Roa v. Portuondo

• Decision Date: 22 April 2008
• Docket Number: No. 02 Civ. 6116(PKC)(FM).,02 Civ. 6116(PKC)(FM).
• Citation: Roa v. Portuondo, 548 F.Supp.2d 56 (S.D. N.Y. 2008)
• Parties: Rudy ROA, Petitioner, v. Leonard A. PORTUONDO, Superintendent, Shawangunk Correctional Facility, Respondent.
• Court: U.S. District Court — Southern District of New York

548 F.Supp.2d 56

Rudy ROA, Petitioner, v.Leonard A. PORTUONDO, Superintendent, Shawangunk Correctional Facility, Respondent.

No. 02 Civ. 6116(PKC)(FM).

United States District Court, S.D. New York.

April 22, 2008.

COPYRIGHT MATERIAL OMITTED

Rudy Roa, Wallkill, NY, pro se.

Kenneth Alan Paul, Frank J.Loscalzo, Attorney at Law #300, Huntington, NY, for Rudy Roa.

Morrie I. Kleinbart, New York, NY, for Leonard A. Portuondo.

MEMORANDUM AND ORDER ADOPTING REPORT AND RECOMMENDATION

P. KEVIN CASTEL, District Judge.

In January 1995, petitionerRudy Roa was convicted of two counts of Second Degree Murder, one count of Second Degree Attempted Murder and two counts of First Degree Robbery after trial by jury in New York Supreme Court, New York County.In the aggregate, Roa was sentenced to thirty-three and one-third years to life in prison.Prior to sentencing Roa, the Honorable Frederic Berman, then a Justice of the Supreme Court, New York County, observed that "in [his] twenty two years as a Judge [he had] not had a case which [he] felt was more cruel and vicious."

Roa filed a petition for a writ of habeas corpus on July 31, 2002.(Doc. # 1.)The prior history of this proceeding is set forth in the September 10, 2007 Report and Recommendation (the "R & R") of Magistrate Judge Frank Maas.(Doc. # 47.)This matter was reassigned to this Court on October 16, 2006.(Doc. # 36.)Roa filed an amended habeas petition (the "Amended Petition") on December 14, 2006.(Doc. # 42.)

In the forty-eight page R & R, Magistrate Judge Maas, recommended that Rudy Roa's Amended Petition be denied.Roa requested an extension to file objections to the R & R by letter dated October 22, 2007.I ordered that the final deadline to file objections be extended to November 30, 2007.(Id.)Roa's objections were not received by the Court until December 4, 2007.(Doc. # 48.)The objections filed by Roa are undated and nothing in the record indicates when they were delivered to prison officials for mailing.However, because Roa is an incarcerated pro se petitioner, his objections were received less than one week after the deadline and no objection regarding timeliness has been made, I will consider the petitioner's objections.

Through the lens of petitioner's objections, I have conducted a de novo review of the record.28 U.S.C. § 636(b);Rule 72, Fed.R.Civ.P.For the reasons that follow, I adopt the R & R in its entirety and dismiss the Amended Petition.

I.Procedurally Defaulted Claims

Judge Maas correctly observed that several claims in the Amended Petition related to Roa's post-arrest statement and to an alleged ineffective assistance of counsel may not be considered by this Court because Roa procedurally defaulted on those claims in state court.Procedural defaults in state court divest federal courts of jurisdiction to hear the defaulted claims unless the petitioner demonstrates "cause for the default and actual prejudice as a result of the alleged violation of federal law, or ... that failure to consider the claims will result in a fundamental miscarriage of justice."Coleman v. Thompson,501 U.S. 722, 750. 111 S.Ct. 2546, 115 L.Ed.2d 640(1991)("In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred ....").Showing cause for default requires a petitioner to put forth "some objective factor external to the defense" which caused the claim not to have been previously raised.Gonzalez v. Sullivan.934 F.2d 419, 422(2d Cir.1991)(quotingMurray v. Carrier,477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397(1986)).Objective impediments to compliance with the procedural rules which would excuse a petitioner's noncompliance for habeas purposes include: 1) the factual or legal basis of a claim was not reasonably available to petitioner's counsel; 2) interference by officials made compliance impracticable; and 3) ineffective assistance of counsel.Murray,477 U.S. at 488, 106 S.Ct. 2678.

To demonstrate "actual prejudice" under the standard for excusing a procedural default, a habeas petitioner must show the constitutional errors raised in the petition actually and substantially disadvantaged petitioner's defense so that he was denied "fundamental fairness."Id. at 494, 106 S.Ct. 2678.To show that the district court's failure to hear the claims will result in a fundamental miscarriage of justice, a petitioner must show that he is "actually innocent."Aparicio v. Artuz,269 F.3d 78, 90(2d Cir.2001)(citingColeman,501 U.S. at 748-50, 111 S.Ct. 2546).With respect to the ineffective assistance of counsel impediment, the Second Circuit has held that defense counsel's "ineptitude [must] rise[ ] to the level of a violation of a defendant's Sixth Amendment right to counsel" to establish cause for procedural default in the context of a habeas petition.Id. at 91(citations omitted).As outlined below, petitioner cannot meet the standards required to have the defaults excused on any of the procedurally defaulted claims.

a. Post-Arrest Statement Claims

The Amended Petition asserts that Roa's post-arrest statement was introduced into evidence at trial in violation of his Sixth Amendment right to counsel.Roa raised this claim, prior to perfecting his direct appeal, in the first of three section 440.10 motionshe filed in an attempt to have his conviction vacated.(Amended Petition, Ex. Eat 1.)The trial court rejected Roa's claim because section 440.10(2)(b) requires the denial of a motion to vacate a judgment when, at the time of the motion, the subject judgment is either still appealable or the appeal is pending.N.Y.Crim. ProcL. § 440.10(2)(b).Roa's subsequent direct appeal failed to assert that claim, thus, it was not exhausted at the state level.It is now, however, incapable of being exhausted because New York law permits criminal defendants only one direct appeal and one application for leave to appeal to the Court of Appeals.Spence v. Sup't, Great Meadow Corr. Facility,219 F.3d 162, 170(2d Cir.2000).Moreover, Roa cannot obtain collateral review of this claim in state court because once a defendant has prosecuted his direct appeal, he may not obtain review of an issue that could have been included in that appeal.Id.;Coleman,501 U.S. at 735 n. 1, 111 S.Ct. 2546(if no procedural avenue remains to exhaust a claim in state court, the claim is procedurally defaulted for federal habeas purposes).Thus, Judge Maas correctly concluded that because the Sixth Amendment post-arrest statement claim was not included in Roa's direct appeal, it is in procedural default and this Court is divested of its jurisdiction to consider its merits.

The claim that Roa was not adequately informed of his rights under Miranda v. Arizona,384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966), before being questioned in police custody suffers from the same procedural malady.That claim was first made in an omnibus pretrial motion which the trial court denied.Roa subsequently failed to include it in his direct appeal or in any of his post-conviction motions.Because Roa procedurally defaulted on that claim by not including it in his direct as-of-right appeal or in any of his section 440.10 motions, this Court lacks jurisdiction to hear it.SeeColeman, at 750, 111 S.Ct. 2546.

The admissibility of Roa's post-arrest statement is also challenged on due process and equal protection grounds in the Amended Petition, but, like the Miranda claim, those claims were not raised in either his direct appeal or in any of his postconviction motions and cannot be exhausted now because of the one-appeal limit imposed by New York law.Spence,219 F.3d at 170.They are therefore procedurally defaulted and not properly before this Court.

As observed by Judge Maas, Roa's defaults cannot be excused by establishing cause, actual prejudice or a fundamental miscarriage of justice with respect to the claims relating to his post-arrest statement.He has shown no objective impediments to compliance stemming from either a lack of information available to his attorney or from official interference; nor has he demonstrated that any constitutional errors denied him fundamental fairness.

Roa has also failed to show that he is actually innocent under any standard.Roa admitted he entered the apartment where the robbery, murder and attempted murder took place with the intent to conduct a robbery with a gun.(Hearing Tr.at 31-36.)This admission is corroborated by Roa's fingerprints which were found on a light fixture which concealed a hidden void used as a drug cache.(Id.)At his trial, the only question before the jury was whether Roa or his accomplice fired the shots.An eyewitness testified that it was Roa who ordered her to "get down" on the floor before stealing her jewelry, murdering her boyfriend and then shooting her in the back of the head.(Tr. 93-96, 113-114, 190.)In the face of this evidence against him, Roa replies that "Petitioner has always asserted that he is innocent, but does not have the proof (other that [sic] his own testimony) to prove it."(Pet. Objectionsat 2).Petitioner has not made an adequate showing that he is actually innocent of the crimes for which he was convicted for purposes of being excused from his procedural defaults.

In addition, Roa has not demonstrated that the defaults relating to his post-arrest statement claims may be excused because they were caused by ineffective assistance of counsel.Although he asserts his trial counsel failed "to properly preserve and argue" his right to counsel while making his post-arrest statement, he ignores the fact that his trial counsel raised that issue during a pretrial suppression hearing.(HearingTr. 105-115, 177-78.)

Moreover, Roa's procedural defaults cannot be excused by his appellate counsel's failure to raise his post-arrest statement claims on appeal because...