The opinion of the court was delivered by: Michael B. Mukasey, U.S.D.J.
Rafael Rodriguez petitions pro se pursuant to 28 U.S.C. § 2254 (2000) challenging his state court judgment of conviction, entered in October 1992, for murder in the second degree and attempted murder in the second degree. He challenges his confinement by the State of New York on the ground that he was denied a fair trial due to prosecutorial misconduct. Additionally, Rodriguez requests a stay of the instant habeas corpus proceeding as a result of his filing of a N.Y.C.P.L. § 44.10 motion to vacate the judgment of conviction in New York state court on the ground that he received ineffective assistance from trial counsel. In a Report and Recommendation ("the Report") dated January 12, 2006, Magistrate Judge Kevin Nathaniel Fox recommended that both Rodriguez's petition for a writ of habeas corpus and request for a stay of proceeding be denied. Rodriguez objects to the Report's findings.
For the reasons set forth below, Rodriguez's arguments for habeas corpus relief and for a stay of the current proceeding are without merit. Accordingly, the requested relief is denied and the petition is dismissed in its entirety.
Familiarity with the Report is assumed for current purposes and only so much of the factual background as is necessary to resolve Rodriguez's objections is set forth below.
Rodriguez was convicted of murder in the second degree and attempted murder in the second degree after a jury trial in New York State Supreme Court, New York County. (Rep. at 2) The New York State Supreme Court, Appellate Division, First Department affirmed Rodriguez's conviction on April 11, 1996. See People v. Rodriguez, 226 A.D.2d 177, 641 N.Y.S.2d 532 (1st Dept. 1996). In affirming the conviction, the Court stated that Rodriguez had failed to preserve his present challenges to the prosecutor's summation, and we decline to review them in the interest of justice. If we were to review, we would reject the claim that the prosecutor mischaracterized the defense, and also find that any improper suggestion of a propensity for violence was harmless in view of the overwhelming evidence of defendant's guilt.
Id. at 178. Rodriguez's application for leave to appeal to the New York Court of Appeals was denied on May 28, 1996. See People v. Rodriguez, 88 N.Y.2d 884 (1996).
On April 14, 1997, Rodriguez petitioned for a writ of habeas corpus. (Rep. at 2) On May 21, 1999, Rodriguez sought to withdraw that petition without prejudice so that he could exhaust state remedies with respect to his claims, and that request was granted on June 21, 1999. (Id.)
On November 22, 1999, Rodriguez submitted a second petition for a writ of habeas corpus. (Id.) This petition, similar to his first, alleged that he was denied a fair trial because of prosecutorial misconduct. (Id.) In addition, the second petition alleged that Rodriguez was denied the effective assistance of appellate counsel and that the trial court erred in failing to suppress identification testimony obtained as the result of an unlawful search and arrest. (Rep. at 2-3)
Bennett moved to dismiss the second petition as time-barred under 28 U.S.C. § 2244(d). (Rep. at 3) Initially, the petition was found to be timely, Rodriguez v. Bennett, No. 00 Civ. 401, 2001 WL 682446, at *3 (S.D.N.Y. June 18, 2001), but it was soon thereafter dismissed as untimely in light of the United State Supreme Court's decision in Duncan v. Walker, 533 U.S. 167 (2001), which held that the tolling mandated by 28 U.S.C. § 2244(d)(2) applies only to state petitions for collateral relief. See Rodriguez v. Bennett, No. 00 Civ. 401, 2001 WL 940569, at *2 (S.D.N.Y. Aug. 20, 2001).
Rodriguez appealed this court's determination and the Second Circuit vacated the judgment and ordered this court to consider whether, under the circumstances, the limitations period should be equitably tolled for any of Rodriguez's claims during the pendency of his first petition. See Rodriguez v. Bennett, 303 F.3d 435, 439-40 (2d Cir. 2002). In response, this court determined that only Rodriguez's claim of prosecutorial misconduct was timely filed. Rodriguez v. Bennett, No. 00 Civ. 401, 2005 WL 273263, at *6 (S.D.N.Y. Jan. 27, 2005). Now this court will evaluate the merits of Rodriguez's petition for a writ of habeas corpus based upon prosecutorial misconduct.
Additionally, on December 8, 2005, Rodriguez informed this court that he had filed a motion to vacate his judgment of conviction pursuant to N.Y.C.P.L. § 440.10, on the ground that he received ineffective assistance from his trial counsel. (Rep. at 6) Rodriguez requests a stay of his habeas corpus proceeding before this court pending the resolution of his motion to vacate the judgment of conviction in New York state court.
A district court reviewing a magistrate judge's report and recommendation follows the standard established in 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b). The district court judge must make a de novo determination of those parts of the report to which timely written objection has been made by either party. Rodriguez ...