United States District Court, N.D. New York
SARA RODRIGUES, Petitioner, Pro Se, Albion Correctional Facility, Albion, NY.
THE HON. ERIC T. SCHNEIDERMAN New York State Attorney General LISA E. FLEISCHMANN, ESQ, Assistant Attorney General, New York, NY, Attorney for Respondent.
REPORT-RECOMMENDATION and ORDER
RANDOLPH F. TREECE, Magistrate Judge.
Pro se Petitioner Sara Rodrigues brings this Petition for a Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254, on the grounds that (1) the verdict was against the weight of the evidence; (2) the jury's rejection of Petitioner's duress defense was against the weight of the evidence; (3) the evidence was legally insufficient to establish Petitioner's accomplice liability; (4) the sentencing judge acted vindictively by giving Petitioner an increased sentence for exercising her right to proceed to trial; (5) the evidence was legally insufficient to establish Petitioner's accessorial liability for the crimes of her co-defendants; and (6) several of her convictions should be dismissed as lesser included concurrent offenses. See generally Dkt. No. 1, Pet. Respondent opposes the Petition on the grounds that Petitioner's claims are unexhausted, incognizable, and/or meritless. See generally Dkt. No. 9, Resp't's Mem. of Law. For the reasons that follow, we recommend that the Petition be DENIED and no certificate of appealability be issued.
The following evidence was adduced at Petitioner's jury trial between October 15 and 20, 2008. Petitioner's co-conspirators, Kristopher Brown and Tyrell Frater, testified that Brown met Petitioner in December of 2007, during a drug deal at her boyfriend's house. Petitioner suggested to Brown that they could rob her drug supplier, Travys Vulgamore. She told Brown that Vulgamore was "flashy" with his money and "dumb." Dkt. Nos. 10-6 through 10-10, Trial Tr.,  dated October 15-20, 2008, at pp. 324-33 & 520-21. Later, Brown recruited two friends, Tyrell Frater and Lorenzo Best, to assist in the robbery. Id. at pp. 334-35, 338-41, & 519-21. On January 3, 2007, Petitioner, Brown, Frater, and Best drove to Vulgamore's apartment building to see what the building looked like; once there, Petitioner explained where Vulgamore's apartment was located within the building. Id. at pp. 341-45 & 521-26. The group then drove back to Petitioner's boyfriend's apartment, and while sitting in Best's car, began planning the robbery. Id. at pp. 345-49 & 526-28. Petitioner recommended that they commit the robbery on January 5th, her birthday. Id. at pp. 349-50, 400-01, & 530-31.
On the evening of January 5, 2008, Petitioner, Brown, Frater, and Best met at Petitioner's boyfriend's apartment. Id. at pp. 353-54 & 534-39. Thereafter, Petitioner called Vulgamore and received permission to come over to his apartment. Id. at pp. 360. Brown, Frater, and Best dropped Petitioner off across the street from Vulgamore's apartment, and then waited for Petitioner to give them the all clear. Sometime thereafter, Petitioner sent a text message to Brown informing him that there was weed and cocaine in the apartment and that it was ok for them to come to the apartment. Id. at pp. 364-68 & 546-48. Thereafter, Frater and Brown entered the apartment, held the occupants at gunpoint while they taped their hands with duct tape, pistol whipped one of the occupants, and stole cell phones, wallets, bongs, about $100 in cash, and a small amount of marijuana. They then fled from the apartment, pretending to kidnap Petitioner. Id. at pp. 368-82 & 548-60. Thereafter, all four went back to Petitioner's boyfriend's house and divvied up the property and money they stole, leaving some of the property with Petitioner. Id. at pp. 383, 391-394 & 559-60.
Another witness for the prosecution, Detective James McNitt, testified that when he later confronted Petitioner about her involvement in the robbery, she gave him a false name and birthday, as well as false contact information for her parents. Id. at pp. 771-76.
On October 20, 2008, Petitioner was convicted of thirty-four (34) counts, including:
four counts of first degree robbery (N.Y. PENAL L. (hereinafter "PL") § 160.15(3));
six counts of second degree robbery (PL §§ 160.10(1) & (2)(a));
three counts of first degree burglary (PL §§ 140.30(2) & (3));
one count of second degree burglary (PL § 140.25(1)(d));
two counts of second degree assault (PL § 120.05(6));
one count of fourth degree conspiracy (PL § 105.10(1));
three counts of fourth degree grand larceny (PL § 155.30(4));
three counts of fourth degree possession of stolen property (PL § 165.45(2));
four counts of petit larceny (PL § 155.25);
four counts of fifth degree criminal possession of stolen property (PL § 165.40);
two counts of second degree unlawful imprisonment (PL § 135.05); and
one count of second degree making an apparently false statement (PL § 210.35).
Trial Tr. at pp. 1139-43; Dkt. No. 10, State Ct. Rs. (hereinafter "R."), Ex. B, Notice of ...