The opinion of the court was delivered by: Batts, District Judge.
On July 22, 1999, Magistrate Judge Andrew J. Peck issued a Report and
Recommendation. The Petitioner filed an objection on July 29, 1999.
Magistrate Judge Peck denied Petitioner's habeas corpus petition on the
The Court has reviewed the Plaintiff's objection, which disputes no
specific proposed finding or recommendation. The Court finds Petitioner's
objection to be without merit. Having reviewed the Report and
Recommendation and finding no clear error on the face of the record, the
recommendations of Magistrate Judge Peck are hereby accepted and the
Report and Recommendation dated July 22, 1999, is hereby adopted in its
entirety. See Local Civil Rule 72, 28 U.S.C. § 636.
Pursuant to 28 U.S.C. § 1915(a), any appeal from this Order would
not be taken in good faith. See Coppedge v. United States, 369 U.S. 438,
444-45, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962)
REPORT AND RECOMMENDATION
PECK, United States Magistrate Judge.
Petitioner Juan Roldan was convicted of second degree murder in
connection with the shooting of cab driver Roscoe Cummings. Roldan's
habeas petition asserts three grounds for relief: (1) his guilt was not
proven beyond a reasonable doubt (Pet. ¶ 12(A)), (2) his line-up
identification was impermissibly suggestive (Pet. ¶ 12(B)), and (3)
the trial court improperly admitted uncharged crimes evidence (Pet.
For the reasons set forth below, I recommend that Roldan's habeas
petition be denied on the merits.
Trial Evidence: Prosecution Case
On the morning of July 6, 1985, cab driver Roscoe Cummings was shot and
killed in the Bronx during a robbery.
At approximately 7:30 p.m. on July 5, 1985, David Gonzalez Rodriguez
told George Rivera that he was going to have cab drivers pick him up in
Manhattan and take him to the Bronx, or vice versa, and rob them. (Trial
Transcript ["Tr."] 171-72.) Rodriguez told Rivera to leave the door to
626 Cypress Avenue in the Bronx open so that Rodriguez could enter the
building quickly after the robberies. (Tr. 171-72.) Rodriguez showed
Rivera a small black handgun that he planned to use in the robberies.
(Tr. 172-73; People's Ex. 8.)
At approximately 12:45 a.m. on July 6, 1985, Sean Bruce and Marilyn
Rivera (George Rivera's sister) witnessed three men run from a yellow
medallion cab that stopped near 140th Street and Cypress Avenue in the
Bronx into a vacant lot adjacent to the apartment building at 626 Cypress
Avenue. (Tr. 98-99, 103-04, 138-39, 141-48.) When the cab stopped, Bruce
heard two to three gunshots and saw three people run from the cab. (Tr.
141-42.) Ms. Rivera heard two of the men yell "David, hurry up," then
heard a door slam and saw a light go on in Rodriguez's apartment. (Tr.
The yellow cab crashed into a fence at 142nd Street and Jackson
Avenue, approximately three blocks from David Rodriguez's building. (Tr.
72, 76-77, 90-93.) The driver, Roscoe Cummings, told the police that he
had been robbed and shot at 140th Street and Cypress Avenue by three male
Hispanics in their twenties. (Tr. 78-80, 91.) Cummings told the police
that one of the men, wearing a yellow T-shirt and tan pants, was carrying
a small, black, automatic gun. (Tr. 80.) Cummings told the police that he
had picked up his assailants in Manhattan and driven them to the Bronx.
(Tr. 80.) The police took Cummings to the hospital, where he died from a
single gunshot wound to his back. (Tr. 81, 92, 193-95.)
Police officers recovered a .25 caliber automatic bullet from the back
seat of the cab and an additional .25 caliber round of ammunition on the
ground below the cab. (Tr. 81-83, 93-94.)
At 3:45 a.m., approximately two hours after Cummings was shot and
robbed, a cab driver, Danyo Syoum, observed Roldan with a small Beretta
handgun, People's Exhibit 8. (Tr. 152, 162.) Approximately one hour after
Cummings was shot and robbed, Sergo Abelard saw Roldan with a small,
black, automatic pistol. (Tr. 226-32.)
The police arrested Roldan at approximately 3:45 a.m. and upon
searching him, recovered a gun, People's Exhibit 8. (Tr. 114-15, 119-20.)
At the time of his arrest, Roldan was with David Rodriguez. (Tr.
Trial Evidence: Defense Case
Roldan's wife, Irma Roldan, testified that her husband regularly
carried the gun, People's Exhibit 8, and that on the afternoon before
Cummings was killed, she witnessed Roldan give the gun to Rodriguez.
(Tr. 352-54, 357-58, 385-86, 389-91, 393-94.)
Irma Roldan also testified that she and Roldan were at his mother's
house on the lower east side of Manhattan from 1:00 p.m. in the afternoon
of July 5, 1985, until approximately 1:00 a.m. on July 6, 1985, fifteen
minutes after Roscoe Cummings was shot. (Tr. 358-60, 364, 367, 369-70,
373-74, 395, 400.) Digna Arteaga, Roldan's mother, testified that at
"[a]bout one o'clock" in the morning, Roldan woke her up to tell her that
he was leaving her home. (Tr. 262, 264, 292-93, 295-96.) Willis Cruz
testified that he left Arteaga's house with Roldan at 1:00 a.m. (Tr.
306-07, 326, 334, 337-39.) Arteaga, Cruz and Irma Roldan testified that
Roldan was wearing a light blue shirt on July 5, 1985; Arteaga testified
that Roldan did not own a yellow shirt. (Tr. 290, 339, 393, 397.)
The Pretrial Wade Hearing
On May 19, 1986, a pretrial Wade hearing was conducted to determine
whether the pretrial identification procedures were impermissibly
suggestive. (See generally 5/19/86 Wade Tr.)*fn1
At approximately 8:00 a.m. on Saturday July 6, 1985, some four hours
after Roldan's arrest, Officer Thomas Wray contacted cab driver Sergo
Abelard and asked him to come to the station house to view a lineup.
(Wade Tr. 4-5, 7.) After he saw what Roldan and Rodriguez looked like,
Officer Wray went "on a canvass of the neighborhood, attempting to get
ten fillers for these . . . line-ups." (Wade Tr. 8, 15.) Officer Wray
testified that it was very difficult to find fillers on a Saturday
morning and that he spent "quite a bit of time in the street." (Wade Tr.
8, 24-26.) Officer Wray selected the fillers on the basis of "necessity."
(Wade Tr. 15.)
Roldan was in a separate lineup with four fillers. (Wade Tr. 8, 12,
15-16.) The men were seated during the lineup. (Wade Tr. 8, 16; see also
6/30/97 Affidavit of ADA Jennifer Correale, Ex. 13: Lineup Sheet.) Two of
the fillers were 34 and 35 years old, while Roldan was 22; two other
fillers were 22 and 25. (Wade Tr. 15-16; Correale Aff. Ex. 13.) Two of
the fillers were 5'4" and 5'2", while Roldan is 6 feet tall, but Officer
Wray considered them proper fillers under the circumstances since the
lineup was conducted in a seated position; also, the other two fillers
were 5'10" and 5'11". (Wade Tr. 16; Correale Aff. Ex. 13.) Roldan's skin
color was lighter than three of the four other fillers, and he had a
different hair style than two of the others. (Wade Tr. 59; Correale Aff.
Ex. 13.) Roldan weighed 200 pounds, while two of the fillers weighed 150
and 154 pounds, and two other fillers weighed 180 and 192 pounds.
(Correale Aff. Ex. 13.)
Abelard identified Roldan in the lineup. (Wade Tr. 10, 16.)
At the Wade hearing, the defense alleged that the lineup was "unduly
suggestive and that any in-court identification would therefore be
tainted by the alleged prejudicial identification." (See 7/11/86 Opinion
of Justice Fried on the Wade issues, at 1.) The trial court held that the
lineup was not suggestive:
Here, viewing the totality of the circumstances, it
is clear that the police did not act in an
impermissibly prejudicial manner. . . .
With regard to the actual composition of the
lineup, Roldan's physical appearance was not so
distinguishable from that of the others in the lineup
as to make the lineup unduly suggestive. . . .
Although the heights of the five men varied, this was
not discernible from the sitting position in which
they were viewed. The weights of two of the fillers
were close to that of Roldan. In addition to Roldan,
two of the fillers had short, dark hair, while all the
men had dark hair. Everybody in the lineup had a
moustache. Roldan was not the only [H]ispanic in the
lineup, nor was he the only one with a light
complexion. Nobody was required to don any particular
clothing, nor was anybody asked to speak during the
lineup identification. While the physical appearance
of the fillers could have been closer, they were not
so dissimilar as to be unduly suggestive.
(7/11/86 Wade Opinion of Justice Fried, at 6-8, emphasis added.)
On September 2, 1986, a pretrial Molineux hearing was held to determine
the admissibility of evidence concerning Roldan's robberies of cab
drivers Abelard and Syoum. The State sought to introduce evidence of the
robberies on two separate theories: to establish Roldan's identity, and
to show a common scheme or plan. (9/3/86 Molineux Tr. 9-10, 12-13.)*fn3
The trial court held that the prior robberies were not admissible under
Molineux unless the defense opened the door, but that Abelard and Syoum
could testify that they saw Roldan with the murder weapon:
[T]he Court finds there is no common scheme or plan
within the acception [sic] to the judicially created
rule, [which] does not permit evidence of uncharged
crimes to be admitted unless it fits within one of the
so-called exceptions enunciated in People v.
Molineux, 168 N.Y. 264, 61 N.E. 286 and progeny, such
as People v. [Fiore], 34 N.Y.2d [81, 356 N.Y.S.2d 38,
312 N.E.2d 174].
With respect to the identification or identity
exception enunciated in Molineux and progeny, the
Court feels evidence of the two alleged robberies in
Manhattan will not be admissible since there was
nothing unique about those other crimes, nor was there
any distinctive modus operandi or other fact to set
this defendant's crimes apart from the ordinary.
People v. Kennedy, 27 N.Y.2d 551, 313 N.Y.S.2d 123,
261 N.E.2d 264; People v. Allweiss, 48 N.Y.2d 40,
421 N.Y.S.2d 341, 396 N.E.2d 735; People v. Beam, 57
N.Y.2d 241, 455 N.Y.S.2d 575, 441 N.E.2d 1093 (1982).
Accordingly, the People will not be allow[ed] to
introduce on their direct case evidence concerning the
two Manhattan robberies, unless the defendant opens
The Court will allow the People to show, if the
witnesses can so testify, that the driver [who] was
allegedly robbed at approximately 1:45, saw the gun in
Mr. Roldan's possession. He could testify that is the
gun or looks like the gun that he saw Mr. Roldan
possessing at that time.
The Court will also allow the People to elicit
evidence from the second cab driver that Mr. Roldan
was in possession of the gun when caught. When the
Court refers to "the gun," I am talking about the gun
ultimately recovered from Mr. Roldan at approximately
3:34 A.M. on July 6, 1985 at the subway station on
Allen Street in which the People have told the Court
ballistic evidence will establish it to be the very
same gun which killed Mr. Cummings.
Again, no evidence will be admitted concerning the
fact of the robbery, but these two witnesses can
testify that they were cab drivers and said they saw
the gun in Mr. Roldan's possession.
(9/4/86 Molineux Tr. 50-52, emphasis added.)
Roldan's Conviction and Sentencing
On September 16, 1986, the jury convicted Roldan of second degree
murder. (9/16/96 Verdict Tr. 3-5; Pet. ¶¶ 1-4.) On October 7, 1986,
the trial court sentenced Roldan to twenty-five years to life
imprisonment. (10/7/86 Sentence Tr. 7; Pet. ¶¶ 1-4; see also Correale
Aff. ¶ 5.)
Roldan's Direct State Appeal
The First Department affirmed Roldan's conviction without opinion on
November 29, 1988. People v. Roldan, 144 A.D.2d 1043, 535 N.Y.S.2d 509
(1st Dep't 1988) (table). (See Pet. ¶ 9(a) — (d); see also
Correale Aff. ¶¶ 6-8 & Ex. 3.) The New York Court of Appeals denied
leave to appeal on February 2, 1989. People v. Roldan, 73 N.Y.2d 926,
539 N.Y.S.2d 310, 536 N.E.2d 639 (1989) (table). (See Pet. ¶ 9(e);
see also Correale Aff. ¶ 9 & Ex. 4.)
Roldan's State Collateral Attacks
On May 27, 1991, Roldan filed a pro se CPL § 440.10 motion alleging
ineffective assistance of trial counsel. (Pet. ¶ 11(a); Correale
Aff. ¶ 10 & Ex. 5.) On July 25, 1991, the trial court denied the
motion without opinion. (Pet. ¶ 11(a); Correale Aff. ¶ 12 &
Ex. 7.) On January 23, 1992, the First Department denied leave to
appeal. (Correale Aff. ¶ 13 & Ex. 8.)
On December 18, 1992, Roldan filed a second pro se CPL § 440.10
motion, based on allegedly newly discovered exculpatory evidence.
(Correale Aff. ¶ 14 & Ex. 9; Pet. ¶ 11(b).) The trial court
denied the motion on February 16, 1993. (Correale Aff. ¶ 16 & Ex.
11; Pet. ¶ 11(b).) On April 22, 1993, the First Department denied
leave to appeal. (Correale Aff. ¶ 17 & Ex. 12.)
Roldan's Federal Habeas Petition and Federal Court Proceedings
Roldan's federal habeas petition, dated March 18, 1997 and received by
the Court's Pro Se Office on March 27, 1997, alleged four grounds: (1)
his guilt was not proven beyond a reasonable doubt (Pet. ¶ 12(A));
(2) the line-up during which he was identified was impermissibly
suggestive (Pet. ¶ 12(B)); (3) the court improperly admitted
uncharged crimes evidence (Pet. ¶ 12(C)); and (4) the state court's
denial of his newly discovered exculpatory evidence motion violated due
process (Pet. ¶ 12(D)).
The State argued that Roldan's petition was untimely under the
Antiterrorism and Effective Death Penalty Act's ("AEDPA") one-year
statute of limitations (State Br. at 5-8) and that the petition was
"mixed" because Roldan's fourth habeas ground had not been raised in
state court (State Br. at 9-11). In response to the government's
arguments, Roldan dropped his fourth habeas ground. (Stip. & Order dated
7/22/97.) See Roldan v. Artuz, 976 F. Supp. 251, 252 (S.D.N.Y. 1997)
(Batts, D.J. & Peck, M.J.).
On September 4, 1997, this Court dismissed Roldan's petition as
untimely under the AEDPA statute of limitations, as then-interpreted by
the Second Circuit in Peterson v. Demskie, 107 F.3d 92, 93 (2d Cir.
1997). See Roldan v. Artuz, 976 F. Supp. at 253-54. On December 17,
1998, Second Circuit remanded in light of its decision in Ross v. Artuz,
150 F.3d 97, 103 (2d Cir. 1998), that a state prisoner whose conviction
became final before the AEDPA's April 24, 1996 effective date had until
April 24, 1997 to file a habeas petition. See Roldan v. Artuz, No.
97-2936, slip op. (2d Cir. Dec. 17, 1998).
Because Roldan's petition is timely under Ross, the Court now addresses
the merits of his petition.
I. THE CIRCUMSTANTIAL EVIDENCE PRESENTED AT TRIAL WAS SUFFICIENT FOR
THE JURY TO FIND ROLDAN GUILTY BEYOND A REASONABLE DOUBT
"[T]he Due Process Clause of the Fourteenth Amendment protects a
defendant in a criminal case against conviction `except upon proof beyond
a reasonable doubt of every fact necessary to constitute the crime with
which he is charged.'" Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct.
2781, 2787, 61 L.Ed.2d 560 (1979) (quoting In re Winship, 397 U.S. 358,
364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970)). However, "a properly
instructed jury may occasionally convict even when it can be said that no
rational trier of fact could find guilt beyond a reasonable doubt. . . ."
Jackson v. Virginia, 443 U.S. at 317, 99 S.Ct. at 2788. Accordingly, "in
a challenge to a state criminal conviction brought under
28 U.S.C. § 2254 — if the settled procedural prerequisites for
such a claim have otherwise been satisfied — the applicant is
entitled to habeas corpus relief if it is found that upon the record
evidence adduced at the trial no rational trier of fact could have found
proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S.
at 324, 99 S.Ct. at 2791-92; accord, e.g., Franza v. Stinson, 98 Civ.
5484, 1999 WL 495902 at *11 (S.D.N.Y. July 1, 1999) (Kaplan, D.J. &
Peck, M.J.); Carromero v. Strack, 98 Civ. 3519, 1998 WL 849321 at *4
(S.D.N.Y. Nov. 19, 1998) (Preska, D.J. & Peck, M.J.); Fernandez v.
Dufrain, 11 F. Supp.2d 407, 416 (S.D.N.Y. 1998) (Kaplan, D.J. & Peck,
M.J.); Williams v. Bennet, 97 Civ. 1628, 1998 WL 236222 at *4 (S.D.N Y
April 20, 1998) (Baer, D.J. & Peck, M.J.); Robinson v. Warden of James A.
Thomas Ctr., 984 F. Supp. 801, 805 (S.D.N.Y. 1997) (Sprizzo, D.J. &
Peck, M.J.); Ehinger v. Miller, 942 F. Supp. 925, 935 (S.D.N.Y. 1996)
(Mukasey, D.J. & Peck, M.J.); Vera v. Hanslmaier, 928 F. Supp. 278, 284
(S.D.N.Y. 1996) (Jones, D.J. & Peck, M.J.).
Petitioner Roldan bears a "very heavy burden":
[T]he standard for appellate review of an
insufficiency claim placed a "very heavy burden" on
the appellant. Our inquiry is whether the jury,
drawing reasonable inferences from the evidence, may
fairly and logically have concluded that the defendant
was guilty beyond a reasonable doubt. In making this
determination, we must view the evidence in the light
most favorable to the government, and construe all
permissible inferences in its favor.
United States v. Carson, 702 F.2d 351, 361 (2d Cir. 1983) (citations
omitted), cert. denied, 462 U.S. 1108, 103 S.Ct. 2456, 77 L.Ed.2d 1335
(1983); accord, e.g., United States v. Russo, 74 F.3d 1383, 1395 (2d
Cir.) (quoting United States v. Martinez, 54 F.3d 1040, 1042-43 (2d
Cir.), cert. denied, 516 U.S. 1001, 116 S.Ct. 545, 133 L.Ed.2d 448
(1995)), cert. denied, 519 U.S. 927, 117 S.Ct. 293, 136 L.Ed.2d 213
(1996); United States v. Rosa, 11 F.3d 315, 337 (2d Cir. 1993)
("[D]efendant who makes a sufficiency challenge bears a heavy burden."),
cert. denied, 511 U.S. 1042, 114 S.Ct. 1565, 128 L.Ed.2d 211 (1994);
United States v. Strauss, 999 F.2d 692, 696 (2d Cir. 1993) (burden on
defendant claiming insufficiency is "`very heavy'" and all inferences
must be drawn in the government's favor); Franza v. Stinson, 1999 WL
495902 at *11; Carromero v. Strack, 1998 WL 849321 at *4; Fernandez v.
Dufrain, 11 F. Supp.2d at 416; Williams v. Bennet, 1998 WL 236222 at *5;
Robinson v. Warden, 984 F. Supp. at 806; Ehinger v. Miller, 942 F. Supp.
at 935; Vera v. Hanslmaier, 928 F. Supp. at 284.
The Court's review of the jury's findings is limited:
[T]his inquiry does not require a court to `ask
itself whether it believes that the evidence at the
trial established guilt beyond a reasonable doubt.'
Instead, the relevant question is whether, after
viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a
reasonable doubt. This familiar standard gives full
play to the responsibility of the trier of fact fairly
to resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic
facts to ultimate facts.
Jackson v. Virginia, 443 U.S. at 318-19, 99 S.Ct. at 2789 (quotations and
citations omitted); accord, e.g., United States v. Russo, 74 F.3d at 1395
(quoting United States v. Martinez, 54 F.3d at 1042-43); Franza v.
Stinson, 1999 WL 495902 at *11; Mallette v. Scully, 752 F.2d 26, 31 (2d
Cir. 1984); Carromero v. Strack, 1998 WL 849321 at *5; Williams v.
Bennet, 1998 WL 236222 at *4; Robinson v. Warden, 984 F. Supp. at 806;
Ehinger v. Miller, 942 F. Supp. at 935; Vera v. Hanslmaier, 928 F. Supp.
at 284. "Moreover, the jury's verdict may be based entirely on
circumstantial evidence." United States v. Russo, 74 F.3d at 1395 (citing
United States v. Martinez, 54 F.3d at 1042-43).
Roldan argues that the People's case was "wholly circumstantial."
(Pet. ¶ 12(A).) Roldan emphasizes that evidence showed that he gave
Rodriguez the gun on the day Cummings was shot (Tr. 352-54, 357-58,
385-86, 389-91, 393-94), to avoid bringing the weapon into his mother's
apartment. (Pet. ¶ 12(A).) Roldan's petition claims that when he met
up with Rodriguez later in the evening and took the gun back, he was
unaware that Rodriguez had used it in the Cummings shooting. (Pet.
The problem with Roldan's argument is that it relies only on the
defense case, viewed in the light most favorable to Roldan, and ignores
the prosecution's evidence. Abelard and Syoum both stated that they saw
Roldan with the gun within three hours of Cummings's murder. (Tr.
149-52, 162, 226-32.) Officers Candelaria and Torres recovered the gun
from Roldan's possession on the same morning. (Tr. 114-15, 119-20.) When
he was arrested, Roldan was with David Rodriguez. (Tr. 116-17.) In
addition, the robbery and shooting was committed in accordance with
Rodriguez's plan, ...