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Ruiz v. U.S. Dep't of Homeland Security

April 1, 2008

RICARDO JOSE RUIZ, A.K.A. JOSE RICARDO RUIZ, PETITIONER,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, RESPONDENTS.
JOSE RICARDO RUIZ, A.K.A. RICARDO JOSE RUIZ, PETITIONER,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, RESPONDENTS.



The opinion of the court was delivered by: John Gleeson, United States District Judge

MEMORANDUM AND ORDER

Ricardo Jose Ruiz, currently being held in immigration detention at the Pike County Correctional Facility in Pennsylvania, petitions for a writ of habeas corpus under 28 U.S.C. § 2254. Ruiz was incarcerated pursuant to a judgment of the New York State Supreme Court, Queens County, and he was released to parole supervision on January 26, 2007, conditioned upon the federal authorities seeking his removal from the United States. Ruiz challenges his conviction following a bench trial of one count of burglary in the first degree, one count of criminal trespass in the second degree, two counts of aggravated criminal contempt, five counts of criminal contempt in the first degree, and two counts of assault in the third degree. He seeks habeas relief on several grounds, including, that the evidence was insufficient to support the conviction and that he received ineffective assistance of counsel. Oral argument was held on March 20, 2008. For the reasons set forth below, the petition is denied.

BACKGROUND

A. The Offense Conduct

The government's evidence at trial established that on July 18, 2002, Ruiz

violated a temporary order of protection against him when he went to the home of his ex-girlfriend, Sarah Williams. Ruiz knocked on Williams's apartment door and shouted from outside that she should let him in. Hoping that Ruiz would cease knocking, Williams remained silent for about thirty minutes. Soon after the knocking stopped, a large rock crashed through her kitchen window, shattering the glass. Fearing that Ruiz would enter her apartment through the broken window, Williams ran outside with her phone. Ruiz intercepted her, knocked the phone from her hand, and punched her in her face. He then picked up a chair from the patio and hit her head, face and arms with it. He also threw flower pots from the patio at her as she escaped into the streets. Borrowing a phone from a nearby pedestrian, Williams dialed 911.

By the time the police arrived, Ruiz had disappeared. Williams helped the police canvass the area, and they found Ruiz about one block from her apartment. He was arrested, and Williams was taken by ambulance to Elmhurst Hospital, where she remained for about four hours. Her face was swollen, her lips were bleeding and blistered, and her arms were bruised. She was given an injection and advised to take Advil or aspirin. She was unable to raise her arms, and the pain to her lips and arms lasted several weeks.

Police Officer Andy Wong drove Williams to the police station and then drove her home to gather the chair and the rock used in the attack. They found the chair in the middle of the street in front of Williams's apartment. The rock was still on her kitchen floor. They returned to the 108th Precinct, where Police Officer Joseph Thomson observed her injuries and photographed them along with the rock and chair.

A few months later, at around 2:00 AM on January 1, 2003, Williams encountered Ruiz at a New Year's party in an upstairs apartment in Williams's building. Upon seeing him, Williams immediately left the party, accompanied by Ruiz's sister and another friend. Ruiz followed her to her apartment door, pushed her into her apartment and started punching her in the face and head. She was unable to call the police because Ruiz had pulled the telephone wires from the wall, but she was able to escape through her back door. Reaching a neighbor's apartment, she dialed 911 from her neighbor's phone and awaited the arrival of the police. Ruiz found her waiting for the police near her neighbor's stairwell, and again began to hit her. Party-goers and other neighbors intervened and Ruiz left her alone.

The police arrived after Ruiz had fled the scene. They observed that Williams had attempted to barricade her door with furniture, and that the apartment was in disarray. The officers canvassed the area for Ruiz but did not find him. Paramedics tended to Williams's swollen eyes and bleeding and swollen lips. The cut to her lip and the pain to her face lasted approximately four weeks.

After the paramedics left, Williams went to bed, but she awoke around 7:00 AM. When Williams left her apartment to retrieve the newspaper, Ruiz, who had been standing adjacent to the door, pushed his way into her living room. Williams fled from Ruiz, running upstairs to a neighbor. She dialed 911, the police arrived, and they arrested Ruiz. One of the officers observed that Williams had a cut to her lip and confirmed that Ruiz had ripped the telephone wires from the wall. The police took Ruiz to the 108th Precinct to process his arrest. He was then taken to Elmhurst Hospital to tend to an unrelated injury. Williams did not give Ruiz consent to enter her home.

Ruiz was the only defense witness at trial. He testified that he and Williams had known each other for 17 years and lived together for most of that time. They were also heavy drinkers. In July of 2002, Ruiz was employed on a project on Long Island, and he occasionally stayed with Williams overnight. He testified that he knew of the order of protection, but Williams had told him that she had waived it.

Ruiz testified that he had been dancing with another woman when Williams encountered him at the New Year's party. Later, around 2:00 AM, Ruiz and Williams began to argue with each other in the presence of Ruiz's sister. He said that he then returned to the party, but the police arrived about fifteen minutes later. He went downstairs to explain that there was no problem but he was placed under arrest and taken to the precinct for booking and then to Elmhurst Hospital for detoxification due to alcohol consumption. Ruiz testified that he can not be held responsible for the 7:00 AM attack because he was in police custody at that time.

B. The Procedural History

1. The Trial Court Proceedings

Ruiz was charged with one count of burglary in the first degree, one count of burglary in the second degree, two counts of aggravated criminal contempt, five counts of criminal contempt in the first degree, three counts of criminal contempt in the second degree, and one count of criminal mischief in the fourth degree. The trial court, sitting as the fact finder, convicted Ruiz of one count of burglary in the first degree, one count of criminal trespass in the second degree, two counts of aggravated criminal contempt, five counts of criminal contempt in the first degree and two counts of assault in the third degree. On September 10, 2003, he was sentenced to a five-year term of imprisonment for the burglary conviction and concurrent lesser sentences for his other convictions. Additionally, the court issued an order of protection for Williams lasting until September 9, 2008.

2. The Direct Appeal

On appeal to the Appellate Division, Second Department, Ruiz contended that (1) the government offered insufficient proof of "physical injury" to sustain Ruiz's convictions for the crimes committed on January 1, 2003, and (2) the government did not refute Ruiz's testimony that Williams had told him that the order of protection was not in effect as of November 2002, and therefore there was insufficient proof that he had entered Williams's apartment unlawfully on January 1, 2003. Ruiz submitted a pro se supplemental brief in which he argued that (1) the evidence did not establish that the July 18, 2002 attack occurred or that Williams was significantly injured on that date; (2) he was not aware that Williams had an operative order of protection against him as of January 1, 2003, for Williams had told him that it was waived; (3) his appointed trial counsel was ineffective because he failed to investigate Ruiz's case; and (4) his counsel was inattentive due to the fact that Ruiz is Hispanic and was unfamiliar with the law. On January 16, 2007, the Appellate Division affirmed the conviction, holding that Ruiz's claim that the evidence was insufficient to establish Williams's physical injuries and his claim that he was unaware that he was violating an order of protection were unpreserved. In the alternative, the Court held that "viewing the evidence in the light most favorable to the prosecution, . . . it was legally sufficient to establish [Ruiz's] guilt beyond a reasonable doubt. People v. Ruiz, 831 N.Y.S.2d 178 (2d Dep't 2007). Additionally, the court held that Ruiz's ineffectiveness claims could not be reviewed on direct appeal because they involved "matters dehors the record." Id. James sought leave to appeal, and the New York Court of Appeals denied that application on April 5, 2007. People v. Ruiz, 8 N.Y.3d 949 (2007).

On April 30, 2007, Ruiz submitted a letter to the Appellate Division, Second Department, where he claimed that he received ineffective assistance of counsel on the grounds that counsel (1) failed to secure logs from the 108th Precinct that would have shown that Ruiz was arrested at a different time than the time established at trial; (2) failed to subpoena the tape of the second 911 call made by Williams on January 1, 2003; (3) failed to subpoena Ruiz's sister and "Lisa," the woman he was dancing with that night, who was one of Williams's neighbors; (4) failed to adequately investigate petitioner's case; (5) failed to cross-examine Williams or the police officers who testified for the prosecution; (6) left Ruiz's case mid-trial, for a full month, to work on a different case; (7) failed to hire an investigator to canvass Williams's neighborhood to find a witness who would testify that Ruiz had lived with Williams for the six years prior to the January 1, 2003 incident; and (8) was biased against Ruiz because he did not speak English or understand the law. The Clerk's Office of the Appellate Division rejected the submission because Ruiz had already received the one direct appeal of his conviction available to him under state law, and leave to appeal had already been denied. Ex. P.

3. The Instant Petition

Ruiz initially filed a petition in the Southern District of New York, but because a substantial part of the alleged events giving rise to Ruiz's claim arose in the Eastern District, the petition was transferred to this ...


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