The opinion of the court was delivered by: Seybert, District Judge
Renzzo Rodriguez ("Petitioner" or "Rodriguez"), proceeding pro se, petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons below, the Court DENIES Rodriguez's petition in its entirety.
At approximately 3:00 a.m. on February 7, 1999, Petitioner left a party at St. Patrick's Church, in Glen Cove, New York. (Trial Transcript ("Tr.") 5, 781.) Carlos Lizarraga ("Lizarraga") also attended the party, and left at approximately the same time. (Tr. 512). After nearly colliding their vehicles upon leaving the church grounds, both men exited their respective cars, exchanged words, and began to fight. Victor Figueroa ("Figueroa"), a passenger in Petitioner's vehicle, joined Petitioner in hitting Lizarraga.
At some point, Lizarraga fell to the ground. Thereafter, Petitioner went to his car, retrieved a baseball bat, and struck Lizarraga twice on the head.*fn1 Id. at 517:16-24. Petitioner then kicked Lizarraga, told him to "[d]ie like a dog", and left the scene with Figueroa. (Tr. 606.) After Petitioner left, Lizarraga's wife, Gina Wilson ("Wilson") and her friends drove Lizarraga to the hospital, where Lizarraga underwent cranial surgery for his injuries. Lizarraga remained in the hospital for two weeks, and was unable to return to work for approximately five months while he recovered from his injuries.
After arriving home after the incident, Petitioner called the Nassau County Police Department. Petitioner informed the police that Lizarraga was the instigator and that he struck Lizarraga in self-defense. Petitioner stated that he did not want to file a complaint. Shortly thereafter, Petitioner called his attorney. At trial, Petitioner testified that his attorney told him to hide if the police came back to this home. Petitioner conceded that he hid in his attic when Glen Cove Police Officers returned to Petitioner's home later that morning. Rodriguez surrendered to the police three days after the incident. Id. at 799.
On February 8, 2001, following a jury trial, Petitioner was convicted of Assault in the First Degree and Criminal Possession of a Weapon in the Third Degree in violation of New York Penal Law §§ 120.10 and 265.02, respectively.
On March 24, 2001, Petitioner moved in County Court, Nassau County to set aside the verdict, pursuant to N.Y. Crim. Proc. Law § 330.30. Petitioner argued that the prosecutor engaged in misconduct by making improper comments during his opening statement, cross-examination of defense witness Vilma Medina ("Medina"), and summation. On May 2, 2001, the County Court denied Petitioner's motion.
On May 4, 2001, the County Court, Nassau County, entered a judgment of conviction against Petitioner, and sentenced Petitioner to concurrent terms of imprisonment of nine years and two and one-third to seven years. Petitioner was also ordered to pay restitution in the amount of $8,154.94.
Petitioner appealed his conviction to the Appellate Division, Second Department. On appeal, Petitioner's counsel argued that the trial court improperly permitted the prosecutor to question Medina, Petitioner's girlfriend, about the removal of her children by Child Protective Services, and that the prosecutor's comments on summation were improper, prejudicial, and designed to inflame the jury.
On December 1, 2003, the Appellate Division affirmed Petitioner's judgment of conviction, and held that "[t]he defendant's arguments regarding alleged prosecutorial misconduct during summation [were] largely unpreserved for appellate review. In any event, the challenged remarks constituted fair comment on the evidence, were responsive to arguments presented in defense counsel's summation, or were harmless in light of the overwhelming evidence of the defendant's guilt." See People v. Rodriguez, 767 N.Y.S.2d 820, 821 (2d Dep't 2003) (internal citations omitted). The Appellate Division also rejected Petitioner's argument that the prosecutor improperly questioned Medina. The court held that "the trial court providently exercised its discretion in permitting the prosecutor to cross-examine the defendant's girlfriend about the removal of the girlfriend's children from her custody by the Nassau County child protective services agency due to physical abuse." Id.
On February 26, 2004, the New York Court of Appeals denied Petitioner's application for leave to appeal. See People v. Rodriguez, 808 N.E.2d 1291, 1 N.Y.3d 634, 777 N.Y.S.2d 31 (2004).
On February 22, 2005, Rodriguez filed the instant petition for a writ of habeas corpus. Petitioner argues that he was denied a fair trial because (1) the trial court improperly allowed the prosecutor to question Medina about her child custody issues, and (2) the prosecutor committed misconduct by making inflammatory and unfairly prejudicial remarks in his summation.
Respondent counters that the Petitioner failed to preserve all arguments for appellate review, Petitioner's arguments are without merit, and in any case, there was overwhelming evidence of ...