Rodriguez v. Smith

Filing 10

ORDER *** The petition is denied. I also deny a certificate of appealability. Ordered by Judge Edward R. Korman on 7/20/2015. (Moore, John)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

NOT FOR PUBLICATION

ROBERTO LINO RODRIGUEZ,
Petitioner,
MEMORANDUM & ORDER
– against –
B. SMITH,

13-CV-2522 (ERK)
Respondent.

KORMAN, J.:
Petitioner Roberto Lino Rodriguez was convicted after a jury verdict of one count of
Course of Sexual Conduct Against a Child in the First Degree and two counts of Sodomy in the
First Degree. He was sentenced to concurrent terms of 13 years imprisonment on each of the
three counts, to be followed by five years of post-release supervision. The Appellate Division
affirmed his convictions, People v. Rodriguez, 936 N.Y.S.2d 896 (N.Y. App. Div. 2012), and the
Court of Appeals denied leave to appeal, People v. Rodriguez, 968 N.E.2d 652 (N.Y. 2012). I
assume familiarity with the underlying facts of the case, and proceed to discuss the three issues
raised in this petition for a writ of habeas corpus.
1.

Petitioner first claims that the trial court’s decision to allow Dr. Eileen Treacy to

testify as an expert about Child Sex Abuse Accommodation Syndrome denied him his right to a
fair trial by improperly bolstering the testimony of other prosecution witnesses. Pet. Writ
Habeas Corpus 6. He further argues that his trial counsel’s failure to “properly protest or
impeach” the testimony constituted ineffective assistance of counsel.

Id.

The Appellate

Division held that the underlying contention was “unpreserved for appellate review . . . and, in
any event, is without merit.” Rodriguez, 936 N.Y.S.2d 896.

1

Passing over the procedural bar that likely applies where the Appellate Division has ruled
that an issue was not preserved for appellate review, Coleman v. Thompson, 501 U.S. 722, 735
(1991), petitioner’s claim fails on the merits. First, he does not state a claim that is cognizable
on federal habeas review. Petitioner presents the error as a bolstering claim, which is a matter of
state evidentiary—not federal—law.

But habeas review is limited to violations of the

Constitution, laws, or treaties of the United States and does not “reexamine state-court
determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 68 (1991). “Habeas
relief can be granted only if improperly admitted evidence is so unfair that it violates
fundamental concepts of justice.” Rosario v. Ercole, 582 F. Supp. 2d 541, 558 (S.D.N.Y. 2008)
(citing Dowling v. United States, 493 U.S. 342, 352 (1990)). The Second Circuit has observed
that there is no “Supreme Court case that clearly establishes that the admission of evidence that
improperly bolsters a prosecution witness’s testimony constitutes a violation of the Fourteenth
Amendment.” Evans v. Fischer, 712 F.3d 125, 133 (2d Cir. 2013); see also Bryson v. Sheahan,
No. CV-11-0749, 2013 WL 5502835, at * 24 (E.D.N.Y. Oct. 1, 2013) (collecting cases). Thus,
even if it were true that Dr. Treacy’s testimony improperly bolstered the testimony of other
prosecution witnesses, petitioner would not be entitled to habeas relief because it has not been
clearly established by the Supreme Court that such bolstering violates the constitutional right to
due process.
Second, also without merit is petitioner’s claim that he received ineffective assistance of
counsel because his trial counsel failed to “properly protest or impeach” Dr. Treacy’s testimony.
To establish ineffective assistance of counsel under Supreme Court precedent, defendants must
show that (1) “counsel’s representation fell below an objective standard of reasonableness” and
that (2) “the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S.
668, 687–88 (1984). The first prong requires that courts recognize counsel’s “wide latitude” in

2

making tactical decisions and imposes a “strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance.” Id. at 689. The second prong requires
that a defendant “shows that there is a reasonable probability that, but for counsel’s errors, the
result of the proceeding would have been different.” Id. at 694.
Petitioner does not satisfy either prong of the Strickland test.

Notwithstanding the

Appellate Division’s finding that the issue was unpreserved, petitioner’s trial counsel did object
before trial to Dr. Treacy’s testimony and sought successfully to have the judge limit the
testimony to the expert’s opinion that a child’s failure to immediately report sexual abuse is not
inconsistent with that abuse having occurred.

Def.’s App. Div. Br. 30; Hrg. Tr. 112–20.

Moreover, during the trial, petitioner’s counsel engaged in an informed and effective crossexamination of the expert, eliciting that Dr. Treacy had not had any contact with the complaining
witness in the case and having her explain how confirmation bias can infect a sex abuse
investigation and the reasons that a child may falsely claim to have been abused. Tr. 161–64.
Because petitioner’s trial counsel did not fall below an objective standard of reasonable attorney
conduct, petitioner cannot satisfy the first prong of the Strickland test. Nor can he meet the
second. Even assuming that petitioner’s trial counsel was ineffective, because the Appellate
Division ruled that the objection lacked merit, petitioner has failed to demonstrate prejudice. See
Harrington v. United States, 689 F.3d 124, 130 (2d Cir. 2012) (“At the second step of [the
Strickland] analysis, a petitioner cannot show prejudice if the claim or objection that an attorney
failed to pursue lacks merit.” (citing Aparicio v. Artuz, 269 F.3d 78, 99 n.10 (2d Cir. 2001))).
Indeed, the New York Court of Appeals subsequently ruled that expert testimony regarding the
typical behavior of a sexual abuser—the testimony petitioner claims his attorney should have
objected to—is properly admissible at trial. People v. Williams, 987 N.E.2d 260, 263 (N.Y.
2013); see also Lockhart v. Fretwell, 506 U.S. 364, 372 (1993) (holding that there is no prejudice

3

where counsel failed to make an objection under then-existing federal law that was subsequently
overruled).
2.

Petitioner next claims that the trial court erred by failing to instruct the jury that it

could consider the complainant’s failure to report the abuse immediately after it happened when
weighing the complainant’s credibility and by failing to give a limiting instruction to the jury
regarding its use of evidence regarding petitioner’s prior convictions and uncharged crimes. Pet.
Writ Habeas Corpus 7. The Appellate Division ruled that these issues were “unpreserved for
appellate review, since the defendant neither requested such instructions nor objected to the
charge as given.” Rodriguez, 936 N.Y.S.2d 896. The court further ruled that, “[i]n any event,
any error resulting from the alleged failure of the trial court to give certain instructions to the
jury was harmless as there was overwhelming evidence of the defendant’s guilt, and no
significant probability that the error contributed to his convictions.” Id.
Because the last state court to render a judgment on the case rested its decision on an
independent and adequate state ground—the failure to preserve the claim through
contemporaneous objection—petitioner is procedurally barred from obtaining habeas relief in
federal court. Coleman, 501 U.S. at 735. That the state court ruled “in any event” on the merits
does not remove that procedural bar. Green v. Travis, 414 F.3d 288, 294 (2d Cir. 2005).
Because petitioner has made no showing of cause and prejudice, nor of actual innocence, he is
not entitled to federal habeas relief. Coleman, 501 U.S. at 750.
Moreover, petitioner’s claim fails on its merits.

An erroneous jury instruction is

generally a matter of state law that only warrants habeas relief if it “so infected the entire trial
that the resulting conviction violates due process.” Estelle v. McGuire, 502 U.S. at 72 (1991)
(internal quotations omitted). “In order to obtain a writ of habeas corpus in federal court on the
ground of error in a state court’s instructions to the jury on matters of state law, the petitioner

4

must show not only that the instruction misstated state law but also that the error violated a right
guaranteed to him by federal law.” Ricketts v. Mazzuca, 250 F. Supp. 2d 131, 134 (E.D.N.Y.
2003) (internal quotations omitted). The petitioner’s burden is particularly heavy where the
alleged error is the failure to give a requested instruction because “[a]n omission, or an
incomplete instruction, is less likely to be prejudicial than a misstatement of the law.”
Henderson v. Kibbe, 431 U.S. 145, 155 (1977).
Here, petitioner’s trial was not infected with unfairness by the trial judge’s failure to sua
sponte give the unrequested jury charges. As to the credibility of the complaining witness, the
trial judge clearly and thoroughly instructed the jury on its role as finder of facts, Trial Tr. 288–
89, and that it was responsible for weighing the credibility of witnesses by “apply[ing] all of the
common sense which you would ordinar[ily] apply in your own affairs and in your everyday
life.” Trial Tr. 290–91. As to the lack of a limiting instruction regarding evidence of petitioner’s
past crimes, it seems unlikely that the jury would consider petitioner’s drug activities as
indicating a propensity to sexually assault children. Even if the jury may have made that
counterintuitive leap, there is no clearly established constitutional right to a trial free of the use
of propensity evidence. See Estelle, 502 U.S. at 75 n.5 (1991) (“Because we need not reach the
issue, we express no opinion on whether a state law would violate the Due Process Clause if it
permitted the use of ‘prior crimes’ evidence to show propensity to commit a charged crime.”);
Allaway v. McGinnis, 301 F. Supp. 2d 297, 300 (S.D.N.Y. 2004) (“Moreover, the Supreme Court
has not yet clearly established when the admission of evidence of prior crimes under state
evidentiary laws can constitute a federal due process violation.”). In the absence of such clearly
established law, petitioner’s claim fails. 28 U.S.C. § 2254(d)(1).
3.

Finally, petitioner claims his rights were violated when a videotaped interview

with a child witness was introduced before the grand jury without having been properly

5

authenticated. Specifically, petitioner contends that “[t]he prosecutor gave contradictory dates at
the beginning and end of the videotape as to the date of the examination” in contravention of
New York Criminal Procedure Law § 190.32(5)(a). The Appellate Division ruled that this
argument lacked merit. Rodriguez, 936 N.Y.S.2d 896.
This claim for federal habeas relief is frivolous because the Supreme Court has held that
the grand jury clause of the Constitution does not apply to the states. Hurtado v. California, 110
U.S. 516, 538 (1884). Even in federal criminal practice, where a defendant is entitled to be
charged by a grand jury, errors committed during the course of the grand jury proceedings are
rendered harmless by a subsequent conviction. Lopez v. Riley, 865 F.2d 30, 32–33 (2d Cir.
1989) (holding that errors in grand jury proceedings are rendered harmless on habeas review
where there is a conviction by the petit jury). In any event, this claim does not provide a
cognizable basis for habeas relief because it alleges only a minor technical violation of state law
and not a federal constitutional violation. See Estelle, 502 U.S. at 67–68.
CONCLUSION
The petition is denied. I also deny a certificate of appealability.
SO ORDERED.
Brooklyn, New York
July 20, 2015

Edward R. Korman
Edward R. Korman
Senior United States District Judge

6