Cote v. Rinaldi et al

Filing 38

ORDER denying 24 Second Amended Petition for Writ of Habeas Corpus. Signed by Judge Robert N. Chatigny on 6/7/13.(Gillenwater, J)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ROGER P. COTE

:

V.

:

MONICA RINALDI, et al.

:

PRISONER
Case No. 3:11cv1767(RNC)

RULING ON SECOND AMENDED PETITION FOR WRIT OF HABEAS CORPUS
Petitioner brings this action for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 challenging his state court
convictions for assault, threatening, unlawful restraint and
violation of a protective order.

Petitioner claims that his

trial and appellate counsel were ineffective, the prosecutor
committed misconduct and he is actually innocent.

These same

claims were rejected by a state habeas judge following an
evidentiary hearing.

Petitioner has not shown that the state

court's adjudication of his claims was contrary to, or involved
an unreasonable application of, clearly established federal law.
Nor has he shown that the state court's decision was based on an
unreasonable determination of the facts.

Accordingly, the

petition is denied.
I.

Standard of Review
Section 2254(a) authorizes a federal court to consider a

habeas petition filed by a prisoner who alleges that he is in
state custody in violation of the Constitution and laws of the
United States.

A federal court cannot grant a petition for a

writ of habeas corpus filed by a person in state custody with

regard to any claim that has been rejected on the merits by the
state court unless the adjudication of the claim in state court
(1) resulted in a decision that was
contrary to, or involved an unreasonable
application of, clearly established Federal
law, as determined by the Supreme Court of
the United States; or
(2) resulted in a decision that was based
on an unreasonable determination of the facts
in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d).

This standard for evaluating state court

rulings is highly deferential.

Cullen v. Pinholster, ___ U.S.

___, 131 S. Ct. 1388, 1398 (2011).
Clearly established federal law is found in holdings of the
Supreme Court.

See Carey v. Musladin, 549 U.S. 70, 74 (2006).

A decision is contrary to clearly established federal law when
the state court applies a rule different from that set forth by
the Supreme Court or decides a case differently than the Supreme
Court on essentially the same facts.
694 (2002).

Bell v. Cone, 535 U.S. 685,

A state court unreasonably applies Supreme Court law

when the court correctly identifies the governing law but
unreasonably applies that law to the facts of the case.

The

state court decision must be more than incorrect; it must be
objectively unreasonable, "a substantially higher threshold."
Schriro v. Landrigan, 550 U.S. 465, 473 (2007).
Federal court review of a state court's ruling is limited to
the record that was before the state court at the time it
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adjudicated the claim on the merits.
1398.

See Cullen, 131 S. Ct. at

The federal court presumes that the factual determinations

of the state court are correct.

The petitioner has the burden of

rebutting this presumption by clear and convincing evidence.

See

28 U.S.C. § 2254(e)(1).
II.

Procedural Background
Petitioner was charged with sexual assault and other crimes

as a result of a complaint made by a former girlfriend with whom
he shared an apartment.

Following a jury trial, petitioner was

acquitted on the sexual assault charge but convicted of assault
in the second degree, threatening in the second degree, unlawful
restraint in the first degree and criminal violation of a
protective order.

He was sentenced to a total effective term of

imprisonment of twelve years followed by six years of special
parole.

Petitioner also entered a guilty plea to a charge of

being a persistent serious felony offender.
his conviction on speedy trial grounds.

Petitioner appealed

The Connecticut

Appellate Court affirmed the conviction and the Connecticut
Supreme Court denied a petition for certification.
While the appeal was pending, petitioner filed a state
habeas petition raising claims of ineffective assistance of trial
and appellate counsel, prosecutorial misconduct and actual
innocence.

The state habeas court conducted an evidentiary

hearing at which testimony was provided by petitioner, members of

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his family, his trial and appellate counsel, and the victim.

The

state habeas court rejected each of the claims for reasons stated
in a bench ruling.

See Cote v. Warden, No. CV074001793, 2010 WL

3448199 (Conn. Super. Jan. 7, 2010).
dismissed.

Petitioner's appeal was

Cote v. Commissioner, 12 Conn. App. 903, cert.

denied, 302 Conn. 923 (2011).1
III. Factual Background
On the direct appeal from the judgment of conviction, the
Connecticut Appellate Court summarized the underlying facts as
follows.

In November 2001, petitioner and the victim began a

romantic relationship and he moved into her apartment.
relationship between the two soon deteriorated.

The

By early

December 2001, they were having verbal disputes that escalated
into physical abuse.

The relationship ended in October 2002, but

petitioner continued to live in the victim’s apartment, where he
slept on a couch.

See Cote, 129 Conn. App. at 844-45.

On December 23, 2002, at about 5:00 a.m., the victim was
lying in bed when she heard the petitioner enter her bedroom and
lock the door.

He accused her of being unfaithful and asked her

to have sex with him.

The victim stated that she had to get up

1

In August 2009, petitioner filed a motion seeking DNA
testing of a knife he allegedly used in committing the crimes.
The motion was denied and the denial was affirmed on appeal. See
State v. Cote, No. CR02-117846-S, 2009 WL 5305079 (Conn. Super.
Ct. Dec. 4, 2009), aff’d, 129 Conn. App. 842, cert. denied, 302
Conn. 922 (2011).
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and go to work.

When she tried to get out of bed, petitioner

pushed her down and held a knife to her throat, causing cuts on
her neck.

The victim sustained a cut on her hand trying to push

the knife away.

She did not scream or call for help because she

feared for her life and the lives of her children who were
sleeping nearby.

See id. at 845.

released the pressure on the knife.

Petitioner grew tired and

cried until he fell asleep.

After he was asleep, the victim took

the knife and left the room.
parents’ home.

He and the victim talked and

She took the children to her

When the victim’s father arrived home, she told

him what had happened and they drove to the resident state
trooper’s office.

The trooper took the victim’s statement,

photographed her injuries and took possession of the knife.
Later that day, police arrested the petitioner at the victim’s
apartment.
IV.

See id. at 845-46.

Discussion
Petitioner asserts the same four claims in this action that

he presented in his state habeas petition: ineffective assistance
of trial and appellate counsel, prosecutorial misconduct and
actual innocence.

Each of these claims was adjudicated on the

merits by the state habeas court in its bench ruling denying the
habeas petition, Cote v. Warden, 2010 WL 3448199.

This court has

reviewed the state court's ruling to determine whether it is
contrary to, or involves an unreasonable application of, federal

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law, or is based on an unreasonable determination of the facts.
No such error can be found in the state court's ruling.
A.

Ineffective Assistance of Counsel

Petitioner's claim that his trial counsel was ineffective
encompasses the same list of allegations presented to the state
habeas court in subparts (a) through (m) of the state habeas
petition, as listed below, with one exception.2

Specifically,

petitioner alleges that his trial counsel failed to: (a) have
petitioner’s brother and mother testify at the criminal trial;
(b) adequately investigate the chain of custody of the knife or
interview witnesses to the assault; (c) explain to petitioner the
elements of each criminal offense; (d) object to the prosecutor’s
introduction of only one of two written statements given by the
victim; (e) adequately cross-examine the victim regarding
inconsistencies in her two written statements and between her
testimony and that of her father and son; (f) argue motions in
limine and otherwise oppose the admission into evidence of
petitioner’s prior felonies and other misconduct; (g) object to
remarks of the prosecutor during closing argument; (h) have the
knife submitted for DNA testing; (j) file a motion to suppress
regarding the knife; (k) review the presentence investigation
report in preparation for sentencing; (l) advise petitioner

2

The allegation in subpart (i) of the state habeas petition
has been withdrawn. See ECF No. 24 at 3.
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regarding his right to sentence review; and (m) assist petitioner
in filing a petition for sentence review.

See ECF No. 24 at 2-3.

Petitioner argues that his appellate counsel was ineffective in
that she failed to assert claims of prosecutorial misconduct and
actual innocence, failed to adequately review trial documents and
transcripts and failed to review with him issues that had been
preserved for appeal.

See id. at 5.

An ineffective assistance of counsel claim is analyzed using
the standard set forth in Strickland v. Washington, 466 U.S. 668
(1984).

To prevail, petitioner must demonstrate, first, that his

counsel’s conduct was below an objective standard of
reasonableness established by prevailing professional norms and,
second, that this deficient performance resulted in prejudice.
Id. at 687-88.

Counsel is presumed to be competent and

petitioner bears the burden of demonstrating unconstitutional
representation.
(1984).

See United States v. Cronic, 466 U.S. 648, 658

To satisfy the prejudice prong, petitioner must show

that there is a "reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different"; the probability must "undermine confidence in
the outcome" of the trial.

Strickland, 466 U.S. at 694.

The

court evaluates counsel's conduct in light of the circumstances
that existed when the challenged conduct occurred, not in
hindsight, and affords substantial deference to counsel's

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decisions.

See Rompilla v. Beard, 545 U.S. 374, 381 (2005).

Ultimately, the issue for this court to determine on federal
habeas review is "'not whether counsel's actions were
reasonable,'" but "'whether there is any reasonable argument that
counsel satisfied Strickland’s deferential standard.'"
Moore,

U.S.

Premo v.

, 131 S. Ct. 733, 740 (2011).

With regard to petitioner's claim of ineffective assistance
of trial counsel, the state habeas court found that trial counsel
hired an investigator; explained to petitioner the elements of
each of the criminal charges in the case; decided not to call
petitioner’s mother and brother as witnesses because in his
judgment their testimony would harm rather than help the defense;
refrained from objecting to the admission of only one of the
victim's two written statements as a matter of trial strategy;
vigorously cross-examined the victim regarding inconsistencies in
her statements and testimony; refrained from objecting to a
remark by the prosecutor during closing argument about blood
oozing from the victim's neck onto the knife because, although
the remark was not supported by evidence, an objection was not
necessary and could backfire; informed petitioner of his right to
sentence review; and would have assisted petitioner in seeking
such review if petitioner had expressed an interest in having him
do so.

In addition, the state habeas court found that petitioner

had failed to prove any prejudice resulting from the alleged

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deficiencies in the performance of his trial counsel.
Regarding the claim of ineffective assistance of appellate
counsel, the state habeas court credited the testimony of
petitioner's appellate counsel that she reviewed the record for
any potential error, discussed the case with petitioner,
identified the speedy trial claim as the only one that might be
successful on appeal, chose not to pursue a claim challenging
the sufficiency of the evidence, and advanced the speedy trial
claim in accordance with petitioner's wishes.

The habeas court

was not persuaded that petitioner's appellate counsel should have
raised other claims on appeal, and specifically found that the
evidence did not support a claim of actual innocence.
Summarizing its view of the case, the court stated that "each
attorney was diligent, conscientious, and professional, and not
deficient in the course of their employ."
The state court's adjudication of petitioner's ineffective
assistance of counsel claims reflects a reasoned application of
the Strickland standard to findings of fact made by the court
following an adequate evidentiary hearing.

In essence, the state

habeas court credited the testimony of petitioner's trial and
appellate counsel and the victim, and declined to credit the
testimony opposed to it.

Petitioner has not shown that the state

court's findings of fact based on its assessment of the
witnesses' testimony are incorrect.

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Given the state court's

findings of fact, the court's rejection of the ineffective
assistance of counsel claims does not constitute an unreasonable
application of Strickland's deferential standard.

Accordingly,

petitioner is not entitled to federal habeas relief based on his
ineffective assistance of counsel claims.
B.

Prosecutorial Misconduct

In his second ground for relief, petitioner argues that the
prosecutor engaged in misconduct by improperly stating during
closing argument that blood oozed from the victim's neck onto
petitioner's knife and by offering into evidence only one of two
written statements given by the victim.

See ECF No. 24 at 4.

Prosecutorial misconduct does not provide a basis for habeas
relief unless it so infected the trial with unfairness as to make
the resulting conviction a denial of due process.

See Darden v.

Wainwright, 477 U.S. 168, 181 (1986); Donnelly v. DeChristoforo,
416 U.S. 637, 643 (1974).

Petitioner must identify specific

instances of "egregious misconduct," Donnelly, 416 U.S. at
647-48, that show he was substantially prejudiced.

See United

States v. Thomas, 377 F.3d 232, 244 (2d Cir. 2004).

In

evaluating a claim of prosecutorial misconduct, a court considers
"the severity of the misconduct, the measures adopted to cure it,
and the certainty of conviction in the absence of the
misconduct."

United States v. Shareef, 190 F.3d 71, 78 (2d Cir.

1999) (citation omitted); see also United States v. Young, 470

10

U.S. 1, 12 (1985) (holding that the court must view prosecutorial
misconduct in context and evaluate the probable effect of the
remarks on the jury’s ability to judge the evidence fairly).
The state habeas court found that the prosecutor's statement
during closing argument about the victim's blood oozing onto the
knife, although "a stretch - to say the least," did not rise to
the level of harmful conduct that would have deprived the
petitioner of his constitutional right to a fair trial.
Warden, 2010 WL 3448199, at *8.

Cote v.

The court stated that the

prosecutor's statement was not so egregious as to "invade the
province of the jury and wrestle control over the jury’s mind to
substitute the prosecutor’s judgment for that of the jury."
at *9.

Id.

Regarding the statement of the victim that was not placed

in evidence, the state habeas court noted that the statement
alleged sexual assault, a charge on which the petitioner was
found not guilty.

See id. at *7.

The state habeas court

determined that drawing attention to the statement alleging
sexual assault would have harmed, rather than helped, petitioner,
and noted that the victim was cross-examined on the fact that she
gave two statements to the police at different times.

See id.

After reviewing the entire record, the habeas court concluded
that "the evidence was clearly sufficient to establish guilt."
Id. at *6.
Petitioner has not shown that the state habeas court's

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rejection of his prosecutorial misconduct claim was based on an
unreasonable application of federal law or an unreasonable
determination of the facts.

The state habeas court applied the

correct standard and its conclusion is supported by the record.
Accordingly, petitioner is not entitled to federal habeas relief
based on his claim of prosecutorial misconduct.
C.

Actual Innocence

Finally, petitioner claims that he is actually innocent.

He

states that he has newly discovered evidence, in the form of
testimony of his mother and brother and DNA testing on the knife.
To prevail on a claim of actual innocence, petitioner must
present "new reliable evidence - whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical
physical evidence - that was not presented at trial."

Schlup v.

Delo, 513 U.S. 298, 324 (1995) (explaining requirements to
establish actual innocence to excuse procedural default).

He

also "must show that it is more likely than not that no
reasonable juror would have convicted him in light of the new
evidence."

Id. at 327.

See Lucidore v. New York State Div. of

Parole, 209 F.3d 107, 114 (2d Cir. 2000) (applying this standard
when considering actual innocence claim as prerequisite to
determination whether court should include actual innocence
exception to AEDPA statute of limitations); Rand v. Warden of
Great Meadow Correctional Facility, No. 10 CV 3290(RRM)(RML),

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2012 WL 3704964, at *3 (E.D.N.Y. May 4, 2012) (applying Schlup
standard to independent claim of actual innocence).
The state habeas court rejected petitioner’s actual
innocence claim because he presented no new evidence to justify a
finding of actual innocence.

I agree.

The statements of

petitioner's mother and brother, although not presented at trial,
were known to trial counsel.

The state habeas court found that

these statements - that the victim had admitted to the
petitioner’s family that she had lied in her trial testimony "strain[ed] credulity."

Cote v. Warden, 2010 WL 3448199, at *6.

The state judiciary has denied petitioner’s motion for DNA
testing of the knife, see State v. Cote, 129 Conn. App. 842
(2011), and he does not suggest that he has had the knife tested
on his own.

Speculation about what DNA testing might show is

insufficient to demonstrate that more likely than not no
reasonable jury would convict the petitioner.

See O’Boyle v.

Ortiz, 242 F. App’x 529, 531 (10th Cir. 2007) (applying Schlup
and rejecting petitioner’s claim of actual innocence predicated
on what might be shown if testing were done on physical
evidence).

Accordingly, petitioner is not entitled to federal

habeas relief based on his claim of actual innocence.
V.

Conclusion
For the foregoing reasons, the second amended petition for a

writ of habeas corpus (ECF No. 24) is hereby denied.

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The Clerk

is directed to enter judgment in favor of the respondents and
close this case.

The Court concludes that an appeal from this

order would not be taken in good faith and thus a certificate of
appealability will not issue.
So ordered this 7th day of June 2013.

/s/RNC
Robert N. Chatigny
United States District Judge

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