Perez v. Superintendent of Attica Corr. Fac

Background

Lawrence Perez sought federal relief under 28 U.S.C. § 2254 after a New York state-court jury convicted him of second-degree murder and he received an indeterminate sentence of twenty-five years to life. The conviction arose from the torture and murder of Dennis Rivera. Perez’s first trial ended in a mistrial after a juror refused to deliberate because of intimidation by gang members. Perez was convicted after a second trial.

Perez raised seven grounds for relief, including ineffective assistance of counsel, improper admission of testimonial evidence, prosecutorial misconduct, and violations of procedural due process. Magistrate Judge Katharine H. Parker recommended denying and dismissing the petition in its entirety. Perez objected to the recommendation.

Court’s analysis

The court reviewed the challenged portions of the recommendation anew and reviewed the unchallenged portions for clear error.

Claim involving the crying juror. Perez argued that his trial lawyer was ineffective for failing to challenge a juror who cried after the trial judge declined to end deliberations early so she could attend her grandson’s birthday party. The court held that the claim was not properly presented to New York’s highest available court and was therefore procedurally barred. Perez did not establish an exception based on a valid reason for the default, resulting prejudice, or actual innocence. The court also agreed with the alternative conclusion that counsel was not ineffective: after the trial judge questioned the juror and confirmed that she could continue impartially, an objection would not have been objectively reasonable or likely to change the outcome.

Admission of Samo’s prior testimony. At the second trial, portions of co-defendant Samo’s testimony from the first trial were admitted under an agreement among the defense attorneys, including Perez’s lawyer. The testimony stated that Perez helped dispose of the body but was not present during the murder. The court held that counsel’s agreement to admit the testimony was a reasonable defense strategy because it supported the argument that Perez did not participate in the torture or murder. The court also rejected Perez’s confrontation claim. It explained that Perez had an opportunity to cross-examine Samo during the first trial, unlike the circumstances involved in the Supreme Court case Perez cited. The court further rejected Perez’s argument that the jury needed a special instruction about statements against interest.

Gonzalez’s testimony. Perez argued that testimony about Gonzalez’s transfer to another correctional facility suggested that Perez had arranged a “contract hit” against Gonzalez. The court held that the claim was unexhausted and procedurally barred. It also found that the challenged testimony from the first trial was not introduced at the second trial and that, during the second trial, the testimony made clear that Perez was not responsible for Gonzalez’s placement. The court rejected Perez’s additional arguments that the testimony was introduced solely to prejudice him and that his attorneys failed to preserve related claims.

Other claims. Perez did not make specific objections to the recommendation concerning newly discovered evidence of prosecutorial misconduct and general due process violations, or merely repeated earlier arguments. The court found no clear error in those portions of the recommendation and adopted them.

Disposition

The court adopted the report and recommendation and denied the petition for federal relief from Perez’s conviction. It directed the Clerk of Court to enter judgment dismissing the petition, close the case, and mail Perez a copy of the opinion and order. The court also ruled that no certificate of appealability would issue because Perez had not made a substantial showing that a constitutional right had been denied.