Ortiz v. United States

ORLANDO ORTIZ, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

18-CV-4407(JS)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

August 23, 2019

MEMORANDUM AND ORDER

APPEARANCES

For Petitioner:

Orlando Ortiz, prose

#15-A-2062

Great Meadow Correctional Facility

P.O. Box 51

Comstock, New York 12821

For Respondent:

Andrea M. DiGregorio, Esq.

Nassau County District Attorney's Office

262 Old Country Road

Mineola, New York 11501

SEYBERT, District Judge:

Pending before the Court is pro se petitioner Orlando Ortiz's ("Petitioner") Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He raises five issues: (1) that the prosecution failed to disprove his justification defense beyond a reasonable doubt; (2) that the trial court erred in failing to provide a jury charge for a lesser included offense; (3) that a missing witness charge was improperly given; (4) that he was entitled to a hearing related to allegations of juror misconduct; and (5) that the imposed sentence was harsh and excessive. For the following reasons, the Petition is DENIED in its entirety.

BACKGROUND

I. The Offense Conduct

On December 23, 2013, at approximately 6:00 P.M., Richard Baccus ("Baccus") went to Ay Caramba Restaurant (the "Restaurant"), on West Merrick Road in Nassau County, New York. (Tr. 1280:8-1281:21.)¹ Baccus lived close to the Restaurant and would frequent the location a few times per week, this time bringing a Christmas tree to give to the Restaurant. (Tr. 1281:19-1283:1.) After Baccus arrived, Petitioner, Petitioner's brother Reynaldo Ortiz, and Deo Singh ("Singh") also came to the Restaurant; Elvis Hernandez ("Hernandez") was working at the Restaurant that night. (Tr. 1082:25-1086:1; 1280:8-17; 1284:5-1284:20.) At approximately 11:45 P.M. Hernandez noticed a verbal dispute began between the aforementioned patrons, which eventually turned physical. (Tr. 1287:24-1289:2.) According to Singh, the argument was mainly between Baccus and Petitioner, and it was about Baccus claiming he was security and carried a badge. (Tr. 1092:19-1094:15.) At one point, Hernandez had to break up the fight, which appeared to be between Petitioner and his brother against Baccus, and asked Baccus to leave the establishment. (Tr. 1289:21-1290:22.) Baccus left and was followed outside by Singh, Petitioner, and Petitioner's brother. (Tr. 1290:23-1291:9.)

Once in the parking lot of the Restaurant, Petitioner and Baccus continued arguing. (Tr. 1096:23-1097:16, 1290:23-1293:9.) Hernandez observed approximately fifteen minutes of more arguing, Baccus then walked to his car and got into the driver's seat of his car. (Tr. 1099:9-1099:18; 1294:11-1294:14.) Petitioner then approached the driver's side of Baccus' car, carrying a revolver in his waistband, and fired multiple gunshots into the car at Baccus. (Tr. 1099:19-1100:12; 1294:16-1295:21.) Petitioner then placed the revolver back into his waistband, walked away from the location, and his brother went after him. (Tr. 1297:25-1298:9.)

Both Hernandez and Singh witnessed the shooting of Baccus, Singh standing approximately four to five feet away from the incident and Hernandez watching from inside the establishment. (Tr. 1099:19-1100:14; 1292:6-12; 1293:4-12; 1294:11-1295:19.) Once Petitioner and his brother left the location, Hernandez went out to the parking lot and saw Baccus in the driver's seat of the car with blood on his face. (Tr. 1298:24-1299:4.) Following the incident, Singh called the police from his cellular phone. (Tr. 1101:2-1101:11.) Neither Hernandez or Singh saw Baccus with anything in his hands during the incident and Singh never heardBaccus make any threats to Petitioner. (Tr. 1102:11-1102:23; 1296:19-1296:21.)

Following Singh's 911 call, multiple members of law enforcement responded to the scene, where they found Baccus slumped over, deceased, in the driver's seat of the car, with multiple gunshot wounds to the left side of his head. (Tr. 648:2-652:17; 694:7-698:22.) In addition, Ambulance Medical Technicians who responded to the scene, observed Baccus deceased in the driver's seat of the car, with bullet wounds to his head, and with his left hand underneath his leg and a flashlight in that hand. (Tr. 831:12-832:4; 837:9-844:2.) Baccus was removed from the car and taken to the Nassau County Medical Center morgue. (Tr. 946:12-946:17.)

Members of law enforcement searched the car Baccus was in and recovered the flashlight from the driver's side seat. (Tr. 947:17-948:9; 948:25-949:15.) In addition, law enforcement searched Baccus' body and recovered a badge from his jacket pocket. (Tr. 1426:20-1427:7.) Upon further investigation, it was determined that the badge was fake. (Tr. 1427:8-1428:4.) No firearm or ballistics evidence was recovered from the scene. (Tr. 999:7-999:23.) Following an autopsy performed by the Nassau County Medical Examiner's Office, eight bullets and one bullet fragment were removed from Baccus' head. (Tr. 1429:2-1429:15.) The autopsyconfirmed that any of the nine shots fired could have caused the death of Baccus. (Tr. 1580:13-1581:3.)

From interviewing witnesses and gathering evidence, law enforcement learned Petitioner's identity. They obtained cell site records mapping the location of Petitioner's cellular phone, revealing that Petitioner's phone was in Delaware. (Tr. 1239:10-1263:21.) Ultimately, law enforcement learned that Petitioner had returned to Nassau County and on December 30, 2013, Petitioner was arrested at 550 Sunrise Highway, Baldwin, New York. (Tr. 1625:4-1635:8.)

Upon arrest, Petitioner was transported to the homicide squad, during transport Petitioner was provided his Miranda warnings, following which Petitioner stated that his family was in danger. He subsequently requested to speak to an attorney when he was in the interview room at the precinct. (Tr. 1816:8-1821:20.) The next day, though Petitioner had stated that he wished he had an attorney, Petitioner informed law enforcement that Baccus was a bad news guy, had threatened him and flashed around a badge, and expressed continued concern for the safety of his family. (Tr. 1826:13-1827:22.) Members of law enforcement confirmed that Petitioner did not have a permit to carry a firearm. (Tr. 1830:14-1832:3.)

II. The Suppression Hearing and the Trial

From October 14, 2014 through October 22, 2014, a suppression hearing was held in New York Supreme Court, Nassau County, during which the hearing court heard testimony from law enforcement witnesses to resolve evidentiary issues prior to trial. (See Hr'g Tr.)

Petitioner's jury trial began on October 27, 2014 in Supreme Court, Nassau County. At trial, the prosecution presented the testimony of numerous law enforcement witnesses involved in the investigation of this matter, as well as expert witnesses and civilian eyewitnesses Singh and Hernandez. (See Trial Transcripts.) In addition, the prosecution introduced video surveillance obtained from Ay Caramba Restaurant that captured portions of the incident. (Tr. 1006:3-1021:5.)² After the prosecution's case, defense counsel put on a case calling Det. Michael Carey, law enforcement witness, and Petitioner to testify on his own behalf. (Tr. 2131:25-2589:16.) According to Petitioner's testimony, on the incident date he went to Ay Caramba Restaurant to spend time with his brother, planning to head to work that evening at the MJ Harlem AMC Theatres. (Tr. 2247:16-2248:13; 2256:1-2256:15.) Petitioner stated that he was carrying a firearm on his hip while at the establishment because he wasworking late at night and the security was not very good. (Tr. 2272:6-2272:23.) Petitioner stated that while at the establishment Singh introduced him to Baccus. (Tr. 2258:6-2258:21.) Petitioner stated that he engaged in a conversation with Baccus, and Baccus told him that he was a U.S. Marshal, that he was at Ay Caramba working security, and that he had a badge that he showed him. (Tr. 2259:9-2260:10.) Petitioner then observed Baccus become increasingly aggressive, fighting with patrons, including Singh, and Petitioner tried to calm Baccus down. (Tr. 2265:9-2268:9.) Petitioner testified that Baccus became physical with him, grabbed his arm and then sliced his brother's finger, repeatedly stating "let's fight" to the patrons. (Tr. 2271:17-2271:23.) The fighting continued, in that Baccus continued to verbally argue, and stated that he was carrying a firearm. (Tr. 2277:11-2278:9.) Petitioner stated that Hernandez kicked Baccus out of the establishment, and Baccus continued to say that the fight was not over. (Tr. 2280:14-2281:22.) Petitioner and Baccus exited the Restaurant. Eventually, Baccus entered the driver's seat of the car he drove to the establishment and Petitioner approached the car to try to calm Baccus down. (Tr. 2288:3-2298:11.) When Petitioner approached the car window, his brother was standing behind him, he alleged that Baccus pointed a gun at him and Petitioner believed Baccus was going to kill him or his brother. (Tr. 2299:2-2302:23.) Petitioner testified thatBaccus stated he was going to kill him, while pointing the gun at him, so Petitioner fired his gun at Baccus. (Tr. 2303:14-2304:22.) After he fired his gun, Petitioner got into his car and drove away, throwing his gun into a trashcan. (Tr. 2311:12-2311:25.) Petitioner stated that to protect the safety of his family he drove until he reached the state of Delaware but returned home the next day. (Tr. 2312:22-2313:13.)

Following the defense case, the Government re-called a member of law enforcement to testify and then rested. (Tr. 2656:20-2662:2.) Defense counsel and the Government provided their summations, the jury received instructions, and jury deliberations commenced. (Tr. 2712:23-2913:23.)

On December 22, 2014, the jury found Petitioner guilty of Manslaughter in the First Degree and Criminal Possession of a Weapon in the Second Degree, and he was acquitted of Murder in the Second Degree. (Tr. 3012:3-3012:24.)

III. The Post-Verdict Motion

On January 12, 2015, P...