Petition for Writ of Certiorari — Gonsa v. Donnelly

(1) Supreme Court, U.S.

FILE®

0 21 836 MAY 12 2003

QPEICE G5 TWE CLERK

IN THE

Supreme Court of the United States

THOMAS GONSA,

Petitioner,

Ws

EDWARD R. DONNELLY, Superintendent,

Wende Correctional Facility,

Respondent.

——

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

PETITION FOR WRIT OF CERTIORARI AND APPENDIX

Randi Juda Bianco, Esq.

Counsel of Record

Bianco Law Office

247 West Fayette Street, Suite 202

Syracuse, New York 13202

Phone (315) 424-0744

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1

Question Presented for Review

Did the sentence imposed by the state court violate

petitioner’s constitutional right under the Fifth

Amendment of the Constitution of the United States,

as applied to the states through the Fourteenth

Amendment, prohibiting double jeopardy of persons

by sentencing the petitioner twice for the same crime.

TABLE OF CONTENTS

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STATEMENT OF BASIS FOR JURISDICTION ........... (1)

PROCEDURAL BACKGROUND ........00 c++ ces cesses sossessess (3)

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APPENDIX CONTENTS

CERTIFICATE OF CONVICTION .......:+ 00 ssssses seseesees A-1

DIST. CT. REPORT-RECOMMENDATION ......... +++ A-3

DIST. CT. MEMORANDUM-DECISION-ORDER..... A-29

U.S. COURT OF APPEALS SUMMARY ORDER ....... A-44

U.S. COURT OF APPEALS ORDER DENYING

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TABLE OF AUTHORITIES

United States Constitution

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28 U.S.C. Section 636 (b) (1) and local rule 72.1(c)....... 4

New York State Statutes

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Cases

Ball v. United States, 470 U.S. 856 (1985)............... cee 5

Missouri v. Hunter, 459 U.S. 359 (1983).............1, 2, 6, 7

Lower Court Case Citations

People v. Gonsa, 220 A.D. 2d 27, 644 N y. S.2d 346 (34

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People v. Gonsa, 89 N.Y.2d 923, 677 N.E.2d 297, 654

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Gonsa v. Stinson, No. 97-CV-1828 (N.D.N.Y. Feb. 15,

2000)

Gonsa v. Stinson, 51 Fed. Appx. 902, 2002 WL 31663960

(274 Cir. 2002)

iit

STATEMENT OF BASIS FOR JURISDICTION

Petitioner Thomas Gonsa, hereinafter referred to as

Petitioner, respectfully petitions for a writ of certiorari

pursuant to Supreme Court Rule 10 from denial of a petition

for habeas corpus from the United States Court of Appeals

for the Second Circuit. Denial of the petition for habeas

corpus was filed with the Clerk’s Office on February 11,

2003. Petition for rehearing emanates from a Summary

Order of the above Court filed November 25, 2002, oral

argument for which was heard before the Hon. Ralph K.

Winter; Hon. Robert D. Sack and Hon. Sonia Sotomayor,

Circuit Judges, on August 6, 2002 . This Summary Order

affirmed the Judgment of the U.S. District Court for the

Northern District of New York, dated February 15, 2000,

denying Appellant's application for a Writ of Habeas

Corpus on the ground the sentence imposed by the state

court violated the double jeopardy clause of the Fifth

Amendment, as made applicable to the states through the

Fourteenth Amendment.

Randi Juda Bianco, Esq., attorney for Petitioner,

expresses a belief, based upon reasoned and studied

professional judgment, that granting a petition for writ of

certiorari is necessary to secure or maintain uniformity in

the court's decisions. Specifically, the lower court's decision

conflicts with the United States Supreme Court's holding in

Missouri v. Hunter, 459 U.S. 359 (1983). In Missouri v.

Hunter, the Supreme Court held that even though two

criminal statutes apparently proscribed the same conduct,

the Double Jeopardy Clause does no more than prevent the

sentencing court from prescribing greater punishment than

the legislature intended. In the case at bar, the legislative

intent was not considered when the sentencing court was

permitted to enhance Petitioner’s sentence by punishing him

twice for the same offense. Petitioner submits that

consideration by this Court is therefore necessary to secure

and maintain uniformity of the court's decisions.

I

Pursuant to Supreme Court Rule 12(c), your

deponent contends both the state courts and the United

States Court of Appeals for the Second Circuit have decided

upon an important federal question that conflicts with

relevant decisions of this Court.

This petition is based on the following points:

Petitioner respectfully submits that the Court’s Summary

Order should be reversed in part and affirmed in part. The

Petitioner agrees with that portion of the Summary Order

which found that it was improper for the State Court to run

the Petitioner’s Robbery sentence consecutive to the Felony-

Murder sentence where the Robbery was the underlying

felony for the Felony-Murder. Petitioner agrees that the

Robbery sentence should run concurrent to the Felony

Murder Sentence [Summary Order p. 1 at lines 17-22].

However, Petitioner disagrees with that portion of the

Summary Order which holds that the same Robbery sentence,

which runs concurrently to the Felony Murder sentence, will

also run consecutively to the Depraved Indifference Murder

sentence [Summary Order p.1 at lines 21-23]. Petitioner

submits that since Petitioner was convicted of only one

count of Robbery, he is being punished twice for the same

act of Robbery in violation of the Double Jeopardy clause of

the Fifth Amendment of the United States Constitution as

made applicable to the states though the Fourteenth

Amendment.

Petitioner respectfully submits that the Summary

Order is flawed in four respects: 1) the Petitioner is now

serving two sentences for a single Robbery conviction; 2) it is

improper for the Robbery sentence to run consecutively to

the Depraved Indifference Murder sentence because

Petitioner is already being punished for the same robbery

conviction in his sentence of Felony-Murder; 3) the

Petitioner respectfully submits that the Court's reliance on

Missouri v. Hunter, 459 U.S. 359 (1983) is flawed and/or

misplaced; and 4) the sentencing error is not harmless.

2

PROCEDURAL BACKGROUND

In the case at bar, Petitioner was convicted after trial

of two counts of Murder in the Second Degree (NYS Penal ,

Law §§ 125.25(2) & (3), Depraved Indifference and Felony-

Murder); one count of Robbery in the First Degree (NYS

Penal Law §160.15); and one count of Criminal Possession of

Stolen Property in the Fifth Degree (NYS Penal Law §

165.50). He was found not guilty of Intentional Murder

(NYS Penal Law §125.25(1)). The convictions arose out of

his alleged participation with two others in the robbery-of a

1990 Chevrolet Beretta belonging to a Robert Grasso who

died during the course of the commission of this robbery.

All crimes alleged took place at or about the same time [Trial

Testimony 1567-1598 (hereinafter referred to as TT)}. The

trial court correctly charged the jury that the petitioner had ~

to be found guilty of robbery in order to convict him on

Felony-Murder.

After the conviction, Petitioner was sentenced to 25

years to life on each of the murder counts to run

concurrently with each other [TT. 1726]. The trial court then

imposed a term of imprisonment of 8-1/3 years to 25 years

for the robbery offense which was to run consecutive to the

murder counts [TT. 1727, see also Certificate of Conviction!

at A-19]. A term of imprisonment of 2 1/3 years to 7 years

was imposed for the Criminal Possession of Stolen Property

conviction to run concurrently with the Robbery conviction.

In his appeal to the New York State Supreme Court,

Appellate Division, Third Department, Petitioner argued the

' Relevant portion of certificate of conviction states: “upon conviction of —

each count of Murder, Second Degree, Defendant is sentenced to an

indeterminate term of imprisonment which shall have a maximum of

LIFE and a minimum of twenty-five (25) years, to be served concurrently.

Upon conviction of Robbery, First Degree, Defendant is sentenced to an

indeterminate term of imprisonment which shall have a maximum of

cight and one-third (8 1/3) years to be served consecutively to sentences

imposed under Murder, Second Degree” (emphasis added).

>

sentencing court erred in imposing consecutive sentences for

Petitioner's conviction of Robbery in the First Degree and

two counts of Murder in the Second Degree where: 1) all

counts arose out of a single incident; and 2) the Robbery

offense in itself constituted one of the offenses and was also

a material element of the felony-murder offense. The New

York State Supreme Court, Appellate Division, Third

Department, affirmed the judgment of conviction, People v.

Gonsa, 220 A.D.2d 27 (34 Dept. 1996). Leave to Appeal was

denied by the New York Court of Appeals, People v. Gonsa,

89 N.Y.2d 923 (1996). Petitioner raised this issue again in a

Habeas Corpus petition with the United States District Court

for the Northern District of New York. Magistrate Gustave

J. DiBianco denied the petition in a “REPORT-

RECOMMENDATION” dated August 13, 1999. Pursuant to

28 U.S.C. Section 636 [b][1] and local rule 72.1 [c] Petitioner

filed his objections to the REPORT-RECOMMENDATION

with the District Court. On February 17, 2000, Judge

Frederick J. Scullin Jr., modified Magistrate DiBianco’s

REPORT-RECOMMENDATION and accepted it as modified

and further denied and dismissed the Petitioner's Habeas

Corpus petition brought pursuant to 28 U.S.C. § 2254.

Thereafter, Petitioner filed a request for a Certificate of

Appealability on May 15, 2000. On November 21, 2000,

Petitioner’s motion for a Certificate of Appealability was

granted only on the issue of whether the County Court

violated Gonsa’s rights under the Double Jeopardy clause of

the Fifth Amendment, as applicable to the states through the

Fourteenth Amendment, by imposing Gonsa’s robbery —

sentence to run consecutive to the felony-murder sentence,

where the robbery constituted the felony element of the

felony-murder. On November 25, 2002, the U.S. Court of

Appeals affirmed in a Summary Order the Judgment of the

District Court, dated February 15, 2000.

4.

ARGUMENT

1) Petitioner Is Now Serving Two Sentences For A Single

Robbery Conviction.

According to the Summary Order, the Petitioner is

now serving two sentences for a single Robbery conviction

as said sentence runs concurrently with the sentence for

Felony-Murder and consecutively to Depraved Indifference

Murder [See Summary Order p. 1 lines 17-23]. Since there is

only one Robbery Conviction, Petitioner is being punished

twice for the single Robbery conviction which is in violation

of the Double Jeopardy clause of the Fifth Amendment of __

the United States Constitution as made applicable to the

states though the Fourteenth Amendment. See also Ball v.

United States, 470 U.S. 856 (1985).

2) _ItIs Improper For The Robbery Sentence To Run

Consecutively To The Depraved Indifference Murder

Sentence.

Petitioner submits that it was error for the Court to

impose a consecutive Robbery sentence to his Depraved

Indifference Murder sentence as: 1) Robbery in the First

Degree and Felony-Murder were part of the same act and

the Robbery was a material element of the conviction of

Felony-Murder. The imposition of a consecutive Robbery

sentence to the Depraved Indifference Murder Sentence

would punish the Petitioner twice for the same Robbery as

the Petitioner was already being punished for Robbery by

his conviction for Felony-Murder. Had it not been for the

Felony-Murder conviction, the court could have sentenced

Petitioner to consecutive sentences for Depraved

Indifference Murder (Penal Law § 125.25(2)) and Robbery

without such sentence being violative of the Double

Jeopardy Clause as the defendant's conduct for Robbery

would not have been taken into account by another

5

————

sentence. As it presently stands, Petitioner is being

punished twice for the same conviction for Robbery.

3) Petitioner Respectfully Submits That The Lower

Court’s Reliance On Missouri v. Hunter, 459 U.S. 359

(1983) Is Misplaced.

In Missouri v. Hunter, 459 U.S. 359 (1983), the

defendant was convicted in a single trial on both the charge

of Armed Criminal Action and First Degree Robbery. The

Robbery charge was the underlying felony of the Armed

Criminal Action charge. In Missouri v. Hunter, the

defendant had contended that the sentences for both First

Degree Robbery and Armed Criminal Action violated the

double jeopardy clause of the Fifth Amendment of the

United States Constitution as made applicable to the states

by the Fourteenth Amendment. The United States Supreme

Court disagreed because the Missouri legislature specifically

authorized cumulative punishments for these offenses in

drafting the statutes.2 Thus even though the two criminal

statutes apparently proscribed the same conduct, the

Supreme Court held that the Double Jeopardy Clause does

no more than prevent the sentencing court from prescribing

greater punishment than the legislature intended. It is clear

that the Missouri legislature intended cumulative

punishments. However, Petitioner contends that the New

York legislature did not intend to authorize cumulative

punishments in cases like the case at bar. (See P.L. 70.25(2).)

In the case at bar, the New York legislative intent

was to run sentences such as these concurrently. |

Specifically, New York Penal Law Section 70.25(2) states

7 In Missouri v. Hunter, the Missouri statute prescribing armed criminal

action provided that any person who committed a felony through the use

of a dangerous or deadly weapon was also guilty of the crime of armed

criminal action punishable by not less than three years imprisonment.

This punishment “shall be in addition” to any punishment provided by

the law for the felony (Id at 362). Thus, the Missouri's legislative intent

was explicit and clearly expressed that there would be an additional

punishment for the same conduct.

G

— - =

“when more than one sentence of imprisonment is imposed

on a person for two or more offenses committed through a

single act or omission, or through an act or omission which

in itself constituted one of the offenses and also was a

material element of the other, the sentence...must run

concurrently”. (Emphasis Added). Thus, unlike Missouri v.

Hunter, the New York State Legislature has unquestionably

set forth their intent that in a case such as this, the sentences

are to run concurrently, not consecutively. In Petitioner’s

case, both prongs of Penal Law 70.25(2) mandate concurrent

sentences. Specifically, two or more offenses (i.e., Robbery

and Felony-Murder) have been committed through a single

act (i.e., the act of Robbery). Additionally, Robbery

constituted one of the offenses and was a material element of

the other (i.e., the underlying felony for the charge of

Felony-Murder). To put matters simply, without the

Robbery there could be no conviction for Felony-Murder.

The elements of Robbery are subsumed by the charge of

Felony-Murder. Therefore, by Petitioner’s sentence for

Felony-Murder, he is being punished for the crime of

Robbery.

Contrary to the holding in Missouri v. Hunter, when

the court imposed Petitioner with a consecutive Robbery

sentence for the same Robbery as that underlying the

Felony-Murder, it imposed a greater sentence than that

authorized by the legislature.

4) The Sentencing Error Is Not Harmless

The consecutive Robbery sentence imposes an

additional 8 1/3 to 25 years imprisonment which runs

consecutive to the Depraved Indifference Murder Count.

Although the Criminal Possession of Stolen Property count

also runs consecutively to the Murder counts, the

Petitioner’s sentence on this count was only 2 1/3 years to 7

years. Thus the Robbery sentence still imposes the

additional punishment of 6 - 18 years notwithstanding the

5

Criminal Possession of Stolen Property count. Simply,

Petitioner is being punished for one conviction of Robbery

which runs concurrently with the Felony- Murder sentence

and one conviction of Robbery to run consecutively to the

Depraved Indifference Murder sentence. This double and

separate punishment for one conviction of Robbery adds an

additional 6-18 years to Petitioner’s total sentence.

CONCLUSION

Petitioner submits that he is entitled to relief under

28 USCA 2254 (3)(d)(1), because the claim that was

adjudicated on the merits in state court resulted ina decision

that was contrary to clearly established federal law.

Petitioner further submits that pursuant to 28 USCA 2254

(3)(d)(2), the state court’s adjudication of the claim resulted

in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented

in the state court proceedings. Specifically, by serving a

sentence for the one count of Robbery concurrent to Felony

Murder and consecutive with Depraved Indifference

Murder, Petitioner is being punished twice for the same

conduct of Robbery, which is in violation of the Double

Jeopardy clause of the Fifth Amendment of the United States

Constitution.

Dated: May 12, 2003

Syracuse, New York

8

Respectfully Submitted:

A S.—

Randi Juda Bianco, Esq.

Counsel of Record

Bianco Law Office

247 W. Fayette Street, Suite 202

Syracuse, New York 13202

Telephone (315) 424-0744

APPENDIX

State of New York: County of Broome

County Court

THE PEOPLE OF THE STATE OF

NEW YORK CERTIFICATE

OF

against CONVICTION

THOMAS GONSA Indictment No. 91-564-1

This is to certify that a judgment of Conviction has

been entered in this Court, before the Hon. Martin E. Smith,

a Judge of this Court, on the 18 day of November, 1992,

convicting the above named Defendant of the offense of:

Murder in the Second Degree, in violation of Section

125.25(2), of the Penal Law, a Class AI Felony; Murder in the

Second Degree, in violation of Section 125.25(3), of the Penal

Law, a Class AI Felony; Robbery in the First Degree, in

violation of Section 160.15(1), of the Penal Law, a Class B

Felony; and Criminal Possession of Stolen Property in the

Third Degree, in violation of Section 165.50, of the Penal

Law, a Class D Felony,

and sentence was imposed on December 18, 1992 as follows:

Upon conviction of each count of Murder, Second Degree,

Defendant is sentenced to an indeterminate term of

imprisonment which shall have a maximum of LIFE and a

minimum of twenty-five (25) years, to be served

concurrently. Upon conviction of Robbery, First Degree,

Defendant is sentenced to an indeterminate term of

imprisonment which shall have a maximum of twenty-five

(25) years and a minimum of eight and one-third (8 1/3)

years, to be served consecutively to sentences imposed

under Murder, Second Degree. Upon conviction of Criminal

Possession of Stolen Property, Third Degree, Defendant is

A-\

sentenced to an indeterminate term of imprisonment which

shall have a maximum of seven (7) years and a minimum of

two and one-third (2 1/3) years, to be served concurrently

with sentenced imposed under Robbery, First Degree.

Defendant is committed to the custody of the State

Department of Correctional Services and shall be delivered

to the Elmira Correctional Facility at Elmira, New York. The

Court imposes a surcharge of $155.

Dated at:

Binghamton, New York

24th day of March, 1993

5/ ms U. bezrre

7 ELLIS W. BOZZOLO

COURT CLERK

UNITED STATES DISTRICT COURT.

NORTHERN DISTRICT OF NEW YORK

THOMAS GONSA,

Petitioner,

v. 97-CV-1828

(J. Scullin)

JAMES STINSON, Superintendent,

Respondent.

APPEARANCES: OF COUNSEL:

BIANCO LAW OFFICE RANDI JUDA BIANCO, ESQ.

Counsel for Plaintiff )

The Hogan Building, Suite 202

247 West Fayette Street

Syracuse, New York 13202

ELIOT SPITZER JEFFREY M. DVORIN, ESQ.

Attorney General of the Asst. Attorney General

State of New York

Attorney for Respondent

Department of Law, The Capitol

Albany, New York 12224

GUSTAVE J. DI BIANCO, Magistrate Judge

REPORT-RECOMMENDATION

This matter has been referred to the undersigned by

United States District Judge Frederick J. Scullin, Jr., pursuant

to 28 U.S.C. § 636(b) and Local Rules N.D.N.Y. 72.3(c).

Petitioner filed the instant habeas corpus petition on

December 12, 1997. This court issued an Order pursuant to

the Rules Governing Section 2254 Cases in the United States

District Courts, 28 U.S.C. fol. § 2254, granting petitioner

leave to proceed in forma pauperis, ordering service of the

A-3

petition on respondent, and requiring service of an answer

or other pleading by respondent. Respondent filed his

answer, together with the pertinent state court records! and

a memorandum of law. Petitioner filed a “reply”

memorandum on June 18, 1998.

Petitioner complains of the judgment rendered

against him on December 18, 1992, following a jury trial in

Broome County Court, wherein he was convicted of two

counts of murder in the second degree, on count of robbery

in the first degree and criminal possession of stolen property

in the third degree. Petitioner was sentenced to concurrent

twenty-five year to life sentences for the murder convictions,

eight and one-third to twenty-five years for the robbery

convictions to run consecutively to the sentence imposed for

the murder convictions, and two and one-third to seven

years for criminal possession of stolen property, to run

consecutively to the murder sentences and concurrent with

the robbery sentence. Petitioner’s aggregate sentence is thus

an indeterminate term of 33 and 1/3 years to life

imprisonment.

The Appellate Division, Third Department, affirmed

the convictions on June 13, 1996.2 People v. Gonsa, 220 A.D.2d

27, 644 N.Y.S.2d 346 (3'4 Dep’t 1996). The New York Court

of Appeals denied leave to appeal on December 13, 1996.3

People v. Gonsa, 89 N.Y.2d 923, 654 N.Y.S.2d 725 (1996).

' The state court records submitted by respondent are listed on pages 2-3

of the answer. (Docket #8).

? On direct appeal, petitioner raised five issues: 1) trial court error for

permitting the introduction of evidence regarding uncharged crimes, bad

acts, immoral conduct and petitioner’s flight; 2) prosecutorial misconduct;

3) ineffective assistance of counsel; 4) insufficient corroboration of

accomplice testimony; and 5) error in imposing consecutive sentences for

petitioner’s convictions of robbery and murder, when all counts arose

from a single incident.

* In his application seeking leave to appeal, petitioner asked the Court of

Appeals to consider whether 1) a conflict exists between the Third and

Fourth Department Appellate Divisions regarding reconstruction hearings

when the record is silent as to a defendant's presence at Ventimiglia

hearings; 2) the Third Department erred by creating a vague and

A-4

Petitioner raises five claims in the instant application

for habeas corpus relief. Petitioner argues that (1) the

sentences imposed by the state court violate the Double

Jeopardy Clause of the Fifth Amendment; 2) the People

changed their theory of prosecution as to the manner and

cause of the victim’s death without adequate notice,

depriving him of the right to due process of law and a fair

trial; 3) introduction of evidence of uncharged crimes and

bad acts, without prior notice, deprived him of the right to

due process of law, to confront and cross-examine witnesses,

to a fair trial and to present a defense; 4) he was deprived of

a fair trial as a result of prosecutorial misconduct and that

the state court's decision was contrary to established federal

law; 5) he was deprived of the right to equal protection and

due process of law when the Third Department relied on the

presumption of regularity, rather that provide a

reconstruction hearing as is provided to similarly situated

defendants in the Fourth Department.

Respondent seeks dismissal of the petition on the

grounds that petitioner has procedurally defaulted on the

claims raised in grounds one, two, three and five of the

petition and that his prosecutorial misconduct claim fails on

the merits.

For the following reasons, this court recommends

that the petition be denied and dismissed.

1. Facts

Petitioner’s conviction resulted from the murder of

Robert Grasso, a mildly retarded man who had befriended

petitioner; and co-defendants Michael Lussier and Dennis

Meehan, while they were residents at Arbor House, an

alcohol and drug treatment program where Grasso had

indefinite category of uncharged crimes based on “types” which enjoy a

relaxed standard of admissibility; 3) the Third Department erred by

finding that petitioner could receive five sentences for four crimes; 4) the

Third Department applied an improper standard of review regarding

petitioner’s prosecutorial misconduct claim; and also 5) requested the

Court to address the remaining issues in his appellate brief.

A-5

volunteered and visited. Grasso drove a 1990 Chevrolet

Beretta, and, in the week before the murder, had

chauffeured Lussier and Meehan around town and to

various drinking spots.

Before petitioner became involved, Lussier and |

Meehan discussed stealing Grasso’s car and relocating to |

Florida.4 (T. 156; 305-306; 315; 552-553; 558; 569). They ,

considered tying Grasso to a tree, or abaridoning him after |

sending him into a store to buy beer. (T. 156; 162). Lussier ,

testified that Meehan told petitioner of the plan on

Thursday, July 11,1991, while he, Lussier, Meehan and

Grasso were drinking at Lake Ontario. (T. 165, 315-316).

Although the three men initially agreed to execute the plan

the following night (T. 167), petitioner later suggested they

wait until Monday so that he could collect his paycheck and

pick up food stamps from home. They also discussed the

fact that they would need clothing for the journey to Florida

(T. 174).

On Friday evening, Grasso again drove petitioner,

Meehan and Lussier to Lake Ontario to drink. (T. 168; 173).

Afterwards, they went to a bar in Syracuse. (T.174). On the

trip back to Oswego, petitioner drove Grasso’s car. (T. 176).

Grasso started complaining about the open beer cans in his

car, and petitioner suggested pulling over so they could

finish drinking. (T. 175-176). Grasso wanted to go home, but

petitioner pulled off the highway and into a parking lot. (T.

176-177). Lussier testified that he sensed that the plan was

going to be carried out right then because the area was so

secluded. (T. 186). Lussier testified that a bright street light

provided light to the parking lot. (T. 188).

When they got out of the car, Meehan immediately

started hitting Grasso in the face. (T. 177). Petitioner put his

arm around Grasso’s shoulder and walked him towards the

passenger door. Petitioner reassured Grasso and told

* Lussier and Meehan told several people about the Florida plan,

including Bill Thompson and his wife, Brittany. Thompson did not want

to participate. (T. 163; 549; 569; 558).

A-s

Meehan to stop hitting him. (T. 177). When Meehan

suggested knocking Grasso out and taking the car, petitioner

winked at Lussier and Meehan. Lussier interpreted the

wink as a signal to carry out the plan (T.177), and grabbed a

four foot long, three inch wide tree limb. Petitioner nodded

his head and started talking loudly to Grasso. Lussier struck

Grasso in the forehead, leaving a four inch laceration.

(1.179). Again, petitioner tried to console Grasso and tell

him it was an accident. (T. 180).

Grasso grabbed hold of the car window and tried to

get back in the car. Lussier, Meehan and petitioner pulled

Grasso away, and the car window shattered and. Lussier

testified that Grasso fell down and he [Lussier], petitioner

and Meehan started “kicking and stomping” on him; Lussier

stomped on Grasso’s ribs and stomach, and petitioner and

Meehan stomped on his head and face. (T.180; 87-188).

Grasso was moaning. Although obviously in a lot of

pain, Grasso attempted to get up. (T. 180-181). Lussier

testified that he took a brick and “slammed it full force

down on [Grasso’s] head which caused the brick to bounce

off.” Lussier repeated that act five to six times. (T.181).

Lussier did not recall whether it was Meehan or petitioner

who asked for a chance to try the brick, but did recall that

petitioner picked up the brick and hit Grasso two times in

the head. Lussier testified that petitioner ther. tossed the

brick away and said “let's finish him off. He’s already had

enough.” (T.181-182).

According to Lussier, petitioner opened the truck

and pulled out a long metal object. Lussier saw petitioner

walk over to Grasso, and while standing over him, stab the

metal object up and down in Grasso’s mouth two times.

(T.182). Lussier testified that Grasso looked dead.5 There

° Dr. Terzian testified that the Grasso died as a result of multiple fractures

of the skull and facial bones, consistent with blunt trauma. (T.1207).

According to Dr. Terzian, a number of the victim's injuries could have

been fatal by themselves, e.g. he suffered a fracture at the base of the skull

and the side of the head, as well as nasal and cheek fractures. Dr. Terzian

A-7

was a lot of blood, his face was bruised, and one side looked

caved-in. He was missing his front teeth. (T.183). Lussier

and petitioner wrapped Grasso’s shirt around his head and

dragged him to the trunk. (T.183).

In the car, Meehan suggested they clean up the

blood. Petitioner drove to a body of water about ten

minutes away, where they tried to clean up. Petitioner

buried the metal object in the mud. When they got back in

the car, they were muddy and still bloody. (T.184-185). They

headed to Binghamton. (T.185). Meehan suggested burying

the body, which everyone agreed was a good idea. (T.188).

They arrived at Jeff McGargle’s apartment in

Endicott at 2:30 a.m. (T.189). Out front, they met Adam

Shepardson, Dave Thomas and Steve Russell. (T.189).

Lussier testified that he and Meehan called petitioner Bob,

because it was Bobby Grasso’s car. (T.189). Thomas invited

them to his apartment, and agreed to let the three men

spend the night. Petitioner went immediately to bed.

(T.189-190).

While petitioner slept, Lussier, Meehan, and Thomas

took the car to get more beer (T.190). Lussier testified that

he confessed to Adam Shepardson that they had just killed a

man in Syracuse, and that the body was in the trunk. (T.191).

At 5:00 a.m., Lussier and Meehan “borrowed” a shovel from

Thomas’ neighbor's house, and left to bury Grasso’s body.

(T.192). After burying the body, they drove to a friend of

Meehan’s, who gave them clean clothes. (T.196). When they

returne i to Thomas’ apartment, they told petitioner they

had buried the body. Petitioner thanked them, and

suggested they shower. They left their dirty clothes in the

apartment, and petitioner scrubbed their sneakers in the

kitchen sink. (T.197).

testified that the injuries were consistent with blows from having been

stomped on the head by feet; hit in the head with a brick, and having had

a metal-like object rammed down his throat. (T.1222).

° Several people present in the apartment testified that the three were

muddy when they arrived. (See T.628-629; 631; 651; 694; 702; 737).

A-8

More vodka was purchased. Lussier testified that he

drank until he fell asleep. (T.199). Peter Vicente and his wife

arrived at Thomas’ apartment while Lussier was sleeping.

(T.762). At trial, Vicente testified that petitioner was

introduced as “Tom” (T.764). Petitioner told Vicente that he

wanted to sell his Beretta, and that his father was a car

dealer in Oswego. (T.764; 804-805). Vicente agreed to buy

the Beretta for $500 and his 1978 blue Chevrolet van. (T.767;

912). When petitioner signed his name as “ Bobby Grasso”

on the registration and contract, he explained to Vicente that

“Tom” was his nickname. (T.768-769; 771).

Lussier testified that he woke up in Peter Vicente’s

van on Buffalo Road, near a popular spot in Endicott. (T.199-

200). Petitioner told Lussier that he sold Grasso’s car to

Vicente, in exchange for $300 and the van. (T.200). Later,

petitioner lost the keys to the van and it had to be pushed

from the party. When Officer Vanek stopped the vehicle, he

recognized the men pushing the van as Meehan and

Shepardson. Vanek testified that petitioner was steering,

and Lussier was passed out in the back. (T.847; 852).

Petitioner told Vanek he had run out of gas. At first, he

claimed not to have his wallet, but when Vanek spotted it on

the floor; petitioner admitted it was his. (T.849). Vanek also

recovered another wallet that contained Grasso’s driver's

license and personal papers. Petitioner explained that

Grasso was a friend who was still at the party. (T.854).

Lussier woke up the next morning on Michelle Petry’s

couch. (T.201). That morning, they ran into Vicente, who

asked petitioner for his money back. Lussier testified that

petitioner looked concerned. (T.202-203).

Vicente testified that he had been hosing down the

muddy Beretta, when he noticed a red liquid oozing out of

the trunk. (T.779-780). Vicente described a foul odor when

he opened the trunk, and testified that he saw dried blood

and hair. (T.780; 822). Vicenti: immediately drove to

Thomas’ house and told petitioner he wanted his money

back. Petitioner told Vicente not to worry because it was

A-4

only deer blood, and offered to clean the trunk. Petitioner

was calm and convinced Vicente to keep the car. (T.781).

When petitioner cleaned the trunk, Vicente saw “non-stop

redness coming out.” (T.783).

While checking the van to see that he did not leave

anything, Vicente found papers and an ID belong to Robert

Grasso and learned that petitioner was not Grasso. (T.788).

When petitioner left, ostensibly to retrieve the title, Vicente

called the police. (T.790-791).

In the van, the three co-defendants realized that they

had told too many people about the Florida plan and

decided to go *» California. (T.204). When the van broke

down in Ohio, the co-defendants met an elderly couple,

Sarah and Allistair Wright. (T.205). Petitioner, who did most

of the talking, told the Wrights he was a college student.

(T.968-969). They said they had been robbed, and needed to

get back to Syracuse. (T.206; 966; 968). The Wrights took

them in, fed them and provided them with a place to sleep

that night. (T.207). When they learned that the van could

not be repaired, the Wrights gave petitioner money to buy

three bus tickets to Syracuse. (T.208-209). In Cleveland, they

switched buses to Cincinnati, and took a cab to Missouri.

(T.210).

The three co-defendants met a Mayflower truck

driver named Mike Barkley’ and his partner Ed, who hired

them to help load and unload his truck. (T.211-213). They

told Barkley they were headed to California. (T.213). Lussier

testified that Meehan and petitioner had not been getting

along, and that petitioner and Meehan argued after

petitioner lost their money gambling in Las Vegas. (T.217-

218; 222; 224). When Lussier and Meehan refused to work,

Barkley fired them. (T.217-218). The trio split up, though

according to Lussier, they had arranged to meet up again in

: Barkley testified that petitioner told him that his name was Tom Baxter,

and that he had gotten in trouble in college and took off because he was

afraid to tell his parents. (T.1037-1038). Barkley testified that petitioner

seemed to be the leader of the three. (T.1044).

A-1\0

Long Beach, California.’ (T.219-220; 224). They discussed

their alibi several times before splitting up, and agreed to

blame the murder on a fictional fourth individual named

Rodney. (T.221).

Petitioner's next ride was with trucker Thomas

Burrows. (T.1060). Petitioner told Burrows he was Tom

Sandelsky from Chicago, and that his parents were

millionaires. (T.1062-1063; 1066-1067). Petitioner also told

Burrows that he and his friends had planned on stealing a

car and moving to Florida. (T.1064; 1078). Burrows took

petitioner to his home in Georgia in September of 1991.

According to Burrows, petitioner was a “perfect gentleman”

until he drank, at which point he would become “obnoxious,

belligerent and hateful.” (T.1065; 1069). At one point,

Burrows offered to teach petitioner how to drive a tractor

trailer, but petitioner backed out after learning that the run

was to New York State. (T.1078). In January, petitioner left

Burrows’ home. (T.1072). Subsequently, Burrows’ wife

found petitioner's driver's license, and when she discovered

that petitioner was not Tom Sandelsky, she reported it to the

police. (T.1073).

Meanwhile, Lussier and Meehan found themselves

without money, food or clothing, and turned themselves

into authorities in Arizona. (T.245; 247). Initially, Lussier

told the police the “Rodney story.” (T.255). When

confronted with his confession to Adam Shepardson, Lussier

agreed to reveal the location of the body and testify against

petitioner and Meehan, in exchange for a plea to

manslaughter in the first degree and a maximum sentence of

8 After they separated, Lussier and Meehan met a man named Robert,

who took them in. Meehan and Robert got into a physical altercation,

which culminated in Meehan smashing a rock on Robert's head. (T.233).

Lussier and Meehan were arrested and gave the police false names.

(T.234-235). After they were released, they stayed with Michael Accardia,

whom they met in jail (T.237-238). They beat and robbed him as well.

Lussier hit him on the head with a bottle, Meehan stabbed him in the

chest, and Lussier stabbed him in the shoulder. (T.242).

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eight and a third to twenty-five years imprisonment. (T.278-

280).

2. Exhaustion of State Court Remedies and Procedural

Default

Prior to seeking relief in federal court, it is well

settled that a petitioner must exhaust available state

remedies or show that there is either an absence of available

state remedies or that such remedies are ineffective to

protect petitioner’s rights. Ellman v. Davis, 42 F.3d 144, 147

(2d Cir. 1994), cert. denied 515 U.S. 1118 (1995). Additionally,

the petitioner’s claims must be fairly presented so that the

state court has the opportunity to decide any federal

constitutional issues. Id. Finally, the petitioner must have

presented the substance of his federal claims to the highest

court of the state, Bossett v. Walker, 41 F.3d 825, 828 (2d Cir.

1994), cert. denied, 514 U.S. 1054 (1995)(citation omitted).

A state defendant may fairly present the

constitutional nature of his claim to the state court without

citing “chapter and verse” of the Constitution by (a) relying

on pertinent federal cases employing constitutional analysis,

(b) relying on state cases employing constitutional analysis

in like fact situations, (c) asserting the claim in terms so

particular that they call to mind a specific right protected by

the constitution, or (d) alleging a pattern of facts that is well

within the mainstream of constitutional litigation. Daye v.

Attorney General, 696 F.2d 186, 192-194 (2d Cir. 1982)(en

banc), cert. denied, 464 U.S. 1048 (1984). “It is not enough that

all the facts necessary to support the federal claim were

before the state courts, or that a somewhat similar state law

claim was made.” Anderson v. Harless, 459 U.S. 4, 6

(1982) (citations omitted).

Generally, if a federal habeas petition contains

unexhausted claims, a federal court should dismiss it. Rose

v. Lundy, 455 U.S. 509, 510 (1982). However, when it is clear

that the state court would consider the unexhausted claims

A-12

OT Oe ee Ee Se ee ee ee eT a ee eee

to be procedurally barred, the claims are deemed exhausted.

Grey v. Hoke, 933 F.2d 117, 120-121 (2d Cir. 1991). Here, New

York's procedural rules would plainly bar petitioner from

raising the claims at issue in grounds one, two, three and

five, as only one application for leave to appeal is permitted.

N.Y. Court Rules § 500.10(a). Furthermore, a post-judgment

motion is unavailable where an issue has been raised on

direct appeal. N.Y. Crim. Proc. Law (C.P.L.) § 440.10(2)(a).

See also C.P.L. § 440.10(2)(c)(a claim is unavailable for review

in a motion to vacate the judgment when it is based upon

facts ascertainable from the record and thus should have

been raised on direct appeal.)

A. Double Jeopardy

In ground one, petitioner argues that the sentence

imposed by the state court violates the Double Jeopardy

Clause of the Fifth Amendment because he was sentenced to

“two terms of imprisonment for the single crime of Robbery

in the First Degree.” See Petitioner's Memorandum, at p. 1.

The basis for petitioner’s “double punishment” claim is that

the sentence imposed for the robbery conviction was

imposed concurrently with that imposed for the felony-

murder conviction and consecutively to that imposed for his

conviction of depraved indifference murder.

? On direct appeal, petitioner argued that the trial court erroneously imposed

consecutive sentences for the robbery and felony murder convictions. The Third

Department, however, found that County Court imposed concurrent sentences for

the murder convictions because they were based upon the same homicidal act;

concurrent sentences for the robbery and felony murder convictions because the

robbery constituted the felony element of the felony murder; and consecutive

sentences for the robbery and depraved indifference murder because there was

“evidence that the victims serious physical injury was caused by an act other than

the homicidal act.” People v. Gonsa, 220 A.D.2d at 32-33. In his leave

application, petitioner argued that the Third Department was factually incorrect

because the sentence imposed for the robbery conviction was consecutive to that

imposed for the felony murder conviction. Although petitioner argues in the

instant habeas corpus petition the state court decision affirming his sentence was

based on an erroneous and unreasonable determination of the facts, the focus of

A-\3

Respondent concedes that petitioner raised the same

factual basis in his application seeking leave to appeal to the

New York Court of Appeals as he does in this petition.

However, respondent asserts that petitioner focused solely

on the Appellate Division’s interpretation of New York

Penal Law § 70.25, and did not inform the state court of both

the factual and legal premises of the claim now asserted in

federal court. Thus, he claims petitioner did not fairly

present his constitutional claim to the state’s highest court.

This court disagrees and finds that petitioner fairly

presented his double jeopardy claim to the state’s highest

court “by an assertion of double jeopardy in terms so

particular as to call to mind a specific right by the

Constitution.” Daye v. Attorney General, 696 F.2d at 194.

Petitioner argued that it was legal error for five sentences to

be imposed for four crimes and that the Appellate Division

impermissibly imposed “a double punishment for a single

crime, as [he ...] was sentenced both concurrently and

consecutively for the same robbery.” Since the phrase

“double punishment for a single crime” calls to mind the

constitutional argument of double jeopardy, petitioner has

exhausted state court remedies as to this issue.

However, this court finds no merit to petitioner’s

claim. Under New York law, the court was authorized to

impose consecutive sentences for the convictions of

depraved indifference murder and robbery in the first

a Na i a)

his double jeopardy claim is the imposition of both concurrent and consecutive

sentences for the robbery conviction.

This court notes that the sentencing court imposed the sentence for the

robbery conviction “consecutively to the sentence imposed under Counts 2 and

3.” See T.1727. Although this suggests that the robbery conviction was imposed

consecutive to both murder convictions, the language is unclear, as the court

referred to one sentence. As this court was not provided with a certificate of

conviction, this court presumes that the Appellate Division’s factual finding is

correct. See e.g. Dickerson v. Fogg, 692 F.2d 238, 242 (2d Cir. 1982)(A federal

court is required to give a state court finding of fact a presumption of

correctness). A & A

degree.!0 Since petitioner will not serve additional prison

time as a result of the concurrent robbery sentence, any

interpretation of the facts that could include error would be

harmless."

B. Equal protection of law

In ground five, petitioner argues that he was

deprived of equal protection and due process of law because

the Appellate Division, Third Department, relied upon the

' The New York Penal Law provides that concurrent sentences must be

imposed “for two or more offenses committed through a single act or

omission, or through an act or omission which in itself constituted one of

the offenses and also was a material element of the other. N.Y. PENAL

LAW § 70.25(2). “Consecutive sentences may be imposed when either the

elements of the crimes do not overlap or if the acts demonstrate that the

defendant's acts underlying the crimes are separate and distinct. People v.

Ramirez, 89 N.Y.2d 444, 451, 654 N.Y.S.2f 998 (1996). Distinguishing People

v. Laureano, 87 N.Y.2d 640, 643-644, 642 N.Y.S.2d 150(1996), the Appellate

Division in the instant case found consecutive sentences were warranted

because

[...] there is ample evidence of several separate and distinct acts,

whereby defendant and his accomplices inflicted serious physical injury

on the victim as part of their scheme to take his car before defendant

decided to ‘finish him off.’ In particular, there is evidence that after

initially assaulting the victim with a tree limb and knocking him to the

ground, defendant and his accomplices kicked him and stomped him.

They then used a brick, which they repeatedly threw at the victim’s head

so hard that it bounced off. Defendant then said ‘let's finish him off,’

obtained a metal tool from the trunk of the victim’s car and inflicted the

fatal blows. Present in this case, therefore, is evidence that the victim’s

‘serious physical injury was caused by an act other than the homicidal

act,’ which was expressly found lacking in People v. Laureano, supra, at 65,

642 N.Y.S.2d 150). In these circumstances, we are of the view that County

Court was authorized to impose consecutive sentences for the robbery

and depraved indifference murder convictions. (citations omitted). People

v. Gonsa, 220 A.D.2d at 350.

'' The protection against “double punishment” is necessarily implicated

when a second sentence is imposed after retrial, and consideration must

be given to whether the Constitution requires credit to be given for

punishment already endured. North Carolina v. Pearce, 395 U.S. 711, 716

(1969), overruled in part on other grounds, Alabema v. Smith, 470 U.S. 794

(1989). Double punishment is not implicated in the circumstances of this

case.

'

A-!I5

presumption of regularity regarding his presence at a

Ventimiglia’? hearing, whereas similarly situated defendants

in the Fourth Department would have been afforded a

reconstruction hearing.!3 Respondent argues that a

constitutional argument was never presented to the state

courts, and that petitioner solely asked the Court to decide

whether the holding in People v. Michalek, 82 N.Y.2d 906 3

(1994) was applicable to cases where the record is silent as to

a defendant's presence at a Ventimiglia hearing.'4

In his leave application, petitioner requested

intervention by the Court of Appeals “to resolve the

conflicting procedures utilized by the Third and Fourth

Departments in cases where the record is silent regarding a

defendant's presence at a Ventimiglia hearing in order to avoid

an unequal application of the right to due process among the

Departments.” See Petitioner’s reply memorandum at p.3

and leave application, at p.5-6. Although this court finds

that petitioner did present a constitutional claim to the state

Court of Appeals by “terms so particular as to call to mind a

specific protected by the Constitution” (seen Daye, supra, at

194), the claim lacks merit.

“Not every denial of a right conferred by state law

involves a denial of the right to equal protection of the

laws.” Snowden v. Hughes, 321 U.S. 1,8 (1994). In this case,

state statutory and state constitutional law affords

defendants the right to be present at ancillary proceedings,

'? People v. Ventimiglia, 52 N.Y.2d 350, 438 N.Y.S.2d 261 (1981).

'’ The Third Department, Appellate Division held that the “defendant's

conclusory assertion that he was not present at the pretrial Ventimiglia

hearing, which is not supported by the record, is insufficient to rebut the

presumption of regularity which attached to the proceeding.” People v.

Gonsa, 220 A.D.2d at 30 (citing People v. Robinson, 191 A.D.2d 523, 595 i

N.Y.S.2d, lv. denied 81 N.Y.2d 1018).

'* In Michalek, supra, the Court of Appeals remitted the case for a :

reconstruction hearing because the record was silent as to whether the

defendant had been present at either of two Sandoval hearings; one held in

chambers pre-trial and the other shortly before the defendant was to

testify at trial.

A-i6

including Ventimiglia hearings.15 People v. Spotford, 85 N.Y.2d

593, 627 N.Y.S.2d 295 (1995). Although the Court of Appeals

remitted Michalek for a reconstruction hearing to determine

whether the defendant had been present at a Sandoval

hearing, the trial court in the instant case was not foreclosed

from relying upon the presumption of regularity.1¢

'® A defendant has a due process right to be present “whenever his

presence has a relation, reasonably substantial, to the fullness of his

opportunity to defend against the charge.” Snyder v. Massachusetts, 291

U.S. 97, 105-106 (1934). The New York State statutory guarantee is

broader anc encompasses the right to be “ personally present during the

trial of an indictment,” including “ancillary” as well as core proceedings.

NEW YORK CRIM. PROC. LAW § 260.20. Thus, the right to be present at

a Ventimiglia hearing is derived from the New York statutory right to be

present at all material stages of the trial, and not from federal

constitutional principles. See Peopie v. Spotford, 85 N.Y.2d 593, 627

N.Y.S.2d 295 (1993).

'® In contrast to Michalek, where the record was unclear as to whether the

defendant was present at either the in chambers Sandoval hearing or the

reopening of that hearing before the defendant testified, the record in the

instant case reflects that petitioner was present at the first in-chambers

Ventimiglia hearing. It is thus apparent that the court did not routinely

exclude defendants from in-chambers conferences. Furthermore, the

transcript of a pre-trial discovery hearing held prior to severance of the

co-defendants cases, reveals that the trial judge was sensitive to

petitioner's right to be present. The court voiced concern about the

defendants being seated behind, rather than alongside, their attoneys at

counsel's table. (T.1761-1762). These facts lend to the court's reliance on

the presumption of regularity in the instant case.

~ Furthermore, petitioner's reliance on Baxstrom v. Herold, 383 U.S.

107 (1996) is misplaced. In Baxstrom, supra, the basis of the petitioner’s

equal protection claim was the inequality of a statutory procedure which

created a classification differentiating the civilly insane from the

“criminally insane.” Persons civilly committed to a mental institution

after expiration of a penal sentence were denied the availability of jury

review on the question of sanity, whereas individuals civilly committed

when no penal sentence had been involved, were expressly granted the

right to de novo review by jury trial. Id. at 111. The Supreme Court noted

that although equal protection “does not require that all persons be dealt

with identically, [...] it does require that a distinction made have some

relevance to the purpose for which the classification was made.” Id. at

112.

A-\7

Federal habeas relief is limited to determining

whether a conviction violated the Constitution; it is

unavailable for an alleged error in the interpretation or

application of state law. Estelle v. McGuire, 502 U.S. 62, 67-68

(1991). The Third Department's reliance on the presumption

of regularity regarding petitioner’s presence in that court's

interpretation and application of state law.!” Furthermore, a

habeas court also presumes regularity in the conduct of a

trial, absent substantial contrary evidence. Benitez v.

Senkowski, 1998 WL 668079 (S.D.N.Y. Sept. 17, 1998). As

such, ground five should be dismissed.

C. Change in theory of the indictment.

In ground two, petitioner argues that he was denied

the right to due process and a fair trial because the People

changed the theory of prosecution as to the marner and

cause of the victim’s death, from death resulting from the

defendant's “repeatedly kicking [Grasso] in the head and

body and by striking him in the head with blunt objects” to

death resulting from petitioner having rammed a metal rod

down the victim's throat. See Petitioner’s memorandum at

p.4. Respondent argues that petitioner failed to exhaust his

state court remedies, as he only presented this argument to

the state court in support of his ineffective assistance of

'? Moreover, any claim of selective application of a facially sound state

law requires a showing that “(1) the person, compared with others

similarly situated, was selectively treated, and (2) the selective treatment

was motivated by an intention to discriminate on the basis of

impermissible considerations, such as race or religion, to punish or inhibit

the exercise of constitution rights, or by a malicious or bad faith intent to

injure the person.” FSK Drug Corp. v. Perales, 960 F.2d 6, 10 (2d Cir. 1992).

Petitioner can not show an element of intentional or purposeful

discrimination for the Third Department interpretation and application of

the law.

A-\8

counsel claim, 18 and not as evidence of an independent due

process violation.!9 See Respondent's memorandum at p.13.

This court agrees that petitioner failed to fairly

apprise the state courts of his constitutional due process

claim regarding a change in theory of prosecution. Federal

courts may address the merits of claims that were

procedurally defaulted in state court only upon a showing of

cause for the default and prejudice to petitioner, Bossett v.

Walker, 41 F.3d at 829, or if petitioner can establish that he is

“probably...actually innocent.” Murray v. Carrier, 477 US.

478, 496 (1986). Although cause may be demonstrated if the

procedural default is a result of ineffective assistance of

counsel, Bossett, 41 F.3d at 829 (citing Murray v. Carter 477

U.S. 478, 488 (1986) (citations omitted), petitioner has not

raised ineffective assistance of counsel as a ground for relief

in the instant habeas corpus petition. Nor does he assert

ineffective assistance of counsel as cause for procedural

default. To the extent that petitioner might seek to raise

ineffective assistance of appellate counsel for failure to raise

constittional issues on appeal, this court notes that he has

not exhausted state‘court remedies as to this claim.” Since

'§ The Third Department found that petitioner had not been deprived of

effective assistance of counsel. It did not specifically refer to counsel's

failure to object to the People’s alleged change in theory of prosecution.

'° Respondent notes that the due process claim was unpreserved by

objection at trial, and thus would be procedurally barred from review in

this proceeding under the independent and adequate state grounds

doctrine.

”° Under New York law, the remedy for claims of ineffective assistance of

appellate counsel is a petition for a writ of error coram nobis to the

Appellate Division. See Caballero v. Keane, 42 F.3d 738, 741 (2d Cir.

1994)(citing People v. Bachert, 69 N.Y.2d 593, 516 N.Y.S.2d 623 (1987)).

Petitioner has not exhausted this state court remedy.

Morever, petitioner would have been unsuccessful had he

attempted to argue that appellate counsel was ineffective for failing to

present the constitutional nature of his claim in his leave application to the

New York Court of Appeals. Applications seeking leave to appeal are

collateral, and therefore there is no constitutional right to effective

assistance of counsel at that stage. See Coleman v. Thompson, 501 U.S. 722,

A-\4

petitioner has not even attempted to show cause, and the

evidence does not suggest that he is actually innocent, this

court need not address whether he suffered actual prejudice.

As such, ground two should be dismissed.

However, even if this court were to address the

merits, the undersigned would not agree that the People

changed their theory of prosecution. The court charged the

jurors using the language of the indictment, i.d. that

petitioner acting in concert with Lussier and Meehan “struck

[Grasso] about the head with blunt objects.” (T.1576; see also

T.1577 (“struck him in the head with blunt objects”)). The

evidence adduced at trial included the defendants kicking

and stomping on the victim’s face and head, bashing bricks

on his head, and petitioner stabbing a metal object down his

throat. Bricks and rods can both be considered blunt objects

and the head includes the face and mouth. Therefore,

ground two should be denied and dismissed.

D. Introduction of evidence regarding uncharged

crimes and bad acts

In ground three, petitioner alleges that the

introduction of uncharged crime and bad act evidence

showing his propensity to engage in criminal conduct

violated his constitutional right to due process, to confront

and cross-examine witnesses, to a fair trial and to present a

defense. Respondent argues that petitioner did not assert

these constitutional claims in his Third Department

appellate brief nor in his application seeking leave to the

state Court of Appeals. This court agrees. -

In his letter application seeking leave to appeal,

petitioner contended that he had been deprived of a fair trial

as a result of improperly admitted evidence indicating that

he had committed larceny by trick, theft of services, petit

752 (citing Wainwright v. Torna, 455 U.S. 586 (1982)(where there is no

constitutional right there can be no deprivation of effective assistance).

A-20

larceny and assault.21 The question presented to the Court

of Appeals was whether the Third Department had

improperly created a new category of uncharged “petty”

crimes that enjoyed a relaxed standard of admissibility.

Petitioner challenged the Appellate Division’s decision for

having been vague and indefinite, and asked the Court for

clarification as to the “types” of uncharged crimes that

would be admissible. See Petitioner's leave application, at 8.

Since no federal constitutional question was presented, the

claims raised in the instant petition are unexhausted.~

7 At trial, testimony was elicited that petitioner had convinced an elderly

couple to put them up, feed them and gave them $200 for bus tickets to

New York, which he equates to eliciting testimony of theft of services;

stole $75 form Lussier and Meehan while working for the Mayflower

trucker, which he equates to petty larceny; and assaulted Lussier and

fought with Meehan, which he equates to assault. See Petitioner's

application at p.6, referring to Appellate brief at p.40-41.

In Point I of his appellate brief, petitioner addresses the introduction of

uncharged crimes, bad acts and immoral conduct. In the first sentence of

this 31 page argument, petitioner argues that he was deprived of the right

to a fair trial, and references the Sixth and Fourteenth amendments of the

United States Constitution. See Petitioner’s appellate brief, at p.26.

However, even if this court were to find that this sufficiently alerted the

state court to his constitutional argument and that petitioner thus

exhausted his state court remedies, the claim would be found to lack

merit. A federal court examining a habeas corpus petition does not have

jurisdiction to interpret whether the state courts correctly applied state

law. Estelle v. McGuire, 502 U.S. at 71-72. An erroneous evidentiary ruling

does not.generally rise to the level of constitutional error sufficient to

warrant habeas corpus relief. Sutton v. Herbert, 39 F. Supp.2d 335, 338

(S.D.N.Y. 1999)(citing Ayala v. Leonardo, 20 F.3d 83, 91 (2d Cir. 1994). A

writ should issue only if the petitioner can show that the evidentiary error

deprived him of a fundamentally fair trial, which petitioner has not

established in this case. See id. at 338 (citing Taylor v. Curry, 708 F.2d 886,

891 (2d Cir.) cert. denied., 464 U.S. 1000 (1983)). The evidence established

that petitioner was with the victim and the co-defendants before the

crime; was with the co-defendants after the crinie; scrubbed muddy and

bloody sneakers; assumed the victim’s name to sell his car; cleaned the car

and offered a deer kill as the explanation for the blood in the trunk; fled

the state with the co-defendants; provided people he met with false names

and invented stories about his past; and avoided returning to New York

state.

A-2\

As stated above, petitioner did not attempt to

demonstrate cause for his procedural default. Since no

cause was demonstrated, and the state court records do not

suggest that petitioner is actually innocent, it is unnecessary

for this court to determine whether he has suffered actual

prejudice. Stepney v. Lopes, 760 F.2d 40, 45 (2d. Cir. 1985).

Therefore, ground three should be denied and dismissed.

3. Procedural misconduct.

In ground four, petitioner argues that he was

deprived of the right to a fair trial as a result of prosecutorial

misconduct, and that the state court's decision is contrary to

established federal law.” Petitioner argues that the

prosecutor 1) repeatedly vouched for the credibility of his

witnesses; 2) exceeded the bounds of fair advocacy by

repeatedly characterizing petitioner as a liar on summation;

3) elicited irrelevant and highly prejudicial character

_ evidence; 4) improperly commented on the petitioner's

failure to testify and implied he should have called

witnesses; 5) shifted the burden of proof; and 6)

muscharacterized the evidence, argued facts not in evidence

and acted as an unsworn witness. See Petitioner's

memorandum, at 11.

A federal court’s review of a prosecutor's action on

habeas corpus is very limited. To obtain relief, a habeas

petitioner must show that the prosecutor engaged in

“egregious misconduct ... amount[ing] to a denial of

constitutional due process.” Floyd v. Meachum, 907 F.2d 347,

353 (2d Cir. 1990)(quoting Donnelly v. DeChristofo, 416 U.S.

>> Petitioner raised prosecutorial misconduct on direct appeal, and in his

application seeking leave to appeal to the New York Court of Appeals.

The Appellate Division, Third Department, concluded that the

“prosecutor's remarks were not so egregious as to deprive defendant of a

fair trial.” Although the Appellate Division characterized some of the

prosecutor’s comments as “overzealous,” the court found no evidence that

the remarks had a “decided tendency to prejudice the jury.” People v.

Gonsa, 220 A.D.2d at 249.

A-22

634, 647-648 (1974)). Petitioner must prove actual prejudice

such that the prosecutor’s misconduct “had a substantial

and injurious effect or influence in determining the jury’s

verdict.” Bentley v. Scully, 41 F.3d 818, 824 (2d Cir. 1994),

cert. denied, 516 U.S. 1152 (1996). The allegedly improper

conduct must be reviewed within the context of the entire

trial to determine whether it amounted to “ prejudicial

error.” Strouse v. Leonardo, 928 F.2d 548, 557 (2d Cir. 1991).

The court must consider “the severity of the misconduct, the

measures adopted to cure the misconduct, and the certainty

of conviction absent the misconduct.” Id. (citing United

States v. Friedman, 909 F. :d 705, 709 (2d Cir. 1990)). See also

Tankleff v. Senkowski, 135 F.3d 235, 252 (2d Cir. 1998).

Petitioner claims that the prosecutor repeatedly

made himself into an unsworn witness, vouched for

Lussier’s credibility and interposed the credibility of his

office. This court does not agree that vouching occurred in

all instances cited by petitioner in his memorandum at pages

12-13. However, even if one or more of the prosecutor’ s

comments constituted improper vouching,‘ this court finds

that such conduct did not constitute “egregious misconduct

--. amount[ing] to a denial of constitutional due process.”

Floyd v. Meachum, 907 F.2d at 353. The prosecutor’s own

comments mitigated any prejudicial effect. In his opening

statement, the prosecutor repeatedly advised the jurors that

** This court agrees that it was improper for the prosecutor to ask the

jurors to consider what motivation Lussier would have to lie, given that

the District Attorney’s Office would call off the deal if they found out he

was lying. The jurors could interpret this as the District Attorney’s office

vouching for Lussier’s truthfulness. This court also agrees that it was

improper for the prosecutor to ask the jurors “what motivation [...] the

DA’s [would] office have to try and prosecute someone if they were

innocent?” (T.1518). However, any suggestion of vouching was mitigated

by the prosecutor's own comments on summation, e.g. that he was not a

character witness for Lussier, and that the jurors would have to evaluate

Lussier’s credibility, (T.1507-1507; 1510)..

A-23

ea LE SE eR

it was up to them to evaluate Lussier’s credibility.> He

conceded that Lussier would lie to help himself. (T.1515).

On summation, he reiterated that he was not a character

witness for Lussier, telling the jury “you all know what he

is.” (T.1508). Thus, even if any one statement could be

considered vouching, there was no substantial or injurious

effect or influence on the jury’s verdict. Bentley v. Scully, 41

F.3d at 824.

Petitioner argues that the prosecutor exceeded the

bounds of fair comment by repeatedly calling him a liar on

summation, and equates the prosecutor’s conduct to that

condemned by the Second Circuit in Floyd v. Meachum, supra.

This court does not agree. Floyd v. Meachum was one of the

“rare cases where the improper comments in a prosecutor's

summation were so numerous and, in combination, so

prejudicial that a new trial was required.” Id., 907 F.2d at

348. In Floyd, the Second Circuit emphasized that there was

cumulative prosecutorial error, consisting of “repeated and

escalating misconduct from initial closing to summation.”

Id. at 353. In Floyd, the prosecutor called the defendant a liar

dozens of times and equated his lies with proof of guilt

beyond a reasonable doubt. She also diluted the State’s

burden of proof by referring to the Fifth Amendment as a

shield for the innocent and not for the guilty, undermined

the presumption of innocence, and asked the jury to pass on

her personal integrity and professional ethics. The Court

noted that, standing alone, each instance of prosecutorial

misconduct did not justify reversal, but the “effect of all of

them requires it.” Id. at 357.

>> See, e.g., 1.80 (“you can evaluate his testimony yourselves”); T.84 (“and

his testimony you will evaluate for what you think it is worth”); T.93 (“On

the issue of credibility, you are certainly allowed to consider [Lussier’s

involvement in robbing and stabbing another man] in terms of Mr.

Lussier’s truthfulness.”); T.94 (“I am certainly not standing here as a

character witness for Michael Lussier [...]; T.95 (“It is going to be up to

you to assess his credibility. Observe his demeanor. Listen carefully to

what he says.”).

A-24

The prosecutor’s conduct in the instant cases is not

comparable. On summation, defense counsel attacked

Lussier’s credibility and suggested that there was

insufficient corroboration to establish proof beyond a

reasonable doubt. He argued that Lussier was a violent

thief, who told so many lies in order to benefit himself that

he could not be believed at all. (T.1428; 1432-1435; 1449-1451;

1457). On summation, the prosecutor acknowledged that

Lussier had lied to help himself. (T.1510; 1515). However,

he also asked the jury to also consider the lies petitioner told

to others after the murder as evidence of his involvement in

the crime and his consciousness of guilt. (T.1531-1532). The

prosecutor referred to the fact that petitioner had assumed

the victim’s name to sell the Beretta; explained that the blood

in the trunk came from a deer; and told many other lies

concerning his identity and past to the Wrights, Michael

Barkley and Thomas Burrows. He asked the jurors to

consider the witnesses’ testimony describing petitioner’s

“cocky, arrogant attitude” in the days following the murder.

(T.1533).

The “use of the words ‘liar’ and ‘lie’ to characterize

disputed testimony when the witness's credibility is clearly

in issue is ordinarily not improper unless such use is

excessive or likely to be inflammatory.” Floyd v. Meachum,

907 F.2d at 354 (quoting United States v. Peterson, 808 F.2d

969, 977 (2d Cir. 1987). Particularly egregious in Floyd, and

absent in the present case, was the prosecutor equating a

defendant's lies to proof beyond a reasonable doubt as to his

guilt. Id. at 350; 354.

Petitioner also argues that the prosecutor

mischaracterized evidence by implying that the victim's

blood had been found on his clothing. In his opening, the

prosecutor stated that there was human blood on a pair of

blue jeans that petitioner was wearing, and on the shorts and

tops Lussier and Meehan were wearing. (T.70). At trial,

several witnesses testified that Meehan and Lussier wearing

shorts. (T.556-557; 573; 638-641; 664-665; 766). Defense

A-as

witness Richard Hamm testified that petitioner was wearing

jeans when he saw him between 4:30 and 5:00 p.m. the

afternoon of the murder. (T.1282-1283). Lussier identified

the blue jeans as those worn by the petitioner. (T.300). Two

pair of shorts and one pair of jeans were recovered from the

Thomas’ residence. Although the blood found on the blue

jeans had degraded due to environmental conditions and

was unable to be analyzed (T.1156; 1181-1183; 1187), the

blood on the co-defendants’ clothing affirmatively matched

the DNA of the victim’s parents. Given this evidence, the

prosecutor did not mischaracterize the evidence by referring

to the “blood evidence” as “highly incriminating.” (T.1521).

Finally, petitioner claims that the prosecutor violated

his Fifth and Fourteenth amendment right to remain silent

by improperly commenting on his failure to testify. He

refers to the fact that the prosecutor told the jurors that they

should not judge petitioner by his appearance in the

courtroom and that they did not know “anything about him,

about what type of person he is other than the evidence [...]

heard in this case. (T.1522; 1532). These comments did not

impermissibly imply that petitioner ought to have testified

or presented evidence. Rather, this court views the

prosecutor’s comments as a reminder to the jurors that their

verdict is to be based on the evidence. Similarly, this court

does not find that the prosecutor shifted the burden of proof

by stating “there’s not one shred of evidence to support that

[petitioner] was not involved in this.” (T.1462-1463; 1530).

This comment was more a suggestion that, given the

evidence presented, there was no reasonable doubt as to

petitioner’s guilt. (T.1463).

However, even if any of these comments were

improper, this court finds no substantial and injurious effect

or influence in determining the jury’s verdict. No objections

were lodged, and therefore no curative instructions were

given. In any event, the court's thorough charge to the

jurors cured any potential prejudice. The court instructed

the jurors that the attorneys’ comments were not evidence,

A-26

but their own interpretation of the evidence; that attorneys

are advocates for their clients, and it is the jurors’ obligation

to impartially judge the facts and accept or reject the

attorneys’ interpretations based on their own recollection of

the evidence; and reminded them that they were the sole

and exclusive judges of the facts. (T.1538-1539; 1546). The

court provided guidelines for evaluating credibility,

including prior inconsistent statements, criminal history,

and promised benefits for testifying. (T.1546-1548; 1554-

1555).

The jurors were instructed that the People must

prove their case beyond a reasonable doubt, that the burden

of proof never shifts to the defendant, and that the People

must prove that there is no other reasonable explanation

from the evidence presented other than that of guilt.

(T.1536; 1542-1543; 1564-1566). They were told that the

defendant is never required to prove his innocence, that by

pleading guilty he denies guilt, and that no unfavorable

inference could be drawn from the fact that petitioner did

not testify. (T.1542; 1550). Lussier was charged as an

accomplice as a matter of law, and the jurors were told that

his testimony must be viewed with “suspicion” and

corroborated. (T.1561). They were instructed to render a

verdict without concern about the parties or public’s

reaction to the outcome. (T.1544).

“A criminal conviction is not to be lightly overturned

on the basis of a prosecutor's inappropriate comments

standing alone.” United States v. Young, 470 U.S. 1, 11-12

(1985). Prosecutorial misconduct on summation is grounds

for reversal only when there is substantial prejudice to the

defendant. Gonzalez v. Sullivan, 934 F.2d 419, 424 (2d Cir.

1991). Given the court's instructions to the jury, and in light

of the totality of evidence presented at trial, this court finds

that the prosecutor’s summation did not have a substantial

and injurious effect or influence in determining the jury’s

verdict. Cf. United States v. Modica, 663 F.2d 1173 (2dCir, - -

A-2T

1981), cert. denied 456 U.S. 989 (1982). Therefore, count four

should be dismissed.

WHEREFORE, based on the findings in the above

Report it is

RECOMMENDED that the petition be DENIED and

DISMISSED.

Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule

72.1(c), the parties have ten days within which to file written

objections to the foregoing report. Such objections shall be

filed with the Clerk of the Court. FAILURE TO OBJECT

TO THIS REPORT WITHIN TEN DAYS WILL

PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984

F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health and

Human Services, 892 F.2d 15 (2d cir. 1989)); 28 U.S.C. §

636(b)(1); FED. R. CIV.P.72, 6(a), 6(e), and it is

ORDERED that the state court records herein be

returned directly to the office of the Assistant Attorney

General at the conclusion of these proceedings. He has

agreed to make them available for any appellate review.

dk ca 13, 1999 OYA Guat ave _f. Db

Syracuse, New York United States Magistrate Judge

U.S DISTRICT COURT - N.D. OF N.Y.

FILED

AUG 13 1999

AT O’CLOCK

Lawrence K. Baerman, Clerk - Syracuse

A-26

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2

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

THOMAS GONSA,

Petitioner,

-v- 97-CV-1828

(FJS)(GJD)

JAMES STINSON, Superintendent at

Great Meadows Correctional Facility,

Respondent. —

APPEARANCES: OF COUNSEL,

BIANCO LAW OFFICE RANDIJUDA BIANCO, ESQ.

247 West Fayette Street, Suite 202

Syracuse, New York 13202

Counsel for Petitioner

ELIOT SPITZER JEFFREY M. DVORIN, ESQ.

Attorney General of the Assistant Attorney General

State of New York

Department of Law, The Capitol

Albany, New York 12224

Counsel for Respondent

FREDERICK J. SCULLIN, JR., D.J.:

MEMORANDUM-DECISION AND ORDER

Introduction

Petitioner Thomas Gonsa, presently incarcerated in

Great Meadow Correctional Facility, brings this habeas

corpus petition pursuant to 28 U.S.C. §2254 complaining of

the conviction entered against him by the New York State

County Court of Broome. Petitioner was sentenced to a total

indeterminate term of thirty-three and one-third years to life

A-2%

imprisonment for two counts of second degree murder, one

count of first degree robbery and one count of third degree

criminal possession of stolen property. The New York State.

Appellate Division, Third Department affirmed Petitioner’s

conviction and sentence on June 13, 1996. People v. Gonsa,

644 N.Y.S.2d 346 (N.Y. App. Div., 3rd Dep’t. 1996).! The

New York Court of appeals denied leave to appeal on

December 13, 1996. People v. Gonsa, 677 N.E.2d 297 (N.Y.

1996)

Petitioner filed a habeas corpus petition on December

12, 1997, asserting five grounds for relief: (1) Petitioner's

rights under the double jeopardy clause of the U.S.

Constitution were violated; (2) the prosecution failed to

provide sufficient notice regarding a change in theory of the

murder indictment; (3) impermissible evidence of uncharged

crimes and prior bad acts was admitted at trial; (4)

prosecutorial misconduct occurred; and (5) Petitioner’s

equal protection rights were violated with regard to a

reconstruction hearing.

Presently before the Court is the Report-

Recommendation of the Honorable Magistrate Judge

DiBianco, dated August 13, 1999, recommending that the

' Petitioner raised five issues in his appeal: (1) evidence of

uncharged crimes, prior bad acts and flight of Petitioner was improperly

admitted by the trial court; (2)prosecutorial misconduct occurred; (3) the

right to a fair trial was denied due to ineffectiveness of counsel; (4) the

accomplice testimony was no corroborated and was improperly admitted;

and (5) consecutive sentences were imposed for charges that arose from a

single incident. x

Petitioner sought review on four issues; (1) whether a conflict

of laws exists between the Third and Fourth Appellate Departments in

New York State with regard to Ventimiglia hearings; (2) whether the

Appellate Division erred in creating a new standard for admitting

evidence regarding uncharged crimes; (3) whether a person can be

sentenced five times for four crimes; and (4) whether the proper standard

of review was used for determining whether prosecutorial misconduct

occurred.

A-30

petition be dismissed. Petitioner filed timely objections

specifically challenging each finding of the Magistrate

Judge’s Report-Recommendation. In addition, Petitioner

alleges that the Magistrate Judge's factual section contained

numerous errors which invalidated his legal conclusions.

Pursuant to 28 U.S.C. 636(b)(1), a district court mus’

make a de novo determination of those portions of a

Magistrate Judge’s Report-Recommendation that are

specifically objected to by a party. Thus, this Court will

address Petitioner’s relevant objections seriatim.

Facts

Petitioner was convicted for the July 1991 murder of

Robert Grasso; also convicted were co-defendants, Michael

Lussier and Dennis Meehan.} The three men plotted to

“disable” the victim and then steal his car. However, as a

result of being severely beaten by all three men and having a

metal rod shoved down his throat by Petitioner, the victim

was killed. After the murder, Petitioner, Lussier and

Meehan went to a friend’s apartment in Endicott, New York,

where Lussier and Meehan disposed of the body. The three

men then fled New York. Lussier and Meehan turned

themselves in to authorities on or about September 1991.

Petitioner was apprehended in Vermont in early 1992.

I. Misreading of Facts

Petitioner alleges that certain factual portions of

Magistrate Judge DiBianco’s Report-Recommendation are

incorrect and/or inaccurate. Specifically, he claims the

following: (1) Magistrate Judge DiBianco incorrectly

* Lussier entered into a plea agreement with the prosecutor in

exchange for his testimony against Petitioner and Meehan. Meehan was

convicted of two counts of second degree murder, robbery and criminal

possession of stolen property after a jury trial on or about December

A-3\

1992.

recounts the trial testimony describing the appearance of

Petitioner when he arrived at the apartment in Endicott,

New York; (2) Magistrate Judge DiBianco misstates a co-

defendant's testimony; (3) Magistrate Judge DiBianco relies

upon testimony stricken from the record; and (4) Magistrate

Judge DiBianco incorrectly summarizes trial testimony.

A. Testimony by Witnesses Regarding Petitioner’s

Appearance on the Night of the Murder

After the murder, it is undisputed that Petitioner,

Meehan and Lussier went to and apartment in Endicott,

New York, where they spent the night. The Magistrate

Judge, in his Report-Recommendation, summarized the

. witnesses’ description of defendants. He stated that “several

people present in the apartment testified that the three

[Petitioner, Lussier and Meehan] were muddy when they

arrived.” (Magistrate Judge Report-Recommendation at 7,

fn. 6, hereinafter “Report”). Petitioner objects to the

characterization that “several” People saw that Petitioner

and co-defendants were muddy despite the fact that one

woman testified that “they were all dirty,” (Record on

Appeal at 628, hereinafter “R”); another testified that

Lussier, Meehan, and Petitioner arrived in a gray Beretta

and that “most of them were wearing shorts and they were

all muddy,” (R. at 701-02); and finally, a third testified that

they were “a little muddy” and when asked whether all

three were muddy, he responded, “Yes.” (R. at 737.) Thus,

the Magistrate Judge’s statement that “several” People

testified that Petitioner was muddy was correct.4

* Petitioner also claims that the trial testimony regarding whether

Petitioner was wearing jeans when he arrived at the Endicott apartment is

unclear. He claims, therefore, that the Magistrate Judge’s conclusion that

he was wearing jeans was incorrect. While one women testified that

Petitioner was wearing shorts and a t-shirt (R. at 630-631), other

witnesses testified that Petitioner was wearing jeans on the day of the

murder. (R. at 300, 1283.) Therefore, the Magistrate Judge’s assignment

of ownership was supported by the testimony.

A-32

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B. Lussier’s Testimony

Petitioner claims that the trial transcript does not

support the statement made in the Magistrate Judge’s

Report-Recommendation that Petitioner “stab[bed] the metal

object up and down in [the victim's] mouth two times” and

that the victim “was missing his front teeth.” (Report at 6-7).

This Court disagrees. According to the trial transcript,

Lussier actually testified that Petitioner stabbed the metal

rod “up and down. Not too many times...maybe two full

up and down motions,” and that “I believe [the victim] was

missing both front teeth.” (R. at 182-83.) Therefore, the

Magistrate Judge was correct in his characterization of

Lussier’s testimony.

C. Testimony Stricken from the Record

Magistrate DiBianco stated in his Report-

Recommendation that “Lussier testified that Petitioner

looked concerned.” (R. at 202-03.) Petitioner alleges that

this testimony was stricken from the record. Petitioner is

correct. Thus, the Magistrate Judge incorrectly included this

testimony in his facts. However, the error is immaterial

because even without this statement, the weight of the

evidence supports the Magistrate Judge’s findings.

D. Additional Alleged Inaccuracies in the Magistrate

Judge’s Report-Recommendation

Petitioner alleges that references to the trial transcript

made by the Magistrate Judge are inaccurate. For example,

Petitioner also suggests that even if he were wearing the jeans, it

is significant that the blood stains on the jeans were not as obvious or as

numerous as the blood stains found on other clothing left at the

apartment. Even so, the blood stains on the jeans were found to be

human blood. (R. at 1016.)

A-33

the Magistrate Judge states that Petitioner “started talking

loudly” (Report at 5) to the victim when the transcript

indicates “a little louder.” (R. at 179.) In addition, the

Magistrate Judge stated that “the van could not be repaired”

(R. at 10.) when the testimony was the “we didn’t have the

money to get [the van] going again.” (R. at 208.) This Court

does not find that these statements are “inaccurate,” rather

they are characterizations made by the Magistrate Judge that

are supported by the testimony. Furthermore, even if they

could be considered slight mischaracterizations, they are

insignificant and have no material effect on the conclusions

reached by the Magistrate Judge.

Petitioner also makes allegations that other findings

in the Report-Recommendation are inaccurate. However,

this Court finds that the remaining allegations are supported

by the trial transcript or are typographical errors.5

*Petitioner questions the following references, but they are all

supported by the evidence in the Record: reference to the shattering of the

car window is supported by a question asked of and answered by Lussier

(R. at 187.); statement that Petitioner told Vicente to calm down and not

to worry, because it was just deer blood is supported by Vincente’s

testimony (R. at 781.); reference to Petitioner discussing a concocted alibi

may be concluded from Lussier’s testimony (R. at 220-221); reference to

Petitioner’s next ride being with Thomas Burrows is not supported by the

transcript as actually being Petitioner’s “next” ride, however, the

conclusion that Burrows gave Petitioner a ride is accurate (R. at 1066-67)

as is the reference to false information given to Burrows by Petitioner.

Id.

Other alleged inaccuracies are merely the result of typographical

errors. For example, and indication that by pleading guilty he denies guilt

is missing the word “not” between pleading and guilty. (Report at 29.) A

reference to the blows to the victim’s head being consistent with someone

stomping on his head is actually at page: 1221 of the Record, not 1222 as

cited. In addition, a reference made to Petitioner refusing to learn how to

be a truck driver because the run was to New York is actually found on

page 1068 of the transcript, not 1078 as indicated. Finally, a reference

made to Lussier being confronted with a confession he made to

Shepardson occurs at pages 260-261 of the transcript, not pages 278-80.

A-34

Therefore, this Court find that all of Petitioner's

allegations regarding the misreading of facts are either

unsupported or are immaterial to the legal conclusions

reached by Magistrate Judge DiBianco in the Report-

Recommendation.

II. Double Jeopardy

Petitioner was convicted of one county of robbery,

one count of depraved indifference murder, one count of

felony murder and one count of criminal possession of

stolen property. The New York State Supreme Court

sentenced Petitioner to 25 years to life for each murder

conviction, a term of 8-1/3 to 25 years for robbery and 2-1/3

to 7 years for criminal possession of stolen property. The

murder sentences were to run concurrently, the robbery

sentence to run consecutively to both murder sentences and

the criminal possession sentence to run concurrently with

the robbery sentence. The Appellate Division, Third

Department, clarified that the robbery sentence was to run

consecutively to the depraved indifference murder sentence

only. Gonsa, 644 N.Y.S.2d at 349. Petitioner argues that

double jeopardy was violated because under New York

Penal Law, the robbery and felony murder convictions

merge. N.Y. PENAL LAW § 70.25. Thus, Petitioner claims

that because the murder sentences must run concurrently

and the felony murder and robbery sentences must run

concurrently, the consecutive sentences for robbery and

depraved indifference murder are multiple sentences for the

same offense. Magistrate Judge DiBianco determined that

Petitioner's double jeopardy claim is without merit because

it is permissible to impose consecutive sentences for

convictions of robbery and depraved indifference murder.

Petitioner objected to this finding.

Before looking at whether double jeopardy has been

violated, the issue of whether the felony murder and

robbery charges merge to a single offense must be

A-35

addressed. While the New York statute may seem to

indicate that these charges should merge, the New York

Court of Appeals has held that with regard to felony

murder, “the underlying felony is not so much an element of

the crime but instead functions as a replacement for the ...

intent necessary for common-law murder.” People v.

Berzups, 402 N.E.2d 1155, 1160 (N.Y. 1980). Only where the

facts indicate the crimes are incidental and inseparable can

the merger doctrine apply. People v. Lucas, 406 N.Y.S.2d

1019, 1021 (Sullivan Co. Ct. 1978)(holding that charges of

robbery, kidnapping, intentional murder and felony murder

do not be merge because they were based on separate acts).

When a murderous act is an afterthought and not related to

the initial crime of robbery, consecutive sentences may be

imposed. People v. Tanner, 282 N.E.2d 98 (N.Y.

1972)(holding that consecutive sentences allowed where

murder of victim was an “unnecessary afterthought”

because robbery was completed and victim was offering no

resistance).

In this instance, the Appellate Division found that

there was evidence that the robbery and depraved

indifference murder charges were not based on the same

acts. Gonsa, 644 N.Y.S.2d at 350. Thus, because the crimes

are based on separate acts, they are not inseparable or

incidental and do not merge.

The Magistrate Judge then goes on to correctly

explain that when a defendant's acts underlying a crime are

separate and distinct, consecutive sentences may be

imposed. People v. Ramirez, 677 N.E.2d 722, 725 (N.Y.

1996). Therefore, consecutive sentences may be imposed

when a defendant is convicted of two separate murder

charges. People v. Mebert, 599 N.Y.S.2d 938 (N.Y. App. Div.,

2"4 Dep’ t. 1993)(where defendant is convicted of both felony

murder and intentional murder, intentional murder sentence

may run consecutively to underlying felony sentence if

intentional murder conviction is based on a “separate and

distinct” act other than the act relief upon for the underlying

A-3¢

aI NRE RO HIN? SETAE SLY MPO

felony conviction); People v. Doyle, 462 N.Y.S.2d 138, 139

(N.Y. Sup. Ct., Bronx Co. 1983)(holding that person

convicted of intentional murder, feiony murder and sexual

abuse may be sentenced to consecutive sentences for

intentional murder and sexual abuse even though felony

murder and sexual abuse sentences must merge because the

homicidal act was separate and distinct from the act

constituting sexual abuse). As mentioned above, the =

Appellate Division found that the facts supported the

conclusion that the underlying acts relied upon for the

depraved indifference conviction and the robbery conviction

were separate and distinct. Gonsa, 644 N.Y.S.2d at 350.

Thus, the trial court may, in its discretion, impose

consecutive sentences.

III. Change in Theory of Indictment

Magistrate Judge DiBianco recommended that

Petitioner's claim regarding inadequate notice of a change in

the theory of the indictment be dismissed because Petitioner

had failed to exhaust available state remedies. Petitioner

objected on the grounds that it was included within other

claims made on appeal.

As the Magistrate Judge stated, it is well settled that

a state prisoner must exhaust all available state remedies

before a writ of habeas corpus can be issued by the federal

courts. Ellman v. Davis, 42 F.3d 144, 147 (2d Cir. 1994). An

exception can only be made when the prisoner can show

that there was cause for the default and that he suffered

actual prejudice because of the federal law violation.

Restrepo v. Kelly, 178 F.3d 634, 640(2d Cir. 1999). A

Petitioner does not have to “cite Chapter and verse of the

Constitution to satisfy the exhaustion rule.” Levine v.

Comm’r of Correctional Serv., 44 F.3d 121, 124 (2d Cir. 1995).

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Magistrate Judge DiBianco correctly found that

neither of Petitioner’s appeals included this claim. He also

found that Petitioner provided no explanation for why this

claim was not raised. Furthermore, Petitioner’s appeals

contain no language that supports that this claim was raised

collaterally. Accordingly, the Magistrate Judge’s |

recommendation to dismiss this claim is accepted by this

Court.

Even if this Court were to address the merits of

Petitioner's claim, it would likewise fail. Petitioner relies

upon Berger v. US, to show that “the accused shall be

definitely informed as to the charges against him, so that he

may be enabled to present his defense and not be taken by

surprise by the evidence offered at the trial.” Berger v. US,

295 U.S. 78, 82 (1935). However the Supreme Court also

held that no prejudice exists where “the allegation and proof

substantially correspond” or where the variance did not

mislead defendant during the trial. Id. at 83. Also, the

Second Circuit has allowed flexibility in offering proof as

long as the defendant has been given notice of the “core of

criminality to be proven at trial.” U.S. v. Wozniak, 126 F.3d

105, 109 (2d Cir. 1997). In fact, one can not expect proof

offered at trial to be an exact replica of the charges in the

indictment. Id.

While the Petitioner’s indictment stated that the

victim’s death was caused by “kicking him in the head

and...body and striking him in the head with blunt objects,”

(R. at iv), the proof offered at trial also included testimony

regarding a long metal object as a possible cause of death.

However, this evidence did not change the underlying

charge of murder for which the Petitioner was convicted.

Thus, even though evidence of another possible cause of

death was offered, the defendant was not mislead or

prejudiced in any way. He was put on notice to defend

against a murder charge and that is what the evidence

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supported. Therefore, this Court accepts the Magistrate

Judge’s recommendation to dismiss this claim.

IV. Uncharged Crimes and Previous Bad Act Evidence

Petitioner claims that his rights to due process, to

confront and cross-examine witnesses, to a fair trial and to

present a defense were violated because the trial court

admitted evidence regarding Petitioner's alcohol and drug

dependence and events that occurred after Petitioner fled

New York. The Magistrate Judge again found that this claim

had not met the exhaustion requirements. Petitioner

objected and this Court agrees that it is possible to read

Petitioner’s appeals to include such a due process claim,

therefore this Court will review that issue.

The standard of review to be used in a habeas corpus

petition with regard to an evidentiary error is whether the

Petitioner can show that he did not receive a “fundamentally

fair trial.” Blissett v. Lefevre, 924 F.2d 434 (2d Cir. 1991);

Taylor v. Curry, 708 F.2d 886, 891 (2d Cir. 1983). In Blisett,

the Second Circuit held that if a plaintiff has the opportunity

to attack a witness’ testimony and to introduce evidence to

invalidate the testimony, no deprivation of a fair trial

occurred. Blissett at 439. In any event, evidence regarding

consciousness-of-guilt may be introduced at trial. U.S. v

Amuso, 21 F.3d 1251 (2d Cir. 1994).

Petitioner had every opportunity to refute the

testimony regarding his activities after he fled New York

and to attack the credibility of the witnesses who provided

such testimony. Moreover, the evidence introduced at trial

was not that of prior bad acts, it was with regard to his

activities after the crime was committed and was committed

and was used to establish that Petitioner knew he was guilty

of criminal activity and fled New York to avoid arrest. The

evidence in this instance was offered to show defendant's

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activities after the crime was committed, not to show a

propensity towards criminal behavior. Because the evidence

was introduced to show defendant's consciousness-of-guilt,

it was correctly admitted by the trial court and Petitioner’s

claim of due process violation based on the admission of

such evidence should be dismissed.

V. Prosecutorial Misconduct

Petitioner argued that prosecutorial misconduct

occurred during the trial because the prosecutor vouched for

the credibility of a witness, elicited irrelevant and

inflammatory character evidence unrelated to the crimes,

implied Petitioner’s guilt because‘he did not testify and

shifted the burden of proof to Petitioner. Magistrate Judge

DiBianco determined that the challenged statements made

by the prosecutor during the trial did not deprive Petitioner

of a fair trial. Petitioner contends that this was in error

because the cumulative effect of the statements was not

considered.

As stated by the Magistrate Judge, the standard a

federal court must use when reviewing a prosecutor's

conduct is very narrow and only due process issues are to be

examined. Floyd v. Measchum, 907 F.2d 347, 353 (2d Cir.

1990). When conducting this review, a court must determine

whether the cumulative effect of the prosecutor’s conduct

was so prejudicial that Petitioner was denied a

fundamentally fair trial. Id. In making sucha

determination, a court must look at the severity of the

misconduct, the measures used to correct the misconduct

and the certainty of conviction if the improper remarks were

not made. Id. at 355.

A review of the record supports the Magistrate

Judge’s findings that the prosecutor’s conduct did not deny

Petitioner a fair trial. While there may be some cumulative

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effect to the prosecutor’s statements and characterization, it

did not rise to the level necessary to declare Petitioner's trial

unfair. Also, the trial court gave detailed instructions to the

jury that the attorneys’ summations were not evidence and

that the burden of proof was on the State to prove Petitioner

guilty beyond a reasonable doubt. Further instructions were

also provided regarding establishing the credibility of

witnesses as well as an assumption that Petitioner was

innocent until proven guilty and that no significance could

be attached to the fact that Petitioner did not testify. Finally,

even if the prosecutor’s comments were found to have a

substantial cumulative impact, the evidence presented at

trial was not so close that the effect would have had a

substantial cumulative impact, the evidence presented at

trial was not so close that the effect would have had a

substantial impact on the verdict. Tankleff v. Senkowski,

135 F.3d235, 253 (2d Cir. 1998). Therefore, the Magistrate

Judge’s recommendation to dismiss this claim is accepted.

VI. Equal Protection Issue

Finally, Petitioner claims that because a split among

Appellate Departments in New York exists as to the right to

a reconstruction hearing when the record is not clear as to

whether a defendant was present at a Ventimiglia hearing,

his equal protection rights have been violated.° Petitioner

claims that when the record is silent about whether a

defendant is present at a Ventimiglia hearing, only the Third

Department makes a presumption of regularity. All other

Appellate Divisions in New York, require a reconstruction

hearing on the issue. The Magistrate Judge determined that

Petitioner had adequately raised the issue of this claim, but

that the Third Department's decision to rely on a

presumption of regularity with regard to a defendant's

® A Ventimiglia hearing is held prior to trial to determine

whether evidence regarding uncharged crimes may be admitted at trial.

33 N.Y. JUR. 2D Criminal Law §2104.1 (1999).

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presence is an interpretation of state law and cannot be

overturned on habeas review. Petitioner objected to this

determination because there is a clear disparity between the

Appellate Divisions in New York State and there is no

rational basis for the distinction made between defendant's

in the Third Department and other departments in New

York State. |

The Supreme Court has held that the Fourteenth

Amendment does not require that “all persons in the United

States... benefit [from] the same laws and the same remedies.

Missouri v. Lewis, 101 U.S. 22, 31 (1879) (holding that

different appeals procedures within the State of Missouri do

not violate equal protection requirements). Id. at 29. Thus,

as long as all people within a certain area are treated

equally, equal protection rights are not violated. North v.

Russell, 427 U.S. 328, 338 (1976).

In this instance, the Third Department has

consistently held that there is a presumption of regularity

with regard to official court proceedings and unless a

defendant presents evidence to the contrary, that

presumption is not negated. People v. Augustine, 654

N.Y.S.2d 179, 184 (N.Y.App.Div., 34 Dep’t. 1997) leave to

appeal denied 682 N.E.2d 982 (N.Y. 1997)(regarding

defendant's presence at both Sandoval and Ventimiglia

hearings). Accordingly, even though other departments

within New York State have required a reconstruction

hearing in similar circumstances,’ the Fourteenth

Amendment does not require the Third Department to do so

as well.

7See e.g., People v. Rodriguez, 627 N.Y.S.2d913 (N.Y. App.

Div., 1* Dep’t. 1995); New York v. DeWitt, 665 N.Y. App. Div. 2”

Dep’t. 1997); People v. Snell, 612 N.Y.S.2d 10005 (N.Y. App. Div., 4”

Dep’t. 1994).

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Conclusion

After carefully considering the entire file, the :

submissions of the parties and the applicable law, it is

hereby

ORDERED, that Magistrate Judge DiBianco’s Report-

Recommendation dated August 13, 1999, is ACCEPTED as

MODIFIED; and it is further

ORDERED, that Petitioner’s habeas corpus petition

brought pursuant to 28 U.S.C. § 2254 is DENIED and

DISMISSED.

4

IT IS SO ORDERED,

Dated: February 15, 2000

Syracuse, New York

Lfirbonih J Se 09. Jedlin Y-

/ Frederick J. Scullin, -

United States District Judge

U.S. DISTRICT COURT - N.D. OF N.Y.

FILED

FEB 15 2000

AT O’/CLOCK

Lawrence K. Baerman, Clerk - Syracuse

A-43

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN

THE FEDERAL REPORTER AND MAY NOT BE CITED AS

PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER

COURT, BUT MAY BE CALLED TO THE ATTENTION OF

THIS OR ANY OTHER COURT IN A SUBSEQUENT

STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY

CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR

RES JUDICATA.

At a stated term of the United States Court of

Appeals for the Second Circuit, held at the United States

Courthouse, Foley Square, in the City of New York, on the

twenty-fifth day of November, two thousand two.

PRESENT:

HON. RALPH K. WINTER,

HON. ROBERT D. SACK,

HON. SONIA SOTOMAYOR,

Circuit Judges.

THOMAS GONSA,

Petititoner-Appellant,

-vV- No: 00-2167

JAMES STINSON, Superintendent,

Respondent-Appellee.

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Appearing for Appellant! RANDIJUDA BIANCO,

Bianco Law Offices,

Syracuse, New York

Appearing for Appellee: ALICIA R. OUELLETTE,

Attorney General's Office

(Eliot Spitzer, Nancy A. Spiegel, of counsel),

Albany, New York.

Appeal from United States District Court Northern

District of New York (Frederick J. Scullin, Jr., Judge).

UPON DUE CONSIDERATION, IT IS HEREBY

ORDERED, ADJUDGED AND DECREED that the judgment

of February 15, 2000 be, and it hereby is, AFFIRMED.

Thomas Gonsa appeals from the district court’s

denial of his petition for habeas corpus under 28 U.S.C.§2254

The facts of this case were stated in the opinion

below. Gonsa v. Stinson, No. 97-CV-1828 (N.D.N.Y. Feb. 15,

2000).

A jury convicted Gonsa of Robbery, Criminal

Possession of Stolen Property, Second Degree Murder

(Felony Murder) and Second Degree Murder (Depraved

Indifference Murder). The court sentenced Gonsa to

concurrent twenty-five years to life terms on the Murder

convictions. Gonsa was also sentenced to seven years for

Robbery to be served concurrently with two and one-third to

seven years for Criminal Possession, but consecutively to the

Murder sentences. Gonsa’s total term is an indeterminate

sentence of 33 and 1/3 years to life.

This sentence was improper. Under New York law,

the Robbery sentence was required to be served

concurrently with the Felony Murder sentence because the

A.AS

robbery was an element of the Felony Murder charge. See

N.Y. Penal Law § 70.25(2); New York v. Parks, 95 N.Y.2d

811, 813-15 (2000). The Robbery sentence should thus have

been made concurrent to the Felony Murder sentence, but

consecutive to the Depraved Indifference sentence. The

result, however, would have been the same, a total sentence

of 33 and 1/3 years to life. On appeal, the Appellate Division

concluded, incorrectly, that the trial court had actually

sentenced Gonsa to serve the Robbery sentence concurrently

with the Felony Murder sentence. New York v. Gonsa, 220

A.D.2d 27, 32-33, 644 N.Y.S.2d 346. 349-50 (3d Dep’t 1996),

leave to appeal denied, 677 N.E. 2d 297 (N.Y. 1996).

Gonsa’s habeas corpus petition contends, inter alia

that the trial court’s imposition of the Robbery sentence

consecutive to the Felony Murder sentence violated his

double jeopardy rights. The district court concluded that the

Appellate Division had “clarified” the sentence to make the

Robbery sentence concurrent to the Felony Murder sentence

and consecutive to the Depraved Indifference Murder

sentence. Gonsa v. Stinson, slip op. at 7.

We review a district court’s decision on a petition for

habeas corpus de novo. Lurie v. Wittner, 228 F.3d 113, 121

(2d Cir. 2001). A petition under 28 U.S.C. § 2254 “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).

In this appeal, Gonsa does not seek any remedy for

the erroneous imposition of a concurrent sentence on both

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PATA Rhee rs "

7 St Tata th Gearmparpnere sa)

murder counts and the affirmance of that sentence by the

Appellate Division based on its misreading of the certificate

of conviction. Instead, while Gonsa concedes that the

Robbery sentence could properly be made consecutive to the

Depraved Indifference Murder sentence, he argues that

under the circumstances here, the additional sentence for

Robbery is impermissible because Robbery is an element of

the Felony Murder charge, and he is therefore “already

being punished for Robbery for his conviction for Felony-

Murder.” Appellant's Br. at 12. Petitioner thus asks this

Court to order a reduction in his sentence to 25 years to life.

We agree with the district court’s conclusion that

there was no error in imposing an 8 1/3 to 25 year sentence

for Robbery to run consecutive to the Depraved Indifference

Murder charge because those two charges, unlike Robbery

and Felony Murder, are based upon separate acts. See

Missouri v. Hunter, 459 U.S. 359, 366 (1983) (“With respect

to cumulative sentences imposed in a single trial, the Double

Jeopardy Clause does no more than prevent the sentencing

court from prescribing greater punishment than the

legislature intended.”) Accordingly, the sentence of 33 1/3

years to life was not improper. The Appellate Division's

conclusion, therefore, that the imposition of the consecutive

sentence here does not violate Double Jeopardy is not

contrary to established Federal law, an unreasonable

application of that law, or based on an unreasonable

—

determination of the facts. =

Ba

We have considered petitioner’s remaining argument

and find them without merit.

For the foregoing reasons, the judgment of the

District Court is hereby AFFIRMED.

A-aT

FOR THE COURT:

ROSEANN B. MACKECHNIE, Clerk

“fpeg/e 2

Date

UNITED STATES COURT OF APPEALS

FILED

NOV 25 2002

Roseann B. MacKechnie, CLERK

SECOND CIRCUIT

A-48

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

UNITED STATES COURT HOUSE

40 FOLEY SQUARE

NEW YORK 10007

ROSEANN B. MACKECHNIE

CLERK

Ata stated term of the United States Court of

Appeals for the Second Circuit, held at the United States

Courthouse, Foley Square, in the City of New York, on the

eleventh day of February two thousand three.

Gonsa

Petititoner-A ppellant,

Vv Dkt No : 00-2167

Stinson

Respondent-Appellee.

A petition for panel rehearing and a petition for rehearing en

banc having been filed herein by the appellant Thomas

Gonsa.

Upon consideration by the panel that decided the

appeal, it is Ordered that said petition for rehearing

is DENIED.

It is further noted that the petition for rehearing en banc has

been transmitted to the judges for the court in regular active

service and to any other judge that heard the appeal and that

no such judge has requested that a vote be taken thereon.

A-Aq

FOR THE COURT

Roseann B. Mackechnie, Clerk

en ble

M. Heller

Administrative Attorney

UNITED STATES COURT OF APPEALS

FILED

FEB 11 2003

Roseari: B. MacKechnie, CLERK

SECOND CIRCUIT

p occc

inbancdn_frm

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