Opinion
No. 00 Civ. 401 (MBM)(KNF).
January 12, 2006
REPORT RECOMMENDATION
TO THE HONORABLE MICHAEL B. MUKASEY, UNITED STATES DISTRICT JUDGE. I. INTRODUCTION
Before the Court is Rafael Rodriguez' ("Rodriguez") petition for a writ of habeas corpus, made pursuant to 28 U.S.C. § 2254. Petitioner claims that his confinement by New York state is unlawful because he was denied a fair trial when the prosecutor, during summation, improperly supported his argument in favor of conviction by appealing to his own character and attempted to inflame the jury by suggesting that petitioner had a propensity for homicidal violence. In addition, the petitioner has informed the court that he recently filed a motion to vacate the judgment of conviction, pursuant to New York's Criminal Procedure Law ("CPL") § 440.10, on the ground that he received ineffective assistance from trial counsel. The petitioner seeks a stay of the instant petition pending the exhaustion of this claim in state court.
The respondent opposes Rodriguez' petition for a writ of habeas corpus. He contends that the claim of prosecutorial misconduct is procedurally barred and, therefore, petitioner's application for habeas corpus relief should be denied.
II. BACKGROUND
The Court assumes familiarity with the facts of this case as set forth in its previous writings. Briefly, Rodriguez was convicted in October 1992 for murder in the second degree and attempted murder in the second degree, after a trial by jury in New York State Supreme Court, New York County. The conviction was affirmed by the New York State Supreme Court, Appellate Division, First Department on April 11, 1996. See People v. Rodriguez, 226 A.D.2d 177, 641 N.Y.S.2d 532 (App.Div. 1st Dep't 1996). In reaching its conclusion, the Appellate Division stated that petitioner had "failed to preserve his present challenges to the prosecutor's summation, and we decline to review them in the interest of justice." Id. at 178, 532. Rodriguez' application for leave to appeal to the New York Court of Appeals was denied on May 28, 1996. See People v. Rodriguez, 88 N.Y.2d 884, 645 N.Y.S.2d 459 (1996).Rodriguez first petitioned this court for a writ of habeas corpus on April 14, 1997. The respondent moved to dismiss Rodriguez' first petition on the ground that it contained unexhausted claims. On May 21, 1999, Rodriguez sought to withdraw his petition so that he might exhaust state remedies with respect to his claims. On June 21, 1999, petitioner's request to withdraw his petition without prejudice to refiling after exhaustion was granted.
Rodriguez had sought previously to withdraw the petition without prejudice in order to exhaust his state remedies, then retracted his withdrawal request because he was concerned that he would be unable to commence state exhaustion proceedings within the time remaining in the limitations period.
Petitioner submitted a new petition for a writ of habeas corpus on November 22, 1999, alleging, as in his first petition, that he was denied a fair trial because of prosecutorial misconduct during summation, and adding the claims that: (a) he was denied the effective assistance of appellate counsel, and (b) the trial court had erred in failing to suppress identification testimony obtained as the result of an unlawful search and arrest.
The respondent moved to dismiss the second petition as time-barred pursuant to 28 U.S.C. § 2244(d). The petition initially was found to be timely. See Rodriguez v. Bennett, No. 00 Civ. 401, 2001 WL 682446, at *3 (S.D.N.Y. June 18, 2001). However, in light of the United States Supreme Court's decision in Duncan v. Walker, 533 U.S. 167, 121 S. Ct. 2120 (2001), in which the Court held that the tolling mandated by 28 U.S.C. § 2244(d)(2) applies only to state and not to federal petitions for collateral relief, Rodriguez' second habeas corpus petition was dismissed as untimely. See Rodriguez v. Bennett, No. 00 Civ. 401, 2001 WL 940569, at *2 (S.D.N.Y. August 20, 2001).
On appeal, the Second Circuit vacated the judgment of dismissal and ordered the court to consider whether, under the circumstances, the limitations period should be equitably tolled for any of Rodriguez' claims during the pendency of his first petition. See Rodriguez v. Bennett, 303 F.3d 435, 439-40 (2d Cir. 2002). Thereafter, your Honor determined that only one of the claims raised in Rodriguez' second petition, namely, his claim of prosecutorial misconduct, was filed timely, and referred the matter to the undersigned for a report and recommendation on the question of whether that claim has merit. See Rodriguez v. Bennett, No. 00 Civ. 401, 2005 WL 273263, at *6 (S.D.N.Y. Jan. 27, 2005).
In reaching this conclusion, your Honor dismissed in part the recommendation of the Court that petitioner be permitted to benefit from equitable tolling for all of the claims raised in the petition then before the court. See id. at * 1.
III. DISCUSSION
A federal court may not review a question of federal law decided by a state court if the state court's decision rested on a state-law ground, be it substantive or procedural, that is independent of the federal question and adequate to support the judgment. See Coleman v. Thompson, 501 U.S. 722, 729, 111 S. Ct. 2546, 2553-54 (1991). In most cases, a state procedural bar constitutes an adequate and independent state-law ground that is sufficient to preclude federal habeas corpus review. "In exceptional cases, however, an exorbitant application of a generally sound rule may affect the adequacy and independence of the state procedural ground, and allow the United States district court to consider the merits of a constitutional claim." Rosa v. Herbert, 277 F. Supp. 2d 342, 351 (S.D.N.Y. 2003) (quoting Lee v. Kemna, 534 U.S. 362, 376, 122 S. Ct. 877, 885 [2002]); see also Bell v. Poole, No. 00 Civ. 5214, 2003 WL 21244625, at *9 (E.D.N.Y. Apr. 10, 2003) ("The mere invocation of a procedural bar does not . . . automatically preclude review in this court.").The Second Circuit Court of Appeals has stated that a procedural bar is adequate to support a state court judgment only if it is based on a rule that is "firmly established and regularly followed" by the state in question. Cotto v. Herbert, 331 F.3d 217, 239-41 (2d Cir. 2003). Thus, the parties to an action must have notice of the state procedural rule and the rule must be applied consistently in similar circumstances. See Bell, 2003 WL 21244625, at *9. Furthermore, a state procedural rule must serve a legitimate state interest. See Rosa, 277 F. Supp. 2d at 351; Smart v. Scully, 787 F.2d 816, 820 (2d Cir. 1986). However, "the adequacy of a state procedural bar is determined with reference to the particular application of the rule; it is not enough that the rule generally serves a legitimate state interest." Cotto, 331 F.3d at 240 (quotingLee, 534 U.S. at 387, 122 S. Ct. at 891) (internal quotation marks omitted). Therefore, an inquiry into whether the application of a procedural rule is "firmly established and regularly followed" in the specific circumstances presented in a case includes "an evaluation of the asserted state interest in applying the procedural rule in such circumstances." Id.
In this case, the Appellate Division did not dispose of Rodriguez' claim that he was denied a fair trial because of the prosecutor's comments on summation on the merits. Rather, the court found that this claim was not preserved for appellate review. See Rodriguez, 226 A.D.2d at 177-78, 641 N.Y.S.2d at 532.
CPL § 470.05, in its most pertinent part, provides that:
For purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same. Such protest need not be in the form of an "exception" but is sufficient if the party made his position with respect to the ruling or instruction known to the court. . . .
The purpose of the rule is "to fairly apprise the court and the opposing party of the nature and scope of the matter contested."People v. Jones, 81 A.D.2d 22, 41-42, 440 N.Y.S.2d 248, 261 (App.Div. 2d Dep't 1981).
New York's contemporaneous objection rule is firmly established and has, for many years, been applied to claims of error involving federal constitutional rights. See People v. lannelli, 69 N.Y.2d 684, 512 N.Y.S.2d 16 (1986); People v. Thomas, 50 N.Y.2d 467, 429 N.Y.S.2d 584 (1980). It has been applied routinely in circumstances, such as those in the case at bar, in which a defendant did not make a timely protest to a prosecutor's summation. See, e.g., People v. Williams, 46 N.Y.2d 1070, 416 N.Y.S.2d 792 (1979); People v. Anderson, 2005 WL 3305053, at *1 (App.Div. 2d Dep't 2005); People v. Spruill, 5 A.D.3d 318, 775 N.Y.S.2d 249 (App.Div. 1st Dep't 2004); People v. Murphy, 188 A.D.2d 742, 591 N.Y.S.2d 860 (App.Div. 3d Dep't 1992). Rodriguez has not identified any respect in which the Appellate Division's application of this rule to the case at bar might have departed from the regular application of the rule to similar cases in New York appellate courts.
A habeas corpus petitioner may bypass the independent and adequate state law ground by showing cause for the default and prejudice attributable thereto or by demonstrating that a fundamental miscarriage of justice will attend, that is, that the petitioner is actually innocent of the crime for which he was convicted, if the claim is not reviewed by the habeas court.See Harris v. Reed, 489 U.S. 255, 262, 109 S. Ct. 1038, 1043 (1989). Therefore, in order to overcome the procedural bar imposed by the Appellate Division's determination that this claim is unpreserved, Rodriguez must show cause for his default and prejudice attributable thereto or demonstrate that the failure to consider his federal claims will result in a fundamental miscarriage of justice. However, Rodriguez has shown neither cause for his procedural default nor prejudice. Moreover, he has not proffered any new evidence that he is actually innocent. In light of the foregoing, the petitioner may not obtain habeas corpus relief on this claim.
On December 8, 2005, Rodriguez informed the court that he had filed a motion to vacate the judgment of conviction pursuant to CPL § 440.10, on the ground that he received ineffective assistance from his trial counsel. Rodriguez seeks a stay of his habeas corpus petition pending the resolution of this motion in the state courts.
Rodriguez appears to have filed his CPL § 440.10 motion in an attempt to overcome the respondent's contention that Rodriguez' claim of prosecutorial misconduct is procedurally barred and that Rodriguez has failed to suggest, as cause for his default, the ineffective assistance of trial counsel.
The petitioner's ineffective assistance of counsel claim was not raised in the instant petition. Moreover, the petitioner has not sought leave to amend the petition to include this claim.See Fed.R.Civ.P. 15; Littlejohn v. Artuz, 271 F.3d 360, 363 (2d Cir. 2001) (finding that motion to amend habeas corpus petition is governed by Fed.R.Civ.P. 15[a]). In any case, the Court finds that leave to amend the petition should not be granted in this case because the petitioner has unduly delayed the assertion of his new claim. More than fifteen years have elapsed since petitioner's judgment of conviction was entered. Petitioner has offered no explanation for his failure to raise his new claim in the relevant state courts during that period. Additionally, petitioner has not provided the Court with any facts that demonstrate that the basis for his claim was not known to or was otherwise unavailable to him when he filed his habeas corpus petition, nor has he demonstrated that he was prevented from raising the claim at an earlier stage of this case. Cf. Rodriguez v. Portunodo, No. 01 Civ. 547, 2003 WL 22966293, at *3 (S.D.N.Y. Dec. 15, 2003) (finding amendment and stay of habeas corpus petition warranted where petitioner claimed to discover new evidence giving rise to new claim); Whelan v. Bank United of Texas, No. 97 Civ. 0479, 1999 WL 285502, at *2 (S.D.N.Y. May 6, 1999) (finding that court may deny motion to amend "when the movant knew or should have known of the facts upon which the amendment is based when the original pleading was filed, particularly when the movant offers no excuse for the delay"). Therefore, the Court finds that petitioner has been inexcusably dilatory in seeking to amend his habeas corpus petition. See Littlejohn, 271 F.3d at 363 ("[A]lthough Rule 15 requires that leave to amend be 'freely given,' district courts nonetheless retain the discretion to deny that leave in order to thwart tactics that are dilatory."). Accordingly, petitioner should be denied leave to amend his habeas corpus petition. It follows that petitioner's request for a stay of the petition also should be denied.
IV. RECOMMENDATION
For the reasons set forth above, I recommend that Rodriguez' petition for a writ of habeas corpus be denied and that Rodriguez' request for a stay of this proceeding also be denied.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Michael B. Mukasey, 500 Pearl Street, Room 2240, New York, New York, 10007, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Mukasey. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).