Arevalo v. Artus

104 F.Supp.3d 257

Jose AREVALO, Petitioner,

v.Dale ARTUS, Respondent.

No. 2:09–CV–559 WFK.

United States District Court, E.D. New York.

May 13, 2015.

Jose Arevalo, Albion, NY, pro se.

Jason Richards, Nassau County District Attorney's Office, Mineola, NY, for Respondent.

DECISION AND ORDER

WILLIAM F. KUNTZ II, District Judge.

Jose Arevalo (“Petitioner”) brings this pro sePetition for Writ of Habeas Corpus,pursuant to 28 U.S.C. § 2254, attacking his 2006 state convictions resulting from a robbery in Nassau County, New York. Dkt. 1 (“Petition”). For the reasons set forth below, the Petition is DENIED in its entirety.

BACKGROUND

I. Relevant Factual History

A. Alleged Crime, Arrest, and Charges

On March 11, 2006, nineteen-year-old Julio Apolinar was walking home with his mother when they were accosted by Petitioner and an accomplice, Marco Hernandez. Dkt. 5 (“Answer”) at 1. After Mr. Apolinar asked his mother to go home without him, Petitioner and Mr. Hernandez forcibly took Mr. Apolinar's shirt and two necklaces, allegedly using a knife in the process. Id.

Later that day, Mr. Apolinar identified Petitioner and Mr. Hernandez as the men who robbed him. Id.Mr. Apolinar made the identification while riding in a police car and observing Petitioner and Mr. Hernandez outside a deli. Id.Police officers chased Petitioner and Mr. Hernandez through the deli into a parking lot and arrested them there. Id.Mr. Apolinar's shirt was found on the ground near Petitioner and Mr. Hernandez, and the two necklaces were found in Mr. Hernandez's back pocket. Id.;Dkt. 20–6 (“Suppression Ruling”) at 1. Petitioner and Mr. Hernandez both waived their Mirandaand other constitutional rights and admitted they had jointly robbed Mr. Apolinar at knifepoint. Answer at 2. Petitioner and Mr. Hernandez were charged with First Degree Robbery in violation of N.Y. Penal Law § 160.15(3), Second Degree Robbery in violation of N.Y. Penal Law § 160.10(1), Fourth Degree Grand Larceny in violation of N.Y. Penal Law § 155.30(5), and Fifth Degree Criminal Possession of Stolen Property in violation of N.Y. Penal Law § 165.40. Id.

B. The Suppression Hearing and Trial

On August 9, 10, and 11, 2006, Acting Justice David P. Sullivan of the Nassau County Supreme Court in Mineola, New York conducted a suppression hearing to determine, among other issues, whether the statements given to the police by Petitioner and Mr. Hernandez were admissible. SeeDkt. 20–14 (“Suppression Hearing Part I”); Dkt. 20–15 (“Suppression Hearing Part II”). Detective Luis Salazar, who interviewed Petitioner and Mr. Hernandez and took their statements, testified at the suppression hearing. Suppression Hearing Part I at 59–71; Suppression Hearing Part II at 2–67. Justice Sullivan ruled, inter alia,that Petitioner and Mr. Hernandez knowingly and intelligently waived their rights, and therefore their statements to the police were admissible. Suppression Ruling at 2.

Petitioner and Mr. Hernandez were each convicted of Second Degree Robbery, Fourth Degree Grand Larceny, and Fifth Degree Criminal Possession of Stolen Property after a joint jury trial in October 2006. Dkt. 20–23 (“Trial Transcript Part XIII”) at 12–16. Petitioner and Mr. Hernandez were each acquitted of First Degree Robbery. Id.at 12.

C. The Sentencing

On January 19, 2007, Justice Sullivan sentenced Petitioner to a determinate term of ten years in prison for the Second Degree Robbery count, a concurrent term of one and a third to four years for Fourth Degree Grand Larceny, and one year concurrently for Fifth Degree Criminal Possession of Stolen Property. Dkt. 20–17 (“Sentencing”) at 9. At sentencing, Petitioner's counsel (“Trial Counsel”) moved to set aside the verdict pursuant to N.Y.Crim. Proc. Law § 330.30on the grounds of, inter alia,ineffective assistance of counsel. Id.at 6. Justice Sullivan denied the motion, ruling Petitioner had received “meaningful representation” and effective assistance of counsel. Id.at 7.

D. The Direct Appeal

Petitioner appealed his conviction to the New York Supreme Court, Appellate Division, Second Department (“Second Department”) on the following grounds: (1) ineffective assistance of counsel; (2) rights violation under the Vienna Convention; (3) involuntarily obtained statement; (4) insufficient evidence for jury verdict; and (5) excessive sentence. People v. Arevalo,54 A.D.3d 380, 862 N.Y.S.2d 586, 587–88 (2d Dep't 2008). On August 12, 2008, the Second Department affirmed Petitioner's conviction on all grounds. Id.

On October 3, 2008, the New York Court of Appeals denied Petitioner's request for leave to appeal. People v. Arevalo,11 N.Y.3d 829, 868 N.Y.S.2d 604, 897 N.E.2d 1088 (2008).

E. The Habeas Corpus Petition

On February 2, 2009, Petitioner filed the instant petition for writ of habeas corpuspursuant to 28 U.S.C. § 2254(a). SeePetition. Petitioner reasserts all claims asserted in his direct appeal except for the excessive sentence claim. First, Petitioner argues he received ineffective assistance of counsel under federal and New York State law. Petition at 5. Specifically, Petitioner argues that Trial Counsel, inter alia,was inexperienced and stylistically clumsy, wrongfully insisted on a joint trial, wrongfully conducted a unified defense, did not ask proper questions of witnesses and prospective jurors, and failed to make the appropriate arguments on summation. Id.Second, Petitioner argues his rights were violated under the Vienna Convention when the police failed to advise him of his right to notify the El Salvador consulate of his detention. Id.at 6. Third, Petitioner argues his statement to the police was involuntarily obtained because Petitioner could not read or write, had limited education, was a foreign national, and knew nothing about his rights under the American criminal justice system. Id.at 8. Furthermore, Petitioner argues the translator took no measures to ensure Petitioner understood his waiver. Id.Lastly, Petitioner argues there was insufficient evidence for the jury to find him guilty beyond a reasonable doubt. Id.at 9. As relief, Petitioner asks for a new trial or, in the alternative, a reduction of his sentence. Id.at 13. The Court will consider each argument in turn.

DISCUSSION

I. Standard of Review

The Court “shall entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). “In order to obtain relief, an individual in custody must demonstrate, inter alia,that he has: (1) exhausted his potential state remedies; (2) asserted his claims in his state appeals such that they are not procedurally barred from federal habeasreview; and (3) satisfied the deferential standard of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), if his appeals were decided on the merits.” Edwards v. Superintendent, Southport C.F.,991 F.Supp.2d 348, 365–66 (E.D.N.Y.2013)(Chen, J.); see also Philbert v. Brown,11–CV–1805, 2012 WL 4849011, at *5 (E.D.N.Y. Oct. 11, 2012)(Garaufis, J.).

“[H]abeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal.” Harrington v. Richter,562 U.S. 86, 103, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011)(internal quotation marks and citation omitted). As the statute instructs:

(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 in the State court proceeding.

28 U.S.C. § 2254(d). The question is “not whether the state court was incorrect or erroneous in rejecting petitioner's claim, but whether it was objectively unreasonable in doing so.” Ryan v. Miller,303 F.3d 231, 245 (2d Cir.2002)(citing Sellan v. Kuhlman,261 F.3d 303, 315 (2d Cir.2001)) (internal quotation marks, alterations, and emphases omitted). The petition may be granted only if “there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents.” Harrington,562 U.S. at 102, 131 S.Ct. 770.

II. Discussion

A. Ineffective Assistance of Counsel

Strickland v. Washington,466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), sets forth the relevant federal law governing ineffective assistance of counsel claims. Under Strickland,counsel is strongly presumed effective and adequate until shown to be otherwise. Id.at 689–90, 104 S.Ct. 2052. To overcome the presumption of counsel's adequacy and to prove a deprivation of the Sixth Amendment right to effective assistance of counsel, a criminal defendant must show that (1) his counsel's conduct was “outside the wide range of professionally competent assistance,” and (2) “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id.at 690, 694, 104 S.Ct. 2052.

On federal habeasreview, in reviewing a state court's application of the Stricklandstandard, “[t]he pivotal question is whether the state court's application of the Stricklandstandard was unreasonable. This is different from asking whether defense counsel's performance fell below Strickland'sstandard. Were that the inquiry, the analysis would be no different than if, for example, [the district court] were adjudicating a Stricklandclaim on direct review of a criminal conviction in a United States [D]istrict [C]ourt.” Harrington,562 U.S. at 101, 131 S.Ct. 770.

Here, ...