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Roche v. Burge

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK


February 1, 2006

RAMON ROCHE, PETITIONER,
v.
J. BURGE, RESPONDENT.

The opinion of the court was delivered by: Sweet, D.J.

OPINION

Petitioner Ramon Roche ("Roche" or the "Petitioner") has filed for a writ of habeas corpus under 28 U.S.C. § 2254. For the reasons set forth below, the petition is denied.

Prior Proceedings

The petition for a writ of habeas corpus seeking to set aside Roche's custody under a judgment of the Supreme Court, New York County (White, J.), convicting him of one count of Murder in the Second Degree (Penal Law Section 125.25[1], and sentencing him to an indeterminate prison term of from 25 years to life, was filed December 23, 2004, received by the Pro Se Office on November 1, 2004, and delivered to prison authorities for mailing on October 18, 2004.

The answer of J. Burge ("Burge" or the "Respondent") was filed April 8, 2005, and the response of Roche was received on July 8, 2005.

State Court Proceedings

By New York County Indictment Number 14218/91, filed on January 3, 1992, Petitioner was charged with intentional second-degree murder (Penal Law § 125.25[1]), arising out of Petitioner's intentional murder of his wife Lillian by stabbing her to death after an argument and a violent struggle in their Manhattan apartment on December 27, 1991. On November 18, 1992, Petitioner proceeded to a jury trial before the Honorable Richard B. Lowe, III, and on December 1, 1992 the jury found Petitioner guilty of intentional murder, the only charge that was submitted. On December 22, 1992, Petitioner was sentenced to an indeterminate prison term of from 25 years to life.

Petitioner appealed on December 2, 1996. On May 22, 1997, the Appellate Division, First Department, reversed Petitioner's conviction and remanded for a new trial on the basis that Judge Lowe had given the jury an Allen charge that had impermissibly shifted the burden of proof to Petitioner. See People v. Roche, 239 A.D.2d 270 (1st Dept. 1997).

On September 14, 1998, Petitioner's retrial commenced before the Honorable Renee A. White and a jury. At trial, both the People's and Petitioner's forensic experts testified that Lillian's injuries -- 23 knife wounds -- and the bloody crime scene itself demonstrated that she died from two stab wounds to the chest which were inflicted at the end of a violent struggle throughout the apartment, during which she sustained the other wounds. See pp. 4-27, Exhibit B, People's Brief to the Court of Appeals. To prove that Petitioner was the murderer, the People presented evidence that in the month leading up to the murder, Petitioner and his wife argued frequently. Petitioner's neighbor, Gilberto Franco, testified that Petitioner had told him that he was "tired" of his "crazy" wife and "wanted to leave." Franco testified further that on the day of the murder, at about 4:15 p.m., Franco saw Petitioner and his wife having another one of their arguments in the lobby of their building, and then heard the argument continuing inside their apartment. Franco told the jurors that he had no idea what the quarrel was about, but that at approximately 5:00 p.m. he turned on some music to drown out the noise.

Franco and his mother established that at about 5:30 p.m., Petitioner ran downstairs, yelling that his "crazy" wife had committed suicide. Then, knowing that the police were on the way to a bloody scene where his wife lay dead, Petitioner left his building with a large duffle bag, telling Franco that it contained items that he wanted to hide from the police.

The People also called Phillip Bell who established that while the police were in Petitioner's apartment investigating the murder of his wife, Petitioner and a female companion showed up at an apartment in the building next door, where Bell was located. There, obviously nervous, the Petitioner inspected his clothing, purposely attempted to evade detection when another guest arrived at the apartment, used drugs, and told Bell that he had killed his wife. Although Roche complained about his wife, he did not provide a reason for the murder; he simply said, "I did it."

The People established through Petitioner's sister and his nephew that Petitioner's next stop was his sister's apartment. There he told his nephew that his wife had committed suicide, but privately confessed to his sister that he had killed his wife after an unspecified argument. Police witnesses established that when Petitioner finally showed up at the police station, he provided them with a written alibi statement in which he claimed that his wife had gotten home at about 6:00 a.m.; that she was not feeling well when she got out of bed at about 2:00 p.m.; and that while he was doing household chores, which involved going up and down the stairs, he catered to her needs. Petitioner also wrote in his statement that he had left the apartment sometime after 4:00 p.m., and that when he returned, he found his wife dead. He noted that he thought that she had committed suicide and that he was so distraught that he went to tell his aunt and his sister what had happened.

The defense agreed at trial that Petitioner's wife had been "brutally" murdered after an "intense struggle" in the apartment that ended when she was stabbed twice in the heart. They claimed, however, that the police "got the wrong man." (Defense Opening, 74-77). According to the defense, Petitioner's conduct and statements after the crime were not the actions of a man who had killed his wife, but instead, the "panicky, irrational behavior" of a grief-stricken man who had put himself into a "drug-induced" state upon finding his wife dead. (Defense Opening, 81-85). The defense contended that Petitioner was the innocent victim of unreliable witnesses and shoddy police work by officers who had rushed to judgment in order to "close what they viewed as an unimportant case." (Defense Opening, 85-86, 88). To support that argument, defense counsel made an unsuccessful attempt, through cross examination, to cast doubt on the recollections of Petitioner's sister, Franco, and Bell about their incriminating encounters with Petitioner. Counsel also cross-examined the police and the medical examiner about various tests that, according to the defense, should have been performed to identify the killer. The only defense witness was a forensic pathologist, Dr. Wolf, who agreed that Petitioner's wife had been brutally murdered, but suggested that the murder had happened at a time when Petitioner was not necessarily in the apartment arguing with his wife.

At a charge conference, Petitioner asked the court to charge the jury on the affirmative defense of extreme emotional disturbance, which reduces the crime of Murder in the Second Degree to Manslaughter in the First Degree (Penal Law Section 125.25[1][a] if a defendant has shown by a preponderance of the evidence that the homicidal act was "an understandable human response deserving of mercy," rather than an act of malevolence. People v. Cassassa, 49 N.Y.2d 668, cert. denied, 449 U.S. 842 (1980); see also People v. Patterson, 39 N.Y.2d 288, 302-04 (1976), aff'd, Patterson v. New York, 432 U.S. 197 (1977). To warrant submission of that defense, Petitioner bore the burden of pointing to "sufficient credible evidence" from which the jury could find by a preponderance of the evidence the two elements of the affirmative defense. People v. White, 79 N.Y.2d 900, 902 (1992); People v. Walker, 64 N.Y.2d 741, 743 (1984). The first element, a wholly subjective one, required sufficient proof that Petitioner killed his wife, not out of anger, but rather, while under the influence of an "extreme" emotional disturbance -- a "loss of self control" so "excessive and violent in its effect" that the defendant was actually suffering from a mental infirmity, albeit one not arising to the level of insanity. See Patterson, 39 N.Y.2d at 293; see also People v. Moye, 66 N.Y.2d 887, 890 (1985); Walker, 64 N.Y.2d at 743. The second element required an adequate showing that there was an objectively reasonable explanation or excuse for the disturbance. Penal Law § 125.25(a)(a); People v. Harris, 95 N.Y.2d 316, 318 (2000); White, 79 N.Y.2d at 903; Moye, 66 N.Y.2d at 890. In asking the trial court to submit the affirmative defense, Petitioner told the court that at his first trial the prosecutor's summation "consisted largely of [a] motive based argument that for whatever reasons," Petitioner went into "a rage of some sort," and "inflicted numerous wounds [in a] very bloody manner." Anticipating "that kind of argument," Petitioner claimed that he was entitled to the charge, even though "it may not in fact be supported by the evidence objectively." (1047-1048).*fn1 The trial judge denied the request.

She noted that this was a "very clear cut" case of murder in the second degree and that Petitioner either committed that crime or not. The "number of stab wounds and cuts on the victim's body" did not change that "view of the evidence." (1047-1048).

On October 2, 1998, Petitioner was again convicted of Murder in the Second Degree. Petitioner was sentenced as noted above on October 19, 1998. On his second appeal to the Appellate Division, First Department, Petitioner claimed that the trial court committed reversible error by denying his request to charge the jury on the affirmative defense of extreme emotional disturbance.

On August 30, 2001, a divided panel of the Appellate Division agreed with Petitioner and reversed his judgment of conviction. People v. Roche, 286 A.D.2d 290 (1st Dept. 2001). Even though Petitioner never gave a reason for the killing, the majority found that it would have been proper for the jury to speculate that Petitioner had been suffering from such a disturbance, and that it had been brought on by the contentious relationship between Petitioner and his wife and his wife's so-called "abusive" conduct toward him that day. (Id.). The majority reached its decision based in part on the prosecutor's motive-based summation argument and Petitioner's alibi statement to the police in which he included an account of his activities on the day of the murder. (Id.). On November 13, 2001, Judge Tom granted the People leave to appeal the Appellate Division's order to the New York Court of Appeals. See 2001 N.Y. App. Div. LEXIS 11069 (1st Dept. 2001).

In their brief to the Court of Appeals, the People argued that the trial court properly denied Petitioner's request for submission of the affirmative defense, and that because the Appellate Division's reversal of that ruling was not supported by the law or the evidence, it set alarming precedent. In his responding brief, Petitioner claimed that the Court of Appeals was procedurally barred from deciding the issues presented. On the merits, he again pointed to the prosecutor's motive-based summation argument to demonstrate that the charge was warranted. (Id.). In their reply brief, the People noted that there was no procedural bar to the court's consideration of the issues presented and emphasized that the Appellate Division's decision was contrary to well-settled law. The People also noted that Petitioner's justification for the charge was based on nothing more than a distortion of the prosecutor's summation, which simply advanced the notion that defendant killed his wife out of intense anger. (Id.).

On June 4, 2002, the New York Court of Appeals unanimously rejected Petitioner's procedural argument, reversed the Appellate Division's order and reinstated Petitioner's murder conviction. People v. Roche, 98 N.Y.2d 70 (202). In holding that the Appellate Division had erred, the court stated that "the Legislature recognized when it created the extreme emotional disturbance defense that some homicides are worthy of mitigation because they result from an understandable human response deserving of mercy," and thus, "a defendant who proves by a preponderance of the evidence that he or she committed a homicide while under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse is guilty of manslaughter and not murder"; that a defendant "cannot establish an extreme emotional disturbance defense without evidence that he or she suffered from a mental infirmity not rising to the level of insanity at the time of the homicide"; and that "[t]o prove such an affirmative defense, a defendant must demonstrate, first, [the "subjective element"] that he or she acted under the influence of an extreme emotional disturbance and, second, [the "objective element"] that there was a reasonable explanation or excuse for that disturbance." Id. at 75-76 (internal citations omitted). The court noted that while "[a] defendant who pursued an inconsistent defense at trial, such as an outright denial of involvement of the crime, may nevertheless be entitled to a manslaughter charge based on extreme emotional disturbance . . . [t]hese circumstances do, however, impact whether sufficient evidence to support the defense has been presented at trial." Id. at 76. Finally, the court stated that, "[i]n the absence of the requisite proof, an extreme emotional disturbance charge should not be given because it would invite the jury to engage in impermissible speculation concerning defendant's state of mind at the time of the homicide." Id.

The Court of Appeals concluded that Petitioner "was not entitled to a manslaughter charge-down based on extreme emotional disturbance because the proof was insufficient to support either element of the defense." Id. First, the Court found that "the record is devoid of evidence that [Petitioner] actually suffered from a mental infirmity at the time of the stabbing." Id. at 75-76. As the Court explained:

Defendant cannot rely on his statements to the police to establish the presence of an extreme emotional disturbance since he asserted that he had not harmed his wife in any respect. Evidence of mental infirmity is not discernible from defendant's remarks to Bell and his sister because he neither claimed that he suffered a loss of self-control nor used any other language suggesting that he killed the victim while under the influence of a mental disability. Similarly, defendant's behavior prior to and immediately after the crime was not indicative of extreme emotional disturbance. Soon after the killing, defendant contrived a false explanation for the victim's wounds, telling his neighbors that she had committed suicide. Moments later, defendant had the presence of mind to gather items in a duffle bag and remove them from the apartment so they would not be discovered by the police --conduct inconsistent with the loss of self-control associated with the defense. Bell's testimony regarding defendant's conversations and drug consumption, particularly his attempt to evade detection by another guest at the apartment, also [does] not indicate a disturbed state of mind.

Id. at 77. The Court noted further that "no psychiatric evidence was proffered to support [such a] defense," and that the jurors could not conclude that "the brutal nature of the stabbing" alone meant that Petitioner had "acted under the influence of a mental infirmity." Id. As the Court explained, "violence and brutality are not necessarily indicative of a loss of self-control or similar mental infirmity, nor is brutality generally more deserving of mercy." Id. The Court reasoned that to hold otherwise, as Petitioner urged, "would subvert the purpose of the affirmative defense by automatically providing the benefit of a manslaughter charge-down to every defendant who commits a particularly brutal or violent homicide -- a result the Legislature certainly did not intend." Id.

Further, the Court concluded, "[e]ven if sufficient evidence of the subjective element of extreme emotional disturbance were present in this case, proof of the objective element is lacking." Id. As the Court explained:

Defendant points to the fact that he and the victim had been seen arguing and that the victim apparently sent him on a number of errands on the afternoon of the murder, causing him to climb the stairs to the fifth-floor apartment numerous times. This falls far short of the type of tumultuous relationship that might meet the objective component when coupled with other provocation. In the absence of proof that defendant's history or mental status rendered him unusually sensitive to these verbal exchanges and demands, no reasonable jury could have concluded that a resulting loss of self-control or similar disability constituted an understandable human response deserving of mercy under these circumstances.

Id. (internal citations omitted).

Finally, the Court rejected Petitioner's claim that the People's summation provided "an evidentiary basis" for the charge-down. Id. As the Court explained:

Statements in a summation are not evidence and may not supply proof supporting a charge request. Although certain words and phrases used by the prosecutor may be suggestive of extreme emotional disturbance, when viewed in context it is evident the remarks were consistent with the People's theory of intentional murder. The clear import of the summation was that defendant's actions were motivated by intense anger -- not that they resulted from a loss of self-control or other mental infirmity.

Id.

On March 4, 2004, Petitioner filed a pro se motion with the state trial court seeking to vacate his judgment of conviction pursuant to New York Criminal Procedure Law § 440.10 on the ground that the People failed to test the deceased's fingernails for DNA evidence, or in the alternative, requesting that the trial court order DNA testing.

Habeas Corpus Proceedings

Petitioner filed the instant petition for habeas corpus on October 18, 2004. The petition seeks to overturn Petitioner's judgment of conviction on the same ground that he raised before the Court of Appeals. As Petitioner now puts it, "The State trial Court erred to charge the Jury with Extreme Emotional Distress Syndrom [sic], where the prosecution presented ample evidence at trial and argument on summation to support such findings, thereby denying petition [sic] his defense at trial." (Petition at ¶ 13).

The Petition Is Untimely

The AEDPA requires that a state prisoner seeking federal habeas relief file his petition within one year after his state judgment of conviction becomes "final." 28 U.S.C. § 2244(d)(1). Generally, a judgment becomes final "by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A); see Williams v. Artuz, 237 F.3d 147, 151 (2d Cir. 2001), accord Fernandez v. Artuz, No. 03-2541, 2005 U.S. App. LEXIS 4456, at *3 (2d Cir. March 17, 2005). Petitioner's conviction was unanimously reinstated by the New York Court of Appeals on June 4, 2002. "The conviction became final 90 days thereafter -- i.e., after the period in which a litigant can petition for a writ of certiorari from the United States Supreme Court." Fernandez v. Artuz, 2005 U.S. App. LEXIS 4456, at *3. Petitioner's conviction was final on September 2, 2002.

The AEDPA one-year statute of limitations expired on September 2, 2003. The instant petition was filed, according to the "prison mailbox rule," see Adeline v. Stinson, 206 F.3d 249 (2d Cir. 2000), accord Fernandez v. Artuz, 2005 U.S. App. LEXIS 4456 (2d Cir. 2005), on October 18, 2004, one year and 46 days after the limitations period had expired. Thus, the petition is dismissed as untimely.

The state application for collateral review with respect to DNA was filed over six months after September 2, 2003, the date that the one-year AEDPA statute of limitations had expired. Thus, that collateral proceeding did not serve to bring the petition within the limitations period. See 28 U.S.C. § 2244(d)(2).*fn2

Petitioner has urged this Court to consider the instant petition "timely" because he "is a monolingual Hispanic who neither reads, writes, [nor] competently understands the English language" and who, until a law clerk helped him with the instant petition, received legal assistance from "other prisoners, who were not trained in the science of law [and] did not understand the importance of the statutory language of 28 USC 2244(d)" (Petition, ¶ 14). To the extent that Petitioner is claiming that the principle of equitable tolling should apply, that principle is to be used "only sparingly" and the reasons advanced by Petitioner do not meet the extraordinary circumstances justifying its application. Irwin v. Dept. of Veterans Affairs, 498 U.S. 89, 96 (1990). Petitioner does not even suggest that if this Court were to overlook the limitations period and review his claim, he would be found actually innocent of killing his wife. Instead, he urges this Court to find that the New York Court of Appeals erroneously concluded that he failed to meet his burden of showing that his brutal murder of his wife was merely a manslaughter. Thus, even if there were an "actual innocence" exception to the AEDPA's one-year statute of limitations, it would not apply to Petitioner. See Lucidore v. New York State Div. of Parole, 209 F.3d 107, 114 (2d Cir. 2000), cert. denied, 531 U.S. 873 (2000).

Petitioner in reply to the State has cited Benn v. Greiner, 275 F. Supp. 2d 371 (E.D.N.Y. 2003) to support his allegations that equitable tolling should be applied, noting that after his sentence he was hospitalized for six months with a liver disorder and placed on a suicide watch. Those circumstances do not equate with the letter from the Clinical Director of Sing Sing Correctional Facility and the Petitioner's psychiatric records indicating depression and schizophrenia on which the Honorable Jack

B. Weinstein relied in Benn v. Greiner.

In accordance with the above, it is hereby determined that the petition is time-barred.

The Petition Is Dismissed On The Merits

Errors in state jury charges are questions of state law and therefore not reviewable on a petition for a writ of habeas corpus absent a showing that the charge deprived the defendant of a federal constitutional right. See Davis v. Strack, 270 F.3d 111, 123 (2d Cir. 2001); Blazic v. Henderson, 900 F.2d 534, 541 (2d Cir. 1990). Thus, the standard of review for the purpose of Petitioner's claim is whether the denial of the instruction "by itself so infected the entire trial that the resulting conviction violates due process." Strack, 270 F.3d at 123 (internal quotations omitted); Wright v. Smith, 569 F.2d 1188, 1191 (2d Cir. 1978). As the Supreme Court has held, it is not a violation of the Due Process Clause for New York to require defendants seeking an "extreme emotional disturbance" jury charge "to carry the burden of persuasion" in showing that their "actions were caused by a mental infirmity not arising to the level of insanity," and that they are "less culpable for having committed them." Patterson v. New York, 432 U.S. 197, 206 (1977).

As the New York Court of Appeals decided, under New York law, there was no basis for the trial court to submit an extreme emotional disturbance charge to the jury. Since that determination is entitled to what is "frequently labeled AEDPA deference" (see Guiterrez v. McGinnis, No. 03-2560, 2004 U.S. App. LEXIS 23814, at *16 (2d Cir. Nov. 15, 2004)), this Court may grant Petitioner habeas relief only if the state's adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. See 28 U.S.C. § 2254(d)(1)(2); Loliscio v. Goord, 263 F.3d 178, 184 (2d Cir. 2001).

Here, the New York Court of Appeals correctly determined that Petitioner failed to meet that burden, and thus, there was no reasonable view of the evidence supporting the extreme emotional disturbance charge. "[Due] process does not require the giving of a jury instruction when such charge is not supported by the evidence." Blazic v. Henderson, 900 F.2d at 541 (citation omitted).

Because the Petitioner is not entitled to relief, his petition is dismissed and denied pursuant to Rule 8(a) of the Rules Governing Section 2254 cases without an evidentiary hearing.

Conclusion

The Petitioner having failed to establish any basis for why his petition should not be dismissed and the relief demanded denied pursuant to Rule 8(a) of the Rules Governing Section 2254 Cases, his petition is dismissed and the relief denied.

It is so ordered.

ROBERT W. SWEET U.S.D.J.


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