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Jonathan Rosado v. Michael Capra

September 13, 2012


The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge


Jonathan Rosado, a state prisoner appearing pro se, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. Rosado is currently in the custody of the New York Department of Corrections and Community Supervision, incarcerated at Sing Sing Correctional Facility. Respondent has answered, and Rosado has replied.


In July 2005, following his conviction by two separate juries of Assault in the First Degree (N.Y. Penal Law §§ 20.00, 120.10[1] ), Criminal Possession of a Weapon in the Second Degree (N.Y. Penal Law § 265.03[2]), and two counts of Criminal Possession of a Weapon in the Third Degree (N.Y. Penal Law § 265.03[4]), Rosado was sentenced in the Broome County Court as a second felony offender to an aggregate prison term of twenty-five years. The Appellate Division, Third Department, affirmed Rosado's conviction and sentence in a published decision, and the New York Court of Appeals denied leave to appeal on November 30, 2007.*fn2 On January 6, 2009, Rosado, appearing pro se, filed a coram nobis petition in the Appellate Division, which was summarily denied without opinion or citation to authority on February 24, 2009, and the New York Court of Appeals denied leave to appeal on May 18, 2009. Rosado timely filed his Petition for relief in this Court on June 1, 2009.

As summarized by the Appellate Division, the facts underlying Rosado's conviction:

[] Those charges stemmed from an incident in May 2004 in which [Rosado] waived a gun out the window of a moving vehicle at two women, who flagged down police; when the vehicle was stopped, police observed and recovered two loaded firearms, a .22 caliber pistol and the .32 caliber revolver which [Rosado] had displayed from the car window. While in custody, [Rosado] gave a statement to police admitting the charged conduct, as well as his role in an August 2003 shooting for which he was subsequently indicted and tried. At the second trial, various witnesses, including [Rosado's] accomplice, testified that [Rosado] had orchestrated an assault on Anthony Tillman in retaliation for Tillman having previously shot [Rosado].*fn3


In his Petition, Rosado raises four claims: (1) the trial court denied him his Sixth Amendment right to conduct his own defense (self-representation); (2) ineffective assistance of trial counsel; (3) the convictions were obtained by the use of a coerced confession; and (4) the assault conviction was against the weight of the evidence. Respondent contends that Rosado's first (denial of right to self-representation), second (ineffective assistance of trial counsel), and fourth (assault conviction), claims are unexhausted and procedurally barred; and that his third (coercion) claim is unexhausted. In his Traverse Rosado does not address Respondent's failure to exhaust defense. In his Petition, however, Rosado appears to concede the exhaustion issue, but contends it was because appellate counsel was ineffective. Because prisoner pro se pleadings are given the benefit of liberal construction,*fn4 this Court will treat Rosado's ineffective assistance of appellate counsel argument as a fifth ground and proceed accordingly.*fn5


Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" at the time the state court renders its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn6 The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision."*fn7 The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts.*fn8 Thus, where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'"*fn9 When a claim falls under the "unreasonable application" prong, a state court's application of Supreme Court precedent must be "objectively unreasonable," not just "incorrect or erroneous."*fn10 The Supreme Court has made clear that the objectively unreasonable standard is "a substantially higher threshold" than simply believing that the state-court determination was incorrect.*fn11 "[A]bsent a specific constitutional violation, federal habeas corpus review of trial error is limited to whether the error 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'"*fn12 In a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state court criminal trial is whether the error had a substantial and injurious effect or influence in determining the outcome.*fn13 Rosado"bears the burden of proving by a preponderance of the evidence that his constitutional rights have been violated."*fn14

The Supreme Court recently underscored the magnitude of the deference required:

As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings. Cf. Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (discussing AEDPA's "modified res judicata rule" under § 2244). It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no farther. Section 2254(d) reflects the view that habeas corpus is a "guard against extreme malfunctions in the state criminal justice systems," not a substitute for ordinary error correction through appeal. Jackson v. Virginia, 443 U.S. 307, 332, n.5, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (Stevens, J., concurring in judgment). As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.*fn15

In applying this standard, this Court reviews the "last reasoned decision" by the state court.*fn16 Under AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence.*fn17 Although pre-AEDPA precedent established that deference is due to the findings of state appellate courts,*fn18 the Second Circuit has left the question open with respect to AEDPA cases.*fn19 In the absence of a clear indication from the Second Circuit to the contrary, this Court can find no principled reason not to apply the same rule in the context of AEDPA, i.e., findings of a state appellate court are presumed to be correct.


A. Exhaustion

This Court may not consider claims that have not been fairly presented to the state courts.*fn20 Unexhausted claims must be dismissed.*fn21 The claim must have been presented to the highest state court that may consider the issue presented.*fn22 "[F]or purposes of exhausting state remedies, a claim for relief in habeas corpus must include reference to a specific federal constitutional guarantee, as well as a statement of facts that entitle the petitioner to relief."*fn23 A

mere appeal to a broad constitutional guarantee, e.g., due process, is insufficient to present the substance of a constitutional claim to the state courts.*fn24 A petitioner satisfies the fair presentation aspect of the exhaustion requirement by presenting the essential factual and legal premises of his federal constitutional claim to the appropriate state courts.*fn25 An issue is exhausted when the substance of the federal claim is clearly raised and decided in the state court proceedings, irrespective of the label used.*fn26 Exhaustion does not require that Rosado have cited the "book and verse on the federal constitution."*fn27 A petitioner who does not cite the "book and verse of the Constitution" may nonetheless "fairly present to the state courts the constitutional nature of his claim" through:

(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.*fn28

In New York, to invoke one complete round of the State's established appellate process, a criminal defendant must first appeal his or her conviction to the Appellate Division and then seek further review by applying to the Court of Appeals for leave to appeal.*fn29 Claims are fairly presented to the New York Court of Appeals when the application for leave to appeal clearly states that all claims in the attached brief are being pressed, or no arguments are made in detail and the application simply requests review of all issues outlined in the brief.*fn30 Where the application for leave to appeal refers to specific claims raised before the Appellate Division but omits mention of others, the unmentioned claims are deemed abandoned.*fn31 Where the application for leave to appeal argues one or more specific claims but only makes a passing reference to possible other claims found in the attached briefs, the claims mentioned in passing have not been fairly presented to the Court of Appeals.*fn32

Even if a federal claim has not been properly presented to the highest state court or preserved under state law, it will be deemed exhausted if it has become procedurally barred under state law.*fn33

In the case of procedural default (including where an unexhausted claim no longer can proceed in state court), we may reach the merits of the claim "only if the defendant can first demonstrate either cause and actual prejudice, or that he is actually innocent."*fn34

However, the Court need not rely on this basis as it may deny the petition on the merits notwithstanding the lack of exhaustion of state-court remedies,*fn35 particularly where the ground raised is plainly meritless.*fn36

In his petition for a writ of error coram nobis in the Appellate Division, Rosado challenged the effectiveness of his appellate counsel in failing to raise on appeal his first (denial of right of self-representation) and second (ineffective trial counsel) grounds. In his application for leave to appeal to the New York Court of Appeals Rosado included only the failure of his appellate counsel to raise the claim that he had been improperly denied his right of self-representation. Rosado did not raise his third ground (use of a coerced confession) on either direct appeal or in his coram nobis petition. Thus, because they have not been presented to the highest state court in any form, Rosado's second (ineffective assistance of trial counsel) and third (use of a coerced confession) grounds have not been properly exhausted. Accordingly, this Court is not only precluded from considering them on the merits, it is also precluded from considering Rosado's ineffective assistance of appellate counsel claim based upon the failure to raise those issues. Rosado is not entitled to relief under his second and third grounds.

B. Merits

Ground 1: Denial of Right to Self-Representation (Sixth Amendment Violation)

Rosado contends that the trial court improperly denied his request that he be permitted to fire his trial counsel and proceed to defend himself pro se. Respondent contends that because Rosado did not raise the denial of his right to self-representation on direct appeal, he has failed to properly exhaust his state-court remedies. Although this Court agrees that Rosado did not raise the question on direct appeal, he did exhaust his claim that his appellate counsel was ineffective for failing to raise the claim. Thus, as noted above, in order for this Court to determine whether his appellate counsel was ineffective for failing to present his Sixth Amendment claim on direct appeal, this Court must assess the validity of the underlying claim.*fn37

Neither the Appellate Division nor the New York Court of Appeals provided any reasoning for rejecting Rosado's claim. A state court is not required to give reasons before its decision can be deemed to be "adjudicated on the merits."*fn38 When there is no reasoned state court decision denying an issue presented to the state courts "it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary."*fn39 "The presumption may be overcome when there is reason to think that some other explanation for the state court's decision is more likely."*fn40

Where there is no reasoned decision of the state court addressing the ground or grounds raised on the merits and no independent state grounds exist for not addressing those grounds, this Court must decide the issues de novo on the record before it.*fn41 In so doing the Court presumes that the state court ...

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