The opinion of the court was delivered by: Kevin Nathaniel Fox, United States Magristrate Judge
REPORT AND RECOMMENDATION
Pedro Bridgewater ("Bridgewater") has petitioned the court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He contends that his confinement by New York State is unlawful because: (1) he was denied a fair trial by the trial court's decision to consolidate four rape charges that had been lodged against him, and by its subsequent refusal to sever the charges; (2) he was denied due process and a fair trial by the court's comment during its instruction to the jury that petitioner was an interested witness and "you may find that an interested witness has tailored their testimony in favor of their interest;" (3) he was denied due process and a fair trial by the prosecutor's inaccurate statement of the evidence and denigrating comments about defense counsel during summation; (4) he was denied due process at sentencing because the sentence was imposed based on "materially untrue assumptions;" and (5) he was deprived of his right to the effective assistance of trial counsel. Respondent opposes Bridgewater's petition for a writ of habeas corpus.
Petitioner was charged with four incidents of rape, occurring over a four-month period, from January to April 1993. The first incident occurred on January 2, 1993. Early in the morning, petitioner, who was driving a white, four-door cab, picked up two passengers, R. R.*fn1 and LaToya Cooper ("Cooper"). R. R. claimed that when they reached her home at 195th Street and Sedgwick Avenue in the Bronx, she stayed in the cab while Cooper went to get money for the fare. R. R. claimed that as soon as Cooper left the cab, petitioner drove off, sped to a highway, and then took her to a deserted area near the Henry Hudson Parkway where he sexually assaulted her. According to R. R., petitioner took her home after she promised to spend the night with him; when they arrived at her building, she went to the apartment of a friend and reported that she had been raped. The friend called the police. According to R. R., when police officers arrived, she identified petitioner as the rapist.
Petitioner claimed that R. R. left the cab shortly after Cooper, and that he waited, alone, for the two passengers to return. According to petitioner, while he was waiting, police officers arrived and arrested him.
R. R. testified at trial that she went to a hospital on the day of the alleged attack, and that she was examined by a doctor. At trial, the parties stipulated that a DNA analysis of the physical evidence taken from R. R. matched the genetic profile of her boyfriend and did not match the genetic profile of petitioner. Petitioner was acquitted of the charge of first-degree rape which was submitted to the jury with respect to R. R.
The second incident occurred on March 20, 1993. E. J. and her fiancee, Robert Blount ("Blount"), left their friend's home at 141st Street and Willis Avenue in the Bronx and hailed a white, four-door cab with tinted windows and a crack on the passenger side of its windshield. The driver of the cab was petitioner. E. J. and Blount told petitioner to take them to Harlem; petitioner then demanded that they pay the six-dollar cab fare in advance. When it became apparent to petitioner that Blount would not give him the cab fare in advance, petitioner stopped the cab and told them to get out. Blount left the cab. However, before E. J. was able to get out of the car, petitioner drove off. E. J. gave petitioner the six-dollar fare and tried to leave the car, but petitioner showed her a gun or some other weapon through the cab's partition and told her to shut the door. Petitioner then drove to a deserted railroad yard below the Major Deegan Expressway and stopped the car. E. J. tried to open the rear door of the cab but it was locked. Petitioner, who possessed a knife, then moved to the back seat of the cab where he sexually assaulted E. J. Petitioner later asked E. J. to come home with him. When she refused, he forced her to remove her gold name chain and bracelet; both were engraved with the name "Butter" and had been given to her by Blount. Petitioner took the jewelry and another six dollars, then drove away, leaving E. J. in the deserted railroad yard. She walked up the ramp to the highway where a cab driver saw her, stopped, and took her to her mother's house. E. J. told her family that she had been raped. Her mother called 911, and an ambulance came and took B. J. to Harlem Hospital.
The third incident took place on March 28, 1993. At two o'clock in the morning, K. O. entered a white, four-door cab with tinted windows and a cracked windshield. The driver of the cab was petitioner. K. O. believed that the cab was taking her to her home at 182nd Street and Walton Avenue in the Bronx. However, after a drive of about fifteen minutes, petitioner pulled off the highway into a deserted grassy area, moved to the back seat of the cab, threatened K. O. with a screwdriver, and sexually assaulted her. K. O. testified that, after the assault, petitioner offered to give her the chain that he wore on his neck, but she refused to take it. According to K. O., the chain was made of gold and was engraved with a name that began with the letter "B." K. O. testified that petitioner took her to the front of the car and assaulted her again. After relieving K. O. of five dollars and her two school identification cards, petitioner drove her to an area near Yankee Stadium, told her to get out of the cab, and then drove away. K. O. walked to her boyfriend's house and told him that she had been raped. He escorted her to the 48th police precinct and waited while she spoke to the police. Then he accompanied her in an ambulance to Jacobi Hospital where she was examined by a doctor.
The fourth incident took place on April 17, 1993. M. R. and her cousin, Maria Garcia ("Garcia") had gone to a party on Clay Avenue in the Bronx with their friends Wanda, Marcus and Kathy. The group left the party at six o'clock in the morning and hailed petitioner's cab. Petitioner drove first to Wanda's house, then to Marcus' house. He then drove in the direction of Prospect Avenue, where M. R., Garcia and Kathy lived. On the way, he offered to take the women to his apartment for drinks, but the women declined his offer. At Prospect Avenue and 156th Street, Kathy and Garcia left the cab. M. R. also began to get out of the cab and had placed one foot on the ground when petitioner drove off. Petitioner told M. R. that he would kill her if she did not close the car door. She did as he told her because she thought he was armed with a gun. Petitioner sped through several red lights; eventually he drove under a highway and stopped in a deserted industrial area. As soon as the cab stopped, M. R. tried to open the door and escape but petitioner got in the back seat, restrained her, and sexually assaulted her.
Police Officer Scott Cunningham was on routine patrol at 6:15 in the morning on April 17, 1993, when he noticed petitioner's white, four-door cab parked at 140th Street and Walnut Avenue. He did not approach the car, since it was legally parked; however, he made a mental note of its presence in the area. He then continued on his patrol. A short time later, he saw Garcia and Kathy; they flagged him down and reported what had happened to M. R. Officer Cunningham immediately returned to the location where had seen the parked car. He arrived at that location three and one half minutes after he had first seen the car.
As soon as he stopped his police van on Walnut Avenue, Officer Cunningham heard a woman screaming. He ran to the car, opened the door and found petitioner sexually assaulting M. R. He pulled petitioner away from M. R. and asked her if she was being raped. She responded in the affirmative. Petitioner said that M R. was his girlfriend, but she denied it. After petitioner was handcuffed and taken to the precinct by another officer, Officer Cunningham took M. R. to the location where he had seen Garcia and Kathy. He then took the women to Lincoln Hospital where M. R. was examined by a doctor. Thereafter, Officer Cunningham returned to the police precinct to process the arrest. When asked, petitioner stated that his name was Anthony Nunez. Later, Officer Cunningham searched the white cab but found no gun or other weapon.
On April 30, 1993, a grand jury charged petitioner with, inter alia, rape in the first degree and rape in the third degree. Thereafter, on May 6, 1993, petitioner was charged in an additional indictment with, inter alia, six counts of rape in the first degree, three counts of sodomy in the first degree, two counts of robbery in the first degree and two counts of robbery in the second degree.
On July 15, 1993, the prosecution moved, pursuant to New York's Criminal Procedure Law ("CPL") § 200.20, to consolidate the charges in the indictments for a single trial since all of the crimes had occurred within a four-month time period, were defined by similar statutory provisions, and involved common elements, such that proof of one offense would be material and admissible as evidence in the trial of a second offense.*fn2 Petitioner opposed the motion to consolidate on the ground that the allegations were not properly joinable under CPL § 200.20 because proof of one offense would not be material and admissible as evidence upon a trial of a second offense, and because the offenses were not defined by similar statutory provisions. Petitioner argued further that he would be "extremely prejudiced" in a joint trial because "the jury would be inevitably led to the conclusion that [he] has a propensity to commit sexual offenses."
On December 13, 1993, the trial court ordered consolidation; as discussed, infra, the trial court judge did not issue a written decision in the matter. On September 7, 1994, petitioner moved for severance of the charges. Petitioner argued that severance was appropriate because he had a strong need to testify in one case, that is, the case in which he allegedly had been discovered in the act of rape and so needed to explain what really happened, but a strong need to refrain from testifying in the other cases. The motion to sever was denied on September 24, 1994.
On November 23, 1994, following a trial by jury in New York State Supreme Court, Bronx County, petitioner was convicted of four counts of rape in the first degree, see N.Y. Penal Law 130.35(1), three counts of sodomy in the first degree, see N.Y. Penal Law 130.50(1), and two counts of robbery in the first degree, see N.Y. Penal Law 160.15(3).*fn3 Petitioner was sentenced to nine consecutive indeterminate terms of imprisonment of from eight and one-third to twenty-five years.
Petitioner appealed from the judgment of conviction to the New York State Supreme Court, Appellate Division, First Department. Petitioner urged that court to upset his conviction because: (1) he was denied a fair trial by the trial court's decision to consolidate the four rape charges brought against him, and by its subsequent refusal to sever those charges; (2) he was denied a fair trial by the trial court's instruction to the jury that petitioner was an interested witness and "you may find that an interested witness has tailored their testimony in favor of their interest;" (3) on summation, the prosecution misstated the evidence and denigrated defense counsel, thereby depriving petitioner of his right to a fair trial; and (4) his sentence was excessive in light of his lack of a prior criminal history, his employment record and his family circumstances.
The Appellate Division affirmed petitioner's conviction unammously. See People v. Bridgewater, 242 A.D.2d 491, 662 N.Y.S.2d 120 (App. Div. 1st Dep't 1997). After the Appellate Division rendered its decision, petitioner applied for leave to appeal to the New York Court of Appeals. His application was denied. See People v. Bridgewater, 91 N.Y.2d 924, 670 N.Y.S.2d 405 (1998).
Petitioner returned to the trial court with a CPL § 440.10 motion seeking to vacate the judgment of conviction because, he alleged, he had received ineffective assistance from trial counsel. On April 8, 1999, that motion was denied. Petitioner applied for leave to appeal from that determination to the ...