Rodriguez v. Mitchell

• Decision Date: 01 August 1998
• Docket Number: Docket Nos. 99-2170,PETITIONER-APPELLANT,RESPONDENTS-APPELLEES
• Parties: (2nd Cir. 2001) ROBERT RODRIGUEZ,, v. ROBERT MITCHELL, SUPERINTENDENT, EASTERN CORRECTIONAL FACILITY, AND ELIOT SPITZER, ATTORNEY GENERAL, STATE OF NEW YORK,(L), 99-3507(CON)
• Court: U.S. Court of Appeals — Second Circuit

Page 191

252 F.3d 191 (2nd Cir. 2001)

ROBERT RODRIGUEZ, PETITIONER-APPELLANT, v. ROBERT MITCHELL, SUPERINTENDENT, EASTERN CORRECTIONAL FACILITY, AND ELIOT SPITZER, ATTORNEY GENERAL, STATE OF NEW YORK, RESPONDENTS-APPELLEES.

Docket Nos. 99-2170(L), 99-3507(CON)

August Term, 1998

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Submitted: February 25, 1999

Decided June 6, 2001

The petitioner moves for: (1) a certificate of appealability, authorizing an appeal of the denial of his motion under Fed. R. Civ. P. 60(b) to vacate a judgment of the United States District Court for the Eastern District of New York (Jack B. Weinstein, District Judge), that denied a writ of habeas corpus; and (2) authorization to file a second habeas petition. The Court of Appeals (Leval, J.) holds: (1) the district court properly elected not to treat the Rule 60(b) motion as a successive habeas petition and properly denied the motion; (2) as to the two claims the petitioner seeks to raise in the second petition, (i) the claim that was dismissed in his first petition by reason of his failure to exhaust state remedies may be raised without our authorization, because the successive petition rules of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2244(b), do not apply to claims dismissed for failure to exhaust, and (ii) the claim not raised in the first petition may not be raised in the second petition because, regardless whether the AEDPA successive petition rules apply where the first petition was filed prior to the AEDPA's effective date, petitioner would not be permitted to file this claim under the law governing the filing of successive petitions at the time he filed his first petition.

Motion granted in part and denied in part.

[Copyrighted Material Omitted]

LARRY W. YACKLE, Boston University School of Law (Letty Di Giulio and Robert Procter, on the brief), Boston, M.A., for Petitioner-Appellant.

THOMAS M. ROSS, Assistant District Attorney, Kings County (Charles J. Hynes, District Attorney, and Roseann B. MacKechnie, Assistant District Attorney, on

the brief), Brooklyn, N.Y., for Respondents-Appellees.

Before: Leval, Pooler, and Heaney,^* Circuit Judges.

LEVAL, Circuit Judge

Petitioner, Robert Rodriguez, seeks: (1) a certificate of appealability, authorizing him to appeal the denial of his motion under Fed. R. Civ. P. 60(b) to vacate a judgment entered by the United States District Court for the Eastern District of New York (Jack B. Weinstein, District Judge), denying his petition for a writ of habeas corpus; and (2) authorization to file a second habeas petition.

Respondents contend the motion under Rule 60(b) is a second or successive petition, subject to the standards of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2244(b). We conclude that a motion under Rule 60(b) to vacate a judgment denying habeas is not the equivalent of a second or successive habeas petition subject to the standards of § 2244(b). We nonetheless affirm the denial of petitioner's motion under Rule 60(b). As to the petitioner's request to file a second petition raising two claims, we hold: (1) the claim that was originally dismissed in his the first petition by reason of his failure to exhaust state remedies may be raised without our authorization because the successive petition rules of § 2244(b) do not apply to claims dismissed for failure to exhaust state remedies; and (2) the claim not raised in the first petition may not be raised in a second petition because, regardless whether the AEDPA successive petition rules apply where the first petition was filed prior to the AEDPA's effective date, petitioner would not be permitted to file this claim under McCleskey v. Zant, 499 U.S. 467 (1991)-the law governing the filing of successive petitions at the time he filed his first petition.

BACKGROUND

Petitioner Robert Rodriguez and three other men-Kareem Abdul Latif, Milton Cotto, and Michael Donnes-were charged in New York with murdering the owner of a pharmacy and a customer, while attempting to rob the pharmacy on October 12, 1982.

Rodriguez, Latif, and Cotto were tried jointly. Donnes was never found. At trial, the government offered into evidence statements Rodriguez had made to the police, including an admission that, before he went to the pharmacy, he knew that Latif was armed and that Latif planned to rob the store and "break [the] neck" of the pharmacist. Latif's girlfriend Sondra Nieves testified that about five days after the crime, Rodriguez told her that he had held the customer while Latif shot her. Rodriguez's trial attorney, Lawrence J.D. Mort, did not cross-examine Nieves and did not call Rodriguez to the stand. The trial judge stated on the record that Nieves had not been given a polygraph exam.

On December 2, 1983, Rodriguez was convicted of four counts of second-degree murder, for the intentional and felony murders of the pharmacist and the customer, and one count of first-degree attempted robbery.

While his appeal was pending, Rodriguez sought documents relevant to his case pursuant to the New York Freedom of Information Law ("NYFOIL"). He obtained a taped statement that police had taken from Donnes's girlfriend, Nancy Santiago, prior to trial. In this statement, Santiago reported what Donnes had told her after the crime:

Santiago: [Donnes] [t]old me that [Latif] had invited all to the pharmacy and he told me he was going to get some pills and to pay back all that he owes him. So they went with him and the guys waited . . . where the counter is and [Latif] took Doc in the back with him . . . . Then the guys had heard 2 shots. Then [Latif] came out and the guys said what are you doing and he told the guys to shut up and then he shot the girl in the head.

Police: What did [Donnes] say that he did when all of this was going on?

Santiago: They just sat there, and they were all in shock (inaudible) what was happening and they all started just running off.

On July 7, 1986, Rodriguez moved in state court to vacate the judgment, arguing, inter alia, that Santiago's statement was exculpatory material that should have been disclosed under Brady v. Maryland, 373 U.S. 83 (1963). On October 6, 1986, the Supreme Court denied the motion, holding that Rodriguez failed to show that the statement would have changed the outcome of the trial. On September 23, 1991, the Appellate Division affirmed Rodriguez's conviction, see People v. Rodriguez, 574 N.Y.S.2d 399 (2d Dep't 1991), and on January 28, 1992, Rodriguez was denied leave to appeal to the Court of Appeals, see 588 N.E.2d 770, 79 N.Y.2d 863 (1992).

In the meantime, Rodriguez continued his efforts to obtain documents pursuant to NYFOIL. He claims that at some point in 1993, he obtained a copy of a report of a polygraph exam that, contrary to the trial judge's statement on the record, had allegedly been administered to Nieves prior to trial. The report concluded that Nieves had "attempt[ed] deception" in answering certain questions and that she was "withholding pertinent information." In addition, the examiner stated in the report that he had told Nieves that if she did not account for the polygraph results, she might be arrested and withdrawn as a prosecution witness before the grand jury. According to the report, Nieves then asked to speak with the Assistant District Attorney, and after doing so, she "conceded [to the examiner] that she had a conversation only with [Latif] at his apartment about his knowledge of the incident last October 12th."

On January 3, 1994, Rodriguez filed a petition for habeas corpus in the United States District Court for the Eastern District of New York, challenging his conviction on the ground, inter alia, that his trial lawyer, Mort, had rendered ineffective assistance by refusing to allow Rodriguez to testify and by failing to cross-examine Nieves.¹ In April 1995, the court directed the prosecution to call Mort to testify. As Mort lived in Ohio, the prosecution made arrangements to fly him to New York. Mort, however, refused to come, and instead sent a letter to the court stating a number of reasons why he did not wish to testify, including that "[m]y memory is not well" and "[m]y professional reputation has been blemished by Ohio Supreme Court and US Supreme Court 53 Ohio 560 N.E.2d 204." In addition, he claimed to have a small bankruptcy practice in Ohio, which did not permit him to leave. On April 17, the district court denied the habeas petition in a ruling from the bench.

The following day, Rodriguez's new lawyer asked the court to reconsider its decision in light of new evidence revealed by Mort's letter-namely, the Ohio Supreme Court opinion cited in the letter. That opinion held that Mort was not entitled to admission into the Ohio bar without examination because he failed to "establish[] that problems associated with his past mental health did not affect his present fitness to practice law." In re Mort, 560 N.E.2d 204, 206 (Ohio 1990). The opinion further stated that, according to a doctor's report, Mort suffered from "probable chronic undifferentiated schizophrenia" and "described paranoid ideas and said he was experiencing auditory hallucinations." Id. at 205 (internal quotations omitted). In his motion for reconsideration, Rodriguez argued that Mort's mental illness indicated he may not have had valid strategic reasons for not calling Rodriguez to the stand and not cross-examining Nieves.

The court denied the "[m]otion to reconsider . . . on the merits," stating that "[i]n any event, this argument was not raised in state court and has not been exhausted." On April 20, judgment denying the habeas petition and the motion to reconsider was entered, and Rodriguez appealed.

On February 23, 1996, we affirmed the dismissal of the habeas petition by summary order. As to the claims that Rodriguez raised in his habeas petition-including the claim of ineffective assistance of cou...