Ramos v. Racette, 11-CV-1412 (JG)

CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
Writing for the CourtJohn Gleeson
PartiesRAMON RAMOS, Petitioner, v. STEVEN RACETTE, Superintendent, Elmira Correctional Facility, Respondent.
Decision Date04 January 2012
Docket Number11-CV-1412 (JG)

RAMON RAMOS, Petitioner,
v.
STEVEN RACETTE, Superintendent, Elmira Correctional Facility, Respondent.

11-CV-1412 (JG)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

Dated: January 4, 2012


FOR ONLINE PUBLICATION ONLY

MEMORANDUM AND ORDER

APPEARANCES:

RAMON RAMOS
#97-A-4743
Elmira Correctional Facility
Petitioner, Pro Se

RICHARD A. BROWN
Queens County District Attorney
By: Ellen C. Abbot
Assistant District Attorney
Attorney for Respondent

JOHN GLEESON, United States District Judge:

Ramon Ramos, who is currently incarcerated at Elmira Correctional Facility, petitions this court, pro se, for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Ramos was convicted after a jury trial of one count of rape in the first degree, two counts of sodomy in the first degree, and one count of robbery in the second degree. He was sentenced as a persistent felony offender to concurrent, indeterminate prison terms of 25 years to life on each conviction. He now brings this petition for habeas corpus, alleging that his conviction was obtained in

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violation of his due process and Sixth Amendment rights, and that his sentence violates his due process and double jeopardy rights. For the reasons explained below, the petition is denied.

BACKGROUND

A. The Offense Conduct

The facts of the offense were recounted by the victim at Ramos's trial.1 On July 8, 1993, the victim, A.V.,2 then 25 years old, went to visit her friend in the Forest Hills section of Queens (239-41). When she entered the elevator of her friend's building, the elevator went to the basement instead of to the floor she had pressed (245). There, a man opened the elevator door and grabbed A.V. and covered her face (246). He pulled her out by her neck and threatened to kill her if she made any noise (247). He took her into a small room in the basement and asked for any money or valuables she had (248). She complied and gave him her money (248). Then he instructed her not to look at him and he removed her shorts and underwear (250-51). He put his penis in her anus, which was very painful (251). He then put his mouth on her vagina (252). After that, he put his penis inside her vagina (252-53). When he stopped, A.V. was crying, asking "Why, why, why?" and he said he was sorry, and that "I know this is going to scar you for the rest of your life, but just think of it as just sex that we both enjoyed and had together" (253-54). Then he kissed her on her face or head and threw her shorts behind a laundry machine (254). He warned her to give him time to leave the building or he would kill her (254).

A.V. then took the elevator up to her friend's apartment and told her friend she had been raped (256). Her friend called the police, and A.V. was taken to the hospital by ambulance (257-58). At the hospital, A.V. was examined and a sexual assault kit was completed

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(260-61). Although the police examined the basement where the rape had occurred and dusted for fingerprints, no prints could be found.

Almost nine months later, on March 30, 1994, Ramos was arrested for a burglary in Queens. At that time, investigators interrogated him about the rape of A.V., as well as two other rapes they believed were related, which had occurred on February 3, 1994, and February 23, 19943 (11/28/05 at 19-204). However, after A.V. was unable to identify Ramos in multiple photo arrays and lineups,5 the police did not pursue Ramos as a suspect in A.V.'s rape any further (11/28/05 at 20-21). Eventually, the case became "cold."

On October 26, 2001, state officials obtained a DNA sample from Ramos, who was incarcerated pursuant to a 1997 third-degree robbery conviction for which he was serving a term of imprisonment of 15 years to life.6 On July 2, 2002, A.V.'s rape kit was sent to a laboratory for DNA testing, in conjunction with a police "backlog project" to test more than 16,000 old rape kits being held in storage (305-10). The examiner who performed the analysis testified that Ramos's DNA matched the DNA from the semen in A.V.'s rape kit (316). Ramos was indicted for the crimes on May 29, 2003. Reply Br. at 45.

B. Mistrial, Retrial, and Conviction

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Ramos's first trial, scheduled to begin November 28, 2005, ended in a mistrial prior to the jury's being sworn because the trial prosecutor had fallen ill (12/1/05 at 2). Ramos was retried on January 3, 4, 5, 9, and 10, 2006. The jury convicted him on all counts.

1. Ramos's Election to Proceed Pro Se and Absent Himself in the First Trial

Although Ramos had apparently already elected to proceed pro se, the trial judge, Justice Arthur J. Cooperman, conducted an additional colloquy with Ramos on November 28, 2005, to ascertain whether he wanted to continue to waive his right to counsel (11/28/05 at 2-8). The court asked, "[A]re you still asking to proceed in this case, in this trial without the benefit of an attorney?" Ramos responded, "[W]ith the exception of the argument for the DNA evidence," which he wanted his legal advisor, John Scarpa, to make. "I understand that," the court said, but "[o]therwise you wish to represent yourself?" "Yes, I do," Ramos answered (11/28/05 at 3). After being warned of the dangers and disadvantages of proceeding without an attorney, the court again asked, "But you still wish to proceed without the benefit of an attorney?" and Ramos answered, "Yes, sir" (11/28/05 at 8). The court then ruled that "under those circumstances we will continue to proceed" (11/28/05 at 8).

The court then conducted a Sandoval hearing to determine which of Ramos's prior crimes and bad acts would be admissible if he were to testify at trial. Ramos represented himself during this hearing. However, in responding to the government's recitation of his prior arrests and convictions, Ramos became upset, seemingly because he believed the police officers did not pursue the investigation into the rape of A.V. with proper diligence. He also contended that the DNA evidence in this case was taken from his bathroom by police officers who illegally entered his home in 1996 by impersonating parole officers (11/28/05 at 15-29).

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When the court told him that these issues would not be explored by the court, Ramos declared:

I will not sit here and have this court convict me for wrongs done by the police. Whenever the DNA was taken out on this case, the statute of limitations had also expired on this and I will not be made a farce in my career. I will not have this be made a farce in my career. I do not wish to attend this trial. Whatever they wish to do in this case let them do it. I respectfully say I am sorry for acting in this way but there is no way I am going to come and be made a subject of this farce in my career.
If this is clear, I would like to go back now.
. . . .
. . . I am a minority and I cannot afford a lawyer - it seems the system would like to take advantage but after being convicted here and serving 15 to life based on the fact that the court protected a police officer from having perjured himself, I am not going to go through it and I respectfully refuse to attend any further of my trial and conviction. Let it go on without me.
. . . .
I want to make it clear that I do not wish an attorney for me. What I feel is happening, there is corruption going on in the system, corruption going on. I have been convicted where the system helped a cop and erased the minutes from him having perjured himself. I have a decision where the statute of limitations is not opposed by the D.A. and a judge came in and became an advocate for the D.A. and denied my motions. Yes, I feel there is corruption and my question is who polices the courts?

(11/28/05 at 29-32). When the court asked Ramos, "Are you saying each and every one of these convictions was tainted by corruption[?]" Ramos responded,

No, sir[,] but there is corruption. My last 2 convictions yes, they had been doing what they wanted to. Why? Because I am a career criminal and they feel they can treat me like this or because I am in the minority. Yes, it is upsetting, Your Honor. Okay, right now Your Honor, yes, I feel a little sad. I do not wish to be present here no more.

(11/28/05 at 33). The court informed Ramos that he was waiving his right to be present and participate in his trial, but that he would be kept "close enough" so that he would have the opportunity to change his mind each day of trial (11/28/05 at 36).

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The court then instructed John Scarpa, Ramos's appointed legal advisor, to act as Ramos's counsel in his absence, saying, "[W]e can't have an empty defense chair and table, so it's a good thing that you are advisory counsel because now you are back in the box . . . . So from this point on, you are the attorney for the defendant" (11/28/05 at 38).7 Scarpa then acted as Ramos's attorney during jury selection. However, the trial prosecutor did not appear in court on the next two days because she was ill (12/1/05 at 6-7). On the third day, the court ordered a mistrial because of the trial prosecutor's prolonged illness (12/1/05 at 1-3). The court indicated that a new trial would commence January 3, 2006.

2. The Court's Dismissal of Scarpa

When the court indicated the new trial would commence January 3, 2006, Scarpa said that he would be unavailable on January 3rd, but could be available beginning January 4th, "unless you want to relieve me now" (12/1/05 at 3). He went on, "I am not sure why I am this defendant's attorney at this...

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