# Bonilla v. Griffin

> District Court, E.D. New York · August 15, 2019

URL: https://www.frixlaw.com/law-library/cases/10302867

## Case

- **Court:** District Court, E.D. New York
- **Decided:** August 15, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

_____________________

No 16-CV-3676 (JFB)
_____________________

ULISES BONILLA,

Petitioner,

VERSUS

THOMAS GRIFFIN,

Respondent.

___________________

MEMORANDUM AND ORDER
August 15, 2019
___________________
JOSEPH F. BIANCO, Circuit Judge (sitting by § 265.01(2); and one count of endangering
designation): the welfare of a child, in violation of N.Y.
Penal Law § 260.10(1). (T. 1332-33.)2 On
On June 24, 2016, Ulises Bonilla June 15, 2012, petitioner was sentenced to an
(“petitioner” or “Bonilla”) petitioned this indeterminate period of incarceration of
Court for a writ of habeas corpus, pursuant to twenty-five years to life for the murder
28 U.S.C. § 2254, challenging his conviction charge, and a determinate seven and one-half
in New York State Court. (See Pet., ECF No. year period of incarceration for the rape
1.)1 On December 20, 2011, following a jury charge followed by twenty years of post-
trial, petitioner was convicted of one count of release supervision. (S. 19-20) 3 The
murder in the second degree, in violation of sentence for the rape conviction was
N.Y. Penal Law § 120.25(1); one count of imposed to run consecutively to the sentence
rape in the first degree, in violation of N.Y. imposed for the murder conviction. (S. at
Penal Law § 130.35(3); two counts of sexual 20.) Regarding the remaining counts, the
abuse in the first degree, in violation of N.Y. court ordered concurrent sentences to the
Penal Law § 130.65(3); one count of indeterminate twenty-five years to life and
criminal possession of a weapon in the fourth determinate seven and one-half year
degree, in violation of N.Y. Penal Law sentences. (S. at 20-21.)

1 The Court uses the pagination assigned by the 2“T.” refers to the trial transcript. (ECF Nos. 10-2 and
electronic case filing system when citing to the 10-3.
petition and its accompanying memoranda of law.
(ECF Nos. 1, 1-1, and 1-2.) 3 “S.” refers to the sentencing transcript. (ECF No.
10-4.)
In the instant habeas action, petitioner from J.V. and often spent time at the house
challenges his conviction on the following across the street from J.V.’s. (T. at 433, 670-
grounds: (1) “[t]he Appellate Division 73.)
rendered a decision that was an unreasonable
application of clearly established federal Despite J.V.’s initial refusal, petitioner
law, when it found that it was legally lead J.V. to a handicapped stall in the ladies
sufficient to establish petitioner’s guilt” for restroom in the park where they started
the second-degree murder and first-degree kissing. (T. at 680-83.) Shortly thereafter,
rape convictions; and (2) “[t]he Appellate petitioner began biting J.V.’s lip and
Division rendered a decision that was an removing her skirt and underwear to digitally
unreasonable application of clearly and sexually penetrate her. (T. at 684-86.)
established federal law, when it found that Uncomfortable and scared, J.V. pushed
petitioner did not unequivocally request the petitioner off, left the bathroom, and began
assistance of counsel before making walking to her home. (T. at 687-88.) I.A. and
statements to law enforcement officials.” S.D. saw J.V. and petitioner kissing, and then
(Pet. 5-7.) For the reasons discussed below, walk into the bathroom, and observed her
the petition is denied in its entirety. hiking up her skirt when she exited the
bathroom followed by petitioner. (T. at 436,
I. BACKGROUND 455.) I.A. and S.D. then left the park and
headed to J.V.’s home and told J.V.’s parents
A. Facts what they saw. (T. at 436-37, 455.) J.V.’s
father, Armando, immediately called the
The following facts are adduced from the police to report the incident and then left the
underlying record and the instant petition. house in an upset state, heading to the nearby
deli. (T. at 516-17.)
During the summer of 2010, ten-year-old
Juvenile Victim (“J.V.”) lived with her When J.V. arrived home, fearing she
mother Susana V.4, her father Armando V., would be punished, she did not tell her
her sister N.V., and her brother O.V. at 180 family what happened in the park. (T. at
Kinkel Street in Westbury, New York; 689-90.) P.O. Christopher Bendetto of the
petitioner lived down the block. (T. at 503- Nassau County Police Department
05, 670-71.) At the time, J.V. and petitioner responded to the V. family home in response
frequently saw each other and kissed. (T. at to Armando’s 911 call. (T. at 466.) P.O.
674-75.) This contact escalated and Bendetto spoke with I.A., S.D., and J.V. (T.
petitioner would touch J.V.’s breasts, vagina, at 467-68.) At this time, J.V. did not tell P.O.
and buttocks. (T. at 675.) On September 24, Bendetto about what transpired in the park
2010, in the afternoon, ten-year-old J.V. was and no arrests were made. (T. at 469, 690.)
playing in Bunkyreid Park in Westbury, New
York, with her two minor friends, ten-year- Later that evening, Armando was still at
old I.A. and eleven-year-old S.D., when the nearby deli and his friend, Angel Leon
petitioner approached them. (T. at 431-35, (“Leon”), spoke with him and observed him
673.) J.V.’s two friends recognized to be visibly upset. (T. at 473-74.) While still
petitioner because he lived down the block at the deli, Armando again called the police

4 “V.” is used in lieu of the victim and his family’s
complete last name in order to protect the identity of
the victim’s minor children involved in this incident.
to report the incident between petitioner and Armando headed to his house with Leon and
his daughter. (T. at 493.) a few others. (T. at 483-84.) Moments later,
petitioner, wearing a black do-rag and
Shortly thereafter, petitioner entered the holding a beer bottle, approached Armando’s
deli and confronted Armando about calling daughter N.V. and others who were seated
the police. (T. at 476-78.) Petitioner told together in a car parked outside the V. family
Armando, “I want to fix this man-to-man.” home. (T. at 638-40.) Petitioner told them
(Id.) A brief altercation between Armando he wanted to fight Armando and asked N.V.,
and petitioner ensued, but other patrons “Would it be okay if I kill your father?” (T.
intervened to stop the fight, and petitioner at 640-41.)
left. (Id.) Approximately ten minutes later,
petitioner returned to the deli with a few Thereafter, Armando arrived at his house
friends carrying bats and sticks, prompting and petitioner and Armando began fighting.
Armando to hide behind the counter. (T. at (T. at 774-75.) N.V. saw petitioner strike
478-79.) Unable to locate Armando, Armando with a “little metal pipe,” but
petitioner and his friends left the deli. (T. at Armando took it from petitioner and struck
480.) Police then responded to the deli and, petitioner with the pipe before dropping it.
with their escort, Armando returned home (T. at 775-76.) Armando and petitioner then
where he informed Susana of the argument started punching each other repeatedly. (T.
with petitioner. (T. at 480-81, 517.) Two at 776.) While they were fighting there were
days later, petitioner told Jocelyn Gonzalez multiple witnesses present and they
(“Gonzalez”), a friend of his, that Armando remarked that the two were fighting face-to-
jumped him at the deli and that he was going face, so close to each other that at times it
to get revenge. (T. at 636-38.) looked like they were hugging. (T. at 481-
85.) Although it was dark outside, witnesses
On September 28, 2010, at observed petitioner punch Armando in the
approximately 5:00 p.m., petitioner’s friend left torso, side, and back multiple times. (T.
Misael Berrios (“Berrios”) and a third at 484-85.)
individual (“John Doe”)5 went to the hospital
with petitioner as he had injured his hand at At the outset of the fight, N.V. saw one
work. (T. at 926-29.) After two hours at the of petitioner’s friends, Johnny, strike
hospital, the group went to Westbury Deli Armando in the leg with a stick. (T. at 777-
and purchased beers. (T. at 929-31.) 78.) N.V. tried to intervene in the fight, but
Eventually, they proceeded to 169 Kinkel Johnny pushed her to the ground and held her
Street, where they usually spent time, to there. (T. at 646.) Momentarily, during the
drink beer. 6 (T. at 932.) fight, petitioner’s sister (Diana Bonilla) hit
Armando twice in the back with her hand.
At approximately 10:00 p.m., still (T. at 778-79.) Otherwise, the fight was
drinking in the backyard at 169 Kinkel exclusively between petitioner and
Street, petitioner received a phone call Armando. (T. at 485, 507, 646, 935.)
informing him that Armando was talking to
others about him. (T. at 933.) In response, Armando’s wife Susana, hearing noises
petitioner called Armando to tell him that he outside, noticed the fight and tried to
wanted to fight him. (Id.) After the call, intervene, but Berrios took out a firearm,

5 The individual was only identified by a nickname at 6 The house at 169 Kinkel Street is across the street
trial. (T. at 928.) from the V. family home. (T. at 932.)
shot it in the air, and declared that it was a abdomen. (T. at 899-902.) It was
fight between petitioner and Armando only. determined that Armando’s cause of death
(T. at 486, 507-08, 805-06.) After the was “[m]ultiple stab wounds to [his] chest
gunshot, people began running away from and abdomen with perforation of heart,
the scene. (T. at 646.) stomach and pancreas.” (T. at 904.)

Petitioner, along with Berrios, fled Members of the Nassau County Crime
towards petitioner’s home. (T. at 939-40.) Scene Unit investigated the scene that night
Although no one saw petitioner wielding a and discovered a black do-rag, metal pipes,
knife during the fight (T. at 485, 514, 828- wooden sticks, and beer bottles. (T. at 562-
29), Berrios testified that petitioner said to 67.) In addition, a bloody knife was
him, during their flight from the scene, “I discovered in the street in front of
fucked up. I stabbed him. I got him . . . You petitioner’s home. (T. at 567-69.) Further,
are good. I fucked up. I’m done.” (T. at 939- Diana Bonilla’s Acura was parked in the
45.) Subsequently, petitioner got into the vicinity of the scene, and had bloodstains on
front passenger seat of an Acura that the rear passenger door, seatback, and
belonged to his sister and immediately drove ceiling. (T. at 585-86.) Swabs of the blood
off. (T. at 489-90, 513, 781-83.) on both the knife and the Acura were taken
for DNA testing and a DNA mixture was
Meanwhile, Armando’s family and obtained, with the major contributor being
friends noticed that Armando was bleeding the deceased. (T. at 850-53.)
heavily from his torso. (T. at 487-89.) After
taking a few steps towards his house with his On November 26, 2010, two months
wife’s aid, Armando collapsed unresponsive after the incident, following a lengthy
on the front lawn. (T. at 484-89.) investigation involving anonymous tips and
tracking petitioner’s online activity,
At approximately 10:27 p.m., P.O. James petitioner was apprehended at Pennsylvania
Monroe of the Nassau County Police Station in New York City. (H. at 15-16.)7
Department, responded to 180 Kinkel Street The arresting officer, Detective James
to find a street littered in debris, and Cereghino (“Detective Cereghino”),
Armando lying unresponsive on the ground. apprehended petitioner and transported him
(T. at 538-42.) An ambulance was called and to the Nassau County Homicide Squad
Armando was transported to Nassau (“Homicide Squad”) in Mineola, New York.
University Medical Center. (T. at 553-58.) (H. at 16.) During the trip, petitioner told
During an autopsy performed on Armando, Cereghino, “I wanted to be out for
it was discovered that Armando sustained Christmas.” (H. at 17.)
twelve stab wounds in the side of his neck,
chest, and abdomen during the incident. (T. Once they arrived at the Homicide
at 900-02.) Following an autopsy, the Squad, Detective Cereghino took petitioner
Nassau County Deputy Medical Examiner to an interview room where he was read his
confirmed that the majority of the wounds Miranda rights and then the following
were on Armando’s left chest, torso, and exchange took place:

7 “H.” refers to the transcript of the suppression
hearing held before the trial court on August 17, 2011.
(ECF No. 10-1.)
B. Procedural History
Q: Okay. Now that I have advised
you of your rights, are you willing to 1. State Court Proceedings
answer questions?
a. Suppression Hearing
A: I don’t know if I could call a
lawyer or something. On August 17, 2011, a suppression
hearing was held in Nassau County Supreme
Q: I’m sorry, could you speak up? Court, during which Detective Cereghino
testified regarding the circumstances
A: I don’t know if I could call surrounding petitioner’s arrest and
somebody to call me a lawyer or petitioner’s post-arrest statements. (H. at 6-
something. 70.) At the close of testimony, the hearing
court requested written submissions
Q: That’s up to you, whatever it is regarding whether: (1) defendant knowingly,
that you want to do. intelligently, and voluntarily waived his right
to counsel before making statements to
A: I can’t make any phone calls Detective Cereghino and (2) defendant
(inaudible)? should have been provided a Spanish
interpreter during his interactions with the
Q: Ultimately, yes, you’ll be able to police. (H. at 71.)
make a phone call, but I’m asking
you now if you want to speak to me Ultimately, the court concluded that
without a lawyer being present. petitioner did not make “an unequivocal
invocation of his right to counsel” during the
A: I could speak to you. exchange with Detective Cereghino and that
petitioner speaks and understands English
Q: You will speak to me? “perfectly well.” (H. at 101.) Therefore, the
court concluded that the lack of an interpreter
A: Yeah. was not problematic. (H. at 101.) The court
denied petitioner’s suppression motion and
(Transcript of Post-Arrest Interview 6-7.)8 his statements were deemed admissible.
Petitioner then spoke with the police and the (Id.)
entire interview, including this exchange,
was recorded by video. b. Trial and Sentencing

Petitioner was tried in Nassau County
Supreme Court starting on December 1,
2011. During the trial, the prosecution
presented evidence, including the following:
the testimony of J.V., eyewitnesses, and
members of Armando’s family; members of
the Nassau County Police Department; and

8 The transcript and DVD recording of the post-arrest
interview were not electronically filed on the docket
for this case, but have been provided to the Court.
expert witnesses involved in the On May 15, 2012, petitioner was
investigation. (T. at 430-1036.) In addition, sentenced to an indeterminate term of
defense counsel presented a case, during incarceration of twenty-five years to life for
which petitioner’s sister Diana Bonilla the murder charge and a determinate term of
testified as an alibi witness, stating that on seven and one-half years of incarceration for
September 24, 2010, petitioner was at home the rape charge followed by twenty years of
by 4:30 p.m., then they went together to a post-release supervision. (S. at 19-20.) The
tattoo parlor where they stayed until sentence for the rape conviction was
approximately 7:10 p.m., until they returned imposed to run consecutively to the sentence
home for the rest of the evening. (T. at 1057- imposed for the murder conviction. (S. at
70, 1095-98, 1100-09.) After both sides 20.) Regarding the remaining counts, the
rested, defense counsel moved for a trial court ordered they be served concurrent to
order of dismissal based on the sufficiency of the indeterminate twenty-five years to life
the evidence for “the murder and related and determinate seven and one-half year
charges and the rape and related charges.” sentences. 9 (S. at 21.)
(T. at 1166-68.) The court denied the
motion, but granted a motion to submit c. Appeals
manslaughter, as a lesser charge, to the jury.
(T. at 1167-68.) On April 16, 2014, petitioner
appealed his conviction to the Second
Following deliberations, on December Department of the New York State Appellate
20, 2011, the jury found petitioner guilty of Division, arguing that: (1) the evidence was
one count of murder in the second degree, legally insufficient to find petitioner guilty of
one count of rape in the first degree, two murder in the second degree and the
counts of sexual abuse in the first degree, one weapons-related charge; (2) the prosecution
count of criminal possession of a weapon in did not prove that petitioner committed rape
the fourth degree, and one count of in the first degree beyond a reasonable doubt;
endangering the welfare of a child. (T. at (3) the court erred in failing to sever the
1132-33.) The jury acquitted petitioner of sexual assault counts from the murder and
one count of criminal possession of a weapon weapons-related counts; and (4) petitioner
in the fourth degree. (T. at 1333.) After the did not receive a fair trial as the hearing court
jury was excused, defense counsel moved to erroneously denied the suppression of
set aside the verdict pursuant to N.Y. Crim. petitioner’s post-arrest videotaped statement.
Pro. § 330.30. (T. at 1336-37.) The motion (See App. Div. Br. at 19-60, ECF No. 10-
was denied. (T. at 1337-38. ) 5.)10

9 The specifics of the imposed sentence are as follows: criminal possession of a weapon in the fourth degree,
(1) count of murder in the second degree, twenty-five one year of incarceration to be served concurrently;
years of incarceration to life; (2) count of rape in the and (5) count of endangering the welfare of a child,
first degree, seven and one-half years of incarceration one year of incarceration to be served concurrently.
followed by twenty years of post-release supervision (S. at 19-21.)
to be served consecutively to the murder count; (3)
counts of sexual abuse in the first degree, four years 10 The Court uses the pagination assigned by the
of incarceration followed by ten years of post-release electronic case filing system when citing to
supervision to be served concurrently; (4) count of petitioner’s Appellate Division brief. (ECF No. 10-
5.)
On April 15, 2015, the Second established federal law, when it found that
Department affirmed petitioner’s conviction. petitioner did not unequivocally request the
People v. Bonilla, 127 A.D.3d 985, 985 assistance of counsel before making
(N.Y. App. Div. 2d Dep’t 2015.) The statements to law enforcement officials.”
Second Department rejected petitioner’s (Pet’r’s Memo. of Law, ECF No. 1-1.)
arguments regarding insufficiency of the Respondent filed a response in opposition to
evidence for the conviction, emphasizing the petition on October 6, 2016. (Resp.’s Br.,
that during their review of the underlying ECF No. 10.) Petitioner submitted a reply to
record, they “accord[ed] great deference to the opposition on June 23, 2016. (Pet’r’s
the jury’s opportunity to view the witnesses, Reply, ECF No. 13.) The Court has fully
hear the testimony, and observe demeanor.” considered the submissions and arguments of
Id. at 986. In addition, the Second the parties, as well as the underlying record.
Department found that the severance of
specific counts was not required as “the II. STANDARD OF REVIEW
nature of the proof for each of the offenses
was material and admissible as evidence To determine whether a petitioner is
upon the trial of the other counts.” Id. at 985- entitled to a writ of habeas corpus, a federal
86. Finally, the Second Department rejected court must apply the standard of review set
petitioner’s arguments regarding forth in 28 U.S.C. § 2254, as amended by the
suppression of his statement as “the record Antiterrorism and Effective Death Penalty
supports the . . . finding that the [petitioner] Act (“AEDPA”), which provides, in relevant
did not unequivocally request the assistance part:
of counsel before making statements to law
enforcement.” Id. at 985. Petitioner sought (d) An application for a writ of habeas
leave to appeal to the New York State Court corpus on behalf of a person in custody
of Appeals, arguing that the Second pursuant to the judgment of a State court
Department erred in affirming the hearing shall not be granted with respect to any
court’s denial of petitioner’s motion to claim that was adjudicated on the merits
suppress the statements. See People v. in State court proceedings unless the
Bonilla, 25 N.Y.2d 1198 (2015). The court adjudication of the claim –
denied leave to appeal on July 29, 2015. Id.
(1) resulted in a decision that was
2. The Instant Petition contrary to, or involved an unreasonable
application of, clearly established
On June 24, 2016, petitioner moved Federal law, as determined by the
before this Court for a writ of habeas corpus Supreme Court of the United States; or
pursuant to 28 U.S.C. § 2254. (ECF No. 1.)
Petitioner raises two issues: (1) “[t]he (2) resulted in a decision that was based
Appellate Division rendered a decision that on an unreasonable determination of the
was an unreasonable application of clearly facts in light of the evidence presented in
established federal law, when it found that it the State court proceeding.
was legally sufficient to establish petitioner’s
guilt” for the second-degree murder and 28 U.S.C. § 2554. ‘“Clearly established
first-degree rape convictions; and (2) “[t]he Federal law’ means ‘the holdings, as
Appellate Division rendered a decision that opposed to the dicta, of [the Supreme]
was an unreasonable application of clearly Court’s decisions as of the time of the
relevant state-court decision.’” Green v. Cir. 2009) (quoting Spears v. Greiner, 459
Travis, 414 F.3d 288, 296 (2d Cir. 2005) F.3d 200, 203 (2d Cir. 2006)).
(quoting Williams v. Taylor, 529 U.S. 362,
412 (2000)). III. DISCUSSION

A decision is “contrary to” clearly Petitioner argues that he is entitled to
established federal law, as determined by the habeas relief as the state court unreasonably
Supreme Court, “if the state court arrives at applied federal law in concluding that:
a conclusion opposite to that reached by [the (1) the evidence at trial was sufficient to
Supreme Court] on a question of law or if the establish his guilt of murder in the second
state court decides a case differently than degree and rape in the first degree; and
[the Supreme Court] has on a set of (2) petitioner did not unequivocally request
materially indistinguishable facts.” assistance of counsel before making
Williams, 529 U.S. at 413. A decision is an statements to law enforcement officers. (Pet.
“unreasonable application” of clearly at 5-7.) For the reasons discussed below, the
established federal law if a state court Court denies petitioner’s request for habeas
“identifies the correct governing legal relief. Petitioner’s insufficiency of the
principle from [the Supreme Court’s] evidence claim is procedurally barred, and,
decisions but unreasonably applies that in any event, the Court concludes that it lacks
principle to the facts of [a] prisoner’s case.” merit. The suppression of evidence claim,
Id. though adequately exhausted, fails on the
merits.
AEDPA establishes a deferential
standard of review: ‘“a federal habeas court A. Procedural Requirements
may not issue the writ simply because that
court concludes in its independent judgment 1. Exhaustion
that the relevant state-court decision applied
clearly established federal law erroneously As a threshold matter, a district court
or incorrectly. Rather, that application must shall not review a habeas petition unless “the
also be unreasonable.’” Gilchrist v. O’Keefe, applicant has exhausted the remedies
260 F.3d 87, 93 (2d Cir. 2001) (quoting available in the courts of the State.” 28
Williams, 529 U.S. at 411). The Second U.S.C. § 2254(b)(1)(A). Although a state
Circuit added that, while ‘“[s]ome increment prisoner need not petition for certiorari to the
of incorrectness beyond error is required . . . United States Supreme Court to exhaust his
the increment need not be great; otherwise, claims, see Lawrence v. Florida, 549 U.S.
habeas relief would be limited to state court 327, 333 (2007), he still must fairly present
decisions so far off the mark as to suggest his federal constitutional claims to the
judicial incompetence.’” Id. (quoting highest state court having jurisdiction over
Francis S. v. Stone, 221 F.3d 100, 111 (2d them, see Daye v. Attorney Gen. of N.Y., 696
Cir. 2000)). Finally, “if the federal claim F.2d 186, 191 n.3 (2d Cir. 1982) (en banc).
was not adjudicated on the merits, ‘AEDPA Exhaustion of state remedies requires that a
deference is not required, and conclusions of petitioner ‘“fairly presen[t]’ federal claims to
law and mixed findings of fact and the state courts in order to give the State the
conclusions of law are reviewed de novo.’” ‘opportunity to pass upon and correct’
Dolphy v. Mantello, 552 F.3d 236, 238 (2d alleged violations of its prisoners’ federal
rights.” Duncan v. Henry, 513 U.S. 364, 365
(1995) (alteration in original) (quoting Thompson, 501 U.S. 722, 731-32 (1991).
Picard v. Connor, 404 U.S. 270, 275 (1971)). “[A] claim is procedurally defaulted for the
purposes of federal habeas review where ‘the
However, “it is not sufficient merely that petitioner failed to exhaust state remedies
the federal habeas applicant has been and the court to which the petitioner would
through the state courts.” Picard, 404 U.S. be required to present his claims in order to
at 275-76. To provide the State with the meet the exhaustion requirement would now
necessary “opportunity,” the prisoner must find the claims procedurally barred.’” Reyes
“fairly present” his claims in each v. Keane, 118 F.3d 136, 140 (2d Cir. 1997)
appropriate state court (including a state (emphasis omitted) (quoting Coleman, 501
supreme court with powers of discretionary U.S. at 735).
review), alerting that court to the federal
nature of the claim and “giv[ing] the state Where the petitioner “can no longer
courts one full opportunity to resolve any obtain state-court review of his present
constitutional issues by invoking one claims on account of his procedural default,
complete round of the State’s established those claims are now to be deemed
appellate review process.” O’Sullivan v. exhausted.” DiGuglielmo v. Smith, 366 F.3d
Boerckel, 526 U.S. 838, 845 (1999); see also 130, 135 (2d Cir. 2004) (first citing Harris v.
Duncan, 513 U.S. at 365-66. “A petitioner Reed, 489 U.S. 255, 263 n.9 (1989); then
has ‘fairly presented’ his claim only if he has citing Grey v. Hoke, 933 F.2d 117, 120 (2d
‘informed the state court of both the factual Cir. 1991)). Therefore, “[f]or exhaustion
and the legal premises of the claim he asserts purposes, ‘a federal habeas court need not
in federal court.’” Jones v. Keane, 329 F.3d require that a federal claim be presented to a
290, 294-95 (2d Cir. 2003) (quoting Dorsey state court if it is clear that the state court
v. Kelly, 112 F.3d 50, 52 (2d Cir. 1997)). would hold the claim procedurally barred.’”
“Specifically, [petitioner] must have set forth Reyes, 118 F.3d at 139 (quoting Grey, 933
in state court all of the essential factual F.2d at 120).
allegations asserted in his federal petition.”
Daye, 696 F.2d at 191-92 (first citing Picard, However, “exhaustion in this sense does
404 U.S. at 276; then citing United States ex not automatically entitle the habeas
rel. Cleveland v. Casscles, 479 F.2d 15, 19- petitioner to litigate his or her claims in
20 (2d Cir. 1973)). To that end, “[t]he chief federal court. Instead, if the petitioner
purposes of the exhaustion doctrine would be procedurally defaulted [on] those claims, the
frustrated if the federal habeas court were to prisoner generally is barred from asserting
rule on a claim whose fundamental legal those claims in a federal habeas proceeding.”
basis was substantially different from that Woodford v. Ngo, 548 U.S. 81, 93 (2006)
asserted in state court.” Id. at 192 (footnote (first citing Gray v. Netherland, 518 U.S.
omitted). 152, 162 (1996); then citing Coleman, 501
U.S. at 744-51).
2. Procedural Bar
The procedural bar rule in the review of
Like the failure to exhaust a claim, the applications for writs of habeas corpus is
failure to satisfy the state’s procedural based on the comity and respect that state
requirements deprives the state courts of an judgments must be accorded. See House v.
opportunity to address the federal Bell, 547 U.S. 518, 536 (2006). Petitioner’s
constitutional or statutory issues in a federal claims also may be procedurally
petitioner’s claims. See Coleman v.
barred from habeas corpus review if they exhausted his claims when his letter seeking
were decided at the state level on adequate leave to appeal included no substantive
and independent grounds. See Coleman, 501 issues and simply attached his Appellate
U.S. at 729-33. Division brief to the submission instead.
Meatley, 886 F. Supp. at 1013-14. However,
Once it is determined that a claim is the instant matter is distinguishable because
procedurally barred under state rules, a petitioner did submit an issue in his letter
federal court may still review such a claim on application to the Court of Appeals.
its merits if the petitioner can demonstrate Therefore, by presenting only the motion to
both cause for the default and prejudice suppress claim in his application to the Court
resulting therefrom, or if he can demonstrate of Appeals, petitioner abandoned the other
that the failure to consider the claim will issues, including the insufficiency of the
result in a miscarriage of justice. Id. at 750 evidence claims. See Galdamez v. Keane,
(citations omitted). A miscarriage of justice 394 F.3d 68, 74 (2d Cir. 2005); Grey v. Hoke,
is demonstrated in extraordinary cases, such 933 F.2d 117, 120 (2d Cir. 1991) (“The fair
as where a constitutional violation results in import of petitioner’s submission to the
the conviction of an individual who is Court of Appeals, consisting of his brief to
actually innocent. Murray v. Carrier, 477 the Appellate Division that raised three
U.S. 478, 496 (1986). claims and a letter to the Court of Appeals
arguing only one of them, was that the other
3. Application two had been abandoned.”) Because
petitioner did not fairly present this claim to
First, as to petitioner’s claim that the the appropriate state courts “in order to give
hearing court erroneously found petitioner’s the state the ‘opportunity to pass upon and
statements admissible even though he correct’ alleged violations of its prisoners’
invoked his right to counsel, the Court finds federal rights,” this claim is unexhausted.
this claim adequately exhausted. This claim Duncan, 513 U.S. at 365 (quoting Picard,
appeared in petitioner’s direct appeal and in 404 U.S. at 275).
his brief seeking leave to appeal to the New
York State Court of Appeals. Further, the Here, petitioner no longer has any state
Second Department denied this claim on the court remedies available to him because of
merits. Accordingly, this Court will address New York State’s procedural rules, and so
the substance of this claim, applying AEDPA the insufficiency of the evidence claim is
deference. deemed procedurally defaulted. See Moss v.
New York, 10-CV-5840 (SJF), 2014 WL
Next, as to petitioner’s insufficiency of 585928, at *9 (E.D.N.Y. Feb. 12, 2014). In
the evidence claim, the Court finds that this addition, petitioner is unable to overcome
claim was not adequately exhausted as this procedural bar as he has not
petitioner failed to include this claim in his demonstrated cause or prejudice resulting
brief seeking leave to appeal to the New from the default, nor a miscarriage of justice
York State Court of Appeals. In his reply if this claim is not reviewed.
brief, petitioner argues that Meatley v. Artuz, Notwithstanding the aforementioned, the
886 F. Supp. 1009, 1014 (E.D.N.Y. 1995) Court, in an abundance of caution, will
permits his claim to be deemed exhausted. proceed to address the merits of this claim.
(See Pet’r’s Reply Br. at 1.) In Meatley, it
was determined that a petitioner adequately
B. Merits sufficiency claim unless the record is ‘so
totally devoid of evidentiary support that a
1. Insufficiency of the Evidence due process issue is raised.’” Sanford v.
Burge, 334 F. Supp. 2d 289, 303 (E.D.N.Y.
Petitioner argues that there was 2004) (quoting Bossett v. Walker, 41 F.3d
insufficient evidence to support his 825, 830 (2d Cir. 1994)). When considering
convictions for murder in the second degree the sufficiency of the evidence of a state
and rape in the first degree. (See Pet’r’s conviction, “[a] federal court must look to
Memo. of Law at 1-14.) This claim is state law to determine the elements of the
without merit. crime.” Quartararo v. Hanslmaier, 186 F.3d
91, 97 (2d Cir. 1999).
A petitioner ‘bears a very heavy burden’
when challenging evidentiary sufficiency in a. Second Degree Murder
a writ of habeas corpus. Einaugler v.
Supreme Court of New York, 109 F.3d 836, Petitioner claims that the evidence
840 (2d Cir. 1997) (internal quotation marks presented at trial was legally insufficient to
omitted) (quoting Quirama v. Michele, 983 support his conviction of second degree
F.2d 12, 14 (2d Cir. 1993)). A criminal murder because (1) no direct evidence –
conviction in state court will not be whether physical evidence or testimonial
overturned if, “after viewing the evidence in evidence – conclusively linked him to the
the light most favorable to the murder weapon (i.e., the knife); (2) the
prosecution, any rational trier of fact could government’s witness, Berrios, was not
have found the essential elements of the credible, as evidenced by his inconsistent
crime beyond a reasonable doubt.” Jackson statements and receipt of immunity from
v. Virginia, 443 U.S. 307, 319 (1979); see prosecution; and (3) there is no explanation
also Policano v. Herbert, 507 F.3d 111, 115- for why, although petitioner was seen in the
16 (2d Cir. 2007) (stating that “[i]n a front seat of his sister’s car, his blood was not
challenge to a state criminal conviction found in the backseat where the victim’s
brought under 28 U.S.C. § 2254 … the blood was discovered. (See Pet’r’s Memo.
applicant is entitled to habeas corpus relief if of Law at 1-8.)
it is found that upon the record evidence
adduced at the trial no rational trier of fact In New York, “[a] person is guilty of
could have found proof of guilt beyond a murder in the second degree when, with
reasonable doubt” (internal quotation marks intent to cause the death of another, he causes
omitted) (quoting Jackson, 443 U.S. at the death of such person . . . .” N.Y. Penal
324)). Even when ‘faced with a record of Law § 125.25[1]. The New York Court of
historical facts that supports conflicting Appeals has consistently held that the intent
inferences [a court] must presume—even if to kill can be inferred from both the
it does not affirmatively appear in the defendant’s conduct and surrounding
record—that the trier of fact resolved any circumstances. See People v. Bracey, 41
such conflicts in favor of the prosecution, N.Y.2d 296, 301 (1977); see also Bossett, 41
and must defer to that resolution.’ Wheel v. F.3d at 830 (“[A] conviction may be based
Robinson, 34 F.3d 60, 66 (2d Cir. upon circumstantial evidence and inferences
1994) (internal quotation marks omitted) based upon the evidence, and the jury is
(quoting Jackson, 443 U.S. at 326). Thus, exclusively responsible for determining a
“[a] habeas court will not grant relief on a witness’ credibility.”)
finding that petitioner was the individual
Viewing the facts in the light most who repeatedly stabbed Armando, causing
favorable to the prosecution, the Court his death. See Bossett, 41 F.3d at 830.
concludes that, based on the evidence in the
underlying record, a rational trier of fact The Court likewise rejects petitioner’s
could have certainly found proof beyond a claim that there was insufficient evidence to
reasonable doubt that petitioner was guilty of establish his guilt of second-degree murder
murder in the second degree. In particular, because Berrios was not a credible witness.
the Court finds that the following evidence Regarding the evaluation of witness
adduced at trial rationally supports the jury’s testimony, “[a]ll issues of credibility,
decision to find petitioner guilty and the including the credibility of a cooperating
Appellate Division’s affirmation of that witness, must be resolved in favor of the
finding: J.V. testified that petitioner had jury’s verdict.” United States v. Riggi, 541
sexual relations with her, which (upon her F.3d 94, 108 (2d Cir. 2008).
father learning about such relations)
provoked an altercation between her father Petitioner refers to People v. Garafolo,
and petitioner at the Westbury Deli days 44 A.D.2d 86 (N.Y. App. Div. 2d Dep’t
before the fatal fight (T. at 476-78, 635-38, 1974) to argue that Berrios’ testimony was
517); between the time of the altercation at not credible, entitling him to relief. (Pet’r’s
the deli and the fatal fight, petitioner told Mem. of Law at 4-6.) In Garafolo, a police
people he wanted to fight Armando (T. at officer testified that he observed unlawful
481-82, 638, 772, 933); immediately prior to untaxed cigarettes through a bag, which the
the fatal fight, petitioner asked Armando’s court observed was not possible. Id. at 88-
daughter, N.V., if she would mind if he killed 89. The court found that this testimony was
her father (T. at 640, 652); multiple patently incredible and necessary to support
witnesses testified that the fatal fight was the conviction; therefore, the Second
exclusively between petitioner and Armando Department reversed the conviction. Id. By
(T. at 485, 646-47, 506-07, 935); petitioner contrast, here, the jury heard an abundance
was seen repeatedly striking Armando in the of evidence aside from Berrios’ alleged
left torso, side, and back (T. at 484-85, 644, inconsistent statements, to conclude
776-77); the twelve fatal stab wounds petitioner was guilty of the crimes. See
sustained by Armando, according to medical United States v. Diaz, 176 F.3d 52, 107 (2d
testimony, corroborates witness testimony Cir. 1999) (although cooperating witness for
that petitioner struck Armando on the left the prosecution was suspected of perjury, the
side of his chest and abdomen (T. at 484-85, court found “there was an abundance of
644, 776-77, 900-02); following the fight, evidence that corroborated [the witness’s]
petitioner said to Berrios, “I fucked up. I description of these events”). Moreover,
stabbed him. I got him. You are good. I petitioner’s defense counsel thoroughly
fucked up. I’m done.” (T. at 939). questioned Berrios regarding his inconsistent
statements about seeing petitioner get in the
Therefore, although no one testified that car and petitioner’s statements. (T. at 952-
they saw petitioner wield a knife, the 53.) Further, Berrios’ cooperation
surrounding circumstances, the fact that the agreement was made known to the jury prior
murder weapon was recovered outside to the People’s direct examination. (T. at
petitioner’s residence, and petitioner’s 921-24.) Accordingly, because there was an
statements, rationally support the jury’s abundance of independent evidence to
convict petitioner of murder in the second questions by the prosecutor that arguably
degree and the jury had adequate opportunity mischaracterized J.V.’s prior testimony, and
to decide whether Berrios was a credible (2) Dr. Pompey testified that the only
witness, the Court rejects petitioner’s claim abnormal finding in J.V.’s examination was
that there was insufficient evidence to find a “V-shaped cleft at the 5 o’clock position”
him guilty of murder in the second degree. which could be consistent with both digital
penetration or partial penile penetration. (Id.
Finally, petitioner’s contention that there at 10-13). For the reasons set forth below,
was insufficient evidence of guilt because the Court finds petitioner’s arguments to be
petitioner’s blood was not found in the car he without merit.11
entered following the fatal incident also fails.
First, the Court notes that, although In New York, “[a] person is guilty of rape
petitioner’s blood was not discovered in the in the first degree when he or she engages in
aforementioned car, Armando’s blood was. sexual intercourse with another person . . .
(T. at 869-70.) In any event, as discussed [w]ho is less than eleven years old.” N.Y.
supra, given the totality of the evidence Penal Law § 130.35(3). The New York State
presented to the jury, the absence of Court of Appeals has held that “[s]exual
petitioner’s blood in the car certainly does intercourse ‘has its ordinary meaning and
not lead to a determination that no “rational occurs upon any penetration, however
trier of fact could have found the essential slight.’” People v. Carroll, 95 N.Y.2d 375,
elements of the crime beyond a reasonable 383 (2000) (citing N.Y. Penal Law
doubt.” Jackson, 443 U.S. at 319. § 130.00(1)). Moreover, “the testimony of a
child victim alone is sufficient” to establish
b. First Degree Rape rape in the first degree. Id. (stating that
corroboration is only required when victim is
Petitioner also asserts that the Appellate deemed unable to consent due to mental
Division unreasonably applied federal law in defect or mental incapacity).
affirming that there was sufficient evidence
to establish petitioner’s guilt of rape in the Here, after careful review of the record,
first degree, arguing that the evidence was the Court concludes that J.V.’s testimony (T.
insufficient because there was “questionable at 684-87) was sufficient for a rational trier
witness testimony” and “equivocal medical of fact to find that the requisite elements of
evidence in support thereof.” (Pet’r’s Mem. rape in the first degree were proven beyond
of Law at 9.) Specifically, petitioner claims a reasonable doubt. See People v. Wyre, 97
that the evidence adduced at trial was A.D.3d 976, 977 (N.Y. App. Div. 3d Dep’t
insufficient to support a finding of rape in the 2012) (rejecting a defendant’s arguments
first degree because (1) J.V. only testified to that though a victim stated that sexual
penile penetration in response to leading intercourse took place, without a specific

11 The Court notes that respondent urges the Court to Correa v. Duncan, 172 F. Supp. 2d 378, 281
characterize petitioner’s arguments regarding the (E.D.N.Y. 2001) (stating that a weight of the evidence
evidence surrounding the rape in the first degree claim “is a pure state law claim grounded in New
conviction as a weight of the evidence claim. To the York Criminal Procedure Law § 470.15(5), whereas a
extent that petitioner makes a weight of the evidence legal sufficiency claim is based on federal due process
claim, such a claim is not cognizable on habeas corpus principles . . . Accordingly, the Court is precluded
review as it exclusively implicates issues of state law. from considering the claim.”). The Court, due to
See Pitre v. Griffin, No. 16 CIV 6258 (BMC), 2016 petitioner’s pro se status, liberally construes this claim
WL 7442653, at *12 (E.D.N.Y. Dec. 26, 2016); as a legal sufficiency claim.
statement that penetration occurred and a Before police question a suspect in police
lack of physical evidence, a conviction custody, the suspect must first be advised of
should be overturned). In addition to J.V.’s certain rights, which include the right not to
testimony, the medical testimony that J.V.’s be questioned without an attorney. Miranda
injuries could be consistent with partial v. Arizona, 384 U.S. 436 (1966). If this right
penile penetration (T. at 754) further is invoked, police officers must immediately
corroborates J.V.’s testimony. See People v. discontinue questioning the suspect. Davis
Green, 239 A.D.2d 248, 249 (N.Y. App. Div. v. United States, 512 U.S. 452, 457-58
1st Dep’t 1997) (finding that, though there (1994). However, the suspect invoking the
was not conclusive medical evidence of rape, right to counsel “must at a minimum make
it did not negate the credible testimony of a ‘some statement that can reasonably be
child victim, where victim’s testimony was construed to be an expression of a desire for
consistent with slight penetration). the assistance of an attorney in dealing with
Moreover, to the extent petitioner questions custodial interrogation.’” United States v.
J.V.’s credibility, as noted above, “a habeas Oehne, 698 F.3d 119, 122-23 (2d Cir. 2012)
court ‘must defer to the jury’s assessment of (quoting McNeil v. Wisconsin, 501 U.S. 171,
the credibility of witnesses.’” Martin v. 178 (1991)). In other words, “[i]f the
Smith, No. 09-CV-5515 (SLT), 2013 WL suspect’s statement is not an unambiguous or
420102, at *10 (E.D.N.Y. Feb. 1, 2013) unequivocal request for counsel, the officers
(quoting Taylor v. Napoli, No. 09-CV-2511 have no obligation to stop questioning him.”
(NGG), 2011 WL 3648228, at *6 (E.D.N.Y. Davis, 512 U.S. at 461-62. Accordingly,
Aug. 16, 2011)). officers are not required to cease questioning
a suspect who only “makes a reference to an
In sum, the Court finds that petitioner’s attorney that is ambiguous or equivocal in
sufficiency of the evidence claim (as to both that a reasonable officer in light of the
the murder and rape convictions) is without circumstances would have understood only
merit, and thus, the state court’s ruling was that the suspect might be invoking the right
not contrary to, or an unreasonable to counsel.” Id. at 459. Of particular
application of, clearly established federal relevance here, the bare reference to a lawyer
law. is not sufficient to invoke the right to
counsel. Id. at 462 (“[m]aybe I should talk
2. Request for Counsel to a lawyer” was “not a request for counsel”).

Petitioner also claims that the Second In the instant matter, petitioner was read
Department “rendered a decision that was an his Miranda rights by Detective Cereghino
unreasonable application of clearly and responded with “I don’t know if I could
established federal law, when it found that call a lawyer or something?” and “I don’t
petitioner did not unequivocally request the know if I could call somebody to call a
assistance of counsel before making lawyer or something.” (H. at 60-62; Pet’r’s
statements to law enforcement.” (Pet’r’s Memo. of Law at 18.) Detective Cereghino
Memo. of Law at 15.) In response, informed petitioner that it was up to him, and
respondent argues that the state court’s petitioner proceeded to ask “I can’t make any
decision was correct and, even if statements phone calls?” (H. at 60-62; Pet’r’s Mem. of
should have been suppressed, any error Law at 18.) Detective Cereghino told
would be harmless as they were never petitioner that ultimately he could make a
introduced at trial. (Resp’s Br. at 16-23.) phone call and asked if he was still willing to
speak to him without a lawyer present and inside Rochester General Hospital, he
petitioner proceeded to do so.12 (H. at 60-62; invoked his right to counsel, when he asked
Pet’r’s Memo. of Law at 18.) [the officer], ‘if he would be able to call an
attorney.’ The Court finds that this inquiry
After conducting a hearing, the state on the part of the defendant amounted only
court found that, although petitioner may to an equivocal assertion of the right to
have questioned whether he could have a counsel, which did not require cessation of
lawyer present, he did not unequivocally questioning. The defendant’s question
invoke his right to counsel, and Detective lacked the clear implication of a present
Cereghino was under no duty to discontinue desire to consult with counsel.”); United
questioning as a result of petitioner’s States v. Jesus Abarca, No. 1:05CR175 JCH,
statements. Numerous federal courts, 2006 WL 1300604, at *15 (E.D. Mo. 2006)
including the Second Circuit, have reached (“Considering the question in context, it is
the same conclusion under similar not clear that Wilkinson was actually
circumstances. For example, in Dormire v. requesting the presence of an attorney when
Wilkinson, 249 F.3d 801, 805 (8th Cir. he asked ‘Could I call my lawyer?’ . . . [The
2001), the Eighth Circuit held: “We conclude officer] could have reasonably believed in
that the state court was not unreasonable in these circumstances that Wilkinson was
determining that Wilkinson’s question merely inquiring whether he had the right to
‘Could I call my lawyer?’ was not an call a lawyer, rather than believing that
unambiguous request for counsel.” See also Wilkinson was actually requesting
Diaz v. Senkowski, 76 F.3d 61, 64-65 (2d Cir. counsel.”).
1996) (“Do you think I need a lawyer?” was
not a “clear statement” of suspect’s desire to In sum, the question of whether
invoke counsel); accord United States v. petitioner’s statements invoked his right to
Zamora, 222 F.3d 756, 766 (10th Cir. 2000) counsel was thoroughly presented to the
(statement that “I might want to talk to an hearing court and petitioner has not shown
attorney” was not “an unequivocal request that the state court’s decision to uphold the
for counsel”); United States v. Doe, 170 F.3d admissibility of the statement was contrary
1162, 1166 (9th Cir. 1999) (defendant’s to, or an unreasonable application of, federal
question “What time will I see a lawyer?” law, nor was it an unreasonable
was not a clear invocation of right to counsel determination of the facts in light of the
and did not require questioning to cease); evidence presented.
United States v. Degaule, 797 F. Supp. 2d
1332, 1381 n.56 (N.D. Ga. 2011) (asking In any event, because the post-arrest
“Do I call my attorney now?” at end of statement was not presented at trial, any error
interview was insufficient to invoke right to was harmless. See, e.g., Gordon v. Mantello,
counsel); United States v. Cook, No. 07-CR- 155 F. App’x 562, 565 (2d Cir. 2005)
6195 CJS, 2008 WL 728883, at *14 (“Preliminarily, we observe that, because
(W.D.N.Y. Mar. 17, 2008) (“The Court also these initial statements were not introduced
rejects the defendant’s argument that any into evidence at Gordon’s trial, any error in
statements he made to [the law enforcement the trial court’s judgment that the statements
officer] must be suppressed, since prior to were not custodial was necessarily
making any such statements, while still harmless.)

12 The Court has reviewed the relevant portions of
the DVD and transcript.
Accordingly, petitioner’s suppression
claim fails on the merits and does not provide
a basis for habeas relief,
IV. | CONCLUSION
For the foregoing reasons, petitioner has
demonstrated no basis for relief under
28 U.S.C, § 2254. Therefore, the petition for
a writ of habeas corpus is denied. Because
petitioner has failed to make a substantial
showing of a denial of a constitutional right,
no certificate of appealability shall issue. See
28 U.S.C. § 2253(c)(2). The Court certifies
pursuant to 28 U.S.C. § 1915(a)(3) that any
appeal from this Order would not be taken in
good faith, and, therefore, in forma pauperis
status is denied for the purpose of any appeal.
See Coppedge v. United States, 369 U.S.
438, 444-45 (1962). The Clerk of the Court
shall close this case.
SQ ORDERED.

J PH F. BIANCO
ed States Circuit Judge
(sitting by designation)
Dated: August 15, 2019
Central Islip, New York
oh 3k ok
Petitioner proceeds pro se. Respondent is
represented by Cristin Connell, Assistant
District Attorney, Nassau County District
Attorney’s Office, 262 Old Country Road,
Mineola, NY 11501.

16

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10302867. Public record. Not legal advice.