The opinion of the court was delivered by: Chin, D.J.
Pro se petitioner Richard Rodriguez petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Rodriguez was convicted on July 13, 1998, following a jury trial in the Supreme Court of New York, Bronx County, of murder in the first degree, two counts of murder in the second degree, and robbery in the first degree. He was sentenced to concurrent terms of life without the possibility of parole, two terms of 25 years to life, and 12.5 to 25 years imprisonment, respectively.
Rodriguez contests his conviction on the grounds that the trial court erred when it: (1) failed to suppress evidence of a belt, money, and wallet that police found when arresting Rodriguez; (2) refused to excuse a prospective juror for cause;
(3) failed to dismiss the first-degree murder charge and the robbery charge for insufficient evidence; (4) declined to submit to the jury the lesser-included charge of manslaughter; and (5) allowed simultaneous convictions for first- and second-degree murder. Rodriguez also contends that he was denied effective assistance of trial counsel and appellate counsel. For the reasons that follow, the petition is denied.
The following is a summary of the facts adduced at trial.
Rodriguez and Kim Harvell checked into room 106 of the Bronx Park Motel on May 14, 1996. (Tr. 120-21).*fn1 That morning and again that evening, Harvell withdrew cash from her bank account using an ATM card. (Id. at 64-65). On May 15th, Rodriguez used Harvell's bank card in several transactions to withdraw cash from Harvell's account. (Id. at 763-64, 770-71, 787-90, 793-97). To obtain the PIN number to Harvell's bank card, Rodriguez tortured and killed Harvell. (Id. at 1719, 1727-28). She was strangled, beaten over the head with a toilet tank top, and stabbed in the neck with a ceramic shard from the tank top. (Id. at 1717-21).
Police arrested Rodriguez on May 15th after two chambermaids told the hotel manager about suspicious activity in room 106 and damage to the room. (Id. at 112-14). Specifically, the room smelled strongly of bleach, the sheets and pillow cases were missing, and the shower curtain and the top of the toilet were missing. (Id. at 254-55). The occupant of the room, Rodriguez, had left a large garbage bag outside of the room. (Id. at 254). The chambermaids saw Rodriguez dragging the bag away, and they noticed that a shower curtain was sticking out of the top and that a trail of liquid was being left behind. (Id. at 254, 258, 267).
The manager, Edward Walsh, flagged down police officers Timothy Deevy and George Griffo as they were driving by the hotel. (Id. at 355). Upon investigation, the officers found clothes, a Clorox bottle, and what appeared to be a blood-soaked pillow in a garbage bag in the motel's dumpster. (Id. at 358). Walsh told the police that Rodriguez had also rented room 118, and police watched the room while waiting for other officers to arrive. (Id. at 361). When Rodriguez came out of room 118 in his underwear, police asked if they could look in the room. (Id. at 471-74). Rodriguez assented. (Id. at 474). Police found drug paraphernalia inside the room and arrested Rodriguez. (Id. at 476). While handing Rodriguez his pants, police patted down the pockets to look for weapons and found a wallet with two of Harvell's identification cards and a picture of Harvell. (Id. at 493-94). Police also found $260 in twenty dollar bills in the room and a belt. (Id. at 370-71, 373). While he was handcuffed, police saw Rodriguez throw a bank card away from his body, and police recovered the card. (Id. at 552-53). The name on the card was Harvell's aunt, with whom Harvell shared a joint bank account. (Id. at 61-62, 552). Police later found Harvell's body wrapped in sheets under the bed in room 106. (Id. at 393).
The People indicted Rodriguez on eleven counts, including: first-degree murder; numerous counts of second-degree murder; first-degree manslaughter; multiple counts of robbery in the first degree; multiple counts of criminal possession of stolen property; criminal possession of a weapon; and criminal possession of a controlled substance. (Id. at 11-18).
During the trial, the People dropped most of the charges and proceeded only on four counts: (1) murder in the first degree (N.Y. Penal Law § 125.27(1)(a)(vii)); two counts of murder in the second degree -- one count of intentional second-degree murder and one count of second-degree felony murder (id. § 125.25(1) & (3)); and robbery in the first degree (id. § 160.15(1)). (Tr. 1187-90, 1544).
In New York, one form of murder in the first degree is intentional murder committed during the execution of another felony, such as robbery. N.Y. Penal Law § 125.27(1)(a)(vii). Second-degree murder includes both intentional murder (id. § 125.25(1)) and felony murder, which is defined as "caus[ing] the death of a person" during the course of a felony. Id. § 125.25(3). Robbery in the first degree is defined as "caus[ing] serious physical injury" to a person while forcibly stealing property. Id. § 160.15(1).
1. The Suppression Hearing
On May 6, 1998, the trial judge (Globerman, J.) held a hearing to determine the admissibility of the physical evidence found in room 118, including the belt and the money. The trial judge found that Rodriguez freely and voluntarily consented to the police entering the room, and that the police found the evidence in plain view, even though the officers could not recall exactly where the items were located in the room. (Hr'g Op. 8-9).*fn2 Additionally, the trial judge found that police properly searched Rodriguez's pants pockets during the arrest to secure any potential weapons. The court also found that police properly removed the wallet, located in Rodriguez's pocket. (Id. at 9). Accordingly, the court found that the physical evidence was admissible at trial.
The trial judge selected a jury on May 14, 15, and 18, 1998. During the voir dire, one prospective juror told the trial judge that his stepson had been the victim of a robbery and stabbing at an automated teller machine. (VD. 200).*fn3 The trial judge, prosecutor, and defense counsel questioned the prospective juror about whether he could be impartial. (Id. at 200-06). When asked by defense counsel if he could put the event "aside," the juror responded, "Well, I don't know. I don't think it really has a bearing on this particular instance . . . . I don't think it will be a major problem with that." (Id. at 204-05). After further questions from the judge, the prospective juror affirmed that he could be impartial. (Id. at 205). Defense counsel objected to the judge's decision allowing the juror to remain, noting that the juror had said at first that he only thought that he could be impartial. (Id. at 207). The trial judge responded, "He never said I don't know. He never said maybe." (Id.). The trial judge refused to remove the juror for cause, and defense counsel used a peremptory challenge to remove the juror. (Id. at 414). By the end of voir dire, defense counsel had exhausted all of his peremptory challenges.
3. The Request for the Manslaughter Charge
After the People moved to dismiss the first-degree manslaughter count, the defense counsel requested that the judge retain the charge. (Tr. 1204). Defense counsel argued that the jury could interpret the facts in a light that sustained a charge of first-degree manslaughter, rather than intentional murder.*fn4
(Id. at 1204-05). The judge denied the defense's request, stating that there was no "reasonable view of the evidence" under which the jury could come to such a conclusion. (Id. at 1205).
4. The Verdict and Sentence
The jury found Rodriguez guilty of all charges: murder in the first degree, two counts of murder in the second degree, and robbery in the first degree. At sentencing, defense counsel told the judge that he did not think that the court had any discretion as to the sentence it could impose for a conviction of murder in the first degree. (Sen. 8).*fn5 After a conference at the bench, defense counsel reversed himself and said that the judge had limited discretion. (Id. at 8-9).
Under New York sentencing guidelines for first-degree murder, the trial judge has the discretion to set a maximum sentence of life imprisonment or a minimum sentence of 20 to 25 years. N.Y. Penal Law §§ 60.06 & 70.00(1-3). The judge sentenced Rodriguez to life without the possibility of parole for murder in the first degree, 25 years to life for each of the two counts of murder in the second degree, and 12.5 to 25 years imprisonment for robbery in the first degree, the terms to run concurrently. (Sen. 11). Defense counsel did not ask the court to dismiss the second-degree murder charges as lesser-included offenses of first-degree murder.
Rodriguez filed a timely notice of appeal. On February 13, 2003, the Appellate Division, First Department, denied his appeal, holding that: (1) based on the evidence, a jury could reasonably infer that Rodriguez had killed the victim in the course of a robbery; (2) the trial court did not err in refusing to dismiss the prospective juror for cause; (3) the trial court properly denied Rodriguez's request to submit manslaughter to the jury as a lesser-included offense of intentional murder; and (4) the sentencing court did not misunderstand its range of discretion in imposing Rodriguez's sentence. People v. Rodriguez, 756 N.Y.S.2d 145, 145-46 (1st Dep't 2003). The Appellate Division also held that Rodriguez failed to preserve his remaining claims for appeal, including that: (1) the wallet, belt, and money should have been suppressed; (2) the first-degree murder statute and its sentencing scheme were unconstitutional; and (3) the prosecutor committed misconduct during his summation. Id. at 146. The New York Court of Appeals denied leave to appeal on April 17, 2003. People v. Rodriguez, 99 N.Y.2d 657 (2003).
On January 30, 2004, Rodriguez, acting pro se, asked the Bronx Supreme Court to vacate his conviction, pursuant to N.Y. Crim. Proc. Law § 440.10, on the ground that his trial counsel had been ineffective. Rodriguez provided affidavits from himself, his mother, and his grandmother stating that his trial counsel did not properly inform him that he faced a sentence of life without parole if convicted. (See Judge Globerman's Opinion dated June 2, 2004, at 2). Petitioner further stated that he would have accepted a plea agreement of 20 years to life had he known of his sentencing exposure. (Id. at 3). Petitioner's defense counsel provided a sworn affirmation that he did advise petitioner of his potential sentence. (Id. at 5). The court found that defense counsel's affirmation was credible and denied petitioner's application on June 2, 2004. The Appellate Division denied Rodriguez's leave application on September 2, 2004.
Rodriguez then applied to the Appellate Division for a writ of error coram nobis, alleging that his appellate counsel was ineffective for failing to argue that Rodriguez's trial counsel was ineffective. The Appellate Division denied Rodriguez's application on June 30, 2005. The Court of Appeals denied Rodriguez's leave application on September 30, 2005.
This petition, dated December 1, 2005, was received by the Court's Pro Se office on December 9, 2005. Respondent filed opposing papers on September 1, 2006, and Rodriguez filed a reply dated November 25, 2006.
I. Federal Review of State Convictions
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") sets forth the standards of review for habeas petitioners seeking federal relief from a state conviction. See Williams v. Taylor, 529 U.S. 362, 399 (2000). It provides that:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to any judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits unless the adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the ...