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RODRIGUEZ v. HERBERT

United States District Court, E.D. New York


May 20, 2004.

RAMON RODRIGUEZ, Petitioner,
v.
VICTOR T. HERBERT, Superintendent, Attica Correctional Facility, Respondent.

The opinion of the court was delivered by: JOHN GLEESON, District Judge

MEMORANDUM AND ORDER

Petitioner Ramon Rodriguez, an inmate at the Attica Correctional Facility, seeks habeas relief from a judgment of conviction entered after a jury trial in state court. I held oral argument on May 14, 2004. For the reasons set forth below, the petition is denied. BACKGROUND

  On July 29, 1994, Rodriguez fatally stabbed his pregnant wife and their three-year-old daughter. He was arrested and charged with four counts of murder in the second degree and one count of criminal possession of a weapon in the fourth degree. On June 12, 1996, prior to jury selection in New York Supreme Court, Queens County, Rodriguez signed, in open court, a waiver of his right to be present during conferences at sidebar. The next day, June 13, 1996, the court declared a mistrial because Rodriguez's mother had spoken to some of the already-sworn jurors in her son's trial. At the close of the evidence in the subsequent trial, the jury found Rodriguez guilty of two counts of second-degree murder.*fn1 He was sentenced on July 25, 1996 to consecutive indeterminate prison terms of twenty-five years to life on each count.

  Rodriguez appealed his conviction to the Appellate Division, Second Department, claiming that (1) he was deprived of his right to be present at a sidebar conference, (2) he was denied due process when the trial court precluded him from adducing evidence to impeach a government witness, and (3) the prosecutor made improper remarks on summation. The Appellate Division unanimously affirmed:

The defendant contends that since he never waived his Antommarchi*fn2 rights at his retrial, he was denied his right to be present at the sidebar with a prospective juror concerning her ability to be fair. A defendant must provide an adequate record for determining whether he or she was wrongfully excluded from a material stage of the trial. Here, since the record fails to disclose whether or not the defendant was present during the subject sidebar conference, meaningful appellate review of this issue is precluded.
The defendant's remaining issues are unpreserved for appellate review and, in any event, are without merit.
People v. Rodriguez, 673 N.Y.S.2d 940, 940 (2d Dep't 1998) (citations omitted). Rodriguez was denied leave to appeal on September 23, 1998. People v. Rodriguez, 92 N.Y.2d 930 (1998) (Wesley, J.)

  Almost a year later, Rodriguez filed state collateral attacks of his conviction and sentence, pursuant to New York Criminal Procedure Law §§ 440.10 and 440.20, respectively. In addition to the three claims he had raised on direct review, Rodriguez claimed that the trial judge's imposition of consecutive sentences was improper. The court held that the claims regarding the prosecutor's summation and the exclusion of defense witness testimony were procedurally barred, as they were on-the-record claims which had been rejected on the merits by the Appellate Division on direct review. People v. Rodriguez, Ind. No. 3521/94, slip op. at 4-5 (N.Y.Sup.Ct. Mar. 24, 2000). Rodriguez's Antommarchi claim was also procedurally barred because Rodriguez had unjustifiably failed to raise the issue for the record when the alleged error had occurred. Id. at 5-6. The court went on to hold that "[i]n any event, since the defendant never attempted to repudiate his waiver, it clearly remained in effect for his immediate new trial." Id. at 6. Finally, the court held that the imposition of consecutive sentences was lawful.*fn3 Id. at 6-7. The Appellate Division denied leave to appeal on August 16, 2001. Shortly thereafter, Rodriguez petitioned for a writ of error coram nobis on the ground that his appellate counsel provided ineffective assistance because she failed to argue that Rodriguez's trial counsel was ineffective for failing to preserve for review the issues raised on direct review. The Appellate Division denied Rodriguez's motion: "The appellant has failed to establish that he was denied the effective assistance of appellate counsel." People v. Rodriguez, 733 N.Y.S.2d 906, 906 (2d Dep't 2001) (citing Jones v. Barnes, 463 U.S. 745 (1983)).

  Rodriguez now raises the same three claims he raised on direct review, as well as the ineffective assistance of appellate counsel claim.

  DISCUSSION

  A. The Standard of Review

  The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") has narrowed the scope of federal habeas review of state convictions where the state court has adjudicated a petitioner's federal claim on the merits. See 28 U.S.C. § 2254(d). Under the AEDPA standard, which applies to habeas petitions filed after AEDPA's enactment in 1996, the reviewing court may grant habeas relief only if the state court's decision "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). The Supreme Court has interpreted the phrase "clearly established Federal law" to mean "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 (2000); see also Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001).

  A decision is "contrary to" clearly established federal law, as determined by the Supreme Court, if "the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams, 529 U.S. at 413. A decision is an "unreasonable application" of clearly established Supreme Court law if a state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case." Id. "In other words, a federal court may grant relief when a state court has misapplied a `governing legal principle' to `a set of facts different from those of the case in which the principle was announced.'" Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 2535 (2003) (quoting Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 1175 (2003)).

  Under the latter standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Gilchrist, 260 F.3d at 93 (citing Williams, 529 U.S. at 411); see also Yarborough v. Gentry, 124 S.Ct. 1, 4 (2003) (per curiam) ("Where . . . the state court's application of governing federal law is challenged, it must be shown to be not only erroneous, but objectively unreasonable."); Wiggins, 539 U.S. 510, 123 S.Ct. at 2535 (same). Interpreting Williams, the Second Circuit has added that although "[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Gilchrist, 260 F.3d at 93 (citing Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).

  This standard of review applies whenever the state court has adjudicated the federal claim on the merits, regardless of whether it has alluded to federal law in its decision. As the Second Circuit stated in Sellan v. Kuhlman:

For the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.
261 F.3d 303, 312 (2d Cir. 2001).

  In addition, a state court's determination of a factual issue is presumed to be correct, and is unreasonable only where the petitioner meets the burden of "rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).

 

However, "even in the context of federal habeas, deference does not imply abandonment or abdication of judicial review. . . . A federal court can disagree with a state court's credibility determination and, when guided by AEDPA, conclude the decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence."
Shabazz v. Artuz, 336 F.3d 154, 161 (2d Cir. 2003) (ellipsis in original) (quoting Miller-El v. Cockrell, 537 U.S. 322, 123 So. Ct. 1029, 1041 (2003)).

  B. Rodriguez's Claims

  1. Procedural Default

  In denying the three claims Rodriguez raised on direct review, the Appellate Division held that two — the claims based on the government's summation and evidence excluded by the trial court — were unpreserved for appellate review. See Rodriguez, 673 N.Y.S.2d at 940 (citing N.Y. Crim. Proc. L. § 470.05(2)). As to Rodriguez's claim that he was denied his state right to be present at sidebar, the Appellate Division held that he had failed to provide an adequate record to determine whether he was wrongfully excluded, thereby precluding appellate review.

  Federal habeas review of a state prisoner's claim is prohibited if a state court judgment denying the claim is based on an "adequate and independent state ground." Harris v. Reed, 489 U.S. 255, 261 (1992); Levine v. Comm'r of Corr. Servs., 44 F.3d 121, 126 (2d. Cir. 1995). A procedural default in state court is an adequate and independent ground barring federal habeas review. Coleman v. Thompson, 501 U.S. 722, 744, 750 (1991) (noting the state's interest in "channeling the resolution of claims to the most appropriate forum, in finality, and in having the opportunity to correct [its] own errors"); see also Lee v. Kemna, 534 U.S. 362, 376, 381 (2002) (noting the existence of a "small category" of "exceptional cases in which exorbitant application of a generally sound rule renders the state ground inadequate to stop consideration of a federal question").

  A defaulted claim will be considered by the court upon a showing of cause and prejudice. See Coleman, 501 U.S. at 750; Teague v. Lane, 489 U.S. 288, 298 (1989). A petitioner may establish cause by showing "`that the factual or legal basis for a claim was not reasonably available to counsel, . . . or that some interference by officials . . . made compliance impracticable.'" Coleman, 501 U.S. at 753 (ellipses in original) (quotation marks omitted) (quoting Murray v. Carrier, 477 U.S. 478, 492 (1986)). To satisfy the prejudice requirement, the alleged error must have worked to the petitioner's "actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Torres v. Senkowski, 316 F.3d 147, 152 (2d Cir. 2003) (quotation marks omitted). If the petitioner cannot show cause, the failure to raise the claim in an earlier petition may nonetheless be excused if he or she can show that a fundamental miscarriage of justice would result from a failure to entertain the claim, i.e., "that he is actually innocent of the crime for which he has been convicted." Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002) (citing Schlup v. Delo, 513 U.S. 298, 321 (1995)).

  Here, Rodriguez's petition and supporting memorandum of law (prepared by his attorney) fail to address procedural default, or mention it even in passing.*fn4 In what could be construed as an allegation of cause for his procedural default, Rodriguez claims, separately, that his appellate counsel was ineffective because she failed to raise the claim that Rodriguez's trial counsel was ineffective for failing to preserve for review the issues raised on direct review, although he does not claim (nor did he claim in state court) that his trial counsel was ineffective. For the failure of his trial counsel to serve as cause, Rodriguez needed to raise an ineffective assistance of trial counsel claim in state court. See Edwards v. Carpenter, 529 U.S. 446 (2000). Rodriguez's ineffective assistance of appellate counsel claim, though based on appellate counsel's failure to identify trial counsel's errors, is an analytically distinct claim, and the New York courts were not given an opportunity to review, in the first instance, whether trial counsel was ineffective.

  Thus, for Rodriguez to rely on ineffective assistance of trial counsel as cause for his procedural default, he must satisfy the cause and prejudice standard with respect to the ineffective assistance of trial counsel claim itself. See id. at 450-51. This Rodriguez fails to do. Though Rodriguez argues here that his appellate counsel was ineffective, he could have challenged trial counsel's effectiveness directly. Indeed, Rodriguez, acting pro se, filed a § 440.10 motion, in which he failed to raise ineffective assistance of trial counsel. Furthermore, for the reasons stated below, see infra note 9, appellate counsel's performance does not establish cause for Rodriguez's failure to raise ineffective assistance of trial counsel.

  Furthermore, Rodriguez makes no attempt to satisfy Coleman's prejudice prong, or to show how or why a fundamental miscarriage of justice would result if I do not entertain the defaulted claims.

  Accordingly, Rodriguez's claims are procedurally defaulted, and he has failed to establish an exception to the general rule that they may not be reviewed here. In any event, even if I could review his claims, they would fail, as discussed below.

  2. Right to Be Present at Sidebar

  Rodriguez claims that, during selection of the jury, he was excluded from a sidebar conference at which the qualifications of a prospective juror were discussed. The record reflects the following pertinent events:

THE COURT: And have you ever been the victim of a crime?
PROSPECTIVE JUROR: Yes.
THE COURT: And what was that?
PROSPECTIVE JUROR: I really don't want to say it out loud. Can I tell you?
THE COURT: You want to come over here?
(Whereupon, there was a side-bar discussion held off the record.)
(Side-bar concluded.)
[The court resumes voir dire of another prospective juror.]
(Tr. at 181.)

  "It is a well-settled principle of constitutional law that a criminal defendant has the right `to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings.'" Cohen v. Senkowski, 290 F.3d 485, 489 (2d Cir. 2002) (quoting Faretta v. California, 422 U.S. 806, 819 n. 15 (1975)). Impaneling the jury is one such stage. Id.

 

As the Supreme Court has recognized, however, the right to be present is not absolute: it is triggered only when the defendant's "presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge." Thus, there is no constitutional right to be present "when presence would be useless, or the benefit but a shadow."
Id. (quoting Snyder v. Massachusetts, 291 U.S. 97, 105-07 (1934)).

  Rodriguez fails to cite any federal law, never mind clearly established United States Supreme Court precedent, holding that a defendant has a right to be present at sidebar conferences during voir dire. In Sanchez v. Duncan, the Second Circuit declined to reach that issue, 282 F.3d 78, 83 n. 4 (2d Cir. 2002), holding that even if Sanchez had such a right, any error in excluding him was harmless*fn5 where

 

(1) Sanchez was present in the courtroom for the entire jury selection process; (2) there were nine bench conferences during the entire voir dire; (3) Sanchez does not adequately refute appellee's assertions that defense counsel participated in the nine bench conferences and that Sanchez had ample opportunity to consult with his attorney about the conferences; and (4) of the nine prospective jurors who attended bench conferences, none actually served on the jury.
Id. at 82 (footnote omitted).

  In Cohen, the state trial court prescreened the venire in chambers, in the absence of the petitioner. The Second Circuit held that defendants have a federal constitutional right to be present at this prescreening. 290 F.3d at 489-90. However, the court held that Cohen did not have a right to be present during the in-chambers exercise of four rounds of juror challenges. Id. at 490. Cohen was represented by counsel throughout these challenges, was given an opportunity to register his opinion with counsel after juror questioning, and was present when the exercise of the strikes was given formal effect. Id. Under those circumstances, Cohen's constitutional right to be present had been satisfied. Id.; see also id. at 489-90 (distinguishing "substantive inquiry into juror qualification" from "an administrative empanelment process in which prospective jurors are permissibly questioned without the presence of the defendant on matters such as personal hardship in serving" (quotation marks and citation omitted)).

  I need not decide whether Rodriguez has a federal constitutional right to be present at sidebar conferences during voir dire, and, if so, whether such a right was clearly established by the Supreme Court at the time Rodriguez's conviction became final, though I very much doubt it, see, e.g., Espejo v. Artuz, No. 98-CV-7130, 2000 U.S. Dist. LEXIS 18268, at *22 (E.D.N.Y. Dec. 18, 2000) ("The federal Constitution has never been interpreted to guarantee a right to be present at sidebar during voir dire."). Any error in precluding Rodriguez from the sidebar conference was harmless in light of Sanchez, which is directly on point. Though Rodriguez may not have been invited to sidebar on the occasion at issue, he was unquestionably present during voir dire. Rodriguez does not claim that his attorney was prevented from participating in the sidebar conference. Finally, the juror questioned during the sidebar conference was excused. (See Br. for Def.-Appellant at 5-6, 39, Rodriguez, 673 N.Y.S.2d 940.) For these reasons, any error at trial was harmless.*fn6

  Finally, and in the alternative, Rodriguez waived any right he had to be present at sidebar. "Although trial courts must vigorously safeguard a criminal defendant's right to be present, a defendant may expressly or effectively waive the right." Cohen, 290 F.3d at 491 (quotation marks omitted). Any such waiver must be both knowing and voluntary. See, e.g., id. Though Rodriguez expressly waived his right to be present at sidebar at his first trial, which ended in a mistrial, he did not expressly waive that right at his second trial. "The issue remains, however, whether he knowingly and voluntarily made an implied waiver of the right through his conduct." Id. Tellingly, Rodriguez did not object when the sidebar conference occurred outside his presence. See United States v. Rosario, 111 F.3d 293, 299 (2d Cir. 1997) (holding that the defendant had waived his right to be present when the judge asked him to leave the robing room while she questioned a juror and neither he nor his counsel made any objection).

  Therefore, as it is reasonable to conclude that Rodriguez understood what was going on and that he had a right under New York law to be present at sidebar, the "`likely explanation for his absence is that he and his lawyer[] did not think it was important for him to be present'" at the sidebar conference. Cohen, 290 F.3d at 491-92 (quoting Tankleff v. Senkowski, 135 F.3d 235, 247 (2d Cir. 1998)); cf. id. at 492 ("[W]hen a defendant is fully apprised of the nature of the pre-screening procedure, makes no objection to the procedure, and has counsel present for the duration of the pre-screening, a knowing waiver of the right to be present occurs."). I therefore find that, even assuming Rodriguez had a federal constitutional right to be present at the sidebar conference in question, he impliedly waived such right. For all of the above reasons, this claim does not justify issuance of the writ.*fn7

  3. Erroneously Excluded Evidence

  Rodriguez contends that he was deprived of his due process right to present a defense by an erroneous ruling excluding exculpatory evidence. Specifically, Rodriguez argues that in order to rebut eyewitness testimony from Saira Nargis — who testified to watching, through the peephole in her apartment door, an altercation between Rodriguez and his wife just before the killing — Rodriguez should have been permitted to introduce testimony from the apartment building's superintendent, Elias Jose Betances ("E. Betances"), and his daughter, Mary Betances ("M. Betances"), to prove that it was impossible to make such an observation through the peephole. The trial judge sustained the prosecutor's objections to this line of inquiry, ruling that the defense had failed to lay sufficient foundation for that testimony.

  Erroneous evidentiary rulings by a state trial court generally do not rise to the level of constitutional violations upon which a federal court may issue a writ of habeas corpus. See Jenkins v. Bara, 663 F. Supp. 891, 899 (E.D.N.Y. 1987) (citing Lipinski v. New York, 557 F.2d 289, 292 (2d Cir. 1977)). Erroneously excluded evidence warrants habeas relief only if the omission deprived the petitioner of a fundamentally fair trial. Estelle v. McGuire, 502 U.S. 62, 72 (1991); Taylor v. Curry, 708 F.2d 886, 891 (2d Cir. 1983). The test for determining whether erroneous evidentiary rulings denied the defendant a fair trial centers on whether the excluded evidence would have created "a reasonable doubt that did not otherwise exist." United States v. Agurs, 427 U.S. 97, 112 (1976).

  At trial, M. Betances testified as follows:

Q And are you familiar with apartment 6-C?
A Familiar? Meaning?
Q Have you been inside the apartment before?
A Yes, I have.
Q Do you know whether or not —
[PROSECUTOR]: Objection.
THE COURT: Sustained. No foundation.
Q Have you ever looked through the peep hole of apartment 6-G [sic: 6-C]?
[PROSECUTOR]: Objection as to "ever," Judge.
THE COURT: Yes.
Q You have been living there 15 years; correct?
A Yes.
. . . .
Q Has the front door of apartment 6-C been the same door for the last 15 years?
A Yes.
THE COURT: How old are you, ma'am?
THE WITNESS: I am 20.
THE COURT: Do you remember that door when you were five years old?
THE WITNESS: Probably not. Probably not, no.
THE COURT: Probably not.
Q In the last five years, you do remember?
A Yes. Q Has the door to apartment 6-C ever been changed?
A Not that I recall, no.
Q And has the peep hole been in the same position in the door to apartment 6-C for the last five years?
[PROSECUTOR]: Objection.
THE COURT: Sustained
That question, I will allow it. Has it been the same, the peep hole?
[DEFENSE COUNSEL]: The peep hole.
THE COURT: All right. I will allow that question.
Has it been the same, the peep hole?
. . . .
THE WITNESS: Yes.
Q And during the last five years have you had occasion to look through the peep hole of apartment 6-C when the door was in the closed position?
. . . .
THE WITNESS: In that particular apartment, in 6-C, no. But in 1-C —
THE COURT: Okay.
[PROSECUTOR]: Objection, your Honor.
THE COURT: Sustained.
(Tr. at 1196-98.)

  Later, E. Betances testified as follows, in pertinent part:

A I have been 15 years in the building.
Q Had you ever changed the door to apartment 6-C?
. . . .
Q How about the door itself, have you ever changed that door?
A No.
Q It's always been the same door?
. . . .
A Yes.
. . . .
Q Did you ever change the peep hole in that door?
[PROSECUTOR]: Objection. Same objection, to form.
THE COURT: Sustained.
Q Is the peep hole on that door, today, the same peep hole that was there when you became the super of that building?
[PROSECUTOR]: Objection.
THE COURT: Sustained as to relevance.
. . . .
Q Did you ever have occasion to look through the peep hole of apartment 6-C?
[PROSECUTOR]: Objection.
THE COURT: Sustained. Foundation.
Q Do you know whether or not you could see the door to apartment 6-E [i.e., Rodriguez's door] through the peep [h]ole of apartment 6-C, when the door to apartment 6-C is closed?
[PROSECUTOR]: Objection.
THE COURT: Sustained.
(Id. at 1208-10.)

  The trial court was not unreasonable in precluding the proposed testimony. Rodriguez had failed to establish that either the superintendent or his daughter had ever looked through the peephole in Nargis's door. Rodriguez argues that the two could have testified as to what could be seen from other apartments' peepholes. That testimony, while perhaps marginally relevant, certainly was not sufficiently probative to render the trial court's ruling an error of constitutional magnitude.

  Rodriguez was allowed to, and did, elicit testimony from the superintendent and his daughter that neither Nargis's door nor its peephole had been changed or replaced. After hearing the daughter testify that she had never looked through the peephole in Nargis's door, the trial court was well within its discretion to preclude her from testifying as to what could possibly be seen through that peephole. Defense counsel also failed to establish that the superintendent had ever looked through apartment 6-C's peephole. For these reasons, this claim does not justify issuance of the writ.

  4. Prosecutorial Misconduct in Summation Rodriguez argues that he was deprived his due process right to a fair trial by numerous improper remarks made by the prosecutor in summation. Specifically, Rodriguez points to the prosecutor's (1) reference to Rodriguez's courtroom demeanor, (2) appeals to the juror's emotions, (3) denigration of defense counsel, and (4) attack on Rodriguez's expert witness.

  Habeas relief based on a claim of prosecutorial misconduct is unavailable unless the misconduct "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974); see also Pimentel v. Walsh, No. 02 Civ. 570, 2003 U.S. Dist. LEXIS 19677, at *19-20 (S.D.N.Y. Nov. 4, 2003) ("To obtain relief on a prosecutorial misconduct claim, a habeas petitioner must show that `the prosecutor engaged in egregious misconduct . . . amounting to a denial of constitutional due process.'" (ellipsis in original) (quoting Floyd v. Meachum, 907 F.2d 347, 353 (2d Cir. 1991))). "It is not enough that the prosecutor's remarks were undesirable or even universally condemned," Darden v. Wainwright, 477 U.S. 168, 181 (1986); a petitioner "must demonstrate that he suffered actual prejudice because the prosecutor's comments during summation had a substantial and injurious effect or influence in determining the jury's verdict." Bentley v. Scully, 41 F.3d 818, 824 (2d Cir. 1994).

  Inquiry into the fundamental fairness of a trial requires an examination of the effect of any misconduct within the context of the entire proceeding. DeChristoforo, 416 U.S. at 639, 643; see also Miranda v. Bennett, 322 F.3d 171, 180 (2d Cir. 2003) ("[I]n order to determine whether relief is warranted, prosecutorial misconduct must be assessed `in the context of the entire trial.'" (quoting DeChristoforo, 416 U.S. at 639)). In making this determination, I consider the severity of the prosecutor's conduct, the measures, if any, that the trial court took to remedy any prejudice, and the certainty of conviction absent the prosecutor's remarks. See Bentley, 41 F.3d at 824.

  The prosecutor summed up as follows, in pertinent part:

You saw him yourself, right here in court. When he was looking at the pictures that were put into evidence, the pictures of his wife and daughter, and he was pointing to them, going over them with [defense counsel], not one boo hoo, not one single tear.
Look at him right now. He's sitting there reading. I am accusing him right now. I'm saying to him: You killed your wife and daughter, and the evidence shows it. Look at the way he's looking at me now. Purely, absolutely, unemotionally cold. The behavior of a person who would dare kill his wife and his own three-year-old daughter. And that's what you see in this courtroom and that's what you see from all of the evidence in this case.
(Tr. at 1305-06.)

  Respondent properly concedes that these remarks about Rodriguez's courtroom demeanor "were better left unsaid." (Resp.'s Aff. & Mem. Law Opp'n Pet. at 62.) However, given the overwhelming evidence of Rodriguez's guilt presented to the jury at trial, neither these remarks, nor the other challenged comments in the summation, undermined the certainty of conviction in their absence.

  The jury heard the following evidence: At around 7:50 p.m. on July 29, 1994, Nargis, Rodriguez's neighbor, heard yelling in the hallway and recognized the voices of Rodriguez and his wife. (Tr. at 236-39.) Looking through the peephole in her door, Nargis saw Rodriguez near the stairs, pulling his wife by the hair and dragging her into their apartment. (E.g., id. at 241-42.) Minutes later, Nargis heard screaming, came into the hallway, and saw Rodriguez's wife's body in the doorway of Rodriguez's apartment. (Id. at 242-44, 247.)

  After twice waiving his Miranda rights (id. at 535-39, 547, 602-05, 616), Rodriguez confessed to the killings to Detective Michael O'Brien, describing the events in detail. (Id. at 607-11.) After again waiving his rights (id. at 617-19, 881-83), Rodriguez gave a similar statement to Detective John Winkler, which Winkler wrote down. (Id. at 883-84, 891-893.) Rodriguez then gave an hour-long videotaped statement to a prosecutor.*fn8 (Id. at 893-96, 900.) Finally, as Rodriguez left the station house with detectives, he said to reporters outside, "I can't believe this happened. How could I have done this to my wife and child. Forgive me, Mother Theresa." (Id. at 901-02.)

  Therefore, due to the certainty of conviction absent any improprieties in the prosecutor's summation, this claim cannot justify issuance of the writ.

  5. Ineffective Assistance of Appellate Counsel

  Finally, Rodriguez claims that his appellate counsel provided ineffective assistance because she failed to argue that Rodriguez's trial counsel was ineffective for failing to preserve for review the issues raised on direct review. The Appellate Division denied this claim on the merits, holding that Rodriguez had "failed to establish that he was denied the effective assistance of appellate counsel." Rodriguez, 733 N.Y.S.2d at 906 (citing Jones v. Barnes, 463 U.S. 745 (1983)).

  a. The Ineffective Assistance Standard

  The Supreme Court has established the following standard for ineffective assistance claims: First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.

 Strickland v. Washington, 466 U.S. 668, 687 (1984). Thus, to make out this type of claim, Rodriguez must demonstrate both (1) that his attorney's performance "fell below an objective standard of reasonableness," id. at 688, and (2) 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. In assessing the reasonableness of counsel's performance, judicial scrutiny "must be highly deferential," and the court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Strickland, 466 U.S. at 689 (quotation marks omitted); Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998); see also Yarborough v. Gentry, 124 S.Ct. 1, 4 (2003) (per curiam) ("[C]ounsel has wide latitude in deciding how best to represent a client. . . .").

  In assessing counsel's performance, I "must conduct an objective review . . . measured for `reasonableness under prevailing professional norms,' which includes a context-dependent consideration of the challenged conduct as seen `from counsel's perspective at the time.'" Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 2535 (2003) (citations omitted) (quoting Strickland, 466 U.S. at 688-89)). The Supreme Court has "declined to articulate specific guidelines for appropriate attorney conduct" and has instead emphasized that "`the proper measure of attorney performance remains simply reasonableness under prevailing professional norms.'" Id. at 2535 (quoting Strickland, 466 U.S. at 688).

  To establish the requisite effect of counsel's performance on the outcome of the proceeding, it is not sufficient if the petitioner shows merely that counsel's errors had "some conceivable effect" on the outcome. Strickland, 466 U.S. at 693. Rather, there must be "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome." Id. This determination, unlike the determination whether counsel's performance fell below an objective standard of reasonableness, may be made with the benefit of hindsight. See Lockhart v. Fretwell, 506 U.S. 364, 372 (1993).

  Although the Supreme Court formulated the Strickland test in the context of examining a claim of ineffective assistance of trial counsel, the same test applies to claims regarding the performance of appellate counsel. See Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994); Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992). Appellate counsel need not present every nonfrivolous argument that could be made. See Mayo, 13 F.3d at 533 (citing Jones v. Barnes, 463 U.S. 745, 754 (1983)); see also Evitts v. Lucey, 469 U.S. 387, 394 (1985) (emphasizing that appellate counsel "need not advance every argument, regardless of merit, urged by the appellant"). Moreover, reviewing courts should not employ hindsight to second-guess an appellate attorney's strategy choices. See Mayo, 13 F.3d at 533 (citing Lockhart v. Fretwell, 506 U.S. 364, 372 (1993)). A petitioner, however, may establish constitutionally inadequate performance if he shows that his appellate counsel omitted material and obvious issues while pursuing matters that were patently and significantly weaker. Cf. Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998) ("[R]elief may be warranted when a decision by counsel cannot be justified as a result of some kind of plausible trial strategy.").

  b. The Application of the Standard

  So as to avoid confusion, it is important not to lose sight of the very limited question I am to resolve. The question here is not whether trial or appellate counsel was ineffective, but rather whether the Appellate Division unreasonably applied clearly established Supreme Court law in holding that appellate counsel, by not raising an ineffective assistance of trial counsel claim, provided ineffective assistance on appeal. For the reasons set forth below, I find that the Appellate Division's opinion was reasonable.

  Rodriguez's claim fails most clearly on the prejudice prong of the Strickland inquiry. Rodriguez contends that had his appellate attorney raised an ineffective assistance of trial counsel claim, "it is plain that there is a reasonable probability that . . . the result of the proceeding would have been different." (Pet.'s Mem. Supp. Pet. at 32.) I disagree. In the Appellate Division's decision affirming Rodriguez's conviction, it held that "[t]he defendant's remaining issues [i.e., erroneously excluded evidence and prosecutorial misconduct on summation] are unpreserved for appellate review and, in any event, are without merit." People v. Rodriguez, 673 N.Y.S.2d 940, 940 (2d Dep't 1998). Therefore, to the extent those claims were found to be meritless, trial counsel's failure to raise them, and appellate counsel's failure to claim ineffective assistance of trial counsel, were irrelevant. Similarly, even if appellate counsel had claimed ineffective assistance of counsel, that would not have changed the fact that the record was insufficient to allow for meaningful appellate review of the right-to-be-present claim. See Rodriguez, 673 N.Y.S.2d at 940 ("Here, since the record fails to disclose whether or not the defendant was present during the subject sidebar conference, meaningful appellate review of this issue is precluded.").*fn9 Therefore, this claim does not justify issuance of the writ.

  CONCLUSION

  For the foregoing reasons, the petition is denied. Because Rodriguez has failed to make a substantial showing of a denial of a constitutional right, no certificate of appealability shall issue.

  So Ordered.


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