Rosado v. Capra

• Decision Date: 13 September 2012
• Docket Number: No. 9:09-cv-00676-JKS,9:09-cv-00676-JKS
• Parties: JONATHAN ROSADO, Petitioner, v. MICHAEL CAPRA, Superintendent, Sing Sing Correctional Facility, Respondent.
• Court: U.S. District Court — Northern District of New York

JONATHAN ROSADO, Petitioner, v. MICHAEL CAPRA,¹ Superintendent, Sing Sing Correctional Facility, Respondent.

No. 9:09-cv-00676-JKS

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK

Dated: September 13, 2012

MEMORANDUM DECISION

Jonathan Rosado, a state prisoner appearing pro se, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. Rosado is currently in the custody of the New York Department of Corrections and Community Supervision, incarcerated at Sing Sing Correctional Facility. Respondent has answered, and Rosado has replied.

I. BACKGROUND/PRIOR PROCEEDINGS

In July 2005, following his conviction by two separate juries of Assault in the First Degree (N.Y. Penal Law §§ 20.00, 120.10[1]), Criminal Possession of a Weapon in the Second Degree (N.Y. Penal Law § 265.03[2]), and two counts of Criminal Possession of a Weapon in the Third Degree (N.Y. Penal Law § 265.03[4]), Rosado was sentenced in the Broome County Court as a second felony offender to an aggregate prison term of twenty-five years. The Appellate Division, Third Department, affirmed Rosado's conviction and sentence in a published decision,and the New York Court of Appeals denied leave to appeal on November 30, 2007.² On January 6, 2009, Rosado, appearing pro se, filed a coram nobis petition in the Appellate Division, which was summarily denied without opinion or citation to authority on February 24, 2009, and the New York Court of Appeals denied leave to appeal on May 18, 2009. Rosado timely filed his Petition for relief in this Court on June 1, 2009.

As summarized by the Appellate Division, the facts underlying Rosado's conviction:

[] Those charges stemmed from an incident in May 2004 in which [Rosado] waived a gun out the window of a moving vehicle at two women, who flagged down police; when the vehicle was stopped, police observed and recovered two loaded firearms, a .22 caliber pistol and the .32 caliber revolver which [Rosado] had displayed from the car window. While in custody, [Rosado] gave a statement to police admitting the charged conduct, as well as his role in an August 2003 shooting for which he was subsequently indicted and tried. At the second trial, various witnesses, including [Rosado's] accomplice, testified that [Rosado] had orchestrated an assault on Anthony Tillman in retaliation for Tillman having previously shot [Rosado].³

II. GROUNDS RAISED/DEFENSES

In his Petition, Rosado raises four claims: (1) the trial court denied him his Sixth Amendment right to conduct his own defense (self-representation); (2) ineffective assistance of trial counsel; (3) the convictions were obtained by the use of a coerced confession; and (4) the assault conviction was against the weight of the evidence. Respondent contends that Rosado's first (denial of right to self-representation), second (ineffective assistance of trial counsel), and fourth (assault conviction), claims are unexhausted and procedurally barred; and that his third (coercion) claim is unexhausted. In his Traverse Rosado does not address Respondent's failureto exhaust defense. In his Petition, however, Rosado appears to concede the exhaustion issue, but contends it was because appellate counsel was ineffective. Because prisoner pro se pleadings are given the benefit of liberal construction,⁴ this Court will treat Rosado's ineffective assistance of appellate counsel argument as a fifth ground and proceed accordingly.⁵

III. STANDARD OF REVIEW

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" at the time the state court renders its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."⁶ The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision."⁷ The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisorypower of the Supreme Court over federal courts.⁸ Thus, where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonab[ly] appli[ed] clearly established Federal law.'"⁹ When a claim falls under the "unreasonable application" prong, a state court's application of Supreme Court precedent must be "objectively unreasonable," not just "incorrect or erroneous."¹⁰ The Supreme Court has made clear that the objectively unreasonable standard is "a substantially higher threshold" than simply believing that the state-court determination was incorrect.¹¹ "[A]bsent a specific constitutional violation, federal habeas corpus review of trial error is limited to whether the error 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'"¹² In a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state court criminal trial is whether the error had a substantial and injurious effect or influence in determining the outcome.¹³ Rosado "bears the burden of proving by a preponderance of the evidence that his constitutional rights have been violated."¹⁴

The Supreme Court recently underscored the magnitude of the deference required:

As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings. Cf. Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (discussing AEDPA's "modified res judicata rule" under § 2244). It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no farther. Section 2254(d) reflects the view that habeas corpus is a "guard against extreme malfunctions in the state criminal justice systems," not a substitute for ordinary error correction through appeal. Jackson v. Virginia, 443 U.S. 307, 332, n.5, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (Stevens, J., concurring in judgment). As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.¹⁵

In applying this standard, this Court reviews the "last reasoned decision" by the state court.¹⁶ Under AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence.¹⁷ Although pre-AEDPA precedent established that deference is due to the findings of state appellate courts,¹⁸ the Second Circuit has left the question open with respect to AEDPA cases.¹⁹ In the absence of a clear indication from the Second Circuit to the contrary, this Court can find no principled reason not toapply the same rule in the context of AEDPA, i.e., findings of a state appellate court are presumed to be correct.

IV. DISCUSSION

A. Exhaustion

This Court may not consider claims that have not been fairly presented to the state courts.²⁰ Unexhausted claims must be dismissed.²¹ The claim must have been presented to the highest state court that may consider the issue presented.²² "[F]or purposes of exhausting state remedies, a claim for relief in habeas corpus must include reference to a specific federal constitutional guarantee, as well as a statement of facts that entitle the petitioner to relief."²³ A mere appeal to a broad constitutional guarantee, e.g., due process, is insufficient to present the substance of a constitutional claim to the state courts.²⁴ A petitioner satisfies the fair presentation aspect of the exhaustion requirement by presenting the essential factual and legal premises of his federal constitutional claim to the appropriate state courts.²⁵ An issue is exhausted when the substance of the federal claim is clearly raised and decided in the state court proceedings,irrespective of the label used.²⁶ Exhaustion does not require that Rosado have cited the "book and verse on the federal constitution."²⁷ A petitioner who does not cite the "book and verse of the Constitution" may nonetheless "fairly present to the state courts the constitutional nature of his claim" through:

(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.²⁸

In New York, to invoke one complete round of the State's established appellate process, a criminal defendant must first appeal his or her conviction to the Appellate Division and then seek further review by applying to the Court of Appeals for leave to appeal.²⁹ Claims are fairly presented to the New York Court of Appeals when the application for leave to appeal clearly states that all claims in the attached brief are being pressed, or no arguments are made in detail and the application simply requests review of all issues outlined in the brief.³⁰ Where the application for leave to appeal refers to specific claims raised before the Appellate Division butomits mention of others, the unmentioned claims are deemed abandoned.³¹ Where the application for leave to appeal argues one or more specific claims but only makes a passing reference to...