United States District Court, E.D. New York
MEMORANDUM & ORDER
RAYMOND J. DEARIE, UNITED STATES DISTRICT JUDGE.
the Court is the application of petitioner Charles Hernandez
for a writ of habeas corpus pursuant to 28 U.S.C. §2254.
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,"
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
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.
the application for a writ of habeas corpus is denied and the
petition is dismissed.
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.
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
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.
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
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.
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.
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?
Q: And you then used that handgun, you pointed it and you
fired it at Alan Lewis...?
Q: And you pulled the trigger, you fired it more than once,
A: Yes. (T. 612-13).
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.
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.
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
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.
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
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.
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