Rodriguez's counsel at the time of his plea, Monica, testified that he did not recall viewing Rodriguez's videotaped confession, did not investigate Rodriguez's educational background, and did not have a psychologist determine Rodriguez's intellectual functioning. (Id. at 4-5.) Monica explained that he did not get a psychiatrist or psychologist to examine Rodriguez because it "wasn't necessary [since] it was a simple question . . . [of whether Rodriguez did or did] not fire the shots that killed the person." (Id. at 6.) Monica testified that he thought Rodriguez was possibly slow, but that Rodriguez understood that he would get a reduced sentence in order to avoid trial. (Id. at 2-3, 5, 8-9.)
Dr. Robert Berger, Deputy Director of the Forensic Psychiatry Service at Bellevue Hospital, testified on Rodriguez's behalf. (Id. at 20.) Dr. Berger felt that Rodriguez's cleft palate and eye and head scars could be indicative of brain damage. (Id.) Dr. Berger testified that Rodriguez "'was suffering from certain cognitive and intellectual impairment, and also emotional disabilities which had affected his ability to enter a plea at that time.'" (Id. at 21.) Dr. Berger opined that Rodriguez's impairments "required frequent repetition of questions, and a structuring and redirecting his attention toward the question in order to obtain a responsive reply." (Id. at 22.) However, Dr. Berger also testified that the fact that Rodriguez was mildly mentally retarded would not preclude a voluntary and knowing guilty plea. (Id. at 26-28.) Dr. Berger testified that "at the time of the plea [Rodriguez] understood that he was pleading guilty to having killed another individual, knew the evidence against him, understood the plea bargain . . . [but] at the time of the plea his will was overborne to some extent, the degree of which he could not state." (Gov't App. Ex. G: Gov't Mem. In Opposition to Motion to Withdraw Guilty Plea at 6.)
Dr. Richard Schuster, another expert in the field of psychology, also testified on Rodriguez's behalf. (Gov't App. Ex. F at 28.) Dr. Schuster also felt that Rodriguez's "eye and forehead deformity as well as his cleft palate" could possibly indicate "head trauma as well as possibilities of congenital difficulties in early childhood." (Id. at 28-29.) Dr. Schuster testified that he gave Rodriguez psychological tests and found that "he tends to get confused very rapidly" in "situations that demand independent decision-making." ( Id. at 32.) Dr. Schuster "stated that [Rodriguez] would look to counsel for advice in making a choice about entering a plea and that that was a natural thing to do." (Gov't App. Ex. G at 7.) Dr. Schuster testified that "the fact that someone is mildly mentally retarded would not preclude the knowing entry of a voluntary guilty plea." (Gov't App. Ex. F at 34.) Dr. Schuster, however, "could not render an opinion with a reasonable degree of clinical certainty as to whether [Rodriguez] was capable of entering a knowing and voluntary plea on the date of his plea in this case because, '[he] didn't do that type of investigation with him.'" (Gov't App. Ex. H: Gov't Reply Mem. at 14.)
Hillel Bodek, a clinical social worker (but not a medical doctor), testified for the government, over defense objections. (See Gov't App. Ex. G at 4, 8.) Bodek found that "although suffering from developmental disabilities, [Rodriguez] was not mentally retarded or significantly brain damaged, was malingering and had the capacity to enter a knowing a voluntary plea." (Id. at 4-5.) Bodek administered a battery of tests, and concluded that Rodriguez "was not particularly suggestible, to the contrary tending to be oppositional and passive-aggressive in his behavior and not able to be maneuvered into saying something he didn't want to say." (Id. at 9.) Bodek also found that Rodriguez understood the evidence against him and "pleaded guilty because of the plea offer to a lesser included offense." (Id.)
The State Trial Court's Denial of Rodriguez's Motion to Withdraw His Plea
On July 7, 1989, Justice Crane denied from the bench Rodriguez's motion to withdraw his guilty plea. (Gov't App. Ex. E: 7/7/89 Sentencing Tr. at 4, 18-19.) Defense counsel reiterated his position that Rodriguez was "slow" and "retarded," was not adequately questioned during his plea colloquy to insure that he knew what he was doing, and did not receive effective assistance of counsel at his plea. (Id. at 11-14.) Rodriguez himself told the judge that he did not kill anyone and that he had pled guilty only because his lawyer told him that if he did he would receive 7 to 21 years and otherwise would get 25 years to life. (Id. at 14-15.) Defense counsel asked leave to submit a lengthy brief. (Id. at 10.) Although satisfied from the lengthy hearings that Rodriguez's plea was knowing and voluntary, the court agreed to consider written argument after the hearing. (Id. at 8-10, 16; see also Gov't App. Exs. F, G & H.) Justice Crane held that Rodriguez's plea for mercy "demonstrate[s] to me that [Rodriguez is] quite capable of articulation and intelligence" and further found that Rodriguez "had no problems articulating his guilt" to "the taking of a life at virtually point blank range, where [Rodriguez] was witnessed in this act by at least one, if not more than one, non-interested third-party witness." (Id. at 16, 18.) Justice Crane sentenced Rodriguez to "the rather lenient sentence that has been promised," that is, 7 to 21 years. (Id. at 18-19.)
After reviewing Rodriguez's counsel's lengthy written submission (Gov't Aff. Ex. F), Justice Crane affirmed his denial of Rodriguez's motion to withdraw his guilty plea, in a written opinion issued on March 16, 1990. (See Gov't App. Ex. I: 3/16/90 Crane Opinion.) In his opinion, Justice Crane noted that the allegations that trial counsel had provided ineffective representation not only lacked merit, but rested on a faulty premise. (Id. at 13.) Rodriguez had alleged that Monica was ineffective for failing to view the videotaped statement, for failing to discern Rodriguez's mental problems, and for failing to "look into these problems in order, perhaps, to find a mitigating defense or, more severe, an incompetency to proceed." (Id. at 12-13.) Justice Crane found that Rodriguez's mental condition was not "anything approaching [legal] unfitness . . . [nor] of a nature to suspect that defendant could present a defense of not responsible by reason of mental disease or defect . . . [and] there was no reason for prior counsel to doubt defendant's fitness." (Id. at 13.) The judge also found Rodriguez's criticism of Monica for not previously viewing the videotape to be "nonsense," as Monica had a transcript and had succeeded in securing a hearing to suppress the tape, where he would have had the opportunity to view it. (Id. at 13-14.)
Justice Crane found Bodek's testimony to be "head-and-shoulders above the defense experts." (Id. at 5.) He noted that Bodek had studied Rodriguez "over a six month period entailing in excess of 70 hours." (Id. at 5.) Unlike the defense experts, Bodek "was familiar with the plea minutes and the relevant case law" and "legal standards." (Id. at 5-6.) Justice Crane found that Dr. Berger "lacked the thoroughness and accuracy necessary to assist the court," especially since Dr. Berger was "not conversant with the legal standards relevant to assessing the capability of a defendant to enter a knowing and voluntary plea." (Id. at 3.) Justice Crane found that Rodriguez's other expert witness, Dr. Schuster, actually "supported the conclusion that [Rodriguez] understood the concept of a trial and that, even if [Rodriguez] relied on the advice of others, his plea could still have been knowing and voluntary." (Id. at 4.) Where the expert testimony conflicted, Justice Crane relied on "Bodek's opinions in preference to the experts called by the defense." (Id. at 6.)
As to Rodriguez himself, based on observing him at the time of the plea and sentencing and during the lengthy plea withdrawal hearings, Justice Crane found Rodriguez to be "evasive in the extreme," "self-serving" and "a malingerer." (Id. at 4-5.) Justice Crane found that Rodriguez was "very cognizant of the plea offer that would limit his sentence to 7 to 21 years and was mindful that a defeat at trial would result in as high a sentence as 25 years to life." (Id. at 8.) Justice Crane also noted that Rodriguez dropped his protestations of innocence and told his lawyer that he wanted to plead guilty "after hearing that the People were ready and, therefore, had control of the [eye] witness who defendant thought had been in foreign territory." (Id. at 8-11.) In sum, Justice Crane found "that whatever may be his mental, physical and intellectual deficits, [Rodriguez] had the capacity to, and in fact did, understand his rights, the sentence he could receive after trial, the consequences of his plea and the nature of the evidence against him. He was not so susceptible to suggestion as to detract from the voluntary nature of the plea." (Id. at 11.)
Rodriguez's Direct Appeal
On direct appeal to the First Department, Rodriguez was represented by John H. Wilson. (See Gov't Br. at 3; see also Gov't App. Exs. J, K, L, O, P.) Wilson wrote Rodriguez that after reviewing the record and transcripts, he believed that the only appeal lay in a challenge to Rodriguez's sentence as excessive; Wilson recommended that Rodriguez not challenge the guilty plea because if he prevailed, Rodriguez would stand trial for murder in the second degree and could be sentenced to 25 years to life. (Gov't App. Ex. J: 8/8/91 Letter from Wilson to Rodriguez.)
Rodriguez responded with a letter agreeing with Wilson:
As you indicate in your letter, I also do not think it wise to challenge the plea, as I understand that if we win the murder indictment will be restored.
However, I do wish that you challenge the length of my sentence, and to assist you in preparing the brief, as you requested, kindly find enclosed copies of my program involvements since my incarceration, together with relative letters and certificates and some of my medical records.
(Gov't App. Ex. K: 8/29/91 Letter from Rodriguez to Wilson, emphasis added.)
Consistent with Rodriguez's agreement as to how to proceed on appeal, Wilson's brief to the First Department argued that Rodriguez's 7 to 21 year sentence was excessive. (Gov't App. Ex. L: Rodriguez's Br. to 1st Dep't; see also Gov't App. Ex. M: Gov't App. Br.) Wilson argued that the sentence was only slightly less than the maximum for that offense, far above the possible minimum sentence of two to six years. (Gov't App. Ex. L at 3.) Wilson argued that the sentence was excessive in light of Rodriguez's background, including his limited education and "diminished intelligence capacity." (Id. at 5.)
The First Department affirmed, upholding Rodriguez's sentence, without opinion. People v. Rodriguez, 184 A.D.2d 1092, 584 N.Y.S.2d 966 (1st Dep't 1992).
Rodriguez's Collateral State Attack
Over two years later, Rodriguez filed a pro se writ of error coram nobis in the First Department, alleging that appellate counsel (Wilson) was ineffective. (Petition P 11; Gov't App. Ex. O: Rodriguez Coram Nobis Motion, 7/24/94.) Rodriguez alleged that Wilson failed to brief issues concerning his mental deficiencies, the involuntariness of his guilty plea, and the ineffective assistance of original trial counsel, and instead pursued the "frivolous" excessive sentence appeal. (Gov't App. Ex. O at 6-8.) Amazingly, Rodriguez alleged that Wilson's letter to him was "merely a reiteration of the same intimidating discussion that [Rodriguez] had with [his] original lawyer who coerced [Rodriguez] into pleading guilty." (Id. at 5.) Yet Rodriguez admitted that by the time he received Wilson's letter, he was well aware of the consequences of having his guilty plea withdrawn because of the extensive plea withdrawal proceedings in the trial court. (Id.) Nevertheless, Rodriguez told the First Department that he "never authorized anyone to surrender [his] challenge to the guilty plea" but was "once again used and taken advantage of due to [his] disabilities." (Id. at 6.)
The First Department denied Rodriguez's coram nobis application without discussion, citing People v. de la Hoz, 131 A.D.2d 154, 520 N.Y.S.2d 386 (1st Dep't 1987). People v. Rodriguez, 211 A.D.2d 1011, 622 N.Y.S.2d 437 (1st Dep't 1995); Gov't App. Ex. R.
Rodriguez's September 1995 Federal Habeas Petition
In September 1995, Rodriguez filed a habeas corpus petition in this Court, alleging that counsel during his plea bargain (Monaco) and his direct appeal (Wilson) were ineffective. (Gov't App. Ex. S: Rodriguez's Sept. 1995 Habeas Corpus Petition.) Finding the claim of ineffective assistance of trial counsel to be unexhausted, Chief Judge Griesa dismissed the petition without prejudice so that Rodriguez could either exhaust or drop his ineffective assistance of trial counsel claim. (Gov't App. Ex. T: 11/20/95 Griesa Order of Dismissal.)
Rodriguez's Present Habeas Petition
Rodriguez's present habeas petition, omitting the unexhausted claim, was received on December 20, 1995 and filed as of February 6, 1996.
Rodriguez raises a single ground for relief, that he was denied his constitutional right to effective assistance of appellate counsel. (Petition P 12(A).) Specifically, Rodriguez alleges that appellate counsel failed to argue that there were "certain errors" committed by trial counsel which were preserved for direct appeal and instead pursued only one frivolous argument on appeal. (Id.) Because Rodriguez does not specify which "errors" appellate counsel allegedly failed to raise on appeal, the Court presumes Rodriguez refers to the same errors he complained of in his state coram nobis action.
RODRIGUEZ'S HABEAS CORPUS PETITION SHOULD BE DENIED BECAUSE HE HAS FAILED TO PROVE THAT HIS APPELLATE COUNSEL WAS INEFFECTIVE
A. The Strickland v. Washington Standard
The Supreme Court has announced a two-part test to determine if counsel's assistance was ineffective. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that he was not functioning as the 'counsel' guaranteed by the Sixth Amendment." Id. This performance is to be judged by an objective standard of reasonableness. Id. at 688, 104 S. Ct. at 2064.
Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's conduct, and to evaluate the conduct from counsel's perspective at the time. . . . [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.
Id. at 689, 104 S. Ct. at 2065.
Second, the defendant must show prejudice from counsel's performance. Id. at 687, 104 S. Ct. at 2064. The "question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695, 104 S. Ct. at 2068-69. Put another way, the "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068.
In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. Some of the factual findings will have been unaffected by the errors, and factual findings that were affected will have been affected in different ways. Some errors will have a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated or trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support. Taking the unaffected findings as a given, and taking due account of the effect of errors on the remaining findings, a court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.