Rosario v. Ercole, 05 Civ. 8072(PKC).

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Writing for the CourtP. Kevin Castel
Citation582 F.Supp.2d 541
PartiesRichard ROSARIO, Petitioner, v. Superintendant Robert ERCOLE, Respondent.
Docket NumberNo. 05 Civ. 8072(PKC).,05 Civ. 8072(PKC).
Decision Date22 October 2008

Carl Hanline Loewenson, Jr., Jodi Kim Miller, Morrison & Foerster LLP, Jin Hee Lee, NAACP Legal Defense & Educational Fund, Inc., New York, NY, Petitioner.


P. KEVIN CASTEL, District Judge.

Following a jury trial in the New York Supreme Court, Bronx County, petitioner Richard Rosario was convicted of one count of murder in the second degree under New York Penal Law Section 125.25. The trial court sentenced Rosario to a term of imprisonment of 25 years to life, pursuant to which he currently is incarcerated. He directly appealed his judgment and conviction to the New York Supreme Court Appellate Division, First Department, People v. Rosario, 288 A.D.2d 142, 733 N.Y.S.2d 405 (1st Dep't 2001), and on March 26, 2002, was denied leave to review by the New York Court of Appeals. People v. Rosario, 97 N.Y.2d 760, 742 N.Y.S.2d 621, 769 N.E.2d 367 (2002) (table). On September 16, 2005, Rosario filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

The habeas petition asserts four grounds for relief. First, he asserts that he was denied the effective assistance of counsel pursuant to Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Second, he asserts that the trial court incorrectly ruled that he failed to establish a prima facie case of discrimination pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Third, he asserts that the trial court deprived him of a due process right to a fair trial by improperly admitting extrinsic evidence of prior incarceration. Fourth, he asserts that he is actually innocent of the crime for which he was convicted.

I referred the petition to Magistrate Judge Henry B. Pitman on December 29, 2005. In a thorough, 107-page Report and Recommendation (the "R & R") dated December 28, 2007, Magistrate Judge Pitman recommended that Rosario's petition be conditionally granted as to his Batson claim and denied in all other respects. Both the petitioner and respondent have filed objections to the R & R.

I have reviewed the R & R de novo. R. 72(b), Fed.R.Civ.P.; 28 U.S.C. § 636(b)(1). For the reasons explained below, I modify the R & R to the extent that it conditionally recommends granting the petitioner's Batson claim. I adopt the R & R in all other respects. The petition is denied.


On June 19, 1996, George Collazo was fatally shot in the head on Turnbull Avenue in Bronx County, New York. (Trial Tr. at 19.) At least three eyewitnesses observed the incident, (Trial Tr. at 54-56, 133-66, 286-94.) though only two of them testified that Rosario was the shooter. One witness, Michael Sanchez, was a friend of the victim and present with him at the time of the shooting. (Trial Tr. at 137-65, 286-94.) He testified that an argument arose between Rosario and the victim after the victim uttered a racial epithet, and stated that he had a clear and unobstructed view of Rosario's face during the verbal quarrel. (Trial Tr. at 139-50.) According to Sanchez, Rosario approached from behind shortly thereafter, and shot the victim with a revolver. (Trial Tr. at 152-55.) Three weeks after the shooting, a police lineup was organized, and Sanchez identified Rosario as the shooter. (Trial Tr. at 164-65.) At trial Sanchez again identified Rosario as the shooter, and stated that he had no doubt, either at the lineup or at trial, that his identification of Rosario was correct. (Trial Tr. at 165.) A second witness, Richard Davis, identified Rosario as the shooter after reviewing photographs provided by police; he testified at trial that he had an unobstructed view of the shooting. (Trial Tr. at 53-66.) A third witness, Jose Diaz, testified that he heard the fatal shot and stated that he might be able to recognize the persons involved in the dispute preceding the shooting, but he did not identify Rosario in the courtroom. (Trial Tr. at 292-96.)

Two alibi witnesses—Jenine Seda and John Torres—testified at trial that Rosario was with them in Florida on the day of the shooting. (Trial Tr. at 305-09.) Seda testified that she specifically recalled Rosario's presence in her home, because the date of the shooting was one day before she gave birth to a son, and she further testified that Rosario was present in her home when she returned from the hospital. (Trial Tr. at 328, 334-35.) John Torres, Rosario's friend and the father of Seda's baby, testified at trial that on the day of the shooting, Rosario had spent the day with him purchasing auto parts for a broken-down car. (Trial Tr. at 347.) Rosario also offered the testimony of a New York terminal manager for Greyhound Busline, who authenticated and explained a "readout of a transaction" dated June 30, 1996, indicating that Rosario had purchased bus tickets from Orlando, Florida to New York City. (Trial Tr. at 366-69.) The terminal manager also testified that passengers generally are not required to submit identification when they pay and board, and are not required to use the ticket on its date of purchase. (Trial Tr. at 371-72.)

Rosario testified in his own defense, and asserted that he was present in Florida from late May through June 30, 1996, during which he hoped to find work and ultimately relocate. (Trial Tr. 399-400.) Rosario further testified that his New York fiancée Minerva Godoy wired money to him in Florida via Western Union at least three times, and that the transfers were addressed to John Torres because Rosario himself lacked valid, government-issued identification. (Trial Tr. at 422-24.) He stated that he resided with John Torres and Jenine Seda until after the birth of their child on June 20, 1996 (Trial Tr. at 409-10); that he and John Torres spent a day looking for auto parts together, even though he could not recall the precise date (Trial Tr. at 419.); and that he returned to New York from Florida on June 30, 1996, upon hearing from his sister that detectives wished to speak to him in connection with the Collazo shooting. (Trial Tr. at 388-89.)

In rebuttal, the prosecution offered the testimony of Captain Bruce Bolton, records custodian of the Department of Corrections in Volusia County, Florida. Bolton testified that the Department's records showed that Rosario was in Department custody from March 13, 1996, through April 12, 1996. (Trial Tr. at 451.) Prior to this testimony, Rosario's counsel objected that the rebuttal evidence would be unduly prejudicial, and that Rosario was never directly questioned about his incarceration, such that Bolton's testimony constituted extrinsic evidence on a collateral matter. (Trial Tr. at 435-38.) The objection was overruled. (Trial Tr. at 438-39.)

The jury found Rosario guilty of murder in the second degree. (Trial Tr. at 595-98.)

Standard of Review

Under 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 100 Stat. 1218 ("AEDPA"), federal courts must accord deference to the state court's determination of a habeas petitioner's claims. A federal court should not grant habeas relief to a person in custody pursuant to a state court judgment unless the state proceedings "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." 28 U.S.C. § 2254(d)(1). "[T]he meaning of the phrase `clearly established Federal law, as determined by the Supreme Court of the United States' ... refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

I. Pursuant to the Standard of Review Set Forth by AEDPA, the R & R is Adopted, and Petitioner's Ineffective Assistance Claim is Dismissed

In support of his claim that he received ineffective assistance of counsel in violation of the Sixth Amendment to the U.S. Constitution, Rosario argues that his trial counsel failed to undertake a sufficient investigation of his alibi defense, and neglected to seek out relevant and readily available witnesses and documentary evidence that established his presence in Florida on the date of Collazo's shooting. He contends that counsel's actions were based in error and neglect, rather than conscious strategic decisions.

Rosario's ineffective assistance claim is directed toward two of the four attorneys who represented him between his arrest and jury trial. Joyce Hartsfield represented Rosario from mid-July 1996 through mid-February 1998. (Hearing Tr. at 13-14, 117.) Steven J. Kaiser then represented Rosario through the conclusion of trial. (Hearing Tr. at 117.) The R & R recommended that I dismiss Rosario's ineffective assistance claim based on the standard of review set forth in Section 2254(d)(1). For the reasons explained below, I adopt the R & R's recommendation.

A. At Rosario's Post-Conviction 440.10 Hearing, Several Alibi Witnesses Testified that He was Present in Florida During June 1996

The R & R thoroughly and carefully sets forth the events and testimony relevant to the ineffective assistance claim. I briefly recount them here.

Following Rosario's unsuccessful direct appeal of his judgment and conviction, he filed a motion to vacate his judgment of conviction pursuant to Section 440.10 of the New York Criminal Procedure Law, arguing that he had been denied effective assistance of counsel in regard to his alibi defense. An evidentiary hearing was conducted before the Honorable Edward M. Davidowitz, Justice of the Supreme Court, Bronx County. In total, the 440.10 hearing included testimony from ten witnesses, including seven alibi...

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