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May 20, 2004.

VICTOR T. HERBERT, Superintendent, Attica Correctional Facility, Respondent.

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


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.


  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 ...

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