United States District Court, E.D. New York
May 20, 2004.
RAMON RODRIGUEZ, Petitioner,
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
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
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
The defendant's remaining issues are unpreserved for
appellate review and, in any event, are without
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)
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
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
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
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
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 court resumes voir dire of another prospective
(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
Id. (quoting Snyder v. Massachusetts, 291 U.S. 97
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
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
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
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
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?
. . . .
Q Has the front door of apartment 6-C been the same
door for the last 15 years?
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?
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
Q It's always been the same door?
. . . .
. . . .
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
THE COURT: Sustained as to relevance.
. . . .
Q Did you ever have occasion to look through the peep
hole of apartment 6-C?
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?
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
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,
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
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.
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