Mayorga v. Miller

• Court: District Court, S.D. New York
• Decided: November 3, 2022
• Docket: 7:22-cv-08714
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------------------------------------x WALTER E. MAYORGA, Petitioner, ORDER -against- 22-cv-8714 (NSR) (AEK) MARK MILLER, Respondent. -------------------------------------------------------------x THE HONORABLE ANDREW E. KRAUSE, U.S.M.J. The Court is in receipt of pro se Petitioner Walter Mayorga’s petition for writ of habeas corpus. Earlier this year, this case was transferred from the United States District Court for the Eastern District of New York to the United States District Court for the Southern District of New York.1 After the case was transferred, it came to this Court’s attention that in the version of the petition that is on file with the Court—a copy of which is attached to this Order2—page 5 is missing. See ECF No. 1 (attached). It appears as though this missing page would contain Petitioner’s first purported ground for habeas relief.

1 Petitioner was convicted and sentenced in Dutchess County and is currently in custody at a New York State prison located in Dutchess County. Therefore, the case should have been filed in the United States District Court for the Southern District of New York, as Dutchess County is located within the Southern District of New York. See Transfer Order, Mayorga v. Miller, No. 22-cv-5838 (AMD) (E.D.N.Y. Oct. 5, 2022), ECF No. 4. 2 In the attached version of the petition, the Court has redacted the name of a minor victim on pages 7 and 8. Accordingly, Petitioner is directed to re-submit a complete copy of his petition to the Court at the following address: Office of the Clerk of Court U.S. District Court for the Southern District of New York 300 Quarropas Street White Plains, New York 10601-4150 If Petitioner is unable to re-submit a complete copy of his petition for any reason, he must write to the Court to provide an explanation. Re-submitting the petition pursuant to this Order will not open a new case or create any other procedural obligations for Petitioner; the purpose of this Order is simply to obtain a complete copy of the petition. The Clerk of Court is respectfully directed to mail a copy of this Order to the pro se Petitioner. Dated: November 3, 2022 White Plains, New York SO ORDERED.

ANDREW E. KRAUSE United States Magistrate Judge

US. DISTRICT COURT □□□ *& SEP 26 2022 □ PETITION UNDER 28 U.S.C. §2254 FOR WRIT □ HABEAS CORPUS BY A PERSON IN STATE CUSTODY BROOKLYN OFFICE

Name: Walter E. Mayorga CaseNo: (“\7 27-5838 Place of Confinement: GREEN HAVEN CORRECTIONAL FACILITY = nel] Petitioner (include name under which convicted) Respondent (authorized person having custody of Petitioner) WALTER MAYORGA v. MARK MILLER The Attomey General of the State of New York

1. (a) Name and location of the Court that entered the judgment of conviction you are challenging: Supreme Court of the State of New York: Dutchess County 10 Market Street Poughkeepsie, NY 12601 (b) Criminal Docket or Case Number (ifyouknow): 407/14 2. (a) Date of the judgment of conviction (if you know): __ August 15, 2015 (b) Date of sentencing (fyouknow); 3. Length of sentence: _46 1/3 to 49 years 4. . Identify ail crimes of which you were convicted and sentenced in this case: Rape in the First Degree the Welfare of a Child (Penal Law §260.10 [1 count). 5. What was your plea? (Check one) (a) ~— Not Guilty = (b) Guilty oO . (c) Nolo Contendere (no contest) o If you entered a guilty plea to one count or charge and a not guilty plea to another count or charge, what did you plead guilty to and what did you plead not guilty to? __ N/A 6. if you went to trial, what kind of trial did you have? (check one) Juy s Judge only o 7. Did you testify at either a pretrial, trial, or a post-trial hearing? Yes o No 8. Did you appeal from the judgment of conviction? Yes No oO

9. If your answer to & was “Yes’, and answer the following: (a) Name of court: Department (b) Docket or case number (if you know): _ 2015-07824 (c) Result: Affirmed = (d) Date of resuit (if you know): March 17,2027 0 (e) Citation to the case (if you know): 192 AD3d913 0 (f) Grounds raised: _1. Trial Court Erred in Falling to Admit Evidence of the Alleged Victim's Sexual

wasExcessive 10. Did you seek further review by ahigher state court? Yes m No oO If your answer to 10 was “Yes”, and answer the following: (a) Name of court: _New York State Court of Appeals 0 (b) Docket or case number (if you know): (c) Result: Denied Permission forLeave = = (d) Date of result (f you know): June 30,2021 00 (6) Citation to the case (if you know):_S7NY3d966 (f) Grounds raised: _Sameas above oo 12. Did you file a petition for centiorari in the United States Supreme Court? Yes 0 No # 13. If your answer to 12 was "Yes", petition and answer the following with respect to each direct appeal you asked the United States Supreme Court to review: (a) Docket or case number (if you know): (o)Resut (c) Date of resulf (if you know): (d) Citation to the case (if you know): (e) List all grounds □□□ raised (1), Qo (3) 14. Other than the direct appeals from the judgment of conviction and sentence, have you previously filed any petitions, applications, or motions (e.g. a petition under CPL §§440, a state habeas corpus petition, or a previous petition under 28 USC 2254) with respect to this judgment of conviction in any

court, state or federal? Yes m No 0. 15. if your answer to 14 was "Yes", and give the following information: (a) Name of court: _Supreme Court of the State of New York: Dutchess County __ (b) Docket or case number (if you know): 40744 (c) Date of filing (if you know): December 3.2021 0 (d) Nature of the proceeding: (e) Grounds Raised:

(f) Did you receive a hearing where evidence was given on your petition, application, or motion? Yes o No B

_ Result Denied 0 (h) Date of result (if you know): February 2022. 000 0 16. If your answer to 14 was "Yes" and you also filed any second petition, application, or motion, attach and give the same information: Name of court: (b) Docket or case number (if you know): (c) Date of filing (if you know): (d) Nature of the proceeding: (e) List all the grounds you raised: (1) (2) __ (3) (e) Did you receive an evidentiary hearing on your petition, application, or motion? = Yes on No o (f) Result: (g) Date of result (if you know): As to any third, fourth, etc. petition, application, or motion, attach a copy of that court's decision to this petition give the same information asked for under 15 and 16. . 17. If your answer to 14 was “Yes” and if the court did not grant the petitiqn(s), application(s), or motion(s) you listed under 15 and 16, did you appeal to an intermediate court of appeals (e.g., the New York State Court of Appeals or the Second Circuit Court of Appeals)? Yes. o No o 18. if your answer to 17 was "Yes", attach a copy of that court's decision to this pein and answerthe following regarding each petition, application, or motion: {a} Name of Court: .

(b) Dated filed: (c)Resuit (d) Date of result Gf youknow):. (e) Citation to the case: (f) List all grounds youraised:}_ 19. Did you appeal to a higher state court (e.g., the NYS Court of Appeals) or the United States Supreme Court for review of decision regarding the petition(s), application(s), or motion(s) you listed in 15 and 16? (1) First petition: Yes Oo No (2) Second petition: Yes o No (3) Third petition: Yes op No Qo [List any other petition and indicate yes or no] 20. For each "Yes" in 19, and answer the following information: (a)NameofCourt {b)Datedfiled == (c)Resut (d) Date of result (f youknow): (e) Citationto the case: ()Listall grounds youraised: 21. If you did not appeal from the adverse action on any petition, application, or motion, explain briefly why youdidnot 22. State concisely every ground on which you claim that you are being held in violation of the Constitution, laws, or treaties of the United States. If necessary, you may attach pages stating additional grounds and facts supporting same.

For your information, the following is a list of the most frequently raised grounds for relief in habeas proceedings. Each statement preceded by a letter constitutes a separate ground for possible relief. You may raise any grounds which you may have other than those listed if you have exhausted your state court remedies with respect to them. However, you should raise in this petition all available grounds (relating to this conviction) on which you base your allegations that you are being held in

Tani B. GROUND TWO: THE TRIAL COURT ERRED IN ITS BATSON v. KENTUCKY RULING □□ Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim):

C. GROUND THREE: Petitioner was. deprived of a Fair Trial when the Cout failed to adequately Charge the Jury. Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim):

6 □

D. GROUND FOUR: Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim):

GROUND FIVE: Federal and State Constitutions. Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim):

ineffective assi f .

E. GROUND SIX: Petitioner's sentence is harsh and excessive. Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim):

23. if you did nat previously present any of the grounds listed in 22A, 22B, and 22C in any other court, state, or federal, state briefly what grounds you did not present and give your reasons for not presenting them: __All issues have been exhausted in Court, _ 24. Do you have any petition or appeal now pending in any court, either state or federal, as to the judgment under attack? Yes oO No 2 (a) Name of court: (b) Nature of Proceeding: (c) Date filed: (d) List all grounds you raised: _ 25. Give the name and address, if known, of each attomey who represented you in the following stages of the judgment you are challenging: (a) At preliminary hearing: __Unknown (b) At arraignment and plea: _D. Jeri Brown, 272 Mill Street, Suite 204, Poughkeepsie, NY 12601 □□ (c) trial: _Same as above (b) _. (d) At sentencing: ___Same as above (b) (e) On appeal: Salvatore C, Adamo, 225 W. 34th Street, Sth Floor, New York, NY 10122 ()_ Inany post-conviction proceedings:__ Prose (g) Onappeaz _ 26, Were you sentenced on more than one count of an indictment, or on more than one indictment, in 8

the same court and at the same fime? Yes . No O 27. Do you have any future sentence to serve after you complete the sentence for the judgment that you are challenging? Yes 0 No @ (a) If so, give the name and location of court that imposed the other sentence you will serve in the

(b) Give the date the other sentence was imposed: (c) Give the length of the other sentence: (d) Have you filed, or do you plan to file, any petition that challenges the judgment or sentence to be served in the future? Yes oO No oO 28. TIMELINESS OF PETITION: If your judgment of conviction became final over one year ago, you must explain why the one-year statute of limitations as contained in 28 U.S.C. §2244(d) does not bar your petition.*

* The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA") as contained in 28 U.S.C. §2244(d) provides in part that: (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus y a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of ---- (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; □ (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of he United States is removed, if the petitioner was prevented from filing by such state action; (C) the date on which the constitutional right asserted was initially recognized by the Supreme Coust, if the right has been recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. (2) The time during which a properly filed application for State post-conviction or cther collateral review with respect to the pertinent judgment or claim is pending shall __ not be counted toward any period of limitation under this subsection. Therefore, petitioner asks that the Court grant petitioner relief to which he may be entitled in this edng. ignature of Attomey (if any)

| declare (or cartify, verify, or state) under penalty of Perjury that the foregoing is true and correct and that this Petition for Writ of Habeas Corpus was placed in the prison mailing system on September 16, —

_ Executed on September 16, 2022 □ Petitioner { □

EXHIBIT A:

SUPREME COURT OF THE STATE OF NEW YORK: APPELLATE DIVISION: □ SECOND DEPARTMENT | WESTLAW CITE: 192 AD3d 913

cc!) New York NE Official Reports 192 A.D.3d 913, 140 N.Y.S.3d 786 (Mem), 2021 N.Y. Slip Op. 08250 **] The People of the State of New York, Respondent, Vv Walter E. Mayorga, Appellant. Supreme Court, Appellate Division, Second Department, New York 107/14, 2015-07824 March 17, 2021

CITE TITLE AS: People v Mayorga HEADNOTES *914 Crimes Rape Sufficiency and Weight of Evidence

Crimes Endangering Welfare of Child Sufficiency and Weight of Evidence

Crimes Right of Confrontation Rape Shield Law

Crimes Jurors Selection of Jury—Failure to Raise Inference of Racial Discrimination

Crimes Sentence Concurrent and Consecutive Terms

Salvatore C. Adamo, New York, NY, for appellant. William V. Grady, District Attorney, Poughkeepsie, NY (Kirsten A. Rappleyea of counsel), for respondent. Appeal by the defendant from a judgment of the County Court, Dutchess County (Stephen L. Greller, J.), rendered August 3, 2015, convicting him of rape in the first degree (two counts), rape in the third degree, and endangering the welfare of a child, upon a jury verdict, and sentencing him to a term of imprisonment of 25 years plus 10 years postrelease supervision on the first count of rape in the first degree, a consecutive term of imprisonment of 20 years plus 5 years postrelease supervision on the second count of rape in the first degree, a consecutive term of imprisonment of 14 years plus 3 years postrelease supervision on the count of rape in the third degree, and a concurrent term of imprisonment of one year on the count of endangering the welfare of a child.

Ordered that the judgment is modified, as a matter of discretion in the intcrest of justice, by providing that all the terms of imprisonment shall run concurrently with each other; as so modified, the judgment is affirmed. The defendant was convicted, after a jury trial, of two counts of rape in the first degree, one count of rape in the third degree, and endangering the welfare of a child, upon evidence that he forced the then 14-year-old complainant to have sexual intercourse two occasions in 2012, and engaged in sexual intercourse with the same complainant on May 30, 2014, when she was 16 years old, The trial court sentenced the defendant to consecutive terms of imprisonment on each of the three rape counts and a concurrent term of imprisonment on the count of endangering the welfare of a child, for an aggregate sentence of 46% years plus postrelease supervision. Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, upon our independent review of the record (see CPL 470.15 [5]), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Mateo, 2 NY3d 383 [2004]; People v Bleakley, 69 NY 2d 490, 495 [1987]). The defendant's contention that he was deprived of his constitutional right to confront witnesses by the Supreme Court's application of the Rape Shield Law (see CPL 60.42) is *915 partially unpreserved for appellate review (see CPL 470.05 [2]; People v Wallace, 149 AD3d 878 [2017]). In any **2 event, the contention is without merit. The defendant's Batson challenge (see Batson v Kentucky, 476 US 79 [1986]) was properly denied, as he failed, prima facie, to establish a pattern of purposeful exclusion sufficient to raise an inference of racial discrimination (see People v Valdez-Cruz, 99 AD3d 738 [2012)). The sentence imposed was excessive to the extent indicated herein (see CPL 470.15 [6] [b]; People v Suitte, 90 AD2d 80 [1982)). The defendant's remaining contentions are without merit. Chambers, J.P., Austin, Miller and Wooten, JJ., concur. Copr. (C) 2022, Secretary of State, State of New York End of Document © 2022 Thomson Reuters. No claim to original U.S. Government Works

EXHIBIT Br:

THE STATE OF NEW YORK ———— ss COURT OF APPEALS: : WESTLAW CITE: 37. N¥3d 966

rf | New York Official Reports 37 N.Y¥.3d 966, 171 N.E.3d 247, 148 N.Y.S.3d 77] (Table) People v Mayorga Court of Appeals of New York . 6/30/21

CITE TITLE AS: People v Mayorga 2d Dept: 192 AD3d 913 (Dutchess) APPLICATIONS IN CRIMINAL CASES FOR LEAVE TO APPEAL denied 6/30/21 (Wilson, J.)

Copr. (C) 2022, Secretary of State, State of New York End of Document © 2022 Thomson Reuters. No claim to original U.S. Government Works.