Summary
dismissing habeas claim because, in violation of order, petitioner failed timely to return to state court to exhaust claim
Summary of this case from Hernandez v. FilionOpinion
99 Civ. 4475 (GEL)
April 1, 2002
OPINION AND ORDER
In this petition for habeas corpus, petitioner Fernando Rodriguez challenges his conviction for murder in Bronx Supreme Court, and resulting sentence of twenty years to life in prison. Petitioner's conviction was predicated on a felony murder theory, based on the death of Rafael Mueses during the botched robbery of a bodega where he worked. Rodriguez, armed with a handgun, and an accomplice, armed with either a sawed-off shotgun or a Tec-9 automatic weapon, attempted to hold up the store, and directly threatened the employees by pointing guns at their heads. When Antonio Antigua, another worker in the bodega, resisted the robbery, a gun battle broke out between him and the robbers, in which Rodriguez was himself shot. There is no evidence that Rodriguez, who was acquitted of a count of intentional murder, fired the shots that killed Mueses; ballistics evidence confirmed that the only bullet recovered from Mueses' eight deadly wounds came neither from the 9-mm. handgun recovered from the scene (arguably the weapon carried by Rodriguez) nor from the .45-caliber revolver fired by Antigua. There is no doubt, however, that the evidence was amply sufficient to convict Rodriguez of felony murder.See NYPL § 125.25(3); People v. Hernandez, 82 N.Y.2d 309 (1993).
Petitioner raises three claims of constitutional error. As none of them merit relief in this Court, the petition will be denied.
Discussion
I. Procedural Background
The first question before us is whether the petition should be summarily dismissed for failure to comply with an earlier order of the Court.
By an Order entered on September 18, 2001, this Court, adopting the Report and Recommendation ("RR") of the Honorable Frank Maas, United States Magistrate Judge, stayed proceedings on the petition and directed petitioner to exhaust his state court collateral remedies with respect to one unexhausted claim, and return to this Court within thirty days after exhausting those remedies. On October 13, 2001, petitioner sought permission to withdraw his petition for habeas corpus without prejudice. The Court denied such permission, noting that if the petition was withdrawn, it was likely that any future effort by petitioner to file a federal habeas petition would run afoul of the statute of limitations established in 28 U.S.C. § 2244 (d)(2). The Court did, however, extend the time available for petitioner to bring appropriate state court proceedings, and permitted plaintiff, within that time, either to go ahead with a state motion or to renew his request to withdraw his petition, as he chose.
Petitioner did not renew his effort to withdraw his petition, and instead proceeded to state court. He timely filed a motion pursuant to N.Y.C.P.L. § 440, which was denied by the state trial court on February 4, 2002. By letter dated March 14, 2002, respondent notified this Court notice of entry was served upon petitioner on February 8, 2002, giving petitioner 30 days to move for permission to appeal. See N.Y.C.P.L. § 460.15, N.Y.C.P.L.R. § 5513(b). Petitioner apparently has not sought leave to appeal, and as of the date of respondent's letter, neither respondent nor this Court had received any communication from petitioner seeking to reactivate his habeas corpus petition. Accordingly, respondent asked the Court to dismiss the petition under the terms of the Court's stay order, in that petitioner had neither fully exhausted his state court remedies nor sought to return to this Court within the time provided.
On March 27, 2002, however, the Court received a letter from petitioner, enclosing a copy of the state court decision, his moving papers in state court, and postal documents tending to show that petitioner had mailed the enclosed documents to the Court in early March, but that they had been returned to him for insufficient postage. Petitioner's letter asks the Court to accept the submission as a "timely response." Though the letter does not explicitly say so, it is apparent, according the papers the liberal interpretation due to pro se pleadings, that petitioner is submitting the state court papers as evidence that he has exhausted his state court remedies as directed by the Court, and seeks to reactivate his habeas petition in this Court pursuant to the terms of this Court's Order of September 18, 2001.
The copy of petitioner's state court brief has been re-labeled with the docket number of the instant matter, suggesting that petitioner regards it as a submission on the merits of his habeas claim.
On these facts, it would be unjust to grant respondent's motion to dismiss the petition for failure to comply with the terms of the stay order, or to deny petitioner's application to reactivate his habeas corpus petition, on the ground that petitioner had failed to return to this Court within the time provided in the Court's Order. The Court will therefore grant the application to reactivate the petition, and will consider the petition on the record now' pending before the Court. For the reasons discussed below, however, a careful review of the merits of the petition leads to the conclusion that Rodriguez's petition must be dismissed after all.
For the reasons discussed below, it is unnecessary to consider whether petitioner's failure to seek permission to appeal to the Appellate Division from the denial of his new trial motion constitutes a failure to exhaust his state remedies.
II. The Merits of the Petition
The habeas petition in this case raises three claims, none of which justify granting the writ. The petition asserts that Rodriguez was denied a fair trial, first, because the "District Attorney or whoever failed to preserve fore[n]sic evidence" (Pet. at 5); second, because after the jury began its deliberations, the trial court "instructed a court officer to enter the deliberation room and tell the jury on what the jury can delib[e]rate and what not to delib[e]rate" (id.); and third, because the court's reasonable doubt charge was erroneous and prejudicial (id. at 6).
Judge Maas recommended that the first and third claims be denied as procedurally defaulted. (RR at 11-12, 14-15.) Petitioner did not object to those conclusions, thus waiving any objection he might have. Thomas v. Arn, 474 U.S. 140 (1985); 28 U.S.C. § 636 (b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b). But even apart from any question of waiver, this Court would adopt Judge Maas' well-reasoned RR as to these points. Petitioner's objection to the reasonable doubt charge was presented to the Appellate Division on direct appeal. That Court ruled that the claim was "unpreserved for appellate review as a matter of law" because of failure to object at trial, and declined to reach its merits. People v. Rodriguez, 250 A.D.2d 478, 478-79 (1st Dept. 1998). Rodriguez has not attempted to make the showing necessary to overcome this procedural default, and for the reasons stated by Judge Maas, he cannot. (RR at 15.)
The situation is somewhat less clear with respect to petitioner's argument concerning failure to preserve forensic evidence, since petitioner presents this claim only in the most cryptic fashion. Indeed, the brief elaboration of the claim in the petition suggests that Rodriguez objects not to the failure to preserve any evidence, but to the introduction into evidence of a gun (presumably the 9-mm. handgun) that did not have his fingerprints and was not shown to have been fired at the crime scene, and of an unsigned written version of his confession to the police. At any rate, Judge Maas' careful review of the record demonstrates that the arguments made by petitioner, as best they can be understood, relate to matters that were apparent on the face of the trial record. (RR at 11-12.) Since petitioner failed to raise those issues on his direct appeal, and presents no explanation for that failure, they are also procedurally defaulted.
As noted above, petitioner failed to make any objection to the RR, and he has not in any later submission to this Court or to the state court provided any further elaboration of this argument, or attempted to dispute Judge Maas' interpretation of it.
Respondent argued to Judge Maas, and to this Court by way of objection to the RR, that petitioner's remaining claim, of improper contact with the jury by a court officer, was also procedurally defaulted because it too had not been raised on direct appeal. (Objections to RR at 1.) Because it was not apparent from the record available to this Court that the claim was based on information available to petitioner at the time of his appeal, the Court agreed with Judge Maas that it was more appropriate to dismiss the claim for failure to exhaust than to deny it as defaulted. (9/18/01 Order at 2.)
As noted above, petitioner apparently attempted to cure that defect by presenting this issue to the state court on a motion for a new trial. It is far from clear, however, that petitioner has succeeded in exhausting this claim. This Court's Order of September 18, 2001, made very clear that of the three claims presented. the one that was being dismissed to allow exhaustion was the jury tampering claim, which the Court described as involving "certain alleged improper communications between the jurors and a court officer." Petitioner, however, moved in the state court for a new trial on two grounds: (a) "improper communications between the jurors and a witness," and (b) the trial court's reasonable doubt charge. People v. Rodriguez, No. 5678/93, at 2 (Sup.Ct. Bx. Co. Feb. 4, 2002). Petitioner's brief in the state court, which he has resubmitted to this Court, is mostly devoted to the latter issue, and contains only a single short paragraph addressing the juror contact claim. But that paragraph appears to relate to an entirely different incident than the one stated in the habeas petition in this Court. While the federal petition complains of an intrusion by a court officer into the jury room during deliberations (Pet. at 5), the state court motion papers allege instead that after a juror was observed making "hand signs and gestures to one of the witnesses," counsel raised the matter at a bench conference, the judge said he would speak to the witness, and "the trial proceeded and no decision was handed down," nor did defense counsel pursue the matter. (Motion to Vacate Judgment at 5.)
The state court clearly understood this Court's Order, noting that we "stayed the petition to allow defendant to exhaust his claim concerning alleged communication between jurors and a court officer."People v. Rodriguez, No. 5678/93, at 2 (Sup.Ct. Bx. Co. Feb. 4, 2002).
To the extent that petitioner's papers can be construed as now seeking to raise this entirely new ground for habeas relief, it must be denied as procedurally defaulted. In denying petitioner's motion for a new trial on this ground, the state court explicitly found that "sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion," citing the state criminal procedure rule that precludes the grant of a new trial based on grounds that were available for appeal but not raised. People v. Rodriguez, No. 5678/93, at 2 (Sup.Ct. Bx. Co. Feb. 4, 2002), citing N.Y. C.P.L. § 440.10(2)(c). The court went on to point out that "while defendant's moving papers are devoid of facts or factual allegations sufficient to support the grounds alleged . . ., the district attorney's affirmation in opposition contains actual court transcripts indicating resolution of the matter raised." Id. Thus, the state court denied the motion "as procedurally barred." Id.
Although neither side has presented to this Court the transcripts relied upon by the state court, that court's finding that the matter had indeed, contrary to petitioner's claim, been resolved, is a factual finding presumed to be correct, such that the burden is on petitioner to demonstrate error by clear and convincing evidence. 28 U.S.C. § 2254 (e)(1). Petitioner's resubmission to this Court of the very allegations rejected by the state court as inconsistent with the trial transcript cannot meet this burden.
The state court thus rejected the claim on state procedural grounds, holding that it had been procedurally defaulted. This is an independent and adequate state procedural ground, which precludes relief in this Court absent a showing of cause and prejudice, or of fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991);Harris v. Reed, 489 U.S. 255, 262 (1989). Petitioner has not attempted to make such a showing.
Petitioner's original allegation of unauthorized ex parte instructions from the court to the jury via a court officer, on the other hand, was nowhere alluded to in the new trial motion filed with the state court. Petitioner has apparently abandoned that allegation; at any rate, he has failed to comply with the terms of the stay, which was specifically conditioned on petitioner's presenting that specific claim of jury impropriety to the state court. Accordingly, the jury contact claim raised in the petition remains unexhausted, and subject to dismissal on that basis.
The Court sympathizes with the plight of a prisoner attempting to comply with the labyrinthine procedural rules now governing habeas corpus relief But petitioner here has consistently failed to articulate and pursue a coherent claim of constitutional error. His original petition presented, in the sketchiest possible terms and without any indication of how he was prejudiced, a claim of irregular contact with the jury. That claim had never been presented to the state courts, requiring its dismissal for failure to exhaust state remedies. Despite the state's argument that the claim was defaulted for failure to raise it on direct appeal, the Court permitted petitioner an opportunity to return to state court, principally to establish whether the facts underlying the claim had been available at the time of appeal or were learned by petitioner only after the fact. (RR at 13-14.) Instead, however, petitioner abandoned that issue, and presented the state court with a completely different, but equally unelaborated, claim of improper jury conduct, which turned out itself to have been procedurally defaulted. Despite several opportunities to address the issues, neither in submissions to the state court nor to this Court has petitioner alleged facts that would support a finding of violation of his constitutional rights, or suggest that the state courts in any way misapplied federal law in the course of his prosecution.
Under these circumstances, the Court concludes that all the claims presented by petitioner have been procedurally defaulted in the state courts, or remain unexhausted despite this Court's having provided petitioner with an opportunity to exhaust them. The petition is therefore dismissed.
Accordingly, it is hereby ORDERED that the stay on proceedings on this petition is vacated and the petition is dismissed with prejudice. As petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253 (c)(2); Lucidore v. New York State Div. of Parole, 209 F.3d 107, 111-13 (2d Cir. 2000). The Clerk is respectfully directed to docket as part of the record in this case copies of the letters of petitioner and respondent to the Court concerning the state court decision.
SO ORDERED: