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January 6, 2000


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 merits.

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)



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. ¶ 12(C)).

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. 104-07.)

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. 116-17.)

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.
Accordingly, the motion to suppress the subway platform identification of both defendants and the pre-arraignment lineup identification of defendant Roldan are denied.*fn2 Also denied is the motion to suppress any in-court identifications.

(7/11/86 Wade Opinion of Justice Fried, at 6-8, emphasis added.)

The Molineux Hearing

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 door.
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.
The police officers can testify they recovered the gun from the pocket of a jacket which he saw Mr. Roldan describe on the subway station at Houston and Allen, approximately 3:45 in the afternoon — and I will give the [jury] appropriate curative instructions as to how they may consider that evidence that is solely on the issue of identity.

(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.



"[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. ¶ 12(A)).*fn4

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, ...

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