Opinion
02 Civ. 6318 (GBD) (AJP)
March 19, 2004
REPORT AND RECOMMENDATION
Pro se petitioner Jose Rodriguez seeks a writ of habeas corpus from his April 7, 1997 conviction of second degree murder, second degree attempted murder, and weapons possession, and his sentence of concurrent terms the longest of which was eighteen years to life imprisonment. (Dkt. No. 2: Pet. ¶¶ 1-4.)
Rodriguez's habeas petition raises three grounds: (a) his murder and attempted murder convictions are based upon insufficient evidence (Pet. ¶ 12(a)); (b) "denial of [his] due process right to a fair trial, an impartial jury and a unanimous verdict" (Pet. ¶ 12(b)); and (c) he was denied effective assistance of appellate counsel (Pet. ¶ 12(c)).
For the reasons set forth below, Rodriguez's habeas petition should beDENIED.
FACTS
Petitioner Jose Rodriguez was arrested on January 16, 1996, and charged on January 29, 1996 with murder, attempted murder, and criminal possession of a weapon. (Dkt. No. 7: State Answer ¶¶ 5(c), 6 Appendix Ex. A: Indictment.) On February 13, 1997, Rodriguez's jury trial began, and on February 21, 1997, the jury convicted Rodriguez of all charges. (State Ans. ¶ 8; see page 18 below.) On April 7, 1997, Rodriguez was sentenced to concurrent sentences, the longest of which was eighteen years to life imprisonment. (State Ans. ¶ 8; Dkt. No. 2: Pet. ¶¶ 2-3;see page 19 below.)The Prosecution Case at Trial
On January 16, 1996, in the early morning hours, Carlos Cappobianco, Ramon Christian Estevez, and Niuston "Tony" Grullon approached 101 Sherman Avenue in upper Manhattan, and had an altercation with Pedro" Amato" Geraldo, petitioner Jose Rodriguez, and Julio Rodriguez. (See State Opening: Trial Transcript ["Tr."] 13-18.) Afterwards, Cappobianco. was treated at a hospital for a gun shot wound, and Estevez was found dead on the side of the street. (State Opening: Tr. 18-19.) At Rodriguez's trial, the prosecution offered into evidence a statement by Rodriguez and testimony by Cappobianco, Grullon, police officers, medical personnel and others. (See discussion below.) Background
Carlos Cappobianco. and Ramon Christian Estevez were childhood friends who grew up on the same block in upper Manhattan. (Cappobianco: Tr. 73, 158-59.) Estevez lived at 121 Sherman Avenue and Tony lived at 109 Sherman Avenue. (Cappobianco: Tr. 83.) Niuston Grullon ("Tony") had known Estevez from the neighborhood for eleven years, and knew Cappobianco. for five to seven years. (Cappobianco: Tr. 74; Grullon: Tr. 179, 182, 215.) Cappobianco. knew Pedro Geraldo ("Amato"), a local drug dealer, for three or four years. (Cappobianco: Tr. 74, 75, 139.) Cappobianco. and Tony both knew Julio Rodriguez, also a drug dealer, for three to five years. (Cappobianco: Tr. 75, 80-81; Grullon: Tr. 183-184.) Tony knew Amato for the eleven years Tony had lived in the neighborhood. (Grullon: Tr. 183.) Julio and Amato worked together selling drugs. (Cappobianco: Tr. 81.)
At the time of trial, Tony had also known petitioner Rodriguez for six years. (Grullon: Tr. 185.) Tony had never had any problems with Rodriguez, Amato or Julio in the past. (Grullon: Tr. 185-86.) Cappobianco did not know Jose Rodriguez before the incident on January 16, 1996. (Cappobianco: Tr. 78.)
January 16.1996
Between two and three in the morning on January 16, 1996, Cappobianco and Estevez picked up Tony in front of 109 Sherman Avenue. (Grullon: Tr. 187, 218.) According to Tony, Estevez and Cappobianco. picked him up that night because he was friends with them as well as Rodriguez, Amato and Julio and he was being brought to 101 Sherman Avenue to help "make peace." (Grullon: Tr. 188, 220.) By three in the morning, they drove around the area in Cappobianco's BMW. (Cappobianco: Tr. 77, 132.) While driving, Cappobianco. spotted Rodriguez in front of 109 Sherman Avenue, between Dyckman and Academy Streets. (Cappobianco: Tr. 78-79.) Cappobianco, who had never seen Rodriguez before, got out of the car because Rodriguez was "not from the area," and asked Rodriguez in Spanish "what he was doing in the area, because he was kind of nervous." (Cappobianco: Tr. 78-79, 133-35, 137-38.) Rodriguez responded (in Spanish) that "he was here to back up Amato," who Cappobianco. knew to be a drug dealer. (Cappobianco: Tr. 79-80, 137-38.) Cappobianco. got back into his car and left. (Cappobianco: Tr. 80, 159.)
Around 3:45 a.m., Cappobianco, Estevez, and Tony returned to 101 Sherman Avenue because Amato owed Estevez two hundred dollars. (Cappobianco: Tr. 81-82, 132.) Sherman Avenue is a six-lane street, with three lanes on each side including the parking lanes. (Cappobianco: Tr. 84.) Across from 101 Sherman Avenue is a supermarket, and an area with big green garbage dumpsters. (Cappobianco: Tr. 83, 90-91.) Cappobianco double-parked his car about twenty feet from the dumpsters. (Cappobianco: Tr. 84, 140; Grullon: Tr. 228-29.) Cappobianco, Estevez and Tony got out of the car and confronted Amato coming out of 101 Sherman Avenue, which has a wide entrance with a courtyard in front of the building. (Cappobianco: Tr. 85, 141; Grullon: Tr. 190.) Cappobianco. noticed petitioner Rodriguez with Amato. (Cappobianco: Tr. 85-86, 112.) Cappobianco, Estevez, and Tony approached and asked Amato "'Where's the money?'" or "Give me my money." (Cappobianco: Tr. 86, 117, 144; Grullon: Tr. 221.) Tony, who was friendly with both sides, said "I don't know what's happening, but before you begin fighting or whatever, talk, since you're from the same block." (Grullon: Tr. 220, 222.) Cappobianco. was standing directly across from Amato, and Rodriguez was standing across from Tony. (Cappobianco: Tr. 92.) In response to the demand for money, Amato asked "what money," saying "I ain't got to give you nothing." (Cappobianco: Tr. 145.) Amato ran into 101 Sherman Avenue with Rodriguez. (Cappobianco: Tr. 93.) A few moments later Rodriguez and Amato came out of the building, this time with Julio. (Cappobianco: Tr. 93.) Julio said to Estevez, "don't get near me, don't get near me"; Estevez did not respond. (Grullon: Tr. 191-92, 221.) All six men were facing each other, three on one side, three on the other. (Cappobianco: Tr. 92.) Amato said "What are you guys doing here? What you coming for?" and pulled out a gun. (Cappobianco: Tr. 93-94; compare Grullon Tr. 191 (Julio was the first to pull a gun.).) Once Amato pulled out a gun, Julio and Rodriguez pulled out guns as well. (Cappobianco: Tr. 94; Grullon: Tr. 192, 211, 230.) All three guns were semi-automatic .380s. (Cappobianco: Tr. 95-96, 146; Grullon: Tr. 211.) Estevez, Cappobianco, and Tony all were unarmed. (Cappobianco: Tr. 94-95; Grullon: Tr. 191.)
Julio hit Estevez in the head with his gun. (Cappobianco: Tr. 94; Grullon: Tr.192.) Tony grabbed Julio from the back in a bear hug because he thought he was going to shoot Estevez, and told Rodriguez and Amato to be careful what he was going to do. (Grullon: Tr. 194-95.) Cappobianco tried to approach Amato, who fired a shot to the floor, then his gun jammed. (Cappobianco: Tr. 95, 97; Grullon: Tr. 193-95, 212.) Rodriguez was holding his gun pointed at the ground. (Cappobianco: Tr. 96-97, 145.) Once Amato's gun jammed, Amato told Rodriguez to give him his gun and Rodriguez passed his gun to Amato. (Cappobianco: Tr. 97-99, 116, 141-42, 145, 166-67; Grullon: Tr. 195, 231-33.) Amato took the gun from Rodriguez and shot Cappobianco. in the chest from about eight feet away. (Cappobianco: Tr. 98-99, 116; Grullon: Tr. 195, 212, 234-35.)
Estevez started running away. (Grullon: Tr. 195, 197.) Amato started "shooting [Estevez in] the back" six or seven times. (Grullon: Tr. 195-96.) Estevez ran away in a zig-zag motion to try to avoid the bullets, running with his hands on his head. (Grullon: Tr. 198, 235-36.) While Amato was shooting at Estevez, Rodriguez remained standing next to him. (Grullon: Tr. 198.) Once Estevez ran out of the courtyard and turned right towards Academy, he was no longer visible. (Grullon: Tr. 199.) Amato ran in the same direction, and Tony released Julio. (Grullon: Tr. 199-200.)
In contrast, Cappobianco testified that he only heard two shots, one that hit his chest and one in his arm. (Cappobianco: Tr. 146-47, 156.)
Cappobianco. ran towards Dykman Street in order to hail a cab to the hosiptal, and Julio and Tony ran in the other direction. (Cappobianco: Tr. 100-01, 147.) Cappobianco. did not see where Amato and Estevez were at that point. (Cappobianco: Tr. 100.) Cappobianco. could not get a cab, but he remembered that he had driven that night and was double-parked on Sherman Avenue, so he walked back to the car. (Cappobianco: Tr. 101, 147-48.) Cappobianco. saw Rodriguez about fifteen to twenty feet away from his car walking towards him on the same side as the green dumpsters and the supermarket. (Cappobianco: Tr. 101-02.) Rodriguez was walking with a woman. (Cappobianco: Tr. 102, 149.) As they passed each other, Cappobianco. said "I'm going to get you.'" (Cappobianco: Tr. 102, 149.) Cappobianco. saw Tony running towards him from the other end of the block. (Cappobianco: Tr. 102-03, 149; Grullon: Tr. 200.) He did not see Estevez, although Estevez's body later was found in that same area. (Cappobianco: Tr. 103, 151-52, 156, 161-62; Grullon: Tr. 240.) When Tony got to Cappobianco, Tony said in Spanish "Let's hit [Rodriguez] because now he didn't have a revolver." (Grullon: Tr. 203.) Cappobianco. told Tony that he was hurt and that Tony needed to drive him to the hospital but to first drive around the block to look for Estevez. (Cappobianco: Tr. 103; Grullon: Tr. 203, 205.) They could not find Estevez, so they proceeded to the emergency room. (Cappobianco: Tr. 104, 155.)
Once Tony dropped Cappobianco. off at the hospital, he went to go get Cappobianco's girlfriend, and went back to Sherman Avenue to look for Estevez. (Cappobianco: Tr. 152; Grullon: Tr. 205-06, 242.) Tony went back to the neighborhood and saw Estevez's father, and told him that there had been a "shoot-out." (Grullon: Tr. 206.) He never found Estevez, and did not know if he had even been wounded because he did not know if any of the shots fired by Amato had hit him. (Grullon: Tr. 209, 212-13, 235, 242.)
At the hospital, Cappobianco. was treated and also interviewed by police officers. (Cappobianco: Tr. 105-07.) Cappobianco. stayed at the hospital for three or four days before he was released. (Cappobianco: Tr. 107.) As a result of the shooting, Cappobianco. had a blood clot in his lungs for about two weeks and pain in his chest, but has since healed completely. (Cappobianco: Tr. 111.)
Cadet Betances's Eyewitness Account
Police Cadet Neftali Betances lived on Sherman Avenue between Dyckman and Academy Streets for eighteen years. (Betances: Tr. 249-50.) Betances was friendly with Cappobinaco, who he knew by the street name "Sugar Bear." (Betances: Tr. 252, 264-65, 297-98.) He knew Tony and Estevez well, and had seen Rodriguez around the neighborhood for the past "couple of years." (Betances: Tr. 252-53, 264-65, 300-01.) Betances also was familiar with Amato from the neighborhood, and knew Julio by sight but never knew his name, just that "he and Ama[t]o were tight." (Betances: Tr. 254, 300-01.)
On the night of January 16, 1996, Betances was in his bedroom, which is on the first floor and has a window that looks out to the front of the building onto Sherman Avenue. (Betances: Tr. 251.) Between three and four in the morning, Betances heard someone running past his window screaming in Spanish in a male voice "the equivalent [of] don't let him go" or "get him." (Betances: Tr. 251, 255-56, 302.) It sounded to Betances to be a lot of footsteps, more than one person. (Betances: Tr. 255-56.) A few seconds later, Betances heard shots, one after the other, coming from the Dyckman Street direction of 101 Sherman Avenue. (Betances: Tr. 257.) The shots were in two separate sequences: first, Betances heard three shots, and then, a few seconds later, he heard five more shots. (Betances: Tr. 266, 290-91, 293-96.) Betances waited a few seconds and approached his window "to see what was going on." (Betances: Tr. 258, 291, 330.) "When I looked out the window, I see no one in the immediate area but I see towards — where there was a garbage bin area which is across the street diagonally from my window. I see what appears to be two to three men looking down at the garbage area and they were scuffling for something on the floor. I couldn't see what was on the floor because of the angle that I'm at and plus I'm from across the street." (Betances: Tr. 258, 262, 308-09, 319-20, 328.) A livery-type car also was blocking his view of the dumpsters. (Betances: Tr. 259, 304, 321.) By "scuffling," Betances explained that the two or three men were doing something with their hands and feet having to do with the floor, but he could not tell what they were doing. (Betances: Tr. 263-64, 304-05, 309.) Betances heard police coming down the street, assumed that the police "got it under . . . control," and went to bed. (Betances: Tr. 265-66, 291, 322-23.) He did not hear any other shots that night. (Betances: Tr. 292.)
Betances later admitted that he told a defense investigator that when he looked out the window the morning of January 16, the person he saw was "Sugar Bear," i.e., Cappobianco, who was not by the dumpsters, but rather in the middle of the street by the yellow line. (Betances: Tr. 347-48.)
At about ten in the morning, Betances awoke and looked out his window, where he saw a crowd of people in the same spot that he earlier saw the two or three men. (Betances: Tr. 317.) He later learned that the crowd was standing around Estevez's body. (Betances: Tr. 317.) At about eleven in the morning, Betances was visited by police officers who asked him questions about whether he had heard or seen anything earlier that morning. (Betances: Tr. 292.)
Police and Medical Testimony
On January 16, 1996 at about 3:50 a.m., Officer Timothy Murphy and his partner, Officer Jonathan Schneck, received a radio transmission reporting shots fired in front of 101 Sherman Avenue. (Murphy: Tr. 357-59, 372.) They searched the courtyard area in front of 101 Sherman Avenue, the building lobby, and the second floor. (Murphy: Tr. 363, 370.) At 4:04 a.m., the officers received another transmission that a person had been shot and was in the hospital emergency room. (Murphy: Tr. 364.) Officer Murphy interviewed the shooting victim, Cappobianco, who was very upset, for ten minutes until he was taken to surgery. (Murphy: Tr. 364-65, 378.) Officer Murphy went back to 101 Sherman Avenue to conduct a more extensive search for evidence, and found two .380 caliber bullet casings in front of the building, but did not find Estevez's body. (Murphy: Tr. 365-68, 380-81, 383-84.)
On January 16, 1996 at 6:30 a.m., Officers John Urena and Joseph Reardon received a radio transmission of a "man down" in front of 101 Sherman Avenue. (Urena: Tr. 386-88, 398.) They found a man lying face down on the ice near a garbage dumpster, and radioed for an ambulance. (Urena: Tr. 390-91, 403, 405-07, 409.) They lifted the man up "to see if he was okay" and "noticed a hole in his chest." (Urena: Tr. 391-93, 408, 410.) Officer Urena identified the man he found as Estevez. (Urena: Tr. 392.) EMS pronounced Estevez dead at the scene. (Urena: Tr. 395.)
Around 6:50 or 7:00 a.m. on January 16, Emergency Medical Technician Alan Jones responded to a gunshot wound on Sherman Avenue. (Jones: Tr. 420.) When he arrived, Jones saw police on the scene and "a very young fellow on the ground who was obviously shot. He was shot one time in his chest." (Jones: Tr. 420-21.) Jones examined Estevez's body and saw that he had an entrance wound in his back and an exit wound in his front chest. (Jones: Tr. 424-25.) Jones testified to his opinion that Estevez had not "just" been shot, and it had to have happened" [s]ome hours ago," estimating "two to three" hours with a minimum of thirty minutes. (Jones: Tr. 427-28, 440.) However, Jones found it unlikely that Estevez died merely thirty minutes before he arrived. (Jones: Tr. 443.) Based on his experience in the field, Jones testified that Estevez had been dead for two hours at the very least by the time he arrived on the scene. (Jones: Tr. 444.)
Dr. Alandy supervised Estevez's autopsy on January 17; the cause of death was a "[g]unshot wound of the chest with perforations of lung and heart." (Alandy: Tr. 40-41, 46.) The bullet wound could have been caused by a .380 or a nine millimeter weapon. (Alandy: Tr. 49.) Estevez's body had a "perforating gunshot wound to the chest," and bruises or abrasions on the forehead and left cheek and beneath the right eye. (Alandy: Tr. 42-43.) The bullet had "entered the chest at the back between the ninth and tenth ribs," continuing into "the left chest cavity, perforating the lower lobe of the left lung," then perforating the heart sack and the heart itself, and "exit[ing] the chest cavity by perforating the breast bone." (Alandy: Tr. 43, 45.) There were two thousand cc's of blood in the chest cavity, indicating that the heart was still pumping for a period of time after the bullet entered the body. (Alandy: Tr. 48-49.) Thus, it is possible that Estevez "would have [been] able to continue running for a brief period of time after being shot." (Alandy: Tr. 49.) Estevez could have stayed on his feet for about fifteen seconds after the shot entered his body, and survived for no longer than forty-five seconds to one minute after the bullet entry. (Alandy: Tr. 55-56.)
Rodriguez's Arrest and Statement
On January 16, 1996 at 8:00 a.m. Detective Freddy Garcia from the 34th precinct in upper Manhattan was assigned to investigate Estevez's homicide that occurred opposite 101 Sherman Avenue. (Garcia: Tr. 450-52.) When he arrived, Estevez's body was still there. (Garcia: Tr. 453.) Later that day, at approximately 4:00 p.m., after they had picked up Tony, Detective Garcia and his partner apprehended Rodriguez near 207th Street and Sherman Avenue. (Garcia: Tr. 455-56.) Back a the precinct, Detective Garcia read Rodriguez his Miranda warnings (Garcia: Tr. 463) and after Rodriguez signed them, they interviewed him. (Garcia: Tr. 464-67.) The detectives explained to Rodriguez that they wanted him to tell them what happened truthfully, to which he responded "okay." (Garcia: Tr. 470, 484.) Rodriguez went through his story, after which the detectives had Rodriguez go through the story a second time in more detail, as they wrote down what Rodriguez said, stopping at points for clarification. (Garcia: Tr. 471-73, 484-85.) Detective Garcia read back to Rodriguez what he had written to verify if it was correct, and made appropriate changes based on Rodriguez's answer. (Garcia: Tr. 473.) At the end of this process, Rodriguez, the detectives and Rodriguez's mother signed the statement. (Garcia: Tr. 473, 475.) The written statement was given to the jury. (Tr. 476-77.)
Rodriguez's statement to the police was not read into the trial transcript and is not in the record before this Court. Rodriguez's habeas brief, however, summarizes his statement:
In my statement, I admitted smoking crack cocaine the previous evening. Thereafter, I met [Amato] Geraldo by chance on the street. I had known Geraldo for a long time and knew that he was a drug dealer. Some time after midnight, I accompanied Geraldo to 101 Sherman Avenue. There, Geraldo asked me to hold a 9 millimeter silver gun for him and I agreed. Geraldo went outside, and after conferring with Julio Rodriguez, came back into the lobby where I was waiting and gave me another gun, a silver .380 caliber or 9 millimeter, to hold. I next observed an argument between Geraldo and Julio Rodriguez, on one side, and approximately four men from 109 Sherman Avenue, on the other. Eventually, Julio Rodriguez, and a short time later, Geraldo returned to the lobby and took their guns back from me. Specifically, I remembered Geraldo opening the door to the lobby and calling out to me, "Dame la fuca" (Give me the gun). I admittedly did so. I then left the building as quickly as I could, but when I got outside I heard more than one shot. I recalled that there may have been a pause between the shots. I ran and quickly met up with Carmen, a woman I knew from the neighborhood.
(Dkt. No. 2: Rodriguez Br. at 9-10.)
The parties stipulated that there were no other 911 calls of shots fired between 3:53 a.m. and 6:30 a.m. on January 16, 1996 within the confines of the 34th precinct. (Tr. 496.) The Defense Case
At the close of the prosecution's case, defense counsel moved to dismiss the charges, which the trial judge denied. (Tr. 493-94.) The defense called several police witnesses who principally testified to statements given by Cappobianco. and Tony.
Closing Arguments
Defense counsel conceded that Rodriguez was "not contesting the weapons charge. He completely admits to it." (Defense Summation: Tr. 567.) Defense counsel suggested that it was consistent with the evidence that Estevez "was killed later and maybe somebody dropped his body by the dumpster." (Tr. 568) He argued that when Cappobianco. and Tony got in the car near the dumpster to take Cappobianco. to the hospital, they did not see Estevez's body, but the medical evidence proved that Estevez died within fifteen seconds of being shot. (Tr. 573-76.) Thus, according to defense counsel, the evidence supports that Estevez "got away [and] was killed later. By whom and why, you can't speculate, but he was killed later." (Tr. 575.) Defense counsel also argued that the police found two shells, Cappobianco. was shot twice, and therefore the testimony that Amato fired shots at Estevez was unbelievable. (Tr. 580.)
Defense counsel told the jury that Rodriguez's statement to the police showed his innocence. (Tr. 595.) Rodriguez told the police he was "hanging out" with Tony, who tells him to hold a jacket and guns; when Julio and Amato are surrounded, "[t]hey ask for the guns. [Rodriguez] holds the jacket up, they take their guns, and he gets the hell out of there. He didn't shoot anybody." (Tr. 596.) Rodriguez did not have the "same culpable mental state, the same intent as Amato, the same intent as Julio to kill. He has to have that intent for him to be guilty. If he doesn't have that intent, . . . Jose Rodriguez is not guilty." (Tr. 596-97.)
The prosecutor responded that this was a straightforward case. (Tr. 599.) After Amato's gun jams, "the defendant's gun went into Amato's hand . . . [a]nd with that gun, with the gun provided by the defendant, Amato shot Carlos [Cappobianco] point blank in the chest . . . And then Amato with the same gun turns to Christian [Estevez], and Christian starts running. Amato starts firing anywhere from three to five or six to seven shots. . . . Then two and a half hours later, Christian's body is found with a single gunshot wound to the back with a bullet hole consistent with a .380, a .380 that Amato had in his hand." (Tr. 600-01.) He also explained that because Rodiguez was "acting in concert" with Amato, Rodriguez is as "guilty of the attempted murder of Carlos Cappobianco. as if he pulled the trigger himself." (Tr. 603.) The prosecutor also said the there was no reasonable possibility that Amato's shots missed Estevez and someone else shot Estevez in the back a few hours later with the same type gun in the same area. (Tr. 621-25.)
The Jury's Verdict
On February 21, 1997, the jury informed the court by note that they had reached a verdict. (Tr. 705.) They returned guilty verdicts on the four charges against Rodriguez, and were polled. (Tr. 705-07.) When juror number four was asked if his verdict was guilty, the following colloquy took place:
THE CLERK: Juror number four, is that your verdict?
JUROR NUMBER FOUR: I don't know about count one [second degree murder].
THE CLERK: Is that your verdict or I will ask you to go back.
JUROR NUMBER FOUR: He's guilty.
(Tr. 708.) Once the clerk finished polling the jury, the trial judge spoke to counsel at sidebar:
THE COURT: I am not comfortable with this. I — on number four, I don't want to corece him. I will ask him again.
[A.D.A.] BOGDANOS: I think at the least, your Honor, yes or no, is that his verdict, and if you allow him to [go] back inside, ask him again.
MR. ROTHMAN [Defense Counsel]: I don't know what to do. I have never run into this. I don't know what the answer is.
MR. BOGADNOS: I think the jury needs to be polled again in whole. . . . [W]e can't single him out again, and if he's unable to answer, then . . . they have to be told.
(Tr. 709-10.)
The jury was re-polled. (Tr. 710-12.) Juror number four was asked once again if his verdict was guilty, to which he replied "yeah." (Tr. 711.) The jury was asked to leave the courtroom and defense counsel made an application:
THE COURT: All right. The parties are here. The jury is not here. Is your application for me to speak to the one juror, number four, and recall him?
MR. ROTHMAN: That is my application, as to each count with making it clear to him that he's not being pressured or coerced to change whatever his verdict is, but that he has to state that that is his verdict is without reservation.
MR. BOGDANOS: The People consent to the defense's request for your Honor to individually poll juror number four as to each count with two caveats: One, that Mr. Rothman mentioned that the juror must be informed that by being brought out alone in no way is meant to force him to change any conscientiously held belief; and second, he must be told that he is not to violate the secrecy of the jury deliberations.
THE COURT: That would only be if he attempted to explain his reservations which I will tell him immediately, do not tell me about your reasoning process or deliberations.
To make it more neutral, I think the clerk should actually poll him. It seems to be less coercive.
(Tr. 714-15.)
Juror number four was brought back into the courtroom:
THE COURT: Mr. Rush, I am bringing you out here and by doing that, I don't mean to coerce you or single you out in any way.
The clerk is going to ask you a few questions. I would never tell a juror to change their conscientiously held belief because I am engaging in this further polling process of you. Do you understand that?
JUROR NUMBER FOUR:Yes.
THE COURT: I will ask the clerk to ask you separately on each count if that is your verdict, okay. So just listen to the questions.
Do not reveal anything to me about the deliberations process or your particular reasoning process while you answer the questions, okay.
THE CLERK: Mr. Rush, the jury stated through its foreperson and collectively that they found the defendant Jose Rodriguez guilty of count one, murder in the second degree. Is that your verdict?
JUROR NUMBER FOUR:No.
(Tr. 717-18.) Juror number four stated that he found Rodriguez guilty of all the other counts. (Tr. 718.) As a result, the trial judge instructed the jury that he accepted their verdict on counts two through four but that they needed to further deliberate on count one. (Tr. 719-20.) After several additional hours of deliberation, the trial judge received a note that juror number four wished to talk to him. (Tr. 721.) Once he was brought out, juror number four explained to the judge that he had a problem with understanding some of the law. (Tr. 724.) The judge instructed the juror to either write down his question and have the foreperson sign it or explain his problem with the rest of the jury and have the foreperson write the note for him. (Tr. 724-26.) Approximately four minutes later the jury sent a note to the court:
THE COURT: All right. We have a note from the jury, 7:42 [p.m.]: "Juror number four feels that he cannot concur with his fellow jurors regarding reasonable doubt. Juror number four said to the jury that if he doesn't like the law, he does not have to abide by it. From day one, juror number four vowed that he would vote only one way and would not open his mind. Signed, the foreperson." . . .
(Tr. 726.)
The trial judge conferred with counsel about how to proceed in light of the jury note; defense counsel sought a mistrial, while the prosecutor sought an instruction that the jury has to follow the law. (Tr. 726-29.) The trial judge eventually decided that the best course of action was to call the entire jury back into the courtroom and give them an editedAllen charge:
THE COURT: I will bring the whole jury in. He must follow the law. I intend to answer the note to everyone.
Can we bring the jury in, please?
(The jury re-enters the courtroom . . .)
THE COURT: I have a note from you signed by the foreperson . . . I just want to address all of you, the entire panel.
You recall that when we were selecting the jury, each and every person in this room, each juror took an oath to follow the law whether they agreed with the law or not; whether they had reservations about the law, whether they liked it or not.
And I know I asked that and each of the lawyers did, and you each promised that you would follow the law whether you liked it or not.
The standard of proof in a criminal trial is beyond a reasonable doubt. That is the law, and each juror has an obligation to follow the law.
The other thing you swore to do when you were selected as jurors is always to be open to reason, never to go into the jury room with a closed mind, never to refuse to discuss the evidence respectfully with your fellow jurors, and be willing to change your mind if the evidence and your fellow jurors convince you that was the case.
I am not telling anyone to abandon any conscientiously held belief based on the evidence. However, I am asking each of you to discuss the evidence with each other, to always be open to reason and to discuss it respectfully with each other.
Again, the only thing I can say in response to this note is that you all took an oath. The oath is to follow the law and to respectfully discuss the evidence with your fellow jurors, and always to be open to reason.
If there's anything else I can do, if I can explain anything else, if you have any more specific questions, write me a note. If not, I will ask you to continue your deliberations.
(Tr. 729-31.)
The jury returned moments later with a unanimous guilty verdict. (Tr. 732.) When the jury was polled, all jurors including juror number four agreed with the verdict. (Tr. 732-34.) Sentencing
On April 7, 1997, before sentencing, the court first addressed Rodriguez's counseled and pro se motions pursuant to C.P.L. § 330.30, which asserted "that the procedure followed with regard to juror number 4 was coercive." (4/7/97 Sentencing Transcript ["S."] 2-3.) The judge denied the motion, noting that "everything that occurred with respect to this issue with juror number 4 is on the record, and under 330.30, subdivision 1, it is preserved as a matter of appeal." (S. 8-9, 13.) The court then found Rodriguez to be a second violent felony offender (S. 13-14), and sentenced him to eighteen years to life imprisonment for murder, fifteen years for attempted murder, and seven and ten years on the weapons possession counts, all to run concurrently (S. 23-24).
Rodriguez's Direct Appeal
In December 1999, represented by different counsel (the Legal Aid Society), Rodriguez appealed to the First Department, claiming (i) that the murder and attempted murder verdicts were against the weight and sufficiency of the evidence (Dkt. No. 7: Answer, Appendix Ex. B: Rodriguez 1st Dep't Br. at 18-27), and (ii) deprivation of due process rights to an impartial jury and a unanimous verdict when the trial court denied Rodriguez's motion for a mistrial (id. at 28-33).
On September 28, 2000, the First Department affirmed Rodriguez's convictions, holding:
The verdict was based on legally sufficient evidence and was not against the weight of the evidence. The totality of the evidence, particularly with regard to defendant's conduct as his companion fired at the victims, warranted the inference that when defendant handed a weapon to his companion he did so as an intentional participant in the ensuing murder. The evidence also warranted the inference that the murder victim died as a result of the wounds inflicted during the incident in question, and defendant's claim that he may have survived those wounds only to be shot and killed at a subsequent time is speculative.
The court properly exercised its discretion in denying defendant's mistrial motion made as a result of communications from the deliberating jury concerning a juror's alleged reluctance to follow the law. Defendant's remaining claims in this regard are unpreserved, and we decline to review them in the interest of justice. Were we to review these claims, we would find that the court properly exercised its discretion in responding to these communications by delivering a noncoercive instruction to the effect that all jurors were obligated to follow the law as charged.People v. Rodriguez, 275 A.D.2d 665, 665, 713 N.Y.S.2d 346, 346-47 (1st Dep't 2000) (citations omitted).
The New York Court of Appeals denied leave to appeal on December 5, 2000. People v. Rodriguez, 95 N.Y.2d 968, 722 N.Y.S.2d 986 (2000).
Rodriguez's Coram Nobis Petition to the First Department
On May 21, 2001, Rodriguez brought a petition for a writ of error coram nobis in the First Department, alleging ineffective assistance of appellate counsel. (Dkt. No. 7: Answer, Appendix Ex. G: Rodriguez Coram Nobis Petition.) Rodriguez argued that his appellate counsel was ineffective because she failed to raise the claim that he was denied the effective assistance of trial counsel due to trial counsel's failure to object to the insufficiency of the evidence and alleged mishandling of the events surrounding juror number four. (Ex. G: Rodriguez Coram Nobis Br.)
The First Department denied Rodriguez's coram nobis petition without opinion on November 15, 2001. People v. Rodriguez, 288 A.D.2d 962, 734 N.Y.S.2d 528 (1st Dep't 2001). Rodriguez's Federal Habeas Petition
On July 19, 2001, Rodriguez filed his federal habeas corpus petition, raising three grounds: (a) his murder and attempted murder convictions were based upon insufficient evidence (Dkt. No. 2: Pet. ¶ 12(a)); (b) "denial of [his] due process right to a fair trial, an impartial jury and a unanimous verdict" (Pet. ¶ 12(b)); and (c) he was denied effective assistance of appellate counsel (Pet. ¶ 12(c)).
ANALYSIS
For additional decisions by this Judge discussing the AEDPA review standard in language substantially similar to that in this entire section of this Report Recommendation, see Rodriguez v. Senkowski, 03 Civ. 3314, 2004 WL 503451 at *22-24 (S.D.N.Y. Mar. 15, 2004) (Peck, M.J.);Hernandez v. Filion, 03 Civ. 6989, 2004 WL 286107 at *8-10 (S.D.N.Y. Feb. 13, 2004) (Peck, M.J.); Gomez v. Duncan, 02 Civ. 0846, 2004 WL 119360 at *14-16 (S.D.N.Y. Jan. 27, 2004) (Peck, M.J.); Montalvo v. Annetts, 02 Civ. 1056, 2003 WL 22962504 at *12-14 (S.D.N.Y. Dec. 17, 2003) (Peck, M.J.): Maldonado v. Greiner, 01 Civ. 799, 2003 WL 22435713 at *15-17 (S.D.N.Y. Oct. 28, 2003) (Peck, M.J.); McPherson v. Greiner, 02 Civ. 2726, 2003 WL 22405449 at * 12-14 (S.D.N.Y. Oct. 22, 2003) (Peck, M.J.); Wilder v. Herbert, 03 Civ. 0397, 2003 WL 22219929 at *4-6 (S.D.N.Y. Sept. 26, 2003) (Peck, M.J.); Besser v. Walsh, 02 Civ. 6775, 2003 WL 22093477 at *14 (S.D.N.Y. Sept. 10, 2003) (Peck, M.J.), report rec. adopted, 2003 WL 22681429 (S.D.N.Y. Nov. 13, 2003) (Kaplan, D.J.); Guzman v. Fischer, 02 Civ. 7448, 2003 WL 21744086 at *7-9 (S.D.N.Y. July 29, 2003) (Peck, M.J.); Skinner v. Duncan, 01 Civ. 6656, 2003 WL 21386032 *11-13 (S.D.N.Y. June 17, 2003) (Peck, M.J.); Quinones v. Miller, 01 Civ. 10752, 2003 WL 21276429 at *16-18 (S.D.N.Y. June 3, 2003) (Peck, M.J.); Wilson v. Senkowski, 02 Civ. 0231, 2003 WL21031975 at *5-6 (S.D.N.Y. May 7, 2003) (Peck, M.J.): Naranjo v. Filion, 02 Civ. 5449, 2003 WL 1900867 at *5-7 (S.D.N.Y. Apr. 16, 2003) (Peck, M.J.);Hediam v. Miller, 02 Civ. 1419, 2002 WL 31867722 at *8-10 (S.D.N.Y. Dec. 23, 2002) (Peck, M.J.); Dickens v. Filion, 02 Civ. 3450, 2002 WL 31477701 at *6-8 (S.D.N.Y. Nov. 6, 2002) (Peck, M.J.), report rec. adopted, 2003 WL 1621702 (S.D.N.Y. Mar. 28, 2003) (Cote, D.J.); Figueroa v. Greiner, 02 Civ. 2126, 2002 WL 31356512 at *5-6 (S.D.N.Y. Oct. 18, 2002) (Peck, M. J.); Aramas v. Donnelly, 99 Civ. 11306, 2002 WL 31307929 at *6-8 (S.D.N.Y. Oct. 15, 2002) (Peck, M.J.); Velazquez v. Murray, 02 Civ. 2564, 2002 WL 1788022 at *12-14 (S.D.N.Y. Aug. 2, 2002) (Peck, M.J.);Soto v. Greiner, 02 Civ. 2129, 2002 WL 1678641 at *6-7 (S.D.N.Y. July 24, 2002) (Peck, M.J.); Green v. Herbert. 01 Civ. 11881, 2002 WL 1587133 at *9-ll (S.D.N.Y. July 18, 2002) (Peck, M.J.); Bueno v. Walsh, 01 Civ. 8738, 2002 WL 1498004 at *10-11 (S.D.N.Y. July 12, 2002) (Peck, M.J.);Larrea v. Bennett, 01 Civ. 5813, 2002 WL 1173564 at *14 (S.D.N.Y. May 31, 2002) (Peck, M.J.), report rec. adopted, 2002 WL 1808211 (S.D.N.Y. Aug. 6.2000) (Scheindlin, D. J.); Jamison v. Berbary, 01 Civ. 5547, 2002 WL 1000283 at *8-9 (S.D.N.Y. May 15, 2002) (Peck, M.J.);Cromwell v. Keane, 98 Civ. 0013, 2002 WL 929536 at "12-13 (S.D.N.Y. May 8, 2002) (Peck, M.J.); Jamison v. Grier, 01 Civ. 6678, 2002 WL 100642 at 8-9 (S.D.N.Y. Jan. 25, 2002) (Peck, M.J.); Thomas v. Breslin, 01 Civ. 6657, 2002 WL 22015 at *4-5 (S.D.N.Y. Jan. 9, 2002) (Peck, M.J.); Thomas v. Duncan, 01 Civ. 6792, 2001 WL 1636974 at *7 (S.D.N.Y. Dec. 21, 2001) (Peck, M.J.); Rivera v. Duncan, 00 Civ. 4923, 2001 WL 1580240 at *6 (S.D.N.Y. Dec. 11, 2001) (Peck, M.J.); Rodriguez v. Lord, 00 Civ. 0402, 2001 WL 1223864 at *16 (S.D.N.Y. Oct. 15, 2001) (Peck, M.J.); James v. People of the State of New York, 99 Civ. 8796, 2001 WL 706044 at *11 (S.D.N.Y. June 8, 2001) (Peck, M.J.), report rec. adopted, 2002 WL 31426266 (S.D.N.Y. Oct. 25, 2002) (Berman, D.J.); Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *5 (S.D.N.Y. July 19, 2000) (Peck, M.J.);Mendez v. Artuz, 98 Civ. 2652, 2000 WL 722613 at *22 (S.D.N.Y. June 6, 2000) (Peck, M.J.), report rec. adopted, 2000 WL 1154320(S.D.N.Y. Aug. 14.2000) (McKenna. D.J.), aff'd, 303 F.3d 411. 417 (2d Cir. 2002),cert. denied, 123 S.Ct. 1353 (2003); Fluellen v. Walker, 97 Civ. 3189, 2000 WL 684275 at *10 (S.D.N.Y. May 25, 2000) (Peck, M.J.), aff'd, No. 01-2474, 41 Fed. Appx. 497, 2002 WL 1448474 (2d Cir. June 28, 2002),cert. denied, 123 S.Ct. 1787 (2003).
Before the Court can determine whether Rodriguez is entitled to federal habeas relief, the Court must address the proper habeas corpus review standard under the Antiterrorism and Effective Death Penalty Act ("AEDPA").
In enacting the AEDPA, Congress significantly "modifie[d] the role of federal habeas courts in reviewing petitions filed by state prisoners."Williams v. Taylor, 529 U.S. 362, 403, 120 S.Ct. 1495, 1518 (2000). The AEDPA imposed a more stringent review standard, as follows:
(d) 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; or
(2) . . . 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)(1)-(2)
See also, e.g., Dallio v. Spitzer, 343 F.3d 553, 559-60 (2d Cir. 2003), petition for cert. filed, No. 03-7760, ___ U.S.L.W. ___ (U.S. Dec. 3, 2003); Eze v. Senkowski, 321 F.3d 110, 120 (2d Cir. 2003) ("AEDPA changed the landscape of federal habeas corpus review by 'significantly curtail[ing] the power of federal courts to grant the habeas petitions of state prisoners.'") (quoting Lainfiesta v. Artuz, 253 F.3d 151.155 (2d Cir. 2001). cert. denied, 535 U.S. 1019, 122 S.Ct. 1611 (2002)); Christie v. Hollins, 01 Civ. 11605, 2003 WL 22299216 at *2 (S.D.N.Y. Oct. 7, 2003) (Mukasey, D.J.) ("As Magistrate Judge Peck explained, the 'unreasonable application' clause, and AEDPA more generally, imposes a heavy burden on habeas petitioners.").
The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have "independent meaning." Williams v. Taylor, 529 U.S. at 404-05, 120 S.Ct. at 1519. Both, however, "restrict the source of clearly established law to [the Supreme] Court's jurisprudence." Williams v. Taylor, 529 U.S. at 412, 120 S.Ct. at 1523. "That federal law, as defined by the Supreme Court, may either be a generalized standard enunciated in the [Supreme] Court's case law or a bright-line rule designed to effectuate such a standard in a particular context." Kennaugh v. Miller, 289 F.3d at 42. "A petitioner cannot win habeas relief solely by demonstrating that the state court unreasonably applied Second Circuit precedent." Yung v. Walker, 296 F.3d at 135;accord, e.g., DelValle v. Armstrong, 306 F.3d at 1200.
Accord, e.g., Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir. 2003),cert. denied, 124 S.Ct. 962 (2003); Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000); Lurie v. Wittner, 228 F.3d 113, 125 (2d Cir. 2000).cert. denied, 532 U.S. 943, 121 S.Ct. 1404 (2001); Clark v. Stinson, 214 F.3d 315. 320 (2d Cir. 2000). cert. denied, 531 U.S. 1116, 121 So. Ct. 865 (2001).
Accord, e.g., Wiggins v. Smith, 123 S.Ct. 2527, 2534 (2003); Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 1172 (2003) ("Section 2254(d)(1)'s 'clearly established' phrase 'refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision.'"); Tueros v. Greiner, 343 F.3d 587, 591 (2d Cir. 2003); Parsad v. Greiner, 337 F.3d at 181: DelValle v. Armstrong, 306 F.3d 1197, 1200 (2d Cir. 2002); Yung v. Walker, 296 F.3d 129, 135 (2d Cir. 2002); Kennaugh v. Miller, 289 F.3d 36, 42 (2d Cir.), cert. denied, 537 U.S. 909, 123 S.Ct. 251 (2002); Loliscio v. Goord, 263 F.3d 178, 184 (2d Cir. 2001); Sellan v. Kuhlman, 261 F.3d 303, 309 (2d Cir. 2001).
As to the "contrary to" clause:
A state-court decision will certainly be contrary to [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases. . . . A state-court decision will also be contrary to [the Supreme] Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.Williams v. Taylor, 529 U.S. at 405-06, 120 S.Ct. at 1519-20.
Accord, e.g., Price v. Vincent, 538 U.S. 634, 123 So. Ct. 1848, 1853 (2003); Lockyer v. Andrade, 123 S.Ct. at 1173-74; Tueros v. Greiner, 343 F.3d at 591; DelValle v. Armstrong, 306 F.3d at 1200; Yung v. Walker, 296 F.3d at 135; Kennaugh v. Miller, 289 F.3d at 42; Loliscio v. Goord, 263 F.3d at 184; Lurie v. Wittner, 228 F.3d at 127-28.
In Williams, the Supreme Court explained that "[u]nder the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams v. Taylor, 529 U.S. at 413, 120 S.Ct. at 1523. However, "[t]he term 'unreasonable' is . . . difficult to define." Williams v. Taylor, 529 U.S. at 410, 120 S.Ct. at 1522. The Supreme Court made clear that "an unreasonable application of federal law is different from anincorrect application of federal law." Id. Rather, the issue is "whether the state court's application of clearly established federal law was objectively unreasonable." Williams v. Taylor, 529 U.S. at 409, 120 S.Ct. at 1521. "Objectively unreasonable" is different from "clear error." Lockyer v. Andrade, 123 S.Ct. at 1175 ("The gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness."). However, the Second Circuit has explained "that while '[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence.'" Jones v. Stinson, 229 F.3d at 119 (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).
Accord, e.g., Wiggins v. Smith, 123 S.Ct. at 2534-35; Parsad v. Greiner, 337 F.3d at 181.
See also, e.g., Wiggins v. Smith, 123 S.Ct. at 2535; Price v. Vincent, 123 S.Ct. at 1853 ("As we have explained, 'a federal habeas court may not issue the writ simply because that court concludes that the state-court decision applied [a Supreme Court case] incorrectly.'") (quoting Woodford v. Visciotti, 537 U.S. 19, 24-25, 123 S.Ct. 357, 360 (2002)); Lockyer v. Andrade, 123 So. Ct. at 1175; Eze v. Senkowski, 321 F.3d at 124-25; DelValle v. Armstrong, 306 F.3d at 1200 ("With regard to issues of law, therefore, if the state court's decision was not an unreasonable application of, or contrary to, clearly established federal law as defined by Section 2254(d), we may not grant habeas relief even if in our judgment its application was erroneous.").
Accord, e.g., Wiggins v. Smith, 123 S.Ct. at 2535; Price v. Vincent, 123 S.Ct. at 1853; Lockyer v. Andrade, 123 S.Ct. at 1174-75:Woodford v. Visciotti, 537 U.S. at 25-27. 123 S.Ct. at 360-61; Eze v. Senkowski, 321 F.3d at 125: Ryan v. Miller, 303 F.3d 231, 245 (2d Cir. 2002); Yung v. Walker, 296 F.3d at 135; Loliscio v. Goord, 263 F.3d at 184; Lurie v. Wittner, 228 F.3d at 128-29.
Accord, e.g., Eze v. Senkowski, 321 F.3d at 125; Ryan v. Miller, 303 F.3d at 245; Yung v. Walker, 296 F.3d at 135: Loliscio v. Goord, 263 F.3d at 184: Christie v. Hollins, 2003 WL 22299216 at *3.
Moreover, the Second Circuit has held "that a state court determination is reviewable under AEDPA if the state decision unreasonably failed to extend a clearly established, Supreme Court defined, legal principle to situations which that principle should have, in reason, governed."Kennaugh v. Miller, 289 F.3d at 45.
Accord, e.g., Tueros v. Greiner, 343 F.3d at 591; Yung v. Walker, 296 F.3d at 135.
Under the AEDPA, in short, the federal courts "must give the state court's adjudication a high degree of deference." Yung v. Walker, 296 F.3d at 134.
Even where the state court decision does not specifically refer to either the federal claim or to relevant federal case law, the deferential AEDPA review standard applies:
For the purposes of AEDPA deference, a state court "adjudicate [s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.Sellan v. Kuhlman, 261 F.3d at 312; accord Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 365 (2002) (State court not required to cite Supreme Court cases, or even be aware of them, to be entitled to AEDPA deference, "so long as neither the reasoning nor the result of the state-court decision contradicts them."); Jenkins v. Artuz, 294 F.3d 284, 291 (2d Cir. 2002) ("In Sellan, we found that an even more concise Appellate Division disposition — the word 'denied' — triggered AEDPA deference."). "By its terms, § 2254(d) requires such deference only with respect to a state-court 'adjudication on the merits,' not to a disposition 'on a procedural, or other, ground.' Where it is 'impossible to discern the Appellate Division's conclusion on [the relevant] issue,' a federal court should not give AEDPA deference to the state appellate court's ruling." Miranda v. Bennett, 322 F.3d 171, 177-78 (2d Cir. 2003) (citations omitted). Of course, "[i]f there is no [state court] adjudication on the merits, then the pre-AEDPA, de novo standard of review applies." Cotto v. Herbert, 331 F.3d at 230.
Accord, e.g., Dallio v. Spitzer, 343 F.3d at 559-60; Parsad v. Greiner, 337 F.3d at 180-81; Cotto v. Herbert, 331 F.3d 217, 230 (2d Cir. 2003): Eze v. Senkowski, 321 F.3d at 121: Ryan v. Miller, 303 F.3d at 245; Add v. Bennett, 296 F.3d 58, 62 (2d Cir.), cert. denied, 537 U.S. 1093, 123 S.Ct. 694 (2002); Norde v. Keane, 294 F.3d 401, 410 (2d Cir. 2002); Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir. 2001).
The Second Circuit "recognize[d] that a state court's explanation of the reasoning underlying its decision would ease our burden in applying the 'unreasonable application' or 'contrary to' tests." Sellan v. Kuhlman, 261 F.3d at 312. Where the state court does not explain its reasoning, the Second Circuit articulated the analytic steps to be followed by a federal habeas court:
We adopt the Fifth Circuit's succinct articulation of the analytic steps that a federal habeas court should follow in determining whether a federal claim has been adjudicated "on the merits" by a state court. As the Fifth Circuit has explained, "[W]e determine whether a state court's disposition of a petitioner's claim is on the merits by considering: (1) what the state courts have done in similar cases; (2) whether the history of the case suggests that the state court was aware of any ground for not adjudicating the case on the merits; and (3) whether the state court's opinion suggests reliance upon procedural grounds rather than a determination on the merits." Mercadel v. Cain, 179 F.3d 271, 274 (5th Cir. 1999).Sellan v. Kuhlman, 261 F.3d at 314; accord, e.g., Cotto v. Herbert. 331 F.3d at 230; Eze v. Senkowski, 321 F.3d at 121-22; Norde v. Keane, 294 F.3d at 410; Aparicio v. Artuz, 269 F.3d at 93; see also Dallio v. Spitzer, 343 F.3d at 560.
The Second Circuit in Miranda v. Bennett continued: "Generally, when the Appellate Division opinion states that a group of contentions is either without merit 'or' procedurally barred, the decision does not disclose which claim in the group has been rejected on which ground. If the record makes it clear, however, that a given claim had been properly preserved for appellate review, we will conclude that it fell into the 'without merit' part of the disjunct even if it was not expressly discussed by the Appellate Division." Id. at 178.
In addition to the standard of review of legal issues, the AEDPA provides a deferential review standard for state court factual determinations: "a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1). "The petitioner bears the burden of'rebutting the presumption of correctness by clear and convincing evidence.'" Parsad v. Greiner, 337 F.3d at 181 (quoting § 2254(e)(1)).
Rodriguez's ineffective assistance claim, raised in his coram nobis petition, was denied by the First Department without opinion. (See page 20 above.) Thus, AEDPA deference applies. See, e.g., Sellan v. Kuhlman, 261 F.3d at 312; Jenkins v. Artuz, 294 F.3d at 291; see also cases cited at page 26 n. 14 above.
Rodriguez's sufficiency of the evidence claim was decided on the merits (see page 19 above), and thus AEDPA deference applies. (See cases cited at page 26 n. 14 above.) The First Department upheld the trial court's denial of a mistrial on the merits (see page 20 above), and this aspect of its decision is entitled to AEDPA deference. The First Department went on to find Rodriguez's "remaining claims in this regard" to be "unpreserved," but went on to find that if it were to review those claims, it would find them to be without merit. (See page 20 above.) The issues beyond the mistrial claim therefore either will be found barred from habeas review by an independent and adequate state law ground or, were the Court to reach the merits, the deferential AEDPA review standard would apply. See, e.g., Green v. Herbert, 01 Civ. 11881, 2002 WL 1587133 at *11 (S.D.N.Y. July 18, 2002) (Peck, M.J.) ("[T]he First Department's holding is an adequate and independent state procedural ground that bars federal habeas review . . ., but because of the First Department's alternative holding on the merits, to the extent the federal courts reach the merits of the sentencing claim, the deferential AEDPA review standard applies."); Rivera v. Duncan, 00 Civ. 4923, 2001 WL 1580240 at *8 (S.D.N.Y. Dec.l 1, 2001) (Peck, M.J.) ("The Second Circuit has not decided the appropriate AEDPA review standard in such a case [where the state court finds the claim procedurally barred and without merit]-which is not surprising, because usually such a state court holding would preclude any federal habeas review.").
II. THE EVIDENCE WAS SUFFICIENT TO CONVICT RODRIGUEZ OF SECOND DEGREE MURDER AND ATTEMPTED MURDER A. Legal Principles Governing Sufficiency of the Evidence Habeas Claims
For additional decisions authored by this Judge discussing the sufficiency of the evidence standard in habeas cases in language substantially similar to this section of this Report Recommendation,see Rodriguez v. Senkowski, 03 Civ. 3314, 2004 WL 503451 at *27 (S.D.N.Y. Mar. 15, 2004) (Peck, M.J.); Besser v. Walsh, 02 Civ. 6775, 2003 WL 22093477 at *10-13 (S.D.N.Y. Sept. 10, 2003) (Peck, M.J.): Wilson v. Senkowski, 02 Civ. 0231, 2003 WL 21031975 at *8-9 (S.D.N.Y. May 7, 2003) (Peck, M.J.); Hediam v. Miller, 02 Civ. 1419, 2002 WL 31867722 at *11-14 (S.D.N.Y. Dec. 23, 2002) (Peck, M.J.); Gutierrez v. Ricks, 02 Civ. 3780, 2002 WL 31360417 at *7-10 (S.D.N.Y. Oct. 21, 2002) (Peck, M. J.); Ibarra v. Burge, 02 Civ. 0825, 2002 WL 1467756 at *4-5 (S.D.N.Y. July 9, 2002) (Peck, M.J.); Cromwell v. Keane, 98 Civ. 0013, 2002 WL 929536 at *13-14 n. 17 (S.D.N.Y. May 8, 2002) (Peck, M.J.); Jamison v. Grier, 01 Civ. 6678, 2002 WL 100642 at *9-10 (S.D.N.Y. Jan. 25, 2002) (Peck, M.J.); Ferguson v. Walker, 00 Civ. 1356, 2001 WL 869615 at *4 (S.D.N.Y. Aug. 2, 2001) (Peck, M.J.), report rec. adopted, 2002 WL 31246533 (S.D.N.Y. Oct. 7, 2002); Simpson v. Portuondo, 01 Civ. 1379, 2001 WL 830946 at *7 (S.D.N.Y. July 12, 2001) (Peck, M.J.); Simmons v. Mazzuca, 00 Civ. 8174, 2001 WL 537086 at *6 (S.D.N.Y. May 21, 2001) (Peck, M.J.); Jones v. Duncan, 162 F. Supp.2d 204, 214-15 (S.D.N.Y. 2001) (Peck, M.J.); Cassells v. Ricks, 99 Civ. 11616, 2000 WL 1010977 at *5 (S.D.N.Y. July 21, 2000) (Peck, M.J.); Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *7 (S.D.N.Y. July 19, 2000) (Peck, M.J.); Roldan v. Artuz, 78 F. Supp.2d 260, 266-67 (S.D.N.Y. 2000) (Batts, D.J. Peck, M.J.); Estrada v. Senkowski, 98 Civ. 7796, 1999 WL 1051107 at *14 (S.D.N.Y. Nov. 19, 1999) (Pauley, D.J. Peck, M.J.); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at*25 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); Jones v. Stock, 99 Civ. 1270, 1999 WL 983871 at *12 (S.D.N.Y. Oct. 26, 1999) (Peck, M.J.); Franza v. Stinson, 58 F. Supp.2d 124, 137 (S.D.N.Y. 1999) (Kaplan, D.J. Peck, M.J.); Carromero v. Stock, 98 Civ. 3519, 1998 WL 849321 at *4 (S.D.N.Y. Nov. 19, 1998) (Preska, D.J. Peck, M.J.); Fernandez v. Dufrain, 11 F. Supp.2d 407, 416 (S.D.N.Y. 1998) (Kaplan, D.J. Peck, M.J.); Williams v. Bennet, 97 Civ. 1628, 1998 WL 236222 at *4 (S.D.N.Y. Apr. 20, 1998) (Baer, D.J. Peck, M.J.); Robinson v. Warden of James A. Thomas Ctr., 984 F. Supp. 801, 805 (S.D.N.Y. 1997) TSprizzo. D.J. Peck. M.J.): Ehinger v. Miller, 942 F. Supp. 925, 935 (S.D.N.Y. 1996) (Mukasey, D.J. Peck, M.J.); Vera v. Hanslmaier, 928 F. Supp. 278, 284 (S.D.N.Y. 1996) (Jones, D.J. Peck, M.J.).
"'[T]he Due Process Clause of the Fourteenth Amendment protects a defendant in a criminal case against conviction 'except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.'" Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 2787 (1979) (quoting In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073 (1970)). However, "a properly instructed jury may occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. at 317, 99 S.Ct. at 2788. Accordingly, "in a challenge to a state criminal conviction brought under 28 U.S.C. § 2254 — if the settled procedural prerequisites for such a claim have otherwise been satisfied — the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. at 324, 99 S.Ct. at 2791-92.
Accord, e.g., Fama v. Commissioner of Corr. Servs., 235 F.3d 804, 811 (2d Cir. 2000); Einaugler v. Supreme Court, 109 F.3d 836, 839 (2d Cir. 1997).
Petitioner Rodriguez bears a very heavy burden:
[T]he standard for appellate review of an insufficiency claim placed a "very heavy burden" on the appellant. Our inquiry is whether the jury, drawing reasonable inferences from the evidence, may fairly and logically have concluded that the defendant was guilty beyond a reasonable doubt. In making this determination, we must view the evidence in the light most favorable to the government, and construe all permissible inferences in its favor.United States v. Carson, 702 F.2d 351, 361 (2d Cir.) (citations omitted), cert. denied, 462 U.S. 1108, 103 S.Ct. 2456, 2457 (1983).
Accord, e.g., Fama v. Commissioner of Corr. Servs., 235 F.3d at 811 ("petitioner bears a very heavy burden in convincing a federalhabeas court to grant a petition on the grounds of insufficiency of the evidence"); United States v. Middlemiss, 217 F.3d 112, 117 (2d Cir. 2000); United States v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000) ("a defendant shoulders a 'heavy burden' in challenging the sufficiency of evidence supporting a conviction"); United States v. Kinney, 211 F.3d 13.16 (2d Cir. 2000). cert. denied, 531 U.S. 1079, 121 S.Ct.778 (2001); United States v. Bicaksiz, 194 F.3d 390, 398 (2d Cir. 1999) (The defendant "bears a 'very heavy burden' in challenging the sufficiency of the evidence that led to his conviction. In considering any such challenge, we view all proof in the light most favorable to the government and draw all reasonable inferences in the government's favor.") (citations omitted), cert. denied, 528 U.S. 1161, 120 S.Ct. 1175 (2000); United States v. Russo, 74 F.3d 1383, 1395 (2d Cir.), cert. denied, 519 U.S. 927, 117 S.Ct. 293 (1996); United States v. Rosa, 11 F.3d 315, 337 (2d Cir. 1993) ("[T]he defendant who makes a sufficiency challenge bears a heavy burden."), cert. denied, 511 U.S. 1042, 1096, 114 S.Ct. 1565, 1864 (1994); United States v. Strauss, 999 F.2d 692, 696 (2d Cir. 1993) (burden on defendant claiming insufficiency is "very heavy" and all inferences must be drawn in the government's favor).
The habeas court's review of the jury's findings is limited:
[T]his inquiry does not require a court to "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.Jackson v. Virginia, 443 U.S. at 318-19, 99 S.Ct. at 2789 (citations omitted).
Accord, e.g., United States v. Middlemiss, 217 F.3d at 117; United States v. Kinney, 211 F.3d at 16; United States v. Russo, 74 F.3d at 1395 (quoting United States v. Martinez, 54 F.3d l040, 1042-43 (2d Cir.),cert. denied, 516 U.S. 1001, 116 S.Ct. 545 (1995)); Mallette v. Scully, 752 F.2d 26, 31 (2d Cir. 1984).
The Jackson v. Virginia "standard must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law." Jackson v. Virginia, 443 U.S. at 324 n. 16.99 S.Ct. at 2792 n. 16: accord, e.g., Green v. Abrams, 984 F.2d 41, 44-45 (2d Cir. 1993) ("In considering a petition for a writ of habeas corpus based on insufficient evidence to support a criminal conviction in the state courts, a federal court must look to state law to determine the elements of the crime.").
B. Application of the Standard to Rodriguez's Claim
Rodriguez argues that there was insufficient evidence to convict him of murder and attempted murder. (Dkt. No. 2: Pet. ¶ 12(a); Dkt. No. 2: Rodriguez Br. at 24-34.)
While Rodriguez also raised a weight of the evidence argument in the First Department (see Dkt. No. 7: State Answer, Appendix Ex. B: Rodriguez 1st Dep't Br. at 18-27), he does not appear to raise a weight of the evidence claim in his habeas petition. Even if he did, the law is clear that a weight of the evidence claim is not cognizable on federal habeas review. See, e.g., Rodriguez v. Senkowski, 03 Civ. 3314, 2004 WL 503451 at *26-27 n. 33 (S.D.N.Y. Mar. 15, 2004) (Peck, M.J.) ( cases cited therein).
A person is guilty of second degree murder when (1)" [w]ith intent to cause the death of another person, he causes the death of such person or of a third person," or (2) "[u]nder circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person." Penal Law § 125.25. A person is guilty of attempted second degree murder when, with intent to commit that crime, "he engages in conduct which tends to effect the commission of such crime." Penal Law § 110.00.
Rodriguez was charged with second degree murder and attempted murder under an "acting in concert" theory, Penal Law § 20.00, which states: "When one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct."
Viewed in the light most favorable to the prosecution, the evidence established that Rodriguez was present at 3:45 a.m. to "back up" his friend Amato, a drug dealer. (See page 4 above.) Rodriguez was armed with one (or more) .380 semi-automatic guns. (See page 5 above.) Amato, Rodriguez and Julio had a confrontation with Cappobianco, Estevez and Tony over money owed, likely a drug-related debt. (See pages 4-5 above.) Rodriguez, Amato and Julio all pulled guns. (See page 5 above.) Julio hit Estevez in the head with his gun. (See page 5 above.) When Cappobianco. started toward Amato, Amato fired a shot to the ground, while Rodriguez stood next to him. (See page 5 above.) When Amato's gun jammed, he asked Rodriguez for Rodriguez's gun, which Rodriguez gave him, and Amato immediately shot Cappobianco. in the chest. (See page 5 above.) Amato then shot toward Estevez's back six or seven times. (See page 6 above.) While no one saw whether Estevez was hit, and his body was not immediately seen, his body was found — shot in the back by a .380 — some two hours later by the dumpsters across the street, and the evidence established that he had been dead for some two to three hours. (See pages 9-11 above.)
The First Department held:
The verdict was based on legally sufficient evidence and was not against the weight of the evidence. The totality of the evidence, particularly with regard to defendant's conduct as his companion fired at the victims, warranted the inference that when defendant handed a weapon to his companion he did so as an intentional participant in the ensuing murder. The evidence also warranted the inference that the murder victim died as a result of the wounds inflicted during the incident in question, and defendant's claim that he may have survived those wounds only to be shot and killed at a subsequent time is speculative.People v. Rodriguez, 275 A.D.2d 665, 665, 713 N.Y.S.2d 346, 346-47 (1st Dep't 2000) (citations omitted). Based on the evidence described above, the Court cannot say that the First Department's decision was an unreasonable application of the Jackson v. Virginia standard or involved unreasonable factual determinations. (See Point I above.)
First, as to Amato's shooting of Cappobianco. with Rodriguez's gun: under New York law, whether a defendant possesses the mental culpability to have acted in concert with another is a fact question for the jury to determine from the direct and circumstantial evidence. See, e.g., Gutierrez v. McGinnis, 00 Civ. 395, 2003 WL 21782628 at *6 (S.D.N.Y. July 31, 2003) ("Regardless of the fact that [petitioner] missed [the victim], under an accomplice liability theory, '[i]t is not necessary to prove that [petitioner] fired the fatal shot if the evidence is sufficient to establish that [petitioner] was acting in concert with another who did fire the fatal shot and that [petitioner] was acting with the mental culpability required for the commission of the crime. It is the job of the jury, not the reviewing court, to determine whether defendant acted intentionally or recklessly at the time of the crime.") (citations omitted); see also Torres v. Leonardo, 99 Civ. 2407, 2000 WL 1459816 at *2 (S.D.N.Y. Sept. 29, 2000); People v. Anthony, 172 A.D.2d 322, 322, 568 N.Y.S.2d 395, 395 (1st Dep't) ("Defendant's culpability on an acting in concert theory was a jury issue."), appeal denied, 77 N.Y.2d 991, 571 N.Y.S.2d 917 (1991). Here, Rodriguez was present as an armed "back up" to drug dealer Amato in a confrontation with others, Rodriguez gave his gun to Amato during that confrontation after Amato had already fired a shot, and Rodriguez remained next to Amato as he shot first Cappobianco. and then at Estevez. (See pages 5 6 above.) A reasonable jury could conclude that this evidence was sufficient to establish that Rodriguez acted in concert with Amato in the latter's efforts to shoot and kill Cappobianco. and Estevez. See, e.g., Sims v. Stinson, 101 F. Supp.2d 187, 200-01 (S.D.N.Y. 2000), aff'd, No. 00-2479, 6 Fed. Appx. 14 (table), 2001 WL 303750 (2d Cir. Mar. 28, 2001); Ramos v. Artuz, 40 F. Supp.2d 206, 207 (S.D.N.Y. 1999); Gill v. Pastena, 96 Civ. 6944, 1997 WL 615000 at *4 (S.D.N.Y. Oct. 6, 1997); People v. Irizarry, 233 A.D.2d 209, 209-10, 650 N.Y.S.2d 105, 106 (1st Dep't),appeal denied, 89 N.Y.2d 924, 654 N.Y.S.2d 726 (1996).
The cases Rodriguez cites (Dkt. No. 2: Rodriguez Br. at 24-28) are factually distinguishable. For example, in Pilotti v. Superintendent, Great Meadow Corr. Facility, 759 F. Supp. 1031, 1038-39 (S.D.N.Y. 1991), the habeas court found the evidence insufficient to support the jury's verdict finding Pilotti guilty of second degree murder, where the evidence was that "Pilotti possessed the murder weapon sixty to ninety minutes after the murder had occurred and approximately five blocks from the scene of the crime," in the company of another person who had "two shell casings fired from the murder weapon." Id. at 1038. The habeas court ruled that "[a]lthough the evidence certainly raises a suspicion about Pilotti's involvement in the murder, it was not of the magnitude such that a reasonable juror could have inferred — beyond a reasonable doubt — that Pilotti was one of the two gunmen in the Pontiac." Id. at 1039. Here, in contrast, eyewitness testimony not only placed Rodriguez at the scene of the crime but further established (corroborated by Rodriguez's confession) that he gave his gun to Amato who, with Rodriguez standing at his side, shot Cappobianco and Estevez. (See pages 5-6 above.) People v. Monaco, 14 N.Y.2d 43, 248 N.Y.S.2d 41 (1964) also is factually distinguishable. Unlike Monaco, Rodriguez was not "merely present" when an instantaneous act of murder occurred; as discussed on pages 4-6 above, Rodriguez was present to "back up" drug-dealer Amato, and Rodriguez actually handed over the murder weapon to Amato and remained present throughout the shootings. See, e.g., People v. McKnight, 306 A.D.2d 546, 547, 761 N.Y.S.2d 695, 697 (3d Dept.) ("The cases relied upon by defendant are inapposite since this is not a situation of merely being present when a sudden and unaided escalation of criminal conduct occurs [c]iting inter alia. People v. Monaco, Instead, defendant played the active and instrumental role of supplying a deadly weapon in the midst of a fight and that weapon was immediately used to elevate a brawl to a murder."), appeal denied, 100 N.Y.2d 596, 766 N.Y.S.2d 172 (2003). The other state cases that Rodriguez cites in his brief also are factually distinguishable from the instant case.
Second, as to the shooting death of Estevez, Rodriguez repeats the arguments that his counsel made in summation that because Estevez's body was not seen by people at 3:45 a.m. and was found at 6:00 a.m., he might have been shot later and not by Amato. (See page 13 above; see also Dkt. No. 2: Rodriguez Br. at 30-31.) While the fact that no one saw Estevez's body at 3:45 a.m. is somewhat troubling, the jury had sufficient evidence to conclude that Amato's shots from Rodriguez's gun killed Estevez at 3:45 a.m. The jury could have concluded from the evidence that Cappobianco. — who was shot and sufficiently confused that he initially forgot he had his car at the scene — did not see Estevez's body because it was night time, the body was in an area by the dumpster and garbage bags, and the body was 20 feet from the car. (See page 4 above; see also Dkt. No. 7: State Answer, Appendix Ex. C: State 1st Dep't Br. at 18-19.) While the first responding officers also did not see Estevez's body, they principally looked in front of 101 Sherman Avenue, rather than across the street, and even the 6 a.m. responding officers did not initially see Estevez's body until it was pointed out to them by a passerby. (See Dkt. No. 7: State Answer Appendix Ex. C: State 1st Dep't Br. at 19.) Witnesses testified to Amato's shooting at Estevez's back, and both the police cadet who lived in the building, and the parties' stipulation that there were no other 911 calls of shots fired that night, along with the medical evidence that placed Estevez's time of death at around 3:45 a.m., were sufficient for the jury to reasonably conclude that Estevez was killed by the shots Amato fired from Rodriguez's gun at 3:45 a.m. while Rodriguez stood by his side. See, e.g., Romano v. Gibson, 239 F.3d 1156, 1165 (10th Cir.) (Although disputed, the circumstantial evidence, including time of death and lack of an alibi, "was more than sufficient for a rational trier of fact to find the existence of all of the elements of [the] charged offenses beyond a reasonable doubt."),cert. denied, 534 U.S. 1046, 122 S.Ct. 678 (2001); United States v. Hughes, 211 F.3d 676, 682 (1st Cir. 2000); Boggs v. Olivarez, No. 98-56931, 216 F.3d 1082 (table), 2000 WL 84447 at *3 (9th Cir. Mar. 30, 2000); United States v. Whitman, No. 92-10553, 5 F.3d 544 (table), 1993 WL 330670 at *4 (9th Cir. Aug. 31, 1993).
The evidence that Estevez was killed at 3:45 a.m. by Amato with Rodriguez's gun, although the body was not found until 6 a.m., was to some extent circumstantial, but circumstantial evidence is sufficient to support Rodriguez's conviction. E.g., United States v. Gonzalez, 110 F.3d 936, 940-41 (2d Cir. 1997) ("It is well settled that where, as here, the government's case is based primarily on eyewitness testimony describing criminal activity, 'any lack of corroboration [with physical evidence] goes only to the weight of the evidence, not to its sufficiency. The weight is a matter for argument to the jury, not a ground for reversal on appeal.'") (quoting United States v. Roman, 870 F.2d at 71); Bossett v. Walker, 41 F.3d 825, 830 (2d Cir. 1994) ("Although appellants emphasize the lack of physical evidence connecting them to the murder and contend that the testifying witnesses were not credible, 'a conviction may be based on circumstantial evidence and inferences based upon the evidence and the jury is exclusively responsible for determining a witness' credibility.'"), cert. denied, 514 U.S. 1054, 115 S.Ct. 1436 (1995): see, e.g., United States v. Danzey, 594 F.2d 905, 916 (2d Cir.) ("the testimony of a single, uncorroborated eyewitness is generally sufficient to support a conviction"), cert. denied, 441 U.S. 951, 99 S.Ct. 2179 (1979); Johnson v. Bartlett, 96 Civ. 6941, 1998 WL 717608 at *5 (S.D.N.Y. Oct. 14, 1998) (same, quotingDanzey).
See also, e.g., Simpson v. Portuondo, 01 Civ. 1379, 2001 WL 830946 at *9 (S.D.N.Y. July 12, 2001) (Peck, M.J.); Natal v. Bennett, 98 Civ. 1872 1998 WL 841480 at *6 (S.D.N.Y. Dec. 3, 1998) (Petitioner "emphasizes the lack of physical evidence connecting him to [the victim's] death and contends that [the prosecution's key witness's] testimony was 'fraught with inconsistencies and motivated by the obvious desire to curry favor with the prosecutor for her boyfriend in his then pending case.' . . . It is well-settled that 'a conviction may be based upon circumstantial evidence and inferences based upon the evidence, and the jury is exclusively responsible for determining a witness's credibility.' . . . Ultimately, the jury heard the testimony at issue and resolved any issues of witness credibility in the prosecution's favor. It is not the province of a federal court on habeas review to reassess the credibility of a witness it has not observed."): Norwood v. Hanslmaier, No. 93 CV 3748. 1998 WL 178857 at *3-4 (E.D.N.Y. 1998) ("Petitioner argues that the evidence against him was insufficient to establish his guilt because the police failed to recover a weapon or any other physical evidence, they were unable to lift any identifiable fingerprints from [the crime scene] and . . . the sole eyewitness made a variety of inconsistent statements. Although petitioner's observations are correct, they do not establish that the evidence was constitutionally deficient.")
In short, here, as in prior cases, "the jury's 'decision was largely a matter of choosing whether to believe [the defense's] version of the events or to believe the version offered by the State. The jury chose to believe the State's witnesses. . . . We cannot say that no rational [factfinder] could have found guilt beyond a reasonable doubt on all the evidence.'" Jamison v. Grier, 01 Civ. 6678, 2002 WL 100642 at *12 (S.D.N.Y. Jan. 25, 2002) (Peck, M.J.) (quoting Gruttola v. Hammock, 639 F.2d 922.928 (2d Cir. 1981)): accord, e.g., Rodriguez v. Senkowski, 03 Civ. 3314.2004 WL 503451 at *29 (S.D.N.Y. Mar. 15, 2004) (Peck, M.J.); Besser v. Walsh, 02 Civ. 6775, 2003 WL 22093477 at *22 (S.D.N.Y. Sept. 10, 2003) (Peck, M.J.); Wilson v. Senkowski, 02 Civ. 0231, 2003 WL 21031975 at * 11 n. 18 (S.D.N.Y. May 7, 2003) ( cases cited therein); see also cases cited in Point II.A above.
Even if there had been major inconsistencies in the witnesses' testimony (including the difference between the prosecution witnesses' testimony and Rodriguez's "testimony" via his statement to the police offered in evidence by the prosecution), that would not change the result. See, e.g., United States v. Vasquez, 267 F.3d 79, 91 (2d Cir. 2001) ("The jury chose to believe the witnesses' testimony despite any inconsistencies. We will defer to the jury's assessment of credibility."), cert. denied, 534 U.S. 1148, 122 S.Ct. 1111 (2002);Gruttola v. Hammock, 639 F.2d at 928 (rejecting insufficiency claim, holding that jury was entitled to believe prosecution witnesses despite inconsistencies in their testimony); Means v. Barkley, 98 Civ. 7603, 2000 WL 5020 at *4 (S.D.N.Y. Jan. 4, 2000) ("The testimony of a single uncorroborated witness is sufficient to achieve a showing of guilt beyond a reasonable doubt . . . even if that witness's testimony is less than entirely consistent. . . ."). Indeed, the Second Circuit has held that "the testimony of a single, uncorroborated eyewitness is generally sufficient to support a conviction." United States v. Danzey, 594 F.2d 905, 916 (2d Cir.), cert. denied, 441 U.S. 951, 99 S.Ct. 2179 (1979).
See also, e.g., Rodriguez v. Senkowski, 2004 WL 503451 at *29;Besser v. Walsh, 2003 WL 22093477 at *22; Wilson v. Senkowski, 2003 WL 21031975 at *11 n. 19 ( cases cited therein); Jamison v. Grier, 2002 WL 100642 at * 12-13 (inconsistencies in witness testimony does not make evidence insufficient): Simpson v. Portuondo, 01 Civ. 1379, 2001 WL 830946 at *9 (S.D.N.Y. Jul.12, 2001) (Peck, M.J.); Carromero v. Strack, 98 Civ. 3519, 1998 WL 849321 at *5 (S.D.N.Y. Nov. 19, 1998) (Preska, D.J. Peck, M.J.) (evidence sufficient where jury credited prosecution witnesses' testimony "despite some inconsistencies between their trial testimony and prior statements to the police and to the grand jury");Davis v. Senkowski, No. 97-CV-2328, 1998 WL 812653 at *5 (E.D.N.Y. Aug. 6, 1998) ("The jury here chose to believe [the prosecution witness]'s testimony despite any inconsistencies in the evidence, and I will not reassess that decision."); Williams v. Bennet, 97 Civ. 1628, 1998 WL 236222 at *5 (S.D.N.Y. Apr. 20, 1998) (Baer, D.J. Peck, M.J.) ("Williams relies on inconsistencies in his victim's trial testimony as compared to her statements to the police, the District Attorney's office and before the grand jury. These inconsistencies were placed before the jury by the defense, which made them a central focus of its case. The jury's decision to credit [the victim]'s testimony, despite its inconsistencies, over Williams' testimony, is fully supported by the record."); Taxiarhopolous v. Spence, No. CV 92-0790, 1992 WL 403112 at *4 (E.D.N.Y. Dec. 28, 1992) (The petitioner "cannot show that the evidence was insufficient to support conviction. For example, he challenges the credibility of the main prosecution witness . . ., pointing to alleged inconsistencies in his testimony. This, however, was an argument made to, and properly resolved by, the trial jury.").
Finally, the Court notes that the Antiterrorism and Effective Death Penalty Act ("AEDPA") has further limited this Court's role in determining sufficiency of the evidence habeas petitions. The AEDPA amended 28 U.S.C. S 2254(d) to provide that:
(d) 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 — . . .
(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)(2); see Point I above. For the reasons stated above, this Court cannot say that the First Department's decision that the evidence was sufficient to convict Rodriguez of murder and attempted murder under an acting in concert theory was an unreasonable application of federal law or was based on an unreasonable determination of the facts.
See, e.g., Rodriguez v. Senkowski, 30 Civ. 3314, 2004 WL 503451 at *30 (S.D.N.Y. Mar. 15, 2004) (Peck, M.J.) (applying AEDPA standard to insufficiency of evidence claim); Besser v. Walsh, 02 Civ. 6775, 2003 WL 22093477 at *19 (S.D.N.Y. Sept. 10, 2003) (Peck, M.J.) (same); Guzman v. Fischer, 02 Civ. 7448, 2003 WL 21744086 at *19 (S.D.N.Y. July 29, 2003) (Peck, M.J.) (same); Wilson v. Senkowski, 02 Civ. 0231, 2003 WL 21031975 at *12 (S.D.N.Y. May 7, 2003) (Peck, M.J.) (same); Hediam v. Miller, 02 Civ. 1419, 2002 WL 31867722 at *14 (S.D.N.Y. Dec. 23, 2002) (Peck, M.J.) (same): Gutierrez v. Ricks, 02 Civ. 3780, 2002 WL 31360417 at *10 (S.D.N.Y. Oct. 21, 2002) (Peck, M.J.) (same); Ferguson v. Walker, 00 Civ. 1356, 2002 WL 31246533 at *9 (S.D.N.Y. Oct. 7, 2002) (Peck, M.J.) (same); Ibarra v. Burge, 02 Civ. 0825, 2002 WL 1467756 at *7 (S.D.N.Y. July 9, 2002) (Peck. M.J.) (same); Simpson v. Portuondo, 01 Civ. 1379, 2001 WL 830946 at *6 (S.D.N.Y. July 12, 2001) (Peck, M.J.) (same);Simmons v. Mazzuca, 2001 WL 537086 at *7-9 (same); Huber v. Schriver, 140 F. Supp.2d at 276-78 (same); Manning v. Walker, No. 99-CV-5747, 2001 WL 25637 at *5-6 (E.D.N.Y. Jan. 3, 2001) (same): Davis v. Keane, 97 Civ. 8328, 2000 WL 1041454 at *2-3 (S.D.N.Y. July 28, 2000) (same); Garvey v. Kelly, 104 F. Supp.2d 169, 170-73 (W.D.N.Y. 2000) (same); Roldan v. Artuz, 78 F. Supp.2d at 269-70 (same); Estrada v. Senkowski, 1999 WL 1051107 at *17-18 (same); see also, e.g., McFowler v. Jaimet, 349 F.3d 436, 455 (7th Cir. 2003); Graham v. Galaza, No. 02-16311, 78 Fed. Appx. 17, 18, 2003 WL 21994809 at *1 (9th Cir. Aug. 15. 2003): Torres v. Mullin, 317 F.3d 1145, 1151 (10th Cir.), cert. denied, 124 S.Ct. 562 (2003);Hurtado v. Tucker, 245 F.3d 7, 14-20 (1st Cir.) (suggesting "guidelines as to some . . . of the principles in an insufficiency-of-the-evidence case to be used in making the evaluation of 'objective unreasonableness' under § 2254(d)(1"). cert. denied, 534 U.S. 925, 122 S.Ct. 282 (2001);Romano v. Gibson, 239 F.3d 1156, 1164-65 n. 2 (10th Cir. 2001) (recognizing split in Tenth Circuit "as to whether under AEDPA, we review a sufficiency-of-the-evidence issue as a legal determination under 28 U.S.C. § 2254(d)(1) or a factual finding under § 2254(d)(2) and (e)(1)").
Accordingly, Rodriguez's insufficiency of the evidence claim should be denied.
III. RODRIGUEZ'S CLAIM THAT HE WAS DENIED AN IMPARTIAL JURY AND A UNANIMOUS VERDICT SHOULD BE DENIED
After the jury foreperson brought back a guilty verdict, the jurors were individually polled as to their verdicts, and juror number four said that he did not find Rodriguez guilty of second degree murder. (See pages 14-15 above.) Based on this and on the ensuing occurrences discussed on pages 14-18 above, Rodriguez claims that he was deprived of his due process rights to an impartial jury and a unanimous verdict. (Dkt. No. 2: Pet. ¶ 12(b); Dkt. No. 2: Rodriguez Br. at 34.) Rodriguez asserts that the trial judge should have made a probing and tactful inquiry as to whether juror number four could render an impartial verdict, and that the juror's reluctance to render a guilty verdict was a prima facie showing that he was "grossly unqualified" to serve. (Rodriguez Br. at 34-35.) On appeal, the First Department denied this claim, holding:
The [trial] court properly exercised its discretion in denying defendant's mistrial motion made as a result of communications from the deliberating jury concerning a juror's alleged reluctance to follow the law. Defendant's remaining claims in this regard are unpreserved, and we decline to review them in the interest of justice. Were we to review these claims, we would find that the court properly exercised its discretion in responding to these communications by delivering a noncoercive instruction to the effect that all jurors were obligated to follow the law as charged.People v. Rodriguez, 275 A.D.2d 665, 665, 713 N.Y.S.2d 346, 346-47 (1st Dep't 2000) (citations omitted).
Where a juror gives an uncertain or equivocal answer when polled, it is proper for a court to attempt to clear up that uncertainty by continuing to question the juror in open court. See, e.g., United States v. Alioto, No. 93-1006, 28 F.3d 113 (table), 1994 WL 318632 at *1 (10th Cir. June 30, 1994) ("When it appears that there is any uncertainty or contingency in a jurys verdict, it is the trial court's duty to resolve that doubt."); United States v. Gambino, 951 F.2d 498, 501 (2d Cir. 1991) (The method of jury polling should be left to the trial judge's discretion.);Scruggs v. Williams, 903 F.2d 1430, 1434-35 (11th Cir. 1990); United States v. Hernandez-Garcia, 901 F.2d 875, 877-78 n. 4 (10th Cir.) (trial court asked juror five times if guilty verdicts signed by jury fore person were his verdicts before juror responded "yes"; "The fact that in the first instance a juror, when polled, indicates uncertainty 'does not require setting the trial at naught' and further inquiry 'can serve to clear up apparent confusion' on the part of a juror."), cert. denied, 498 U.S. 844, 111 S.Ct. 125 (1990): United States v. Lawrence. 618 F.2d 986. 987-88 (2d Cir. 1980); Williams v. United States, 419 F.2d 740, 744-46 (D.C. Cir. 1960) ("The trial judge properly tried to clarify the confused verdict of [a juror]. In our view these efforts were essentially neutral and are not objectionable as having been intended or calculated to affect her judgment."), cert. denied, 409 U.S. 872, 93 S.Ct. 203 (1972); Mercado v. Portuondo, 99 Civ. 11234, 2000 WL 1663437 at *13 (S.D.N.Y. Nov. 3, 2000) (Peck, M.J.), report rec. adopted, 2001 WL 987626 (S.D.N.Y. Aug. 29, 2001) (Mukasey, D.J.), aff'd, No. 01-2701, 77 Fed. Appx. 546 (table), 2003 WL 22134571 (2d Cir. Sept. 15, 2003); Ronson v. Commissioner of Correction, 551 F. Supp. 450, 458-60 (S.D.N.Y. 1982) (denying habeas relief where juror was crying and initially did not respond to jury poll, then after repeated questioning responded to court's question "Is that your verdict?" with answer "I suppose it is," before finally making clear that she joined in verdict; "Although the announcement of the verdict at [the petitioner]'s trial did not proceed without incident, I cannot agree with petitioner's contention that a unanimous verdict was not properly reached and recorded. . . . [A]lthough Juror Gertel was emotionally distraught at the thought of finding a man guilty of manslaughter and had a hard time composing herself when asked to report her verdict, the record demonstrates that she truly believed [petitioner] guilty under the applicable legal standards. In such a situation, it is proper for the court to examine the juror in open court to clear up all doubts concerning her inability to articulate her verdict clearly."),aff'd mem., No. 82-2392, 742 F.2d 1446 (2d Cir.), cert. denied, 469 U.S. 841, 105 S.Ct. 144 (1984).
See also, e.g., United States v. Lockhart, 366 F. Supp. 843, 848 (E.D. Pa. 1973) (rejecting "proposition that a judge must refrain from attempting to extract unanimity by questioning from the bench"), aff'd mem., No. 73-2098, 495 F.2d 1369 (3d Cir. 1974); 75B AmJur2d Trial § 1770 n. 20 (1992) ("Where a juror's equivocal, ambiguous, inconsistent, or evasive answers leave doubt as to whether he has assented to the verdict, but his answers are not such as to indicate involuntariness or coercion, it is generally held that a subsequent answer which indicates clear and unequivocal assent, either on further interrogation or after further deliberation, will cure the defect.") (citing cases).
Here, although juror number four said that he did not agree with the guilty verdict for second degree murder and in a note asserted that he had a problem with the reasonable doubt law, when he gave his final answer upon being polled after the jury was re-charged, his reply was unequivocal. (See Tr. 732-34, quoted at page 18 above.) At no point did juror number four state that he agreed to the verdict only conditionally, under duress or for some other improper reason. (See id.) Moreover, the form of the judge's questions was entirely neutral — at no point did she (or the clerk) suggest that the juror must join in the verdict.
Compare, e.g., United States v. Nelson, 692 F.2d 83, 83-85 (9th Cir. 1982) (where juror disavowed verdict, error to press juror on why she did not agree and then to accept verdict of other jurors); Sincox v. United States, 571 F.2d 876, 877, 880 (court accepted guilty verdict despite juror telling court he had "reasonable doubt"); United States v. Edwards, 469 F.2d 1362, 1366-67 (5th Cir. 1972) (court accepted guilty verdict without further deliberations despite juror stating "It's my verdict, but I am still in doubt"); United States v. Sexton, 456 F.2d 961, 962-67 (5th Cir. 1922) (court took jury's verdict where juror changed her mind during poll): United States v. Pleva, 66 F.2d 529, 532-33 (2d Cir. 1933): Matthews v. United States, 252 A.2d 505, 506 (D.C.Ct.App. 1969) (juror indicated his verdict was "conditional").
As the Eighth Circuit has noted, "in evaluating the trial court's polling procedure, since the trial judge is present on the scene, we must pay due deference to his views on whether the recalcitrant juror's ultimate acquiescence in the verdict came freely, without pressure from the court." Amos v. United States, 496 F.2d 1269, 1273 (8th Cir.), cert. denied, 419 U.S. 896, 95 S.Ct. 174 (1974). This is particularly so on habeas review where "a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1).
See also, e.g., United States v. Alarcon-Simi, 300 F.3d 1172, 1177 (9th Cir. 2002) ("An appellate court must rely on the trial judge's appraisal of the unanimity of a verdict."); Hatcher v. Jackson, 853 F.2d 212, 213-14 (3d Cir. 1988) (deferring to state court's finding that juror unequivocally joined in guilty verdict, though juror had "severe emotional breakdown" immediately after she responded in affirmative to court's question as to whether she joined in verdict),cert. denied, 488 U.S. 1018, 109 S.Ct. 815 (1989); United States v. McClintock, 748 F.2d 1278, 1292-93 (9th Cir. 1984) (trial court found that juror was "obviously emotionally affected" but accepted verdict where juror first asked clerk to repeat the question, then asked for permission to speak, to which court responded that she would have to acknowledge whether verdict was hers or not, to which juror responded, after a long pause, "yes"; "We . . . must rely on the trial court's appraisal of the circumstances here. Only the trial judge could determine whether or not the her affirmative response was tainted, coerced or in any other way demonstrative of uncertainty."), cert. denied, 474 U.S. 822, 106 S.Ct. 75 (1985); United States v. Luciano, 734 F.2d 68, 70 (1st Cir. 1984); United States v. Aimone, 715 F.2d 822, 832 (3d Cir. 1983) ("We must rely on the trial judge's appraisal of the circumstances" surrounding whether a juror assented to the verdict.), cert. denied, 468 U.S. 1217, 104 S.Ct. 3585 (1984); Jackson v. Howard, 403 F. Supp. 107, 109 (W.D. Pa. 1975) (deferring to trial court's finding that verdict was freely assented to; "There are so many circumstances which do not appear in the written language of a transcript but which must be taken into consideration in assessing the nature of a juror's response and accordingly a trial court's discretion must be respected upon appeal."),aff'd mem., No. 76-1477, 547 F.2d 1161 (3d Cir.), cert. denied, 430 U.S. 957, 97 S.Ct. 1606 (1977).
Two cases, one from the New York Court of Appeals (cited by the First Department) and a recent decision by the Supreme Court, make clear that the trial judge did not err as a matter of state law and that the First Department's decision is not contrary to or an unreasonable application of Supreme Court law. In People v. Lombardo, 61 N.Y.2d 97, 472 N.Y.S.2d 589 (1989), a juror had sent a note to the judge that she "'cannot render a fair and just verdict in accordance with the Court's instructions.'" Id. at 103, 472 N.Y.S.2d at 591. Defense counsel moved for a mistrial but instead the judge recharged the entire jury, after which they found defendant guilty. Id. The New York Court of Appeals found that it was not error to deny the mistrial motion: "[O]n being reinstructed juror number 11 continued to participate in the jury deliberations and joined in the unanimous verdict of guilty. The mere delivery of the note, without more, which was the predicate for defense counsel's motion, did not mandate the declaration of a mistrial."Id. at 104, 472 N.Y.S.2d at 591.
In Early v. Packer, 537 U.S. 3, 123 S.Ct. 362 (2002), the state jury convicted the defendant of, inter alia, murder and alleged murder. After 28 hours of jury deliberations, one juror (Radcliff) sent the judge a note requesting to be dismissed for "health reasons." Id. at 4, 123 S.Ct. at 3 63. The judge asked the juror to continue deliberations and she agreed. Id. The next day the foreperson sent a note that they could no longer deliberate because juror Radcliff did not appear to understand the rules and because of her "inability to reason or desire to be unreasonable." Id. The judge asked the foreperson what the latest vote count was but told him not to reveal which side had which number of votes, and the foreperson indicated the vote was 11 to 1. Id. at 5, 123 S.Ct. at 363. The judge instructed the jury briefly as to proof beyond a reasonable doubt and that they were the judges of the facts but that they "'must accept and follow the law as I state it to you.'" Id. at 6, 123 S.Ct. at 363. Juror Radcliff again sent the judge a note asking to be dismissed, and said she was "trying" to deliberate but not to the satisfaction of the others. Id., 123 S.Ct. at 364. The foreperson confirmed that juror Radcliff was continuing to deliberate, and the jury resumed deliberations. Id. The jury returned a guilty verdict on the attempted murder and murder counts. Id. On appeal, the defendant argued that the judge's "comments to Radcliff and to the jury were coercive and denied him his due process right to a fair and impartial jury." Id. The California appellate courts rejected the claim, holding that there is nothing improper in urging the jury to consider the matter further with the view to reaching agreement, as long as the judge's language does not coerce a particular type of verdict. Id. at 7, 123 S.Ct. at 369. The Ninth Circuit granted habeas corpus relief, finding the state appellate decision to be contrary to established federal law. Id. at 7-8, 123 S.Ct. at 364. The Supreme Court reversed.
The Supreme Court noted that California law, unlike federal law (and New York law) prohibits giving an Allen charge to a deadlocked jury. Id.
The Supreme Court rejected the Ninth Circuit's assertion that the California appellate court failed to apply the totality of the circumstances test as required by the Supreme Court's decision inLowenfeld v. Phelps, 484 U.S. 231, 108 S.Ct. 546 (1988), finding that the California court's opinion showed that it had considered the factors. Early v. Packer. 537 U.S. at 8-9, 123 S.Ct. at 365. The Supreme Court also found that the Ninth Circuit had relied on two Supreme Court opinions that, as Lowenfeld made clear, were decided under the Supreme Court's supervisory power over the federal courts and not on constitutional grounds. Early v. Packer, 537 U.S. at 9-10, 123 S.Ct. at 365-66. The Supreme Court concluded: "Even if we agreed with the Ninth Circuit majority . . . that there was jury coercion here, it is at least reasonable to conclude that there was not, which means that the state court's determination to that effect must stand." Id. at 11, 123 S.Ct. at 366.
Lowenfeld v. Phelps reiterated the trial judge's ability to give an Allen charge, but that the situation where a jury is polled and anAllen charge given needs to be considered in context and under all the circumstances. 484 U.S. at 237-41, 108 So. Ct. 550-52.
Here, the First Department properly considered the context and circumstances under which the trial judge polled the jury and gave a modified Allen charge. In hindsight, it might have been better if the trial judge had reinstructed the jury on "reasonable doubt." But even if a court reasonably could find the trial judge's handling of juror number four to be coercive, it is at least reasonable under all the circumstances to conclude that there was not coercion. Under the AEDPA, this Court must give deference to the First Department's decision. Early v. Packer, 537 U.S. at 11, 123 So. Ct. at 366. Accordingly, Rodriguez's jury coercion habeas claim should be denied.
IV. RODRIGUEZ'S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS SHOULD BE DENIED A. The Strickland v. Washington Standard On Ineffective Assistance of Counsel 1. Strickland and Trial Counsel
For additional decisions authored by this Judge discussing theStrickland v. Washington standard for ineffective assistance of counsel in language substantially similar to this section of this Report Recommendation, see Rodriguez v. Senkowski, 03 Civ. 3314, 2004 WL 503451 at *39 (S.D.N.Y. Mar. 15, 2004) (Peck, M.J.); Gomez v. Duncan, 02 Civ. 0846, 2004 WL 119360 at *27 (S.D.N.Y. Jan. 27, 2004) (Peck, M.J.);Montalvo v. Annetts, 02 Civ. 1056, 2003 WL 22962504 at *22-24 (S.D.N.Y. Dec. 17, 2003) (Peck, M.J.); Maldonado v. Greiner, 01 Civ. 799, 2003 WL 22435713 at *26-28 (S.D.N.Y. Oct. 28, 2003) (Peck, M.J.); Besser v. Walsh, 02 Civ. 6775, 2003 WL 22093477 at *32-34 (S.D.N.Y. Sept. 10, 2003) (Peck, M.J.); Guzman v. Fischer, 02 Civ. 7448, 2003 WL 21744086 at *9-12 (S.D.N.Y. July 29, 2003) (Peck, M.J.): Skinner v. Duncan, 01 Civ. 6656, 2003 WL 21386032 at *33-35 (S.D.N.Y. June 17, 2003) (Peck, M.J.);Ouinones v. Miller, 01 Civ. 10752, 2003 WL 21276429 at *18-19 (S.D.N.Y. June 3, 2003) (Peck, M.J.); Hediam v. Miller, 02 Civ. 1419, 2002 WL 31867722 at *14-16 (S.D.N.Y. Dec. 23, 2002) (Peck, M.J.); Rosario v. Bennett, 01 Civ. 7142, 2002 WL 31852827 at *26-28 (S.D.N.Y. Dec. 20, 2002) (Peck, M.J.); Dickens v. Filion, 02 Civ. 3450, 2002 WL 31477701 at *13-14 (S.D.N.Y. Nov. 6, 2002) (Peck, M.J.), report rec. adopted, 2003 WL 1621702 (S.D.N.Y. Mar. 28, 2003) (Cote, D.J.); Aramas v. Donnelly, 99 Civ. 11306, 2002 WL 31307929 at *9-11 (S.D.N.Y. Oct. 15, 2002) (Peck, M.J.); Larrea v. Bennett, 01 Civ. 5813, 2002 WL 1173564 at *16-19 (S.D.N.Y. May 31, 2002) (Peck, M.J.), report rec. adopted, 2002 WL 1808211 (S.D.N.Y. Aug. 6, 2002) (Scheindlin, D.J.); Jamison v. Berbary, 01 Civ. 5547, 2002 WL 1000283 at *9-11 (S.D.N.Y. May 15, 2002) (Peck, M. J.): Cromwell v. Keane, 98 Civ. 0013, 2002 WL 929536 at * 15-17 (S.D.N.Y. May 8, 2002) (Peck, M.J.); Rivera v. Duncan, 00 Civ. 4923, 2001 WL 1580240 at *9 (S.D.N.Y. Dec. 11, 2001) (Peck, M.J.); Ennis v. Walker, 00 Civ. 2875, 2001 WL 409530 at *15-16 (S.D.N.Y. Apr. 6, 2001) (Peck, M.J.); Fluellen v. Walker, 97 Civ. 3189, 2000 WL 684275 at *11 (S.D.N.Y. May 25, 2000) (Peck, M.J.), aff'd, No. 01-2474, 41 Fed. Appx. 497, 2002 WL 1448474 (2d Cir. June 28, 2002), cert. denied, 123 S.Ct. 1787 (2003);Dukes v. McGinnis, 99 Civ. 9731, 2000 WL 382059 at *8 (S.D.N.Y. Apr. 17, 2000) (Peck, M.J.); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *16 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); Lugo v. Kuhlmann, 68 F. Supp.2d 347, 370 (S.D.N.Y. 1999) (Patterson, D.J. Peck, M.J.); Santos v. Greiner, 99 Civ. 1545, 1999 WL 756473 at *7 (S.D.N.Y. Sept. 24, 1999) (Peck, M.J.); Franza v. Stinson, 58 F. Supp.2d 124, 133-34) (S.D.N.Y. 1999) (Kaplan, D.J. Peck, M.J.); Torres v. Irvin, 33 F. Supp.2d 257, 277 (S.D.N.Y. 1998) (Cote, D.J. Peck, M.J.); Boyd v. Hawk, 965 F. Supp. 443, 449 (S.D.N.Y. 1997) (Batts, D.J. Peck, M.J.).
In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984), the Supreme Court announced a two-part test to determine if counsel's assistance was ineffective: "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S.Ct. at 2064; accord, e.g., Wiggins v. Smith, 123 S.Ct. 2527, 2535 (2003). This performance is to be judged by an objective standard of reasonableness. Strickland v. Washington, 466 U.S. at 688, 104 S.Ct. at 2064.
Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction. . . . A fair assessment of attorney performance requires that every effort 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. . . . [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. at 2065 (citation omitted).
Accord, e.g., Wiggins v. Smith, 123 S.Ct. at 2535; Bell v. Cone, 535 U.S. 685, 695, 122 S.Ct. 1843, 1850(2002).
Accord, e.g., Bell v. Cone, 535 U.S. at 698, 122 So. Ct. at 1852;Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir. 2001); Sellan v. Kuhlman, 261 F.3d 303, 315 (2d Cir. 2001).
Second, the defendant must show prejudice from counsel's performance.Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064. The "question is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt." Id. at 695, 104 S.Ct. at 2068-69. Put another way, the "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068.
See also, e.g., Wiggins v. Smith, 123 S.Ct. at 2542; Bell v. Cone, 535 U.S. at 695, 122 S.Ct. at 1850; Aparicio v. Artuz, 269 F.3dat 95: Sellan v. Kuhlman, 261 F.3d at 315; DeLuca v. Lord, 77 F.3d 578, 584 (2d Cir.), cert. denied, 519 U.S. 824, 117 S.Ct. 83 (1996).
"[A] reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068; accord, e.g., Wiggins v. Smith, 123 S.Ct. at 2542. The phrase "reasonable probability," despite its language, should not be confused with "probable" or "more likely than not." Strickler v. Greene, 527 U.S. 263, 289-91, 119 S.Ct. 1936, 1952-53 (1999); Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 1565-66 (1995); Nix v. Whiteside, 475 U.S. 157, 175, 106 S.Ct. 988, 998 (1986) ("a defendant need not establish that the attorney's deficient performance more likely than not altered the outcome in order to establish prejudice under Strickland");Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068 ("The result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome."). Rather, the phrase "reasonable probability" seems to describe a fairly low standard of probability, albeit somewhat more likely than a "reasonable possibility." Strickler v. Greene, 527 U.S. at 291, 119 S.Ct. at 1953;cf. id. at 297-301, 119 S.Ct. at 1955-58 (Souter, J., concurring dissenting) (arguing that any difference between "reasonable probability" and "reasonable possibility" is "slight").
The Supreme Court has counseled that these principles "do not establish mechanical rules." Strickland v. Washington, 466 U.S. at 696, 104 S.Ct. at 2069. The focus of the inquiry should be on the fundamental fairness of the trial and whether, despite the strong presumption of reliability, the result is unreliable because of a breakdown of the adversarial process. Id.
Any counsel errors must be considered in the "aggregate" rather than in isolation, as the Supreme Court has directed courts "to look at the 'totality of the evidence before the judge or jury.'" Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001) (quoting Strickland v. Washington, 466 U.S. at 695-96, 104 S.Ct. at 2069); accord, e.g., Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991).
The Supreme Court also made clear that "there is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one."Strickland v. Washington, 466 U.S. at 697, 104 S.Ct. at 2069.
Accord, e.g., Smith v. Robbins, 528 U.S. 259, 286 n. 14, 120 S.Ct. 746, 764 n. 14 (2000).
In addition, the Supreme Court has counseled that "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. . . . In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland v. Washington, 466 U.S. at 690-91, 104 S.Ct. at 2066.
See also, e.g., Yarborough v. Gentry, 124 S.Ct. 1, 5-6 (2003);Engle v. Isaac, 456 U.S. 107, 134, 102 S.Ct. 1558, 1575 (1982) ("We have long recognized . . . that the Constitution guarantees criminal defendants only a fair trial and a competent attorney. It does not insure that defense counsel will recognize and raise every conceivable constitutional claim."); Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998) ("In reviewing Strickland claims, courts are instructed to 'indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance' and that counsel's conduct was not the result of error but derived instead from trial strategy. We are also instructed, when reviewing decisions by counsel, not to 'second-guess reasonable professional judgments and impose on . . . counsel a duty to raise every "colorable" claim' on appeal.") (citations omitted); Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.) (a reviewing court "may not use hindsight to second-guess [counsel's] strategy choices"), cert. denied, 513 U.S. 820, 115 S.Ct. 81 (1994).
As the Second Circuit noted: "The Strickland standard is rigorous, and the great majority of habeas petitions that allege constitutionally ineffective counsel founder on that standard." Lindstadt v. Keane, 239 F.3d at 199.
2. Strickland and Appellate Counsel
For additional decisions authored by this Judge discussing theStrickland v. Washington standard for ineffective assistance of appellate counsel, in language substantially similar to this section of this Report Recommendation, see Gomez v. Duncan, 02 Civ. 0846, 2004 WL 119360 at *27 (S.D.N.Y. Jan. 27, 2004) (Peck, M.J.); Montalvo v. Annetts, 02 Civ. 1056, 2003 WL 22962504 at *22-24 (S.D.N.Y. Dec. 17, 2003) (Peck, M.J.);Maldonado v. Greiner, 01 Civ. 799, 2003 WL 22435713 at *28 (S.D.N.Y. Oct. 28, 2003) (Peck, M.J.); Besser v. Walsh, 02 Civ. 6775, 2003 WL 22093477 at *32-34 (S.D.N.Y. Sept. 10, 2003) (Peck, M.J.); Guzman v. Fischer, 02 Civ. 7448, 2003 WL 21744086 at *9-12 (S.D.N.Y. July 29, 2003) (Peck, M.J.); Larrea v. Bennett, 01 Civ. 5813, 2002 WL 1173564 at *16-19 (S.D.N.Y. May 31, 2002) (Peck. M.J.), report rec. adopted, 2002 WL 1808211 (S.D.N.Y. Aug. 6, 2002) (Scheindlin, D.J.); Rivera v. Duncan, 00 Civ. 4923, 2001 WL 1580240 at *9 (S.D.N.Y. Dec. 11, 2001) (Peck, M.J.):Fluellen v. Walker, 97 Civ. 3189, 2000 WL 684275 at *11 (S.D.N.Y. May 25, 2000) (Peck, M.J.), aff'd, No. 01-2474, 41 Fed. Appx. 497, 2002 WL 1448474 (2d Cir. June 28, 2002), cert. denied, 123 S.Ct. 1787 (2003);Dukes v. McGinnis, 99 Civ. 9731, 2000 WL 382059 at *8 (S.D.N.Y. Apr. 17, 2000) (Peck, M.J.); Lugo v. Kuhlmann, 68 F. Supp.2d 347, 370 (S.D.N.Y. 1999) (Patterson, D.J. Peck, M.J.); Franza v. Stinson, 58 F. Supp.2d 124, 133-34) (S.D.N.Y. 1999) (Kaplan, D.J. Peck, M.J.);Torres v. Irvin, 33 F. Supp.2d 257, 277 (S.D.N.Y. 1998) (Cote, D.J. Peck, M.J.); Ehinger v. Miller, 942 F. Supp. 925, 932 (S.D.N.Y. 1996) (Mukasey, D.J. Peck, M.J.); Benn v. Stinson, 917 F. Supp. 202, 205 (S.D.N.Y. 1995) (Stein, D.J. Peck, M.J.).
The Strickland test applies to appellate as well as trial counsel.See, e.g., Smith v. Robbins, 528 U.S. 259, 285, 120 So. Ct. 746, 764 (2000). A petitioner alleging ineffective assistance of appellate counsel must prove both that (1) appellate counsel acted objectively unreasonably in failing to raise a particular issue on appeal, and (2) absent counsel's deficient performance, there was a reasonable probability that defendant's appeal would have been successful before the state's highest court. E.g., Smith v. Robbins, 528 U.S. at 285, 120 S.Ct. at 764; Aparicio v. Artuz, 269 F.3d at 95; Mayo v. Henderson, 13 F.3d at 533-34; see also Larrea v. Bennett, 2002 WL 1173564 at *18 n. 30 (discussing the issue of whether a federal or state standard should apply).
Accord, e.g., Evitts v. Lucey, 469 U.S. 387, 396-97.105 S.Ct. 830, 836-37 (1985): Frederick v. Warden, Lewisburg Corr. Facility, 308 F.3d 192, 197 (2d Cir. 2002), cert. denied, 537 U.S. 1146, 123 S.Ct. 946 (2003); Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir. 2001); Sellan v. Kuhlman, 261 F.3d 303, 319 (2d Cir. 2001); McKee v. United States, 167 F.3d 103, 106 (2d Cir. 1999); Mavo v. Henderson, 13 F.3d 528, 533 (2d Cir.), cert. denied, 513 U.S. 520, 115 S.Ct. 81 (1994); Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992), cert. denied, 508 U.S. 912, 113 S.Ct. 2347 (1993); Abdurrahman v. Henderson, 897 F.2d 71, 74 (2d Cir. 1990); Ortiz v. United States, 01 Civ. 9990, 2002 WL 31427356 at *4 (S.D.N.Y. Oct. 30, 2002); Senor v. Greiner, No. OO-CV-5673, 2002 WL 31102612 at *8 (E.D.N.Y. Sept. 18, 2002); King v. Greiner, 210 F. Supp.2d 177, 182-83 (E.D.N.Y. 2002).
Appellate counsel "need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal." Smith v. Robbins, 528 U.S. at 288, 120 S.Ct. at 765 (citing Jones v. Barnes, 463 U.S. 745, 750-54, 103 S.Ct. 3308, 3312-14 (1983)). Reviewing courts should not second guess the reasonable professional judgments of appellate counsel as to the most promising appeal issues. Lugo v. Kuhlmann, 68 F. Supp.2d at 371-72. Thus, a petitioner may establish constitutionally inadequate performance only by showing that appellate counsel "omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker." Mayo v. Henderson, 13 F.3d at 533; see also, e.g., Jackson v. Leonardo, 162 F.3d at 85.
Accord, e.g., Sellan v. Kuhlman, 261 F.3d at 317 ("This 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."); Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998); Mayo v. Henderson, 13 F.3d at 533.
Accord, e.g., Jones v. Barnes, 463 U.S. at 754, 103 So. Ct. at 3314; Tsirizotakis v. LeFevre, 736 F.2d 57, 65 (2d Cir.), cert. denied, 469 U.S. 869, 105 S.Ct. 216 (1984).
3. Strickland and the AEDPA Review Standard
For purposes of this Court's AEDPA analysis, "the Strickland standard . . . is the relevant 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Aparicio v. Artuz, 269 F.3d at 95 n. 8 (quoting 28 U.S.C. § 2254(d)(1)). "For AEDPA purposes, a petitioner is not required to further demonstrate that his particular theory of ineffective assistance of counsel is also 'clearly established.'" Aparicio v. Artuz, 269 F.3d at 95 n. 8. "For [petitioner] to succeed, however, he must do more than show that he would have satisfied Strickland's test if his claim were being analyzed in the first instance, because under § 2254(d)(1), it is not enough to convince a federal habeas court that, in its independent judgment, the state-court decision applied Strickland incorrectly. . . . Rather, he must show that the [First Department] applied Strickland to the facts of his case in an objectively unreasonable manner." Bell v. Cone, 535 U.S. at 698-99, 122 S.Ct. at 1852; see also Yarborough v. Gentry, 124 S.Ct. 1, 4 (2003).
See also, e.g., Wiggins v. Smith, 123 S.Ct. 2527, 2535 (2003); Bell v. Cone, 535 U.S. 685, 698, 122 S.Ct. 1843, 1852 (2002): Sellan v. Kuhlman, 261 F.3d at 315.
B. Rodriguez's Claims of Ineffective Appellate Counsel Should Be Denied
Rodriguez alleges that his appellate counsel was ineffective for failing to assert ineffective assistance of trial counsel on appeal. (Dkt. No. 2: Pet. ¶ 12(c); Dkt. No. 2: Rodriguez Br. at 38-44.) Rodriguez claims that trial counsel's failure to object to the insufficiency of the evidence, and his mishandling of the issues surrounding juror number four deprived him of his constitutional rights. (Rodriguez Br. at 38-44.)
The Court finds Rodriguez's attack on trial counsel's alleged failure to object to the insufficiency of the evidence to be puzzling. Rodriguez's defense counsel moved at the close of the prosecution's case to dismiss the murder and attempted murder charges for legal insufficiency. (Tr. 493-94.) After the trial judge denied the motion, trial counsel made a forceful closing argument to the jury about the insufficiency of the evidence (see pages 13-14 above), which became the factual lynchpin of Rodriguez's appellate arguments (and now his habeas arguments). Thus, if appellate counsel had argued trial counsel's alleged ineffectiveness on this ground, it would have been a frivolous argument.
Moreover, appellate counsel raised both the insufficient evidence and coerced juror arguments directly (instead of indirectly via ineffective trial counsel claims), and both the First Department and this Court denied these claims on the merits.
While the First Department also found part of Rodriguez's juror coercion claim to have been procedurally barred for failure to object, it also found that were it to review the claim, it would have found that the trial judge properly exercised his discretion. (See page 20 above.) Thus, even if trial and appellate counsels' performance in this regard was deficient, Rodriguez could not show prejudice, thus failing the second Strickland prong. See, e.g., Waters v. McGuiness, No. 99-C V-0615, 2003 WL 21508318 at *3 (E.D.N.Y. June 16, 2003) (Weinstein, D.J.) ("The Appellate Division reached the merits of the claim on direct appeal and held that the verdict was legally sufficient to establish guilt beyond a reasonable doubt and that it was not against the weight of the evidence. Even if counsel was ineffective for failing to preserve the claim, therefore, petitioner was not prejudiced because the Appellate Division entertained the claim and rejected it on the merits."); Perez v. Keane, 95 Civ. 2640, 1996 WL 599695 at *10 n. 5 (S.D.N.Y. Oct. 17, 1996) ("Perez claims that trial counsel was ineffective for having failed to preserve certain issues for appeal. However, the Appellate Division may review unpreserved errors in the interest of justice, and indeed did so. Thus, Perez was not prejudiced by the lack of objections.") (citations omitted).
Thus, even if appellate counsel's performance was deficient (and a reading of the record and counsel's brief to the First Department shows counsel's performance was not deficient), Rodriguez cannot show prejudice, since the underlying claims of insufficient evidence and jury coercion were denied on the merits. Put another way, it is well-settled that appellate counsel cannot be faulted for failing to raise a meritless claim. See, e.g., Gomez v. Duncan, 02 Civ. 0846, 2004 WL 119360 at *34 (S.D.N.Y. Jan. 27, 2004) (Peck, M.J.);Montalvo v. Annetts, 02 Civ. 1056, 2003 WL 22962504 at *28 (S.D.N.Y. Dec. 17, 2003) (Peck, M.J.); Maldonado v. Greiner, 01 Civ. 799, 2003 WL 22435713 at *41 (S.D.N.Y. Oct. 28, 2003) (Peck, M.J.) ( cases cited therein.)
Accordingly, Rodriguez's claim of ineffective appellate counsel should be denied.
CONCLUSION
For the reasons set forth above, Rodriguez's habeas petition should beDENIED.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable George B. Daniels, 40 Centre Street Street, Room 410, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Daniels. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992): Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989): Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).