Rodriguez v. Young

• Decision Date: 10 March 1989
• Docket Number: No. 87-C-1172.,87-C-1172.
• Citation: 708 F. Supp. 971
• Parties: Jose C. RODRIGUEZ, Petitioner, v. Warren YOUNG, Respondent.
• Court: U.S. District Court — Eastern District of Wisconsin

708 F. Supp. 971

Jose C. RODRIGUEZ, Petitioner, v. Warren YOUNG, Respondent.

No. 87-C-1172.

United States District Court, E.D. Wisconsin.

March 10, 1989.

Mark J. Rogers, Angermeier & Rogers, Milwaukee, Wis., for petitioner.

Daniel J. O'Brien, Asst. Atty. Gen., Wisconsin Dept. of Justice, Madison, Wis., for respondent.

OPINION AND ORDER

WARREN, Chief Judge.

This is a petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254. The petitioner is currently incarcerated in the Waupun Correctional Institution in Waupun, Wisconsin, following his conviction in Milwaukee County Circuit Court for first-degree murder.

The petitioner claims that he is being held unlawfully because his trial was violative of provisions of the United States Constitution ensuring his rights to due process and effective assistance of counsel.

After an examination of the record, the Court denies the petition for the reasons explained below.

I. PROCEDURAL BACKGROUND

The petitioner, Jose C. Rodriguez, was convicted by a jury in Milwaukee County Circuit Court of first-degree murder. Following his conviction, the petitioner unsuccessfully moved the trial court for a new trial. On direct appeal, the Wisconsin Court of Appeals affirmed the judgment of conviction and the denial of his motion for a new trial. The petitioner unsuccessfully sought review by the Wisconsin Supreme Court and the United States Supreme Court.

The petitioner then moved the trial court for post-conviction relief pursuant to Wis. Stats. § 974.06. After an evidentiary hearing, the trial court denied the petitioner's motion for post-conviction relief. The Court of Appeals affirmed and the Wisconsin Supreme Court and the United States Supreme Court denied review. The petitioner then filed this petition for a writ of habeas corpus.

The petitioner challenges his conviction on the following grounds:

(1) the former Wisconsin Criminal Jury Instruction Number 1100 unconstitutionally shifted the burden of persuasion to the petitioner in violation of his due process rights protected by the fourteenth amendment,

(2) the former Wisconsin Criminal Jury Instruction Number 1100 unconstitutionally shifted the burden of production of evidence to the petitioner in violation of his sixth amendment right to jury trial by effectively directing the jury to reach a verdict against the defendant on the issue of intent to kill,

(3) the evidence was insufficient to sustain his conviction,

(4) the trial court violated the petitioner's due process rights by conditioning the giving of a theory of defense instruction upon the giving of a similar instruction on behalf of the prosecution,

(5) he was denied the effective assistance of counsel when his trial attorney failed to make a motion to suppress the identification testimony of Maria Ramos,

(6) he was denied the effective assistance of counsel when his trial attorney waived his right to submit a theory of defense instruction to the jury,

(7) he was denied the effective assistance of counsel when his trial attorney failed to pursue his request to take a polygraph examination,

(8) he was denied the effective assistance of counsel when his trial attorney failed to insist that the court interpreter give a verbatim translation of Maria Ramos' testimony, and

(9) he was denied his constitutional right to confront and cross-examine his accusers when the court interpreter failed to give a verbatim translation of Maria Ramos' testimony.

This Court previously dismissed the petitioner's first ground (his argument that former Wisconsin Criminal Jury Instruction Number 1100 unconstitutionally shifted the burden of persuasion to the petitioner) as an abuse of the writ. Court's Decision and Order, October 26, 1988. The Court stated as follows:

The state argues that this petition should be dismissed at least with respect to the challenge to former Wisconsin Criminal Jury Instruction Number 1100 pursuant to 28 U.S.C. § 2254, Rule 9(b). Rule 9(b) of the Rules Governing Section 2254 Cases in the United States District Courts provides, in relevant part, as follows:

(b) Successive petitions. A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits.

"The determination of whether a petitioner is precluded from relitigation on the merits of a previously rejected petition is made by resort to the three-step test set forth in Sanders v. United States." Jacks v. Duckworth, 857 F.2d 394 No. 86-C-460 (7th Cir. September 13, 1988). In Sanders v. United States, 373 U.S. 1 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), the Court stated that:

Controlling weight may be given to denial of a prior application for federal habeas corpus or § 2255 relief only if (1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application.

Id. at 9 (15) 83 S.Ct. at 1077. The petitioner admits on the face of this petition that the grounds raised in his first petition Case No. 82-C-339, filed in 1982 are the "same grounds set forth in paragraph 12C of this petition," the challenge to former jury instruction number 1100. Moreover, the record is clear that the federal court rejected the petitioner's challenge to former Wisconsin Criminal Jury Instruction Number 1100 on the merits. Thus, the focus is on whether the petitioner has satisfied his burden of showing that the ends of justice warrant a fresh look at his claims. Id. "If purely legal questions are involved, the applicant may be entitled to a new hearing upon showing an intervening change in the law." Id. at 10 (16) 83 S.Ct. at 1078. The petitioner here asserts that the United States Supreme Court's decision in Francis v. Franklin constitutes an intervening change in the law.

Francis v. Franklin, 471 U.S. 307 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985). However, the Seventh Circuit Court of Appeals has expressly upheld the constitutionality of former jury instruction number 1100 in light of Francis v. Franklin. Fencl v. Abrahamson, 841 F.2d 760, 770 (7th Cir.1988).... Despite the petitioner's arguments to the contrary, Francis v. Franklin does not constitute an intervening change in the law warranting relitigation of his claim in the interest of justice. Therefore, the Court dismisses the petitioner's challenge to former Wisconsin Criminal Jury Instruction Number 1100 as an abuse of the writ.

Court's Decision and Order, October 26, 1988.

The Court now dismisses the petitioner's second ground (his argument that former Wisconsin Criminal Jury Instruction No. 1100 unconstitutionally shifted the burden of production of evidence to the petitioner) as an abuse of the writ.

"The determination of whether a successive petition for a writ of habeas corpus constitutes an abuse of the writ is, like the habeas remedy itself, governed by principles of equity." United States ex. rel. Cyburt v. Lane, 612 F.Supp. 455, 463-464 (D.C.Ill.1984). The Court should balance "the need to protect the courts from those who would misuse or subvert the judicial process with needless piecemeal litigation against preservation of the exalted role of habeas corpus as guardian against unjust imprisonment." Id.

In this instance, the petitioner should have raised all challenges to former Wisconsin Criminal Jury Instruction No. 1100 in his first petition, rather than proceed with this type of piecemeal litigation. In 1982, the petitioner argued that former Wisconsin Criminal Jury Instruction No. 1100 unconstitutionally shifted the burden of persuasion to the petitioner. The federal district court determined that this issue was properly before it because the Wisconsin Supreme Court had previously held that the jury instruction was constitutional, and thus, it would have been futile to require the petitioner to exhaust his state remedies on the issue. Although this Court has allowed the petitioner to proceed with the seven new and different grounds that were not exhausted at the time of his first petition (and did not come within the Court's futility exception), the Court will not allow the petitioner to proceed on this second challenge to former Wisconsin Criminal Jury Instruction No. 1100. "If a prisoner deliberately withholds one of the two grounds for federal collateral relief at the time of filing his first application, in the hope of being granted two hearings ... he may be deemed to have waived his right to a hearing on the second application presenting the withheld ground." Sanders v. United States, 373 U.S. 1, 18, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 148 (1963). "Nothing in the traditions of habeas corpus requires the federal courts to tolerate needless piecemeal litigation, or to entertain collateral proceedings whose only purpose is to vex, harass, or delay." Id.

The Court addresses the seven remaining grounds for habeas relief, and for the reasons stated in this opinion, the Court denies the petition for a writ of habeas corpus.

II. FACTS

At about 9:00 p.m. on June 14, 1976, Ernesto Guzman, also known as Ratone, was knifed to death. Just prior to his death, Ratone, a heroin seller, sold some heroin to the petitioner's common law wife, Maria Rodriguez, who short-changed Ratone on the purchase price. Ratone followed Maria Rodriguez as she walked south on Sixth Street toward Pierce Street in Milwaukee, Wisconsin, and he caught up to her at the intersection of Sixth and Pierce Streets. Soon thereafter, there was a struggle during which Ratone was killed. In the immediate area at the time of the struggle were Maria Rodriguez, Edgar Alicea, Edwin Alicea, Jose Rodriguez, and Manuel Navarro (Jake). Also nearby, standing against a wall outside of a tavern, was Maria Ramos. At the time of this incident, Maria Ramos had known Edgar Alicea, ...