Ramirez v. Attorney General of State of New York

Decision Date07 September 2001
Docket NumberDocket No. 99-2047.
Citation280 F.3d 87
PartiesCesar A. RAMIREZ, Petitioner-Appellant, v. ATTORNEY GENERAL OF THE STATE OF NEW YORK; Louis F. Mann, Superintendent of Shawangunk Correctional Facility, Respondents-Appellees.
CourtU.S. Court of Appeals — Second Circuit

Jeremy Gutman, New York, NY, for Petitioner-Appellant.

John J. Sergi, Assistant District Attorney (Jeanine Pirro, District Attorney, and Joseph M. Latino, Assistant District Attorney, of counsel), White Plains, NY, for Respondents-Appellees.


WINTER, Circuit Judge:

Cesar A. Ramirez appeals from Judge McMahon's denial of his petition for a writ of habeas corpus brought under 28 U.S.C. § 2254. In his petition, Ramirez asserted four federal constitutional claims for relief: (i) ineffective assistance of trial counsel, (ii) erroneous evidentiary rulings amounting to a denial of confrontation rights and a fair trial, (iii) prosecutorial misconduct amounting to a denial of a fair trial, and (iv) a sentence violating the Eighth Amendment. Judge McMahon adopted the Report and Recommendation of Magistrate Judge Fox, which concluded that Ramirez had not raised his claims in the state courts and that the petition should be dismissed. See Ramirez v. Attorney Gen., No. 94 Civ. 2029 (S.D.N.Y. Nov. 5, 1998); Ramirez v. Attorney Gen., No. 94 Civ. 2029 (S.D.N.Y. Nov. 3, 1997) (Report and Recommendation).

Although we reach a different conclusion as to claim (i), we agree with most of the district court's analysis. Claim (iii) was presented to the Appellate Division but not to the New York Court of Appeals. Claim (iv) was presented only as a New York statutory claim in the New York appellate courts. Because New York procedural rules bar petitioner from raising these claims now, either because they have been litigated, see N.Y.Crim. P.L. § 440.10(2)(a); N.Y. Ct. Rules § 500.10(a), or could have been raised in earlier proceedings, see N.Y.Crim. P.L. § 440.10(2)(c), they are deemed to have been exhausted for purposes of 28 U.S.C. § 2254(b), (c). See Grey v. Hoke, 933 F.2d 117, 120-21 (2d Cir.1991). Ramirez made no showing of cause and prejudice regarding the failure to present these claims, see Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), and, therefore, we affirmed their dismissal when we granted a certificate of appealability as to claims (i) and (ii). See Ramirez v. Attorney Gen., No. 99-2047, slip op. at 2 (2d Cir. Mar.17, 2000).

After review, we agree that claim (ii), the confrontation/fair trial claim, was not presented to the Court of Appeals and cannot now be pursued in the New York courts. No showing of cause and prejudice having been made, see Wainwright, 433 U.S. at 87, 97 S.Ct. 2497, we affirm its dismissal. However, with respect to claim (i), the ineffective assistance claim, we hold that Ramirez's letter application to the New York Court of Appeals for leave to appeal was sufficiently specific under the test established in Daye v. Attorney General, 696 F.2d 186, 194 (2d Cir.1982) (en banc), to alert that Court to the federal nature of Ramirez's claim. We therefore vacate the dismissal of claim (i) and remand for further proceedings.


Ramirez was found guilty by a New York state jury on seven counts of first-degree rape, seven counts of first-degree sodomy, two counts of incest, three counts of third-degree sodomy, one count of third-degree rape, three counts of second-degree assault, and one count of fourth-degree criminal possession of a weapon. Each of the counts involved brutal conduct toward Ramirez's then-fourteen-year-old daughter. At the time of trial, Ramirez, who had previously been convicted of drug trafficking and tax evasion, was under indictment for the murder of his second wife (he was later convicted and sentenced). He was sentenced to 58-1/3 to 175 years in prison for the crimes at issue here.

After his conviction, Ramirez retained new counsel for the appeal. The brief filed on his behalf in the Appellate Division made six claims of error, four of which are relevant to the present proceeding. Point II alleged a denial of "meaningful assistance of counsel"; Point III alleged evidentiary rulings denying his "rights of confrontation and to a fair trial"; Point IV asserted an unfair trial "due to additional errors and omissions by the court, defense counsel and the prosecutor"; and Point VI asserted that Ramirez's sentence was "harsh and excessive" but sought relief only under New York Criminal Procedure Law § 470.15(2)(c). The Second Department of the Appellate Division unanimously affirmed Ramirez's conviction. See People v. Ramirez, 176 A.D.2d 360, 574 N.Y.S.2d 527 (2d Dep't 1991).

On October 29, 1991, Ramirez's counsel submitted a letter to the New York Court of Appeals requesting leave to appeal and stating that a more detailed letter application would follow once a judge was assigned to the request. Pursuant to court rules, counsel also attached a copy of the Appellate Division brief.

After the application for leave to appeal was assigned to Judge Bellacosa, Ramirez's attorney submitted the promised detailed letter application. It stated by way of introduction:

Appellant Cesar Ramirez seeks to raise two questions of law on an appeal to the Court of Appeals:

I: Does defense counsel's failure to prepare for his client's trial still constitute ineffective assistance per se in New York, or has the long-standing rule of People v. Bennett been abrogated by Strickland v. Washington?

II: Has a defendant received Due Process of law, in the form of a fair trial, where massive evidence of previous, uncharged crimes is admitted against him at trial while, at the same time, defense counsel displays an appalling lack of preparation?

Each of these questions is discussed briefly below.

As reflected in the discussion portion of the letter application, issue "I" raised the question whether, under New York law, a defendant who shows that his counsel was inadequately prepared for trial need also show that prejudice resulted to establish ineffective assistance of counsel. People v. Bennett, 29 N.Y.2d 462, 467 & n. 2, 329 N.Y.S.2d 801, 280 N.E.2d 637 (1972), had held that New York law did not require a showing of prejudice where inadequate preparation of trial counsel had been demonstrated. However, the letter application noted that Bennett had been decided before Strickland v. Washington, 466 U.S. 668, 692-93, 700, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which held that a showing of ineffective assistance under the Sixth Amendment to the U.S. Constitution generally requires both a defective representation and prejudice from it. The letter application's ensuing discussion with regard to issue I suggested that the Appellate Division had "apparently" affirmed Ramirez's conviction on the ground that there had been no showing of prejudice resulting from trial counsel's lack of preparation. The letter application inferred that this was the ground for affirmance based on an argument made by the prosecutor in that Court and a question from the Court at oral argument. The letter application then asked that leave to appeal be granted to determine whether Bennett reflected current New York law.

The letter application's discussion indicated that issue "II" posed the question of whether Ramirez had been accorded a trial meeting federal due process requirements where the trial court had erroneously, under New York law and the Fourteenth Amendment, admitted copious evidence of uncharged crimes and other bad acts while trial counsel failed "to render even ordinary assistance of counsel." The trial court had ruled that, under People v. Molineux, 168 N.Y. 264, 61 N.E. 286 (1901), the prosecution could introduce testimony by Ramirez's daughter of beatings, threats with weapons, and repeated acts of rape and sodomy. Much of this testimony was corroborated by Ramirez's son. Ramirez's first and third wives provided further corroboration. (As noted, Ramirez had murdered his second wife, but the jury was not informed of that fact.)

The letter application's discussion of issue II stressed the prejudicial effects of both the Molineux rulings and counsel's inadequate preparation for, and conduct of, the trial. It stated:

Indeed, the Molineux line of cases — with its heightened risk of prejudice and unfair trial — obviously relies on the assumption that a defendant will have competent, zealous counsel at his side.

Unfortunately, that assumption proved inaccurate here. Defense counsel failed to interview defense witnesses, failed to obtain some defense documents and neglected to examine others before placing them into evidence. As the trial approached its end, defense counsel had to confess that he had not even studied the Indictment! See, generally, the summary of defense counsel's inadequacies above, at page 3,1 and see Appellant's Brief at pages 12-13, 17-20, 35-44, 50.

(Footnote added). The letter application then added a "Summary:"

In this case a defendant was faced not only with a Molineux ruling so broad as to make a fair trial impossible; but was burdened with trial counsel who failed to make even the most minimal preparation for trial. He was thereby deprived of his right to a fair trial, because under this combination of circumstances any defendant — no matter how innocent — would inevitably be found guilty.

Finally, the letter application concluded with an "Addendum: The Prosecutor's `Overwhelming Evidence' Argument." This "Addendum" argued that the prosecution's case was not strong because,

upon examination, the evidence against [Ramirez] suffers from many defects. Briefly, the major witnesses against him — Nelly and Alex Ramirez — can easily be shown to have been hostile, biased, and dishonest. See Appellant's Brief at 8-10, 16-17, 30. The letters by Appellant to his daughter...

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