The opinion of the court was delivered by: Denise Cote, District Judge
Edwin Ramirez brings this timely pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction on one count of Burglary in the First Degree, N.Y. Penal Law § 140.30, and one count of Robbery in the First Degree, id. § 160.15. This case was referred to Magistrate Judge Frank Maas for a report and recommendation ("Report"). The Report was issued on July 23, 2008, and recommends that the writ be denied and the petition dismissed on the ground that Ramirez's claims are without merit. Ramirez's objections to the Report, dated August 2, were received by the Court on August 7. This Opinion adopts the Report.
The facts relevant to the petition are set forth in the Report and summarized here. On November 1, 2000, Ramirez and his cousin Orlando Hurtado assisted Jocelyn Monegro, Hurtado's girlfriend, as she moved herself and her fourteen-year-old daughter into a second-floor apartment in the Bronx.*fn1 The move took approximately twelve hours, and Monegro paid Ramirez $250 for his work. On November 19, Hurtado and Monegro had a violent altercation. Monegro told Hurtado to leave the apartment, and to leave his keys behind. When Hurtado left, Monegro noticed that her daughter's set of keys was missing, while Hurtado's keys were still on the table where he had left them.
In the middle of the night on November 25, Monegro was awakened by the sound of an intruder in her apartment. Two men broke down Monegro's locked bedroom door, pushed her and her son onto the bed, and ordered the pair not to make any noise or look at them. While one intruder held Monegro at gun point, the other reached into the bedroom closet to retrieve a safe. While he was bending down to do so, the t-shirt covering his face fell off. Monegro recognized that intruder as Ramirez. Monegro's daughter also recognized Ramirez when he entered her bedroom and ordered her to lay on the ground and cover her face. Ramirez sat on her stomach and placed his hand over her mouth. She remained still and feigned death, at which point Ramirez left her bedroom and continued to rummage through the house. At one point, Ramirez told his accomplice to kill Monegro because she had recognized him, and therefore he could not leave her alive. Startled by noise from the apartment downstairs, Ramirez and the other perpetrator left the house. When police arrived on the scene, they found no sign of forced entry into Monegro's apartment. Monegro and her daughter told the police that Ramirez was one of the intruders. On January 12, 2001, they picked him out of a lineup. Ramirez was indicted on twenty-two charges, including two counts of attempted murder. He proceeded to trial in Supreme Court, Bronx County, before Justice Roger S. Hayes.
At trial, the defense theory was primarily alibi: that Ramirez was at home with his wife at the time of the crime. Ramirez's alibi witness was his wife ("Mrs. Ramirez"), who also served as a character witness.*fn2 On direct examination by defense counsel Jorge Guttlein, Mrs. Ramirez testified that Ramirez was "a wonderful husband, father, a good person." She claimed that he had never "shown any violence to [her] or anyone else" and that, to her knowledge, he had never been arrested.
In light of the direct examination, the prosecutor requested a sidebar. She produced an arrest report for Ramirez which indicated that on March 6, 1998, Ramirez was arrested after his wife filed a criminal complaint alleging that Ramirez had kicked, beaten, and threatened to kill her during an altercation. Guttlein indicated that he was shocked by this information. He claimed the prosecutor's revelation was "trial by ambush," and that he had "never heard of" the arrest report, "nor would [he] have reason to know of it." The prosecutor informed defense counsel that "he should have the arrest printout for this incident" because she had provided him with a copy prior to trial.
The judge permitted the prosecutor to proceed with cross-examination as to whether the altercation between the witness and Ramirez had occurred and whether the witness had gone to the police, but directed the prosecutor not to inquire as to whether Ramirez was ever arrested. On cross-examination, Mrs. Ramirez repeated that she was at home with her husband on the night of the robbery. Near the end of cross-examination, defense counsel and the prosecutor approached the bench, and this sidebar ensued on the record:
Mr. Guttlein: If in fact, which I'm not sure because I can't read this print-out for the life of me, and I was on notice and then I put her up on the stand, then obviously I've committed ineffective assistance of counsel and therefore, I ask to be granted a mistrial in the interest of justice and I should be released, with an emphasis on the last part.
The Court: Mr. Guttlein, there's no way in the world you have done anything remotely like ineffective assistance of counsel in this case. You have been a competent, prepared lawyer. You've gotten adjournments when you needed them. And this is simply a matter that the witness and your client may not have been candid with you. So your motion for mistrial or to be released is denied.
Cross-examination resumed after this exchange. The witness testified that she recalled the March 6, 1998 altercation, but described it as "a little dispute" and stated that she "exaggerated about certain things" when she pressed charges against him. She testified that "the very next day I went and dropped the charges and I went to pick him up," and that she had lived with him ever since.
Following Mrs. Ramirez's testimony, the court gave the jury this limiting instruction:
In this case you cannot, cannot use the evidence of what may or may not have happened which the witness just testified about as evidence that the defendant is somewhat inclined or likely to commit acts of violence or criminal acts.
Rather, you can use it for the limited purpose of helping you determine the credibility or believability of the witness who just testified and was then cross-examined regarding that act. And, you know, it's one factor that ...