acquittal necessarily meant that his possession of the gun was innocent, which, in turn, meant (according to Hernandez's argument) that the evidence was legally insufficient to support the CPW convictions. Also relevant here is his claim that counsel was ineffective at sentencing for failing to object-again, on the basis of the murder acquittal-to Ealey's victim impact statement and to the court's reference to the death of two young men. Finally, Hernandez advanced an excessive-sentence claim. The Appellate Division, ...


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