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Rodriguez v. Graham

United States District Court, E.D. New York

June 29, 2017



          M. COGAN, District Judge.

         Petitioner seeks habeas corpus relief under 28 U.S.C. § 2254 from his conviction for second degree murder, first degree assault, and second degree assault. The facts will be set forth below as they pertain to each of plaintiff's points of error, but to summarize, petitioner, seeking revenge against or protection from his girlfriend and her new boyfriend, enlisted two friends to help him burn down the building in which petitioner's girlfriend lived. Petitioner went to a laundromat and bought a laundry bag. Then, he and an accomplice, Devone Sanders, together with another individual, Jose Echevarria, bought a full gasoline can and put it in the laundry bag. Following directions given by petitioner, Sanders started the fire. One person died and two were injured, one seriously.

         Petitioner's four points of error are the following: (1) the trial court, having suppressed the second of three statements that petitioner gave to police and the District Attorney, should have suppressed the third as well, rather than holding that the time period between the second and third confession was sufficient to attenuate the improper questioning that led to the second, suppressed confession; (2) the trial court, in its Sandoval ruling, improperly weighed the limitations on cross examining Sanders about his prior convictions when it determined which prior convictions petitioner could be cross examined on if petitioner testified; (3) the trial court improperly rejected a missing witness charge; and (4) his trial counsel was ineffective for not seeking to redact portions of petitioner's videotaped confession and precluding the prosecutor from cross examining him as to those portions of the confession that should have been redacted.

         The Appellate Division accepted the first point as error, but held the error to be harmless. Thus, I construe petitioner's argument here as a challenge to the Appellate Division's harmless error ruling, and I reject his challenge under the standard set forth in Brecht v. Abrahamson, 507 U.S. 619 (1993). I further hold that petitioner's second point of error is procedurally barred. Finally, the third and fourth points of error fail on the merits under the deferential standard of review required by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(d). Accordingly, the petition is denied.

         I. Suppression of Petitioner's Statement

         A. Background

         1. Statements Petitioner Did Not Challenge

         On his arrest, the police provided petitioner with his Miranda warnings. Petitioner waived his rights and proceeded to answer questions for about 25 minutes (the “first statement”). He acknowledged that he had purchased a laundry bag, but he denied committing the arson. The investigating detective asked petitioner if he had been at the JFK Inn that evening, and petitioner said he had not. Petitioner said that on the night in question, he had driven around with his two friends, Echevarria and Sanders (both of whom, apparently unbeknownst to petitioner, had already given full statements to the police implicating themselves and petitioner in the arson) all night long.

         After a ten-minute break, the investigating detective told petitioner that the police had a videotape of petitioner at the JFK Inn on the evening in question. At that point, petitioner changed his story to acknowledge that he had gone to the JFK Inn to sell a gun and that Echevarria and Sanders had gone with him as backup. He then said that he had not disclosed this gun sale when first asked because he did not want to implicate his friends in the gun sale. Petitioner then attempted to blame the arson on Sanders while continuing to deny his involvement. Petitioner said he assumed Sanders had taken the laundry bag from the back of petitioner's car. Petitioner also admitted having learned that his girlfriend was cheating on him with an individual named AJ, and that he believed that his girlfriend had enlisted AJ to rob or kill him.

         The interrogation resumed about one hour later, at which point the detectives informed petitioner that they had additional evidence suggesting that he had been in the vicinity of the fire. Petitioner responded that he had neither entered the building nor set the fire, but he admitted that on the evening in question, he, Echevarria, and Sanders had driven to his girlfriend's house, where they saw AJ enter and leave. Petitioner said that he and his accomplices attempted to follow AJ in his car and that they had discussed how to get revenge on AJ. Petitioner told the detectives that he had suggested burning AJ's car, but Sanders had proposed burning the girlfriend's house.

         Petitioner further acknowledged buying a gasoline container and the laundry bag. He also stated that the three of them had stopped at a gas station and filled the container. The three men then drove back to the girlfriend's house, and Sanders got out of the car with the laundry bag containing the gasoline can. Petitioner told the detectives that he thought that Sanders would burn AJ's car and drove away briefly, but when he returned to pick Sanders up, he saw that the building was on fire.

         Petitioner agreed to repeat this version of the story on videotape to an Assistant District Attorney (“ADA”). The ADA did not arrive for several hours. The ADA reissued the Miranda warnings at the start of the videotaped interview (the “first video”), and petitioner initially waived his rights, but he then invoked them after a few questions.

         2. Statements Petitioner Did Challenge

         Two and one-half hours later, the detectives, at the request of the ADA, showed petitioner the videotaped statement that Echevarria had given, which implicated petitioner in the arson. The detectives did not re-Mirandize petitioner. Petitioner then admitted that he knew that Sanders was going to burn his girlfriend's house, and he agreed to make another videotaped statement (the “second statement”).

         Two hours after that, petitioner was re-issued Miranda warnings and waived his rights. He then stated on video (the “second video”) that AJ had tried to rob or kill him with his girlfriend's cooperation and that petitioner had been looking for AJ in an attempt to beat him. He maintained that he was surprised when he returned to the house and found that Sanders had started a fire. He admitted possession of a handgun, and he admitted that he had been “caught” in Pennsylvania with guns, cash jewelry, and false identification.

         3. State ...

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