The opinion of the court was delivered by: Trager, J
Petitioner Rodolpho Ruiz ("Ruiz") brings this petition for writ of habeas corpus pro se pursuant to 28 U.S.C. § 2254. Ruiz raises the following two claims: (1) that he was denied effective assistance of counsel when his appellate counsel failed to file a speedy trial motion under New York Criminal Procedure Law § 30.30 and (2) that the evidence was insufficient to support his conviction for Arson and Attempted Murder. For the reasons that follow, the petition is denied.
(1) A jury convicted Ruiz for arson and attempted murder in connection with two fires which occurred in Queens during February 1997. The following facts are uncontested by the parties.
Both fires involved property owned by recent acquaintances of Ruiz, Camilo and Gloria Garcia. On February 8, 1997, at approximately 8:00 a.m., Gloria Garcia and her daughter, Brenda, awoke to find their apartment in flames. Emergency medical technicians who arrived to the scene found Gloria and Brenda Garcia unconscious and in respiratory and cardiac arrest. Doctors diagnosed Gloria and Brenda Garcia with smoke inhalation and carbon-monoxide poisoning; Gloria Garcia was additionally treated for second-degree burns on her hands. Four days later, on February 12, 1997, at approximately 1:30 a.m., Camilo Garcia awoke to the sound of an explosion and found both his car and his home on fire. No one was injured in the second fire.
Based on a tip from an eyewitness, Luis Panora, who saw a Hispanic man running from the Garcias' driveway after the February 12th fire, Fire Marshal William Kregler arrested Ruiz approximately four hours after the fire occurred.
(2) Ruiz was thereafter arraigned on February 13, 1997 in Queens Criminal Court, where he allegedly waived his right to a speedy trial for twenty-eight days until March 12, 1997.
He was charged with Arson in the First Degree (Penal Law § 150.20), two counts of Arson in the Second Degree (Penal Law § 150.15), Arson in the Third Degree (Penal Law § 150.10), three counts of Attempted Murder in the Second Degree (Penal Law §§ 110/125.25), three counts of Assault in the First Degree (Penal Law § 120.10,), two counts of Reckless Endangerment in the First Degree (Penal Law § 120.25) and Criminal Mischief in the Second Degree (Penal Law § 145.10).
Ruiz was tried in Queens Criminal Court before Judge Lawrence J. Finnegan. The prosecution's case consisted of testimony from a series of witnesses who received threatening and/or incriminating phone calls from Ruiz between December 1996 and February 1997, as well as from an eyewitness, the investigating and arresting fire marshals, the emergency medical technicians and doctors who treated Gloria and Brenda Garcia.
Gloria and Camilo Garcia, Jose Fernando Castano, and Victoria Casado all testified regarding phone calls from Ruiz in which he revealed anger stemming from his belief that two women -- Gloria Garcia and Aydee Colon -- were hiding his former girlfriend.*fn1
According to Gloria Garcia's testimony, beginning in late December 1996, she received a series of harassing phone calls from Ruiz. During the first call, petitioner told Gloria Garcia that he had heard that his former girlfriend was staying with her family; during the second call, Ruiz informed her that he was suffering and that she and others were going to suffer as well and during a third conversation, petitioner threatened a tenant in the Garcias' building.
Camilo Garcia's testimony affirmed his wife's testimony, detailing an additional call from Ruiz in January 1997 during which Ruiz reiterated his threats against the Garcias and their tenant.
Additional testimony demonstrated that Ruiz also made three threatening calls to Aydee Colon's son-in-law, Jose Fernando Castano, in February 1997. According to Castano's testimony, on February 4, 1997, petitioner called Castano and told him he intended to "turn to ashes" the home of one of the couples he thought was hiding his former girlfriend. Then, within an hour of the first fire at the Garcia home, Castano testified that petitioner again called him to inform Castano that he had already turned to ashes the home of one of the couples he believed to be hiding his former girlfriend.
Approximately two hours after the second fire, petitioner again called Castano, who secretly recorded the conversation,*fn2 and indicated that (1) his mother-in-law, Aydee Colon, and Gloria Garcia had "fucked it up with me;" (2) that he had loved someone and they had taken her away from him; and (3) that "he who stinks like, like straw . . . better be aware of fire." Petitioner also threatened that he was "going to end it for one of those from the Popular," the region of Colombia both Camilo Garcia and Aydee Colon's husband came from.
Ayedee Colon's daughter, Victoria Casado, also testified that she received a threatening call from petitioner around 3:00 a.m. on the morning of the February 12th fire. He stated that Aydee Colon and Gloria Garcia were going to pay dearly for having taken his former girlfriend from him. Petitioner told Casado that he knew "the police [were] going to kill him," but that he was going to finish the "job" he had started.
Apart from the testimony regarding these phone calls, the prosecution called eyewitness Luis Panora to the stand. Panora testified that at the time of the February 12th fire, he witnessed a Hispanic man, with short black curly hair, wearing a long black leather jacket and blue jeans, running from the Garcias' driveway. He further testified that he saw the same man drive away in a ...