Vasquez v. State of New York

Background

Angellove Vasquez petitioned for federal review of his New York conviction for possession of a weapon in the second degree. He appeared without a lawyer. The conviction arose after police arrested Vasquez and found a loaded gun in a backpack he was wearing. Vasquez testified that an acquaintance had placed the gun in the backpack without his knowledge.

During jury deliberations, the jury asked to examine the gun and backpack to reenact the arrest. Defense counsel objected and requested an instruction about Vasquez’s testimony that the backpack had contained other items that were not in evidence. The trial judge gave an instruction referring to items including video games and clothing. The jury found Vasquez guilty on April 27, 2012, and he was sentenced to nine years in prison followed by five years of supervised release. His conviction was affirmed on appeal, and the New York Court of Appeals denied leave to appeal.

Claims and analysis

Vasquez asserted two claims of ineffective assistance of counsel. Under the test from Strickland v. Washington, a petitioner must show both that counsel’s performance fell below an objective standard of reasonableness and that the deficient performance probably affected the result.

The court rejected the claim concerning trial counsel. The record showed that counsel objected to the jury instruction and discussed the proper instruction with the judge. The court also noted that counsel had initially suggested that video games were among the items in the backpack when Vasquez was arrested. In addition, Vasquez did not show that any error met the required standard or created a reasonable probability of a different result. The court agreed that any instructional error was harmless in light of the evidence of guilt.

The court also rejected the claim concerning appellate counsel. Vasquez argued that appellate counsel had failed to unseal the transcript of a pretrial hearing. The court found that counsel had attempted to unseal the transcript and that the state appellate court rejected the argument. Vasquez identified no deficient action by appellate counsel and did not claim that unsealing the transcript would have changed the trial’s outcome.

Vasquez also claimed that his arrest violated the Fourth Amendment because it lacked probable cause. The court ruled that this claim was not available for federal review because Vasquez had not shown an extreme breakdown in the state process for litigating the issue. The court likewise ruled that his claim concerning allegedly false grand-jury testimony was not available in this type of federal petition. It added that the grand-jury claim was barred because Vasquez had not raised it on appeal and had not shown a legally sufficient reason for that failure or facts demonstrating actual innocence.

Ruling and disposition

Judge Valerie Caproni adopted Magistrate Judge Wang’s report and recommendation in full and denied the petition. The court stated that there was no clear error in the report and recommendation and that the claims would also fail if reviewed independently on their merits.

The court declined to issue a certificate of appealability because Vasquez had not made a substantial showing that a constitutional right had been denied. It certified that any appeal would not be taken in good faith and denied permission to proceed without paying court fees for the appeal. The clerk was directed to mail the order to Vasquez, terminate open motions, and close the case.