Opinion
No. 99 CIV. 9752 (DLC)
September 17, 2002
Israel Rodriguez, #91-A-8298, Green Haven Correctional Facility, Drawer B, Stormville, NY, Petitioner, Pro Se
Morrie I. Kleinbart, Assistant District Attorney, New York County, New York, NY, Attorney for Respondent
OPINION AND ORDER
Israel Rodriguez ("Rodriguez") has petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("Section 2254"). On July 3, 2002, Magistrate Judge Eaton recommended denial of Rodriguez's petition. Judge Eaton's recommendation is adopted and Rodriguez's petition is denied, albeit through the use of a different analysis than that employed by Judge Eaton.
BACKGROUND
Rodriguez's habeas petition arises out of his conviction for armed robbery of Pedro Fernandez, Sr. ("Fernandez Senior") and Pedro Fernandez, Jr. ("Fernandez Junior"), assault of Fernandez Junior, and felony murder of Fernandez Senior. At trials Fernandez Junior testified that on September 5, 1991, Rodriguez and his co-defendant, Gabriel Fernandez, stopped the Fernandezes at gunpoint and demanded money. When the Fernandezes did not comply, Rodriguez hit Fernandez Junior on the head with the butt of the gun. When he regained consciousness, Fernandez Junior discovered that his father had been shot and his father's gun was missing. An eyewitness saw the two defendants exit the building, and later identified the defendant from a photo array.
Gabriel Fernandez subsequently pleaded guilty to firstdegree robbery.
Rodriguez, who had been shot in the leg during the robbery, sought medical assistance at a local hospital. While there, he made three statements to the police. In his second statement, Rodriguez admitted that he had been involved in the attempted robbery and that Fernandez Senior had been shot in the course of that attempt. In his third statement, which was recorded on video, Rodriguez admitted to participating in the robbery and to shooting Fernandez Senior.
On October 4, 1991, Rodriguez was indicted on one count each of murder in the second degree, robbery in the first degree, assault in the second degree, and criminal possession of a weapon in the second and third degrees. Prior to trial, Rodriguez challenged the photo identification, his statements to the officers in the hospital, and the seizure of his personal effects at the hospital. A combined Huntley-Wade-Mapp hearing was held on June 7 and June 15, 1993. On June 15, the trial judge denied Rodriguez's motions to suppress and found that he had knowingly and voluntarily waived his rights prior to making his statements to the police. At trial, Rodriguez did not present a defense but argued that his third confession, in which he admitted to shooting Fernandez Senior, had been involuntary and that he was not the shooter.
The robbery count referred to Rodriguez's forcible stealing of property, a gun, from Fernandez Senior.
The court began its charge by explaining to the jury that the defendant was presumed innocent and that the state was required to prove "each of the elements of the offenses. beyond a reasonable doubt." In defining reasonable doubt, the court emphasized that "[a] doubt is not reasonable if it is based on emotion, bias, prejudice or sympathy, " and that a doubt, to be reasonable, "must be based on the evidence or lack of evidence in the case. A doubt is not reasonable if it is based upon anything else." The court instructed that in determining whether a reasonable doubt existed, "the rule of reason and the standard of rationality apply."
Because the defendant had challenged the voluntariness of his third statement, the trial court instructed the jury that "before you can consider a statement made by a defendant, you must be satisfied beyond a reasonable doubt that the statement was voluntary and truthful and if you are not so satisfied, then you cannot consider that statement in any way in reaching your verdict." The court stated that the defendant contended that his third statement, in which he acknowledged shooting Fernandez Senior, "was involuntary because it was the product of deception and trickery by [the interviewing officer] in a psychologically coercive atmosphere that was likely to produce an unwilling or false statement." The court explained that the jury must determine whether Rodriguez's confession
was obtained by means of pressure which was so great that it impaired the defendant's condition to such an extent that it undermined his ability to decide whether or not to make a statement; or of deceit so substantial that it created a substantial risk that he would falsely incriminate himself.
The court added that in reaching this conclusion, the jury could consider the defendant's age, maturity, experience, apparent intelligence, and physical and emotional condition; the length, manner and place of his confinement; as well as "[w]hether or not his medical and/or physical needs were attended to and the manner in which the defendant's statement was elicited." Counsel for the defendant objected to both the reasonable doubt and voluntariness charges.
On July 23, 1993, Rodriguez was convicted on all counts. He was sentenced principally to twenty-eight and a half years to life in prison.
In 1997, Rodriguez, through counsel Brian Barrett ("Barrett"), appealed to the Appellate Division. On appeal, Barrett argued that the trial court's reasonable doubt charge was impermissibly diluted because it defined reasonable doubt only in the negative, and did not include, for example, the pattern instruction that a reasonable doubt was an "actual doubt" or one for which a reason can be given. Barrett also argued that the charge regarding the voluntariness of his confession failed to provide sufficient guidance to the jury in assessing whether the defendant's statements were voluntary and that, in combination with the diluted reasonable doubt standard, required reversal. Virginia LoPreto ("LoPreto") was substituted as counsel after Barrett's death. LoPreto filed a supplemental brief on July 7, 1997, adopting Barrett's brief and updating some of the supporting caselaw.
The Appellate Division affirmed Rodriguez's conviction on February 19, 1998, holding that "[t]he court's instruction on reasonable doubt, read as a whole, conveyed the appropriate standards, as did its instruction on the question of the voluntariness of defendant's statements." People v. Rodriguez, 668 N.Y.S.2d 457, 457 (1st Dep't 1998) (citations omitted) LoPreto petitioned for leave to appeal on March 18, 1998, and argued in support of that petition in a letter dated April 8, 1998. In that petition, she raised the challenges to the jury instructions on reasonable doubt and voluntariness. The Court of Appeals denied leave to appeal on April 17, 1998. People v. Rodriguez, 91 N.Y.2d 976 (1998).
Pursuant to the one-year statute of limitations imposed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Rodriguez had until July 16, 1999 to file a federal habeas petition. His petition, dated July 15, 1999, was timely. The case was referred to Judge Eaton on November 11, 1999, who, at Rodriguez's request, stayed consideration of the petition to allow Rodriguez to exhaust an additional claim of ineffective assistance of appellate counsel based on his counsel's failure to raise on direct appeal his trial counsel's failure to challenge one of his convictions on double jeopardy grounds.
On May 17, 2001, the Appellate Division denied Rodriguez's petition for a writ of error coram nobis. People v. Rodriguez, 726 N.Y.S.2d 43 (1st Dep't 2001). The Appellate Division held, in an unpublished memorandum order, that "defendant-appellant having moved, in the nature of a writ of error coram nobis, for review of his claim of ineffective assistance of appellate counsel, . . . [i]t is ordered that: said application is denied in its entirety."
In his federal habeas petition, Rodriguez raises again his challenges to the reasonable doubt and voluntariness charges, as well as the newly exhausted challenge to the effectiveness of his appellate counsel. No objections to Judge Eaton's Report have been submitted.
Rodriguez also challenges his appellate attorney's waiver of oral argument.
DISCUSSION
A reviewing court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1)(C). "To accept the report: and recommendation of a magistrate, to which no timely objection has been made, a district court need only satisfy itself that there is no clear error on the face of the record." Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985); see also Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991).
1. Exhaustion of Reasonable Doubt/Effective Assistance Claims
Before addressing the merits of Rodriguez's claims, it is necessary to determine whether these claims are exhausted. "To exhaust a federal claim, a petitioner must fairly present to the state courts the substance of that claim. This means, in essence, that in state court, the nature or presentation of the claim must have been likely to alert the court to the claim's federal nature." Cox v. Miller, 296 F.3d 89, 99 (2d Cir. 2002) (citations and alteration omitted). A claim may be "fairly presented" to the state court in at least four ways:
(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.Id. (citation omitted). While a petitioner is not required to cite "chapter and verse of the Constitution," id. (citation omitted), he must present his claims "in such a way as to make it probable that a reasonable jurist would have been alerted to the existence of a federal question." Id. at 100 (citation omitted). To do so, the petitioner is required to present to the state courts "all of the essential factual allegations and essentially the same legal doctrine he asserts in his federal petition. In other words, the claims presented by the petitioner to the State appellate courts must be the substantial equivalent of the claims he raises in the federal habeas petition." Strogov v. Attorney Gen. of the State of N.Y., 191 F.3d 188, 191 (2d Cir. 1999) (citations omitted) (emphasis supplied).
A. Reasonable Doubt
Rodriguez argued that the trial court impermissibly diluted the reasonable doubt charge and lowered the state's burden of proof, and thus asserted his claim "in terms so particular as to call to mind a specific right protected by the Constitution. The right not to be convicted except upon proof establishing guilt beyond a reasonable doubt was not novel or in the process of being articulated by federal courts" when Rodriguez appealed. Hawkins v. West, 706 F.2d 437, 439 (2d Cir. 1983) (citations omitted). In addition, Rodriguez also discussed in his brief one state case that employed federal constitutional analysis, specifically, People v. Antommarchi, 80 N.Y.2d 247 (1992), although Rodriguez did not cite the case for that analysis.
B. Ineffective Assistance
Rodriguez's claims of ineffective assistance of appellate counsel were also fairly presented to the state court. His claim that his appellate counsel did not raise an issue that would have required reversal of his conviction clearly calls to mind a defendant's Sixth Amendment right to effective assistance of counsel. As the Second Circuit has explained, a petitioner's claim of "a violation of his right to effective assistance of counsel . . . [is] adequate to alert the state court to consider the Sixth Amendment's guaranty of the accused's right to have the Assistance of Counsel for his defence [sic]." Daye v. Attorney Gen. of the State of N.Y., 696 F.2d 186, 193 (2d Cir. 1982) (citation omitted); see also Abdurrahman v. Henderson, 897 F.2d 71, 73 (2d Cir. 1990) ("Both the state and federal courts are familiar with due process claims grounded on inadequate representation.")
2. Review of Reasonable Doubt/Effective Assistance Claims
Having determined that Rodriguez's claim of ineffective assistance and his challenge to the reasonable doubt instruction were exhausted, it is possible to address the merits of these claims. Section 2254, as amended by AEDPA, provides the following standard of review for a challenge to a state conviction:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court 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 . . .28 U.S.C. § 2254(d)(2002) (emphasis added).
AEDPA's deferential standard of review only applies to claims that have been decided by a state court "on the merits." A claim has been decided "on the merits" when the state court "dispose[s] of the petitioner's federal claim on substantive grounds, and reduce[s] that disposition to judgment." Brown v. Artuz, 283 F.3d 492, 498 (2d Cir. 2002) (citation omitted); see also Sellan v. Kuhlman, 261 F.3d 303, 310 (2d Cir. 2001). The Second Circuit has emphasized that "nothing in the phrase "adjudicated on the merits' requires the state court to have explained its reasoning process." Ponnapula v. Spitzer, 297 F.3d 172, 181 (2d Cir. 2002) (citation and alteration omitted). Rodriguez's claims of ineffective assistance and his challenge to the reasonable doubt instructions were decided on the mertis.
Rodriguez's petition may be granted only if the state court's decision on the merits was contrary to or an unreasonable application of clearly established law. As the Second Circuit has explained, the Supreme Court has given "independent meanings to the "contrary to' and "unreasonable application' clauses" of Section 2254. Overton v. Newton, 295 F.3d 270, 275 (2d Cir. 2002). The court explained that
[a] state court decision is "contrary to" clearly established federal law as determined by the Supreme Court if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts. A state court decision involves an "unreasonable application" of Supreme Court precedent if it identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the particular facts of [a] prisoner's case.Id. (citations omitted) (alterations in original). An " unreasonable application of federal law is different from an incorrect or erroneous application of federal law." Id. at 277 (citation omitted). "Some increment of incorrectness beyond error is required, " although "the increment need not be great." Id. (citation omitted).
A. Reasonable Doubt
Rodriguez's claim that the trial court's reasonable doubt instruction was impermissibly diluted is based on clearly established law as determined by the Supreme Court. "[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). The Due Process Clause "safeguard[s] against dilution of the principle that guilt is to be established by probative evidence and beyond a reasonable doubt." Taylor v. Kentucky, 436 U.S. 478, 486 (1978) (citation omitted).
In Rodriguez's case, the Appellate Division held that the trial court's reasonable doubt instruction, "read as a whole, conveyed the appropriate standards." Rodriguez, 668 N.Y.S.2d at 457. In so holding, the court relied on Cubino, in which the Court of Appeals held that a challenged instruction "did not dilute the standard of required proof here nor did it deprive this defendant of a fair trial in the context of the entire balanced and correct set of instructions given." Cubino, 88 N.Y.2d at 1000.
The Appellate Division's decision was not contrary to clearly established law as determined by the Supreme Court. Jury instructions must be evaluated "as a whole" to ensure that they "correctly convey the concept of reasonable doubt to the jury." Victor v. Nebraska, 511 U.S. 1, 5 (1994) (citation and alteration omitted). Nor was the decision an unreasonable application of clearly established Supreme Court law. Although the "beyond a reasonable doubt standard is a requirement of due process, " as long as the jury is instructed "on the necessity that the defendant's guilt be proved beyond a reasonable doubt, the Constitution does not require that any particular form of words be used in advising the jury of the government's burden of proof." Id. As a whole, the jury instruction on reasonable doubt neither "suggest[ed] a standard of proof lower than due process requires" nor "allow[ed] conviction on factors other than the government's proof." Id. at 16. Indeed, the instruction emphasized that a reasonable doubt is not one based on "emotion, bias, prejudice or sympathy, " and that such a doubt "must be based on the evidence or lack of evidence in the case, " definitions that have been approved by the Supreme Court. See e.g. id. at 13, 16, 21-22; Johnson v. Louisiana, 406 U.S. 356, 360 (1972). Although an instruction that a reasonable doubt is one that would cause a reasonable person to hesitate to act would have been permissible, see. e.g., Victor, 511 U.S. at 20, it is not required and, in fact, has been the subject of disagreement, id. at 24-25 (Ginsburg, J. concurring in part and concurring in the judgment).
B. Ineffective Assistance
Rodriguez challenges his appellate counsel's failure to challenge on appeal Rodriguez's trial counsel's failure to move to dismiss his conviction for criminal possession of a weapon in the second degree on double jeopardy grounds. A claim of ineffective assistance of appellate counsel is governed by the performance and prejudice rule set forth in Strickland v. Washington, 466 U.S. 668 (1984), which "qualifies as clearly established law, as determined by the Supreme Court of the United States." Sellan, 261 F.3d at 309 (citation omitted).
To succeed on a claim of ineffective assistance of counsel, a petitioner must establish that (1) "the identified acts or omissions were outside the wide range of professionally competent assistance," Strickland, 466 U.S. at 690, and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694. "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690. In evaluating the conduct of counsel, "every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Smith v. Murray, 477 U.S. 527, 536 (1986) (citation omitted) "[E]ven the most informed counsel will fail to anticipate a state appellate court's willingess to reconsider a prior holding or will underestimate the likelihood that a federal habeas court will repudiate an established state rule." Id. Counsel is not required to raise every colorable argument on appeal. The "process of winnowing out weaker arguments on appeal and focusing on those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy." Id. (citation omitted).
The Appellate Division "denied in its entirety" Rodriguez's claim of ineffective assistance of appellate counsel. Its reliance on De La Hoz in doing so indicates that it rejected the petition at least in part because Rodriguez's appellate counsel's decision regarding which claims to raise on appeal was not unreasonable. In De La Hoz, the Appellate Division rejected a claim of ineffective assistance of appellate counsel on the ground that the "mere existence of an unraised issue will not suffice" to show ineffective assistance. De La Hoz, 520 N.Y.S.2d at 388. Rather, the defendant "must show that had the issue been raised a greater likelihood would exist that the judgment would have been reversed, or at least, modified." Id.
The court's reliance on a performance and prejudice standard cannot be said to be "contrary to" established law as articulated by the Supreme Court in Strickland. Nor was the decision an unreasonable application of Supreme Court precedent. Rodriguez's counsel may reasonably have concluded that the offenses of firstdegree robbery and criminal possession of a weapon in the second degree each required proof of an additional fact the other did not, namely, forcible stealing and loaded and operable gun. See Aparicio v. Artuz, 269 F.3d 78, 99 (2d Cir. 2001) (reaching same conclusion).
Although Rodriguez challenges both weapon possession counts, the crime of criminal possession of a weapon in the third degree is not a lesser included offense of robbery in the first degree. Robbery requires forcible taking, while third-degree possession requires possession of a loaded, operable firearm outside of the possessor's home or place of business. N.Y. Penal Law § 265.02 (McKinney 2002).
The federal cases on which Rodriguez relies to demonstrate that his appellate counsel provided ineffective assistance were decided after Rodriguez was denied leave to appeal to the Court of Appeals. In any event, the most recent Second Circuit authority on this issue squarely rejects the argument that a criminal possession conviction created double jeopardy problems in connection with a criminal use conviction. Id.
3. Voluntariness Instruction
Rodriguez also argues that the jury instructions did not adequately instruct the jury that it was required to find his confession voluntary beyond a reasonable doubt. New York law requires that the jury be allowed to pass on the voluntariness of a confession if voluntariness is contested. See, e.g., Owens v. Treder, 873 F.2d 604, 608 (2d Cir. 1989) (New York statute allows defendant to relitgate voluntariness before jury even after denial of suppression motion). Federal statutory law contains the same requirement. See, e.g., United States v. Barry, 518 F.2d 342, 347-48 (2d Cir. 1975) (Section 3501 requires judge to instruct jury to give confession such weight as is appropriate if voluntariness is contested). In contrast, the federal Constitution mandates only that the defendant receive a "fair hearing and a reliable determination on the issue of voluntariness" by a judge prior to the confession's admission at trial. Jackson v. Denno, 378 U.S. 368, 377 (1964); see also Dickerson v. United States, 530 U.S. 428, 433 (2000); United States v. Gaines, 295 F.3d 293, 297 (2d Cir. 2002). Once the judge has determined that the admissions were voluntarily made, there is "no constitutional requirement . . . for a further submission to the jury." United States v. Anderson, 394 F.2d 743, 747 (2d Cir. 1968) (emphasis supplied).
Rodriguez does not challenge the admission of his confession into evidence or the trial judge's determination at the Huntley hearing that his statements were voluntary. Because Rodriguez's claim that the jury was not properly instructed arises under New York law, not federal constitutional law, consideration of this claim on habeas is barred. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
CONCLUSION
For the reasons stated above, Judge Eaton's recommendation is adopted and Rodriguez's petition for a writ of habeas corpus is denied. I further find that the petitioner having made no objections to the Report, and the Report having advised petitioner that failure to object will preclude appellate review of this Order, the petitioner has waived his right to appeal. United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997); Small v. Sec'y of Health Human Serv., 892 F.2d 15, 16 (2d Cir. 1989) (per curiam). The Clerk of Court shall close the case.
I further decline to issue a certificate of appealability. The petitioner has not made a substantial showing of a denial of a federal right and appellate review is, therefore, not warranted. Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998). In addition, I find, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 445 (1962).
SO ORDERED: