Diaz v. Bellnier

FREDERICK DIAZ, Petitioner,

v.JOSEPH L. BELLNIER, Respondent.

08 CV 4009 (MKB)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

Dated: September 24, 2012

MEMORANDUM & ORDER

MARGO K. BRODIE, United States District Judge:

Petitioner Frederick Diaz brings the above-captioned pro se petition pursuant to 28 U.S.C. § 2254, in which he alleges that he is being held in state custody in violation of his federal constitutional rights. Petitioner's claims arise from a judgment of conviction after a jury trial in New York Supreme Court, Kings County, for four counts of murder (two counts of murder in the second degree and two counts of felony murder). Petitioner was sentenced to 50 years to life imprisonment. Petitioner appealed his conviction to the New York Appellate Division, Second Department, claiming that: (1) he was denied due process when the trial court failed to instruct the jury not to consider his co-defendant's confession as evidence of Petitioner's guilt; (2) the prosecutor's summation was prejudicial; (3) the trial court's instructions regarding the burglary charge were erroneous; and (4) the consecutive sentences were excessive and harsh. The Appellate Division rejected Petitioner's claims and affirmed his conviction. People v. Diaz, 544 N.Y.S.2d 500 (App. Div. 1989). On October 26, 1989, the New York Court of Appeals denied leave to appeal. People v. Diaz, 74 N.Y.2d 895 (1989). In the instant petition, Petitioner asserts (1) ineffective assistance of trial counsel; (2) prosecutorial misconduct; (3) newly discovered evidence through DNA tests; and (4) actual innocence. For the reasons set forth below, the petition is denied.

I. Background

The evidence at trial established that on October 12, 1984, the victims - Zina Kogan and her twelve-year-old son, Edward Kogan - were stabbed to death with two types of knives and that Zina Kogan was also strangled. (Resp. Aff. Ex. B1 (Trial Transcript ("Tr.") 133-37).) On the evening of the murders, Abraham Schwartman, Zina Kogan's father, had been in his daughter's apartment visiting with her and left the apartment at approximately 6 p.m. (Tr. 20.) Shortly after Mr. Schwartzman left his daughter's apartment, neighbors below Zina Kogan's apartment heard excessive noise and called Mr. Schwartzman, who returned within 10 minutes to his daughter's apartment. (Id.) Because the door was locked, he entered his daughter's apartment from the window of a vacant apartment next door. (Id.) Mr. Schwartzman found Zina Kogan lying on the floor. (Id.) At around 6:15 p.m., Officer Cavallaro was called to the apartment and found Zina Kogan's body face down and Edward Kogan's body in his room. (Tr. 23-24.)

Nearly a year later, on separate dates in early October 1985, Petitioner and his co-defendant, David Diaz ("David") (no relation to Petitioner), both eighteen-years-old, were questioned by Detectives Powell and Flaherty after police were contacted with information implicating Petitioner and David in the Kogan murders. (Tr. 155-56, 172-75, 191-92, 205.) Both Petitioner and David were advised of their Miranda rights and initially denied any involvement in the murders. (Tr. 39-40, 86-88, 100-01.)

Following a polygraph test and several hours of questioning, Petitioner agreed to make a statement. (Tr. 103.) After notifying Petitioner of his Miranda rights, Assistant District Attorney Pasquale D'Orsi questioned Petitioner about the murders on videotape. (See Tr. 140-45; Resp. Aff. Ex. F (Videotaped Statement Transcript ("Video Tr.")); Resp. Aff. Exs. D & E (videotaped statements transferred to digital video discs).)¹

Petitioner stated that he and David planned to rob the Kogan apartment and that he was armed with a pocket knife and that David had a dagger. (Video Tr. 1-4; Tr. 142-43.) Petitioner and David had both worked for the husband and father of the murder victims, Alex Kogan, and knew where the Kogans lived and that they kept money in their home. (Video Tr. 4; Tr. 38, 44, 174, 189.) Petitioner stated that they knocked on the door and that David told Zina Kogan that they were sent by her husband to do some repairs. (Video Tr. 6.) Zina Kogan let them in and tried to contact her husband but could not reach him. (Id.) Petitioner stated that he was surprised when David then went behind Zina Kogan and stabbed her repeatedly. (Id. at 8.) Petitioner then stated that David went to the boy's room and stabbed him too. (Id. at 9.)

Petitioner further stated that David did all the stabbing of the victims and only admitted to choking Zina Kogan with a telephone cord because she was making noises and he was afraid that she would identify them to the neighbors knocking on the door. (Video Tr. 10.)²

Petitioner stated that David found a gun but that they did not have time to take anything else since neighbors had started knocking on the door. (Id. at 9.) Petitioner and David leftthrough the window and ran down the fire escape. (Id. at 10.) Once home, Petitioner took off his clothes and threw them in the garbage along with the knife. (Id. at 11.) Petitioner stated that David took the gun to his grandmother's home where it was later discarded by David's stepfather. (Id.) The videotaped statements of Petitioner and his co-defendant were played for the jury. (Tr. 143, 149.)

At trial, Petitioner took the stand and testified that he was taken into custody at 10 a.m. on October 4, 1984, and that he denied any involvement in the Kogan murders for four hours. (Tr. 175-76, 178.) Petitioner further testified that the detectives berated him, yelled at him and threatened to hit him if he did not talk. (Tr. 177-78,183.) Similar to David, Petitioner testified that the detectives fed him information about the crime (Tr. 178-79, 184-187) and that neither the statement he gave to police nor the videotaped statement to the Assistant District Attorney was true. (Tr. 186-88.) Petitioner denied any involvement in the murders (Tr. 187-88) and denied telling his friends that he had participated in the Kogan murders. (Tr. 192-95.) Petitioner testified that he confessed only after being told that he had failed the polygraph test, that David was implicating him, and that the detective administering the polygraph test, Detective Ponzi, said that he would get "one to three" if he confessed and put all the blame on David. (Tr. 200, 203-04.) The jury found Petitioner and David guilty of four counts of murder (two counts of murder in the second degree and two counts of felony murder) and each received 50-years-to-life sentences. (Tr. 327; Resp. Aff. Ex. C (Sentencing Transcript 7, 10).)

Petitioner appealed the conviction alleging that (1) he was denied due process when the trial court failed to instruct the jury not to consider his co-defendant's confession as evidence of Petitioner's guilt; (2) the prosecutor's summation was prejudicial; (3) the trial court'sinstructions regarding the burglary charge were erroneous; and (4) the consecutive sentences were excessive and harsh. The Appellate Division rejected Petitioner's claims regarding the jury instructions and the summation as unpreserved, found that his sentence did not warrant a reduction and affirmed his conviction. People v. Diaz, 544 N.Y.S.2d 500 (App. Div. 1989). On October 26, 1989, the Court of Appeals denied leave to appeal. People v. Diaz, 74 N.Y.2d 895 (1989).

On February 28, 2006, Petitioner filed a post-conviction motion pursuant to N. Y. Criminal Procedure Law § 440 ("440 motion") seeking an order directing DNA testing on evidence from the crime scene and to vacate his sentence or to modify his sentence based on (1) ineffective assistance of counsel; (2) prosecutorial misconduct; and (3) newly discovered evidence. (Pet. 4; Resp. Aff. Ex. J (state court 440 motion).) In its opposition papers, the People noted that many of Petitioner's claims were based on the trial record, and thus, they were procedurally barred. (Resp. Aff. Ex. K (People's Memorandum of Law Opposing 440 motion 1-5).) In his reply papers, Petitioner claimed he was actually innocent in order to defeat the procedural bar rule. (Pet. Ex. C (Aff. in Support of 440 motion 15-16).) On August 27, 2007, the trial court denied Petitioner's 440 motion for DNA testing and to vacate or modify Petitioner's conviction. (Resp. Aff. Ex. L (Judge Reichbach's Decision and Order).) The trial court found that (1) the crime scene evidence was no longer available for testing, (2) the "vast majority of [Petitioner's] claims [were] based on the record" and therefore barred from review, (3) Petitioner failed to show ineffective assistance of counsel, and (4) the sentence imposed was "not illegal or otherwise invalid." (Id.) On December 24, 2007, the Appellate Division denied leave to appeal (Pet. 6-7, Ex. C (Appellate Division Decision).) On February 21, 2008, May 19,2008, and September 9, 2008, the Appellate Division denied Petitioner's repeated motions for reargument. (Pet. Ex. C (Appellate Division Decisions).) On September 23, 2008, Petitioner filed the instant petition.³

II. Discussion

a. Standard of Review

Under 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), an application for a writ of habeas corpus by a person in custody pursuant to a state court judgment may only be brought on the grounds that his or her custody is "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A petitioner is required to show that the state court decision, having been adjudicated on the merits, is either "contrary to, or involved an unreasonable application of, clearly established Federal law" or "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); Lafler v. Cooper, 566 U.S. —, —, 132 S. Ct. 1376, 1390 (2012).

For the purposes of federal habeas review, "clearly established law" is defined as "the holdings, as opposed to dicta, of [the Supreme] Court's...