Rodriguez v. Hoke

• Decision Date: 15 March 1991
• Docket Number: D,No. 906,906
• Citation: 928 F.2d 534
• Parties: Frank RODRIGUEZ, Petitioner-Appellant, v. Robert HOKE, Superintendent of the Eastern Correctional Facility, Respondent-Appellee. ocket 90-2350.
• Court: U.S. Court of Appeals — Second Circuit

Page 534

928 F.2d 534

Frank RODRIGUEZ, Petitioner-Appellant, v. Robert HOKE, Superintendent of the Eastern Correctional Facility, Respondent-Appellee.

No. 906, Docket 90-2350.

United States Court of Appeals Second Circuit.

Argued Feb. 1, 1991.

Decided March 15, 1991.

Helena Pichel Solleder, New York City (of counsel), for petitioner-appellant.

Karen Swiger, Asst. Dist. Atty. (Robert T. Johnson, Dist. Atty., Peter D. Coddington, Asst. Dist. Atty., of counsel), for respondent-appellee.

Before KEARSE, PRATT, and McLAUGHLIN, Circuit Judges.

GEORGE C. PRATT, Circuit Judge:

Petitioner-appellant Frank Rodriguez appeals from a judgment entered in the United States District Court for the Southern District of New York, Louis L. Stanton, Judge, denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. Rodriguez was convicted of murder in the second degree after a jury trial in the Supreme Court, Bronx County, New York. He was sentenced to an indeterminate term of 20 years to life. The Appellate Division affirmed his conviction without opinion, 123 A.D.2d 529, 506 N.Y.S.2d 502 (1st Dept.1986), and leave to appeal to the New York Court of Appeals was denied. 68 N.Y.2d 1003, 510 N.Y.S.2d 1036, 503 N.E.2d 133 (1986). In addition, Rodriguez made attempts to collaterally attack his conviction in state court, all of which were unsuccessful.

Rodriguez raised six issues on this petition for a writ of habeas corpus, which the district court denied on the merits. We do not reach the merits, however, because Rodriguez failed to fully exhaust his available state court remedies. We therefore remand to the district court with a direction to dismiss the petition.

BACKGROUND

Frank Rodriguez was arrested and charged with the murder of Jesus Rivera based on an identification by Maritza Vallellanes who witnessed the murder. Vallellanes, the prosecution's main witness at trial, testified that she saw Rodriguez arguing with another person at 8:00 p.m. on May 27, 1984, and heard Rodriguez say three times, "I'm going to kill him." Shortly after midnight, she saw Rodriguez grab the arm of another man, who was not the same person he was arguing with earlier. The man broke away from Rodriguez and started running. Rodriguez then pulled out a gun, shot the other man three times, threw the gun to someone else, and fled. The shooting occurred 30 feet away from Vallellanes on a well-lit street.

Two days after Vallellanes had witnessed the murder, she went to the police precinct and looked at photographs of individuals who had previously been arrested in the precinct. She identified one photograph as the individual to whom Rodriguez had thrown the gun, and stated that another looked like Rodriguez, although she was not sure whether it was he or not. The next day, Vallellanes saw Rodriguez in the street and called the police who were able Based almost entirely on Vallellanes's testimony, the jury returned a verdict of guilty. Rodriguez appealed his conviction, raising two claims. First, he argued that the prosecution's failure to preserve the photograph Vallellanes had identified as looking like the murderer denied him his due process right to a fair trial. Contrary to normal police procedure, the photograph was not kept, nor was any record of her identification saved by the police officers. As a result, Rodriguez was denied the opportunity of comparing her initial identification with himself.

to arrest him. She testified that she recognized Rodriguez from the neighborhood.

Second, Rodriguez claimed that a supplemental jury charge used by the trial court in response to a jury note coerced the jury into finding him guilty. During deliberations, the jury sent a note to the trial court which was marked as exhibit 4. The note stated:

Requesting Alternate # 1

Jurist "Nora" not competent.

We cannot reach a conclusion with her.

The trial court ordered the jury returned to the courtroom and responded to the note with a supplemental jury instruction. The court did not read the note into the record, but simply re-instructed the jurors generally on their duties and urged them to continue to deliberate and reach a decision. Approximately 30 minutes later, the jury returned a unanimous guilty verdict.

When the trial court asked Rodriguez if he had anything to say before sentence was imposed, he stated that his attorney "told me you said that one of the jurors was incompetent. That would have called for a mistrial. I don't know why he didn't say anything there." The judge responded:

Just so the record is clear, I never stated at any time that one of the jurors was incompetent. I believe there was a note from the jury during the course of deliberations, which was marked Court Exhibit No. 4, in which the jury--the foreman of the jury had requested one of the jurors, Nora, was not competent, "We cannot reach a conclusion with her," and they had requested an alternate be substituted.

Rodriguez claimed that the supplemental jury charge was an erroneous Allen charge, Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896), because it failed to instruct the jurors that they need not yield their conscientious convictions. The Appellate Division obviously disagreed, for it affirmed the conviction, unanimously and without opinion.

Rodriguez then sought relief under N.Y.Crim.Proc. Law Sec. 440.10. He claimed that he had received ineffective assistance of trial counsel because his counsel failed to have the jury note made a part of the record, and also failed to move for a mistrial when the note was not made a part of the record. This ineffective-assistance claim was rejected as procedurally barred because the court found that there were sufficient facts on the record to

provide a basis for a direct appeal on

the same grounds. N.Y.Crim.Proc.Law Sec. 440.10(2)(c).

More significantly, Rodriguez also claimed that newly discovered evidence demonstrated he had not committed the murder for which he was convicted. While a prisoner in Ossining Correctional Facility, a fellow inmate, Israel Igartua, overheard Rodriguez discussing his case and informed him that he had information concerning the killer in the case and that he knew that Rodriguez was not the killer. However, this information may have been available at trial, as indicated by the following colloquy, which occurred during the Wade hearing:

Mr. Rivera (Rodriguez's counsel): The other thing is, Judge, I have been advised that there is possible eyewitness that is in custody and he is in court today up in the fourth floor.

He is being lodged in the Bronx House of Detention. His name is Israel Igartua, and I was seeing what possibly I can do to speak to this particular individual or have my investigator speak to him before we start the trial.

* * * * * *

The Court: Why don't you check the court papers today * * * Mr. Rivera: A good idea.

Rodriguez's motion to vacate the conviction based on newly discovered evidence was denied because Igartua's statement was unsworn, lacked specificity and reliability, and therefore failed to satisfy the procedural requirements of N.Y.Crim.Proc.Law Secs. 440.30(1) and (4)(b).

Rodriguez also tried to get information about an individual named "Teco", who was supposedly the man who had caught the gun thrown by the killer after the murder. Pursuant to the New York...