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Robert Romero v. David A. Rock

April 18, 2011

ROBERT ROMERO, PETITIONER,
v.
DAVID A. ROCK, RESPONDENT.



The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge:

USDC SDNY

DOCUMENT

ELECTRONICALLY FILED

DOC #:

ORDER ADOPTING R&R

Pro se petitioner Robert Romero ("Romero" or "Petitioner") seeks habeas relief following his conviction in Supreme Court, New York County, on two counts of murder in the second degree. Romero advances four claims for habeas relief: (1) his due process right to a fair trial was violated by the trial court's improper admission of uncharged crimes as evidence and improper remarks made by the prosecution in summation; (2) the trial court improperly imposed consecutive sentences for crimes that constituted part of the same criminal transaction; (3) his second trial, after his first trial resulted in a hung jury and mistrial, violated his rights under the Constitution's double jeopardy clause; and (4) the use of a bible during the swearing in of trial witnesses infringed his rights under the establishment clause of the First Amendment. (Petition ¶ 13.)

Romero filed his petition on September 5, 2008. This Court referred the case to Magistrate Judge Frank Maas on September 16, 2008. On February 2, 2010, Magistrate Judge Maas issued a Report & Recommendation ("R&R") that the Court deny the Petition and find that Romero has failed to make a substantial showing of the denial of a constitutional right as required by 28 U.S.C. § 2253(c)(2) and thus not issue a certificate of appeal. After receiving several extensions, Romero filed objections to the R&R on April 19, 2010, attacking the completeness of the record and claiming that the District Attorney attempted to defraud the Court. Rarely does he address Magistrate Judge Maas's R&R. The legal memo deals with giving pro se litigants a break, which is not the standard used when considering a habeas petition. The Court has reviewed the R&R and Romero's objections. For the reasons that follow, the Court adopts Magistrate Judge Maas's Report and Recommendation in its entirety. Romero's petition is, therefore, DENIED.

BACKGROUND*fn1

I. Facts

On November 1, 1990, Romero shot and killed Etienne Adorno and DeMetrio Flores for threatening to steal drugs and/or money from Romero and his brothers, who ran a drug distribution business on First Avenue between 117th and 118th Streets in Manhattan. After threatening Maria Martinez, his girlfriend who was a witness to the shootings, Romero evaded arrest until 1999 when an associate of the victims agreed to cooperate and testify against two of the shooters. On December 16, 1999, Romero and his brothers were each charged with two counts of intentional murder in the second degree. At trial, four eyewitnesses, including Martinez, an associate of the defendants who was present at the shooting, as well as two employees of the Romero brothers, testified about Romero's role in the shootings.

II. Procedural History

A. The Trials

On April 16, 2001, Romero was tried in Supreme Court, New York County before Justice

Edwin Torres and a jury. The jurors were unable to reach a unanimous verdict, however, and on May 16, 2001 a mistrial was declared. On January 2, 2002, Romero's retrial commenced before Justice Leslie Crocker Snyder and a jury. On February 6, 2002, Romero was convicted as charged. On March 12, 2002, Romero was sentenced to consecutive sentences of twenty-five years to life on each count.

B. Subsequent Procedural History

1. First Motion to Vacate Conviction

On December 30, 2003, after filing a notice of appeal with the Appellate Division, First

Department, but before the appeal had been perfected, Romero filed a pro se motion to vacate his conviction under New York Criminal Procedure Law ยง 440.10 ("CPL 440.10"). Romero contended that Justice Torres had improperly declared a mistrial at the end of the first trial, and that Justice Snyder had made several erroneous evidentiary rulings - specifically, that she admitted evidence of Romero's abusive relationship with Martinez, involvement with the drug trade, and nickname, "Crazy Rob." On May 12, 2004, Justice Robert H. Straus denied Romero's motion because each of the issues was record-based and therefore could be raised as part of his direct appeal. Justice Straus further concluded that Romero's claims were meritless, finding that Justice Torres properly concluded there was "no reasonable possibility the jurors could agree on a verdict," and that Justice Snyder had properly admitted the evidence in question as background evidence to explain the relationships among the ...


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