Rodriguez v. Superintendent, Collins Correctional, 9:04-CV-1137 (DNH).

• Decision Date: 28 April 2008
• Docket Number: No. 9:04-CV-1137 (DNH).,9:04-CV-1137 (DNH).
• Citation: 549 F.Supp.2d 226
• Parties: Rafael RODRIGUEZ, Petitioner, v. SUPERINTENDENT, COLLINS CORRECTIONAL FACILITY, Respondent.
• Court: U.S. District Court — Northern District of New York

549 F.Supp.2d 226

Rafael RODRIGUEZ, Petitioner, v. SUPERINTENDENT, COLLINS CORRECTIONAL FACILITY, Respondent.

No. 9:04-CV-1137 (DNH).

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

April 28, 2008.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Rafael Rodriguez, Sonyea, NY, pro se.

Hon. Andrew M. Cuomo, Office of the Attorney General, Michael G. McCartin, Esq., Ass't Attorney General, Albany, NY, for Respondent.

MEMORANDUM-DECISION and ORDER

DAVID N. HURD, District Judge.

I. Background

A. State Court Proceedings

According to the testimony adduced at trial, on or about January 4, 1997, Maria Ortiz ("Ortiz") was the girlfriend of the petitioner, Rafael Rodriguez ("Rodriguez" or "petitioner"). Dkt. No. 12, Ex. 1, Transcript of Trial of Rafael Rodriguez ("Trial Tr."), at 289-90. Ortiz left the home they shared to go shopping, and petitioner followed her. He got on the same bus, sat behind Ortiz, and harassed her. When Ortiz told him she did not want to be with him, petitioner pulled her hair and punched her face. Id. at 290-91. As a result of the incident, an order of protection was issued against Rodriguez on January 7, 1997. Dkt. No. 12, Ex. 2, Attach, at R-8 (Indictment).

In September 1997, petitioner moved in with Ortiz even though the order of protection was still in effect. Ortiz testified that she permitted him to live with her because she was afraid of him. Trial Tr. at 293-94, 334-35. Approximately six months later, Ortiz again told petitioner that she did not want to be with him. Id. at 293. On February 23, 1998, he entered Ortiz's bedroom "brandishing a kitchen knife." Rodriguez, 306 A.D.2d at 686, 761 N.Y.S.2d 368; Trial Tr. at 296-97. He put the knife to Ortiz's throat, threatened to kill her, and told her that if she was not with him, she would be with no one. Trial Tr. at 297. Petitioner used the knife to cut Ortiz's neck and also cut her shirt open. Ortiz told him she loved him in an effort to calm him down. Id. at 297-301. Ortiz's children, Harry and Henry Ortiz (both fourteen years old), were home during this incident. Id. at 288, 301-02.

Ortiz called her son, Louis Danny Ortiz ("Danny"), for help. Danny and his roommate, Edwin Cruz ("Cruz"), immediately came to the Ortiz home, confronted petitioner, and told him to leave. Danny and Cruz were unarmed. Trial Tr. at 303-04, 396-103, 493. Petitioner called Damian Rodriguez and asked him to pick petitioner up. Id. at 535-45. Petitioner then refused to leave the house until he finished his beer. The incident escalated when petitioner threatened to kill Cruz and stabbed him in the left chest. Id. at 307-311, 406-412, 488-99. Danny and petitioner continued to struggle, and eventually petitioner left the house. Id. at 412-20, 423-30. Harry Ortiz called 911. Id. at 434, 439-40. Henry Ortiz, who was standing near the dining room, picked up a knife after petitioner left the house. Id. at 434-35. Police recovered the knife from the Ortiz home, along with a knife that Danny Ortiz was holding when they arrived. Id. at 145-46,155,167-69,434-45.

Petitioner was apprehended a few blocks from the house. Police recovered a knife from him, and laboratory tests confirmed that Cruz's blood was on the knife. Trial Tr. at 240-52, 269-73, 283-84. As a result of the stabbing, Cruz suffered a ruptured lung and three wounds to his heart. Trial Tr. at 211-15, 221-28. Without surgery, there was a "significant likelihood that this would have been a lethal wound." Id. at 228.

An indictment was returned charging petitioner with second degree attempted murder, (N.Y. Penal Law §§ 110.00/125.25(1)); first degree assault (N.Y. Penal Law § 120.10(1)); first degree burglary (three counts)(N.Y. Penal Law §§ 140.30(2)(3)); first degree criminal contempt (three counts) (N.Y. Penal Law §§ 215.51(b)(1), 215.51(b)(vi), 215.51(b)(v)); third degree criminal possession of a weapon (N.Y. Penal Law § 265.02(1)); second degree menacing (three counts) (N.Y. Penal Law § 120.14(1)); and second degree criminal contempt (N.Y. Penal Law § 215.50(3)).¹ Petitioner was represented at trial by Assistant Public Defender Gaspar M. Castillo, Jr.

On October 9, 1998, a Huntley² hearing was held. At the hearing, Rodriguez challenged the admissibility of the knife he was carrying when he was arrested. Dkt. No. 12, Ex. 1, Suppression Hrg. at 5-6. The prosecutor conceded that his statement was made in response to custodial inquiry and withdrew the notice of intent to use the statement at trial. Dkt. No. 12, Ex. 1, Suppression Hrg. at 3-6. In a written Decision and Order, the trial court ruled that the knife recovered from petitioner was seized pursuant to a lawful arrest and was therefore admissible. Dkt. No. 12, Ex. 2, Attach, at R46 (Decision and Order, Rosen, J.).

Rodriguez was tried before a jury on the charges in Albany County Court with County Court Judge Larry J. Rosen presiding. Prior to the commencement of trial, the three burglary charges and the second degree criminal contempt charge (Counts 3 and 9-11 of the Indictment) were dismissed in the interest of justice. Trial Tr. at 12-13. At the close of the proof, the trial court reduced the third degree criminal possession of a weapon charge to fourth degree criminal possession of a weapon. Trial Tr. at 581. The jury began its deliberations on January 15, 1999, and returned a unanimous verdict which acquitted petitioner of attempted murder and found him guilty of the remaining charges. Id. at 747-55. On March 5, 1999, petitioner was sentenced to an aggregate indeterminate term of ten to twenty years in prison. Dkt. No. 12, Ex. 1, Sentencing Tr. at 12-13.

Petitioner appealed his conviction and the Appellate Division, Third Department, affirmed. Dkt. No. 12, Ex. 2, 5; People v. Rodriguez, 306 A.D.2d 686, 761 N.Y.S.2d 368 (3rd Dept.2003). On September 30, 2003, the New York Court of Appeals denied petitioner leave to appeal. People v. Rodriguez, 100 N.Y.2d 624, 767 N.Y.S.2d 407, 799 N.E.2d 630 (2003).

Petitioner filed a state writ of error coram nobis on January 22, 2004, in which he challenged the effectiveness of appellate counsel for failing to challenge the trial court's jury instruction on intent. Dkt. No. 12, Ex. 8. The Appellate Division denied the writ on April 7, 2004. Dkt. No. 12, Ex. 10.

B. Proceedings in This Court

Petitioner filed a petition for a writ of habeas corpus on September 29, 2004. See Dkt. No. 1. By Order filed October 25, 2004, his application to proceed in forma pauperis was granted, and the respondent was ordered to file his response to the petition. Dkt. No. 5. On February 4, 2005, the Office of the Attorney General for the State of New York, acting on respondent's behalf, filed a response and memorandum of law in opposition to the petition, along with the relevant state court records. See Dkt. No. 12.

Petitioner raises the following grounds for relief: (1) the 911 call was improperly played for the jury; (2) his statutory right to a speedy trial was violated; (3) the trial court erred when it denied his request for a jury charge on justification; (4) the trial court improperly admitted evidence of his prior bad acts; (5) the sentence imposed was excessive; (6) appellate counsel was ineffective (Grounds Six and Seven); and (7) the trial court's jury instruction on intent was inadequate. Dkt. No. 1, Pet. at pp. 5-6, 8-10. For the reasons that follow, the petition is denied.

II. Discussion

A. Standard of Review

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may not grant .habeas relief to a state prisoner on a claim unless the state courts adjudicated the merits of the claim and such adjudication either:

1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d); Hawkins v. Costello, 460 F.3d 238, 242 (2d Cir.2006), cert. denied ___ U.S. ___, 127 S.Ct. 1267, 167 L.Ed.2d 92 (2007); DeBerry v. Portuondo, 403 F.3d 57, 66 (2d Cir.2005), cert. denied 546 U.S. 884, 126 S.Ct. 225, 163 L.Ed.2d 189 (2005); Miranda v. Bennett, 322 F.3d 171, 177-78 (2d Cir.2003); Boyette v. Lefevre, 246 F.3d 76, 88 (2d Cir.2001).

The AEDPA also requires that in any habeas proceeding "a determination of a factual issue made by a State court shall be presumed to be correct [and t]he applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see also Boyette, 246 F.3d at 88 (quoting § 2254(e)(1)).

A state court determines a petitioner's federal claim "on the merits" and triggers the highly-deferential AEDPA standard of review when the state court (1) disposes of the claim on the merits, and (2) reduces its disposition to judgment. See Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir.2001). In this regard, it is not necessary for the state court to explicitly refer to the particular federal claim or to any federal case law. See Id.

If, however, a state court does not adjudicate a petitioner's federal claim "on the merits," the state court's decision is not entitled to AEDPA deference, and instead, the federal habeas court must apply the pre-AEDPA standard of de novo review to the state court's disposition of the federal claim. See Cotto v. Herbert, 331 F.3d 217, 230 (2d Cir.2003) (citing Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir.2001)).

B. Admission of the 911 call

Petitioner first claims that the trial court improperly permitted a 911 call to be played for the jury. Dkt. No. 1 at 5. Respondent argues that even if playing the 911 call constituted a violation of the confrontation clause, the Appellate Division's application of harmless error analysis to this claim was proper, and habeas relief...