Rhodes v. Racette et al

Filing 15

ORDER denying petition for writ of habeas corpus. Because petitioner has failed to show that the state court unreasonably applied a clearly established federal rule, the petition is denied. The Clerk is respectfully requested to enter judgment denying the petition. Ordered by Judge Allyne R. Ross on 1/4/2017.(Matsumura, Rebecca)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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X
:
JACK RHODES,
:
:
Petitioner,
:
:
-against:
:
STEVEN RACETTE, Superintendent, Clinton Correctional :
Facility, and ERIC T. SCHNEIDERMAN, Attorney General:
of New York State;
:
:
Respondents.
X
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15-CV-4263 (ARR)
NOT FOR ELECTRONIC
OR PRINT PUBLICATION
OPINION & ORDER

ROSS, United States District Judge:
Jack Rhodes petitions under 28 U.S.C. § 2254 for habeas corpus relief from a New York
state conviction and sentence of seventy-five years in prison. Following trial, a jury found
Rhodes guilty of various charges relating to a series of robberies. Rhodes now claims that he
was deprived of his right to confrontation because the trial court curtailed his cross examination
of a prosecution witness. This argument was rejected on direct appeal. Because, as discussed
below, Rhodes fails to show that the state court decision denying his Confrontation Clause claim
was contrary to, or an unreasonable application of, clearly established Supreme Court precedent,
I deny his petition and dismiss his claim.
BACKGROUND
A. Investigation by Detective Alger
Rhodes was convicted of perpetrating three robberies. First, on December 30, 2006,
Angela Khan, aged fifty-three, saw an unknown man in her parking garage when she exited her

car. Tr. 1357:3, 1364:6-1365:13, ECF No. 11-17 at 109, 116-17. 1 The man approached her and
asked her to let him into the building, as he did not have his key. Tr. 1367:15-23, id. at 119. She
let him into the building, and he followed her to the garbage collection room, where he assaulted
and robbed her. Tr. 1369:23-1370:2, 1373:18-1374:15, id. at 121-22, 125-26.
On March 4, 2007, Rose Morat, aged one hundred one years, was approached at the foyer
of her apartment building by a man purporting to offer her assistance with the door. Aff. Mem.
Law Opp. Pet. Writ Habeas Corpus, ECF No. 10 (“Traill Aff.”), at ¶ 6. 2 As she walked through
the door, the man punched Morat in the face and pushed her to the floor. Id. He stole her
pocketbook and fled. Id. That same afternoon, Solange Elizee, aged eighty-six years, also
encountered a man in the lobby of her apartment building. Id. ¶ 7. He followed her to her
apartment, pushed inside behind her, assaulted her, and stole two rings from her fingers. Id.
Detective Chris Alger was assigned to investigate the robberies of Morat and Elizee. Tr.
1094: 14-17, ECF No. 11-15 at 150. Alger determined that the Khan robbery also fit the pattern
of the two later robberies. Tr. 1119:19-1120:15, ECF No. 11-16 at 23-24. Police initially
determined the perpetrator to be a black man, between 25-40 years old, 160-200 pounds, and
5’8” to 5’10”. Tr. 1119:3-10, ECF No. 11-16 at 23; Tr. 1258:17-1261:24, 1267:3-24, 1270:11271:4, ECF No. 11-17 at 10-13, 19, 22-23. Before Rhodes was identified as a suspect, several

1

Citations to “Tr.” refer to the trial transcript, found at ECF No. 11-1 through ECF No.
11-20. The first page and line number listed after “Tr.” refers to the original numbering of the
trial transcript; the page number following “ECF No.” locates the citation in the document filed
on the docket for this proceeding.
2

The testimony of the two elderly victims was presented by videotape during trial or a
pretrial suppression hearing. These videotapes were neither transcribed nor otherwise included
in the record provided to this court. Therefore, this account is taken from the affidavit provided
by the state in its answer to the present motion. This affidavit is also cited to where it accurately
summarizes the record and does not differ in any material respects from petitioner’s account of
the facts.
2

eyewitnesses viewed hundreds of photographs of potential suspects but made no identifications.
Tr. 1096:11-1106:15, ECF No. 11-15 at 152-ECF No. 11-16 at 10. Police also disseminated
posters featuring a surveillance photograph taken during the Morat robbery. Tr. 1095:12-16,
ECF No. 11-15 at 151. Hundreds of tips were reported to police. Tr. 1207: 11-16, ECF No. 1116 at 111.
These efforts did not result in an arrest. Tr. 1334:5-10, ECF No. 11-17 at 86. In order to
identify new leads, Alger searched a database of prior arrestees for photographs matching the
description given by the eyewitnesses, except that he changed the age parameter to 40-45 years.
Tr. 1128:3-1129:21, ECF No.11-16 at 32-33; see also Tr. 1108:3-1109:12, id. at 12-13
(describing database of photographs). As a result of this search, Alger came across a photograph
of Rhodes, whom he determined resembled the surveillance footage. Tr. 1130:13-1131:12, id. at
34-35. Elizee, Khan, and two eyewitnesses came to the police station to view a line up including
Rhodes. Tr. 1159:10-20, id. at 63. All four identified him as the perpetrator. Tr. 731:6-739:13,
ECF No. 11-13 at 108-16; Tr. 823:13-827:7, ECF No. 11-14 at 39-43; Tr. 1312:8-10, 1385:5-22,
ECF No. 11-17 at 64, 137. Because she was too ill to attend the lineup, Morat was shown a
photo array including Rhodes, and also identified him as the perpetrator. Tr. 1155:21-1156:22,
ECF No. 11-16 at 59-60; Tr. 1308:10-12, ECF No. 11-17 at 60. Alger prepared the lineup and
photo array. Tr. 1132:5-24, 1153:13-1155:13, ECF No. 11-16 at 36, 57-59.
B. Rhodes’s Second Trial 3
During jury selection, the court had informed prospective jurors that he “anticipate[d]
two, two and a half weeks of trial.” Tr. 262:13-14, ECF No. 11-10 at 90. In fact, the trial lasted
over a month. The state called twenty witnesses, Tr. 1719:19-1720:14, ECF No. 11-20 at 54-55,

3

Rhodes’s first trial resulted in a mistrial. Traill Aff. ¶ 11.
3

including two of the victims. Tr. 607:13-18, ECF No. 11-12 at 123; Tr. 1356:12-16, ECF No.
11-17 at 108. The state also called two eyewitnesses who were present at an apartment building
shortly before a robbery and had seen the perpetrator shortly before he encountered the victim.
Tr. 718:24-737:24, ECF No. 11-13 at 95-114; Tr. 809:8-826:6, ECF No. 11-14 at 25-42. Each
had identified the defendant as the perpetrator in the lineup and was cross-examined about the
lineup and photo arrays in which (s)he participated. E.g., Tr. 755:3-757:30, ECF No. 11-13 at
132-34; Tr. 847:14-850:10, ECF No. 11-14 at 63-66. One eyewitness made an in-court
identification of the defendant. Tr. 827:15-828:7, ECF No. 11-14 at 43-44.
The state also presented testimony from four detectives. Tr. 1720:6-9, ECF No. 11-20 at
55. Of relevance to the present petition, Sergeant Kenneth Kearns, Detective Alger’s supervisor,
Tr. 1029:24-1030:24, ECF No. 11-15 at 85-86, testified that he was present for, and assisted
with, the lineup. Tr. 1022:23-1029:16, id. at 78-85. The defense cross examined him about the
lineup and photo arrays. See Tr. 1031:35-1053:6, id. at 87-109. The cross examination of
Sergeant Kearns continued until Rhodes had “[n]o further questions,” Tr. 1053:13, id. at 109,
and two re-cross examinations were allowed, Tr. 1067:18-1073:16, 1080:7-1081:1, id. at 123-29,
136-37.
Finally, Detective Alger testified about his investigation, including the photo arrays,
lineup and his photo system search that first identified the defendant. See generally Tr. 1092:181189:10, ECF No. 11-15 at 148-ECF No. 11-16 at 93. Alger also recounted the following
exchange with Rhodes, which occurred in an interrogation room before the lineup:
I asked Jack Rhodes why did you beat and rob the old ladies. His response, I
have a drug problem, a crack problem. I repeated the question, why would you
beat and rob a 101 year old woman. His response was, my life is over. I’m sorry
anyone got hurt. Now, during that time he had made . . . an utterance . . . He had
his head in his hands and he was shaking his head like this, I have to show you
guys . . . that I am remorseful without telling you what happened.
4

Tr. 1162:24-1163:21, ECF No. 11-16 at 66-67. Detective Alger’s cross examination is discussed
in detail below.
The defense presented no witnesses. See Tr. 1719:17-1720:14, ECF No. 11-20 at 54-55.
C. Cross Examination of Detective Alger
Rhodes’s present petition concerns the cross examination of Detective Alger, which is
therefore recounted in detail. The defense attorney began this examination by repeatedly
pointing out the fact that certain investigative steps were not documented by written reports.
E.g., Tr. 1195:21-25, 1197:22-1198:5, 1199:8-10, 1205:8-12, ECF No. 11-16 at 99, 101-03, 109.
In most cases, Detective Alger testified to taking the investigative step, although he did not have
written corroboration. E.g., Tr. 1197:25-1198:1, 1199:8-10, id. at 101-03. After numerous
questions about whether certain steps were documented – comprising about twenty pages of the
trial transcript – the court admonished the defense attorney to “[m]ove to another area.” Tr.
1206:6-7, id. at 110.
The defense attorney then discussed tips submitted by the public. Tr. 1206:20-22, id. at
110. He questioned Detective Alger in depth about eight of the hundreds of tips received. Tr.
1207:14-1223:5, id. at 111-27. During this line of inquiry, the court instructed Rhodes’s attorney
to speed up his questioning twice. Tr. 1210:2-4, 1213:25, id. at 114, 117. In response, Detective
Alger repeatedly explained that the photograph of any person identified by a tip was shown to
eyewitnesses, regardless of the specific circumstances of the tip. E.g., Tr. 1221:16-18, id. at 12526.
Rhodes then questioned Detective Alger about the surveillance tapes recovered from the
robberies of Khan and Morat, Tr. 1224:19-1233:12, id. at 128-37, in an apparent attempt to lay
foundation to introduce into evidence a sketch artist’s rendering based on viewing the
5

surveillance footage, Tr. 1233:13-1238:15, id. at 137-42. The court did not accept it into
evidence because the sketch was created in an unusual manner – from viewing surveillance
footage available to the jury, rather than discussions with eyewitnesses – and, in any event, was
not used in the investigation. Tr. 1236:11-20, id. at 140. Even after the court advised that the
exhibit would not be accepted as a business record, Tr. 1236:24-25, id., defense counsel spent an
additional eighteen questions attempting to lay this foundation before the court adjourned for
lunch, Tr. 1238:19-1241:21, id. at 142-45. After lunch, defense counsel asked an additional
nineteen questions on the topic of the artist’s sketch. Tr. 1244:8-1247:5, id. at 148-51. After the
court once again sustained an objection keeping the sketch out of evidence, defense counsel
continued to question the witness about the sketch, Tr. 1253:8-1255:12, ECF No. 11-17 at 5-7,
even after the court asked him to “[m]ove to another area,” Tr. 1253:25, id. at 5.
Defense counsel next questioned Detective Alger briefly about the lack of physical
evidence in the case, Tr. 1255:13-1258:16, id. at 7-10, followed by an overview of the
descriptions the victims and eyewitnesses gave of the assailant, Tr. 1258:17-1262:15, 1265:211271:16, id. at 10-14, 17-23. During the discussion of the eyewitness descriptions, defense
counsel also asked a series of detailed questions about another tip received by the police
department. Tr. 1262:16-1265:18, id. at 14-17. During this line of questioning, the court
remarked that it was “going a little far afield,” Tr. 1264:24-25, id. at 16, and asked defense
counsel to “[t]ry to move it along,” Tr. 1271:22, id. at 23.
The next line of questioning concerned the photo manager system used to display
photographs to eyewitnesses and the lack of written documentation regarding which witnesses
were shown which photographs. Tr. 1271:23-1281:22, id. at 23-33. During this series of
questions, the court again asked defense counsel to “[p]lease move it along.” Tr. 1277:14, id. at

6

29.
At this point, counsel finally began questioning Detective Alger about his decision to
change the input parameters for the photo manager search. Tr. 1281:19-1282:3, id. at 33-34.
After a few questions, the court asked counsel to approach. Tr. 1282:5-6, id. at 34. Noting that
the cross examination had gone on for nearly three hours, the court gave defense counsel a half
hour to finish the cross examination. Tr. 1282:15-21, id. In imposing this limit, the court
pointed out that defense counsel had been late to return from the last break and that defense
counsel had “a cadence that is very slow.” Tr. 1282:9-21, id.
After this conversation, defense counsel did not resume his line of questioning about
Detective Alger’s decision to pull Rhodes’s photograph from the photo manager. Instead, he
asked (1) a few questions summarizing the investigative steps taken, Tr. 1283:10-1284:5, id. at
35-36, at least two of which had already been asked, see Tr. 1223:9-13, 1224:14-18, ECF No.
11-16 at 127-28; and (2) repeated questions about the photographs Alger had shown Khan, ten of
which probed, yet again, whether a written report could corroborate his answer, Tr. 1285:41287:13, ECF No. 11-17 at 37-39. Defense counsel then returned to asking Alger about his
decision to change the input parameters for his search. Tr. 1287:18-1292:18, id. at 39-44.
At this point, the court reminded defense counsel that “[t]wenty minutes ago I told you
you had half an hour.” Tr. 1294:1-2, id. at 46. The court noted that defense counsel was
“tak[ing] a minute between each question.” Tr. 1294:7-8, id. Defense counsel continued
questioning Detective Alger about the search that yielded the defendant’s photograph. Tr.
1294:15-1298:3, id. at 46-50.
Defense counsel had begun questioning Algers about the photo array, Tr. 1298:41299:25, id. at 50-51, when the court informed him that his limit had expired and offered

7

“another five or 10 minutes to start wrapping it up.” Tr. 1300:5-9, id. at 52. Defense counsel
protested: “I have to ask him about the photo array. I have to ask him about the line-ups. I have
to ask him about the interrogation.” Tr. 1300:10-12, id.
After this exchange, defense counsel continued to question Algers about the photo array,
Tr. 1301:10-1316:4, id. at 53-68, for an additional half hour before the court again reminded him
of the time limit. Tr. 1316:12-14, id. at 68. At this time, the court reminded defense counsel that
he was “nearing four hours” and gave him five more minutes. Tr. 1316:17-1317:1, id. at 68-69.
When defense counsel protested, the court reminded him that it was his responsibility to manage
his cross examination, stating: “[I]f you choose to spend over three hours on your cross on what
you chose to spend it on and now tell me you need time to go into your lineup, the way you
manage your cross-examination is your business.” Tr. 1300:25-1301:4, id. at 52-53.
After several additional questions about the photo array, Tr. 1317:3-1319:14, id. at 69-71,
the court ended cross examination. Tr. 1319:19, id. at 71. Defense counsel requested permission
to “just ask three questions about the lineup,” which the court allowed. Tr. 1319:24-25, 1320:181321:9, id. at 71-73. In ending the cross examination, the court noted that defense counsel was
“familiar with the prior trial.” Tr. 1321:16-18, id. at 73. (Indeed, the same attorney had
represented Rhodes at both trials.) In total, the cross examination lasted approximately four and
a half hours. Tr. 1346:5-6, id. at 98.
The prosecution then conducted a redirect examination of Detective Alger. Tr. 1322:31333:10, id. at 74-85. On re-cross examination, the court repeatedly sustained objections to
questioning outside of the scope of the redirect examination. E.g., Tr. 1334:20-22, 1337:1-2,
1338:10-14, id. at 86, 89-90. A similar ruling precluded defense counsel from questioning
Detective Algers about the conversation he had with Rhodes in the interrogation room. Tr.

8

1340:4-14, id. at 92. Defense counsel conducted a re-cross examination until he had “[n]o
further questions.” Tr. 1343:22, id. at 95.
After the jury was excused, defense counsel moved for a mistrial based on the time limit
imposed on the cross examination. Tr. 1344:21-1345:16, id. at 96-97. The court denied this
motion, noting that defense counsel had conducted “the longest . . . cross-examination of an
assigned detective [the judge had seen] in 31 years.” Tr. 1346:13-15, 1347:3-4, id. at 98-99.
Defense counsel later requested that the court “incorporate by reference” his cross-examination
of Detective Alger from the prior trial; the court denied this application. Tr. 1355:5-11, id. at
107.
D. Procedural History
The jury found Rhodes guilty of eleven counts of burglary, robbery, assault, and hate
crimes. Triall Aff. ¶ 11. The court sentenced Rhodes to an aggregate prison term of seventy-five
years and five years of post-release supervision. Id. ¶ 12.
Rhodes appealed this conviction, raising the following six arguments: (1) that he was
deprived of his right to confrontation because of the time limit imposed on his cross examination
of Detective Alger; (2) that the court should have allowed him to call Elizee at a pretrial
suppression hearing; (3) that the court erred by allowing Morat’s testimony to be played via tape;
(4) that the court abused its discretion by denying him permission to call an expert on eyewitness
identification; (5) that the prosecution’s summation denied him a fair trial; and (6) that his
sentence was harsh and excessive. Id. ¶ 13. The Appellate Division rejected all of his claims on
the merits. People v. Rhodes, 981 N.Y.S.2d 548, 548-50 (N.Y. App. Div. 2014). As relevant
here, the Appellate Division found that the trial court “providently exercised its discretion in
placing a time limit on cross examination of a certain prosecution witness.” Id. at 549. The

9

Court of Appeals denied petitioner leave to appeal. People v. Rhodes, 11 N.E.3d 724, 724 (N.Y.
2014).
STANDARD OF REVIEW
A federal court may only consider the merits of a habeas claim if that claim has been
exhausted. See 28 U.S.C. § 2254(b)-(c). In such case, federal habeas courts must apply a
deferential standard when reviewing state court convictions. See id. § 2254(d). The relevant
statute provides, in pertinent part, that:
(d) An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim —
(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.
Id.
The statutory language “‘clearly established Federal law, as determined by the Supreme
Court of the United States’. . . refers to the holdings, as opposed to the dicta, of [the Supreme]
Court’s decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529
U.S. 362, 412 (2000). A state court decision is “contrary to” clearly established Supreme Court
“precedent if the state court applies a rule that contradicts Supreme Court precedent” or “if the
state court confronts a set of facts that are materially indistinguishable from a decision of [the
Supreme] Court and nevertheless arrives at a result different from [that] precedent.” Id. at 40506. With respect to the “unreasonable application” clause, “a federal habeas court . . . should ask
whether the state court’s application of clearly established federal law was objectively

10

unreasonable.” Id. at 409. Further, “[the Supreme] Court has held on numerous occasions that it
is not ‘an unreasonable application of’ ‘clearly established Federal law’ for a state court to
decline to apply a specific legal rule that has not been squarely established by [the Supreme]
Court.” Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) (quoting 28 U.S.C. § 2254(d)(1)).
“Where a state court’s decision is unaccompanied by an explanation, the habeas
petitioner’s burden still must be met by showing there was no reasonable basis for the state court
to deny relief.” Harrington v. Richter, 562 U.S. 86, 98 (2011). “[A] federal court may not issue
the writ simply because that court concludes on its independent judgment that the relevant statecourt decision applied clearly established federal law erroneously or incorrectly.” Rodriguez v.
Miller, 537 F.3d 102, 109-10 (2d Cir. 2007) (citing Williams, 528 U.S. at 411). Nor may a
federal court issue a writ simply to “correct a misapplication of state law, unless such
misapplication violates the Constitution, laws, or treaties of the United States.” Ponnapula v.
Spitzer, 297 F.3d 172, 182 (2d Cir. 2002). This deferential standard of review “reflects the view
that habeas corpus is a ‘guard against extreme malfunctions in the state criminal justice systems,’
not a substitute for ordinary error correction through appeal.” Harrington, 562 U.S. at 102-03
(quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens, J., concurring)).
DISCUSSION
Petitioner argues that he was deprived of his Sixth Amendment right to confrontation
because the court imposed a time limit on his cross examination of Detective Alger. Pet’r’s
Mem. Law Support Pet. Writ Habeas Corpus Under 28 U.S.C. § 2254, ECF No. 1-2 (“Pet’r’s
Mem.”), at 62. “The main and essential purpose of confrontation is to secure for the opponent
the opportunity of cross-examination.” Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986)
(alteration omitted) (quoting Davis v. Alaska, 415 U.S. 308, 315-16 (1974)). Cross examination

11

is essential to test “the believability of a witness and the truth of his testimony[,] . . . to delve into
the witness’ story to test the witness’ perceptions and memory[,] . . . [and] to impeach, i.e.,
discredit, the witness.” Davis, 415 U.S. at 316.
“Supreme Court precedent interpreting the Confrontation Clause establishes only general
rules that give trial judges ‘wide latitude’ to restrict cross-examination, subject only to the
equally general requirement that the defense be given a ‘meaningful opportunity’ to test the
credibility of prosecution witnesses.” Watson v. Greene, 640 F.3d 501, 509 (2d Cir. 2011)
(quoting Van Arsdall, 475 U.S. at 679, Crane v. Kentucky, 476 U.S. 683, 690 (1986)). For
example, the Supreme Court has found violations of the Confrontation Clause where a court
prevented a defendant from cross examining a state witness to show (1) that the witness was
currently on probation for a similar crime and therefore had a motive to identify a suspect to the
police and deflect suspicion from himself, Davis, 415 U.S. at 311; (2) that the prosecution had
dismissed the witness’s public drunkenness charge in exchange for the witness’s testimony, Van
Arsdall, 475 U.S. at 679; and (3) the victim’s relationship with the defendant’s half brother,
Olden v. Kentucky, 488 U.S. 227, 230-31 (1988) (per curiam).
While limits on the subject matter of cross examination are thus subject to a searching
review, time limits are generally within the trial court’s discretion, and “[a] trial judge abuses his
discretion in curtailing cross-examination of a government witness when the curtailment denies
the jury sufficient information to make a discriminating appraisal of the particular witness’s
possible motives for testifying falsely in favor of the government.” United States v. White, 692
F.3d 235, 248 (2d Cir. 2012) (quoting United States v. Blanco, 861 F.2d 773, 781 (2d Cir.
1988)); see also Martin v. Ercole, No. 07-CV-7171(KMK), 2012 WL 4465854, at *2 (S.D.N.Y.
Sept. 27, 2012) (denying habeas petition based on “strict” time limit at trial because “trial judges

12

retain ‘broad discretion’ to limit inquiry, even the cross-examination of prosecution witnesses”
(quoting United States v. Coppola, 671 F.3d 220, 247 n.21 (2d Cir. 2012))).
In fact, the Supreme Court has explained that the right to confrontation guarantees only
the “opportunity for effective cross-examination, not cross-examination that is effective in
whatever way, and to whatever extent, the defense might wish.” Van Arsdall, 475 U.S. at 679
(quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam)). Therefore, “trial judges
retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits
on such cross-examination based on concerns about, among other things, harassment, prejudice,
confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally
relevant.” Id. at 679; see also Davis, 415 U.S. at 316 (stating that cross examination is “[s]ubject
always to the broad discretion of a trial judge to preclude repetitive and unduly harassing
interrogation”). Several circuits have interpreted this standard to provide that “a trial court may
limit cross-examination ‘after the questioner has had reasonable chance to pursue the matters
raised on direct.’” United States v. Vest, 116 F.3d 1179, 1186 (7th Cir. 1997) (quoting United
States v. Caudle, 606 F.2d 451, 459 (4th Cir. 1979)). 4
The key question, then, is whether Rhodes had a “reasonable chance” to cross examine
Detective Alger about his investigation. Petitioner contends that he did not, because his cross
examination was cut off before he had an opportunity to address the lineup or confession. Pet’r’s
Mem. at 67. According to petitioner, the cross examination was establishing the theory that
Alger “single-minded[ly]” pursued Rhodes and “ignored far better suspects.” Id. at 68.
Rhodes’s counsel did not question Alger about the confession or lineup, undoubtedly

4

The Supreme Court has never specifically addressed the extent to which time limits
imposed on cross examination may violate a criminal defendant’s right to confrontation.
13

important subjects for this cross examination. These omissions might be attributed to the
attorney’s poor time management on cross examination. See, e.g., Tr. 1294:7-8, ECF No. 11-17
at 46 (defense counsel was “tak[ing] a minute between each question”); Tr. 1320:9-10, id. at 72
(defense counsel “spent the most of [his] cross examination on anonymous tips”).
But that leaves open the question of whether Rhodes could have completed his crossexamination had he used his time wisely. After reviewing the trial record, I conclude that he
could have. Defense counsel had four and a half hours to cross examine Detective Algers. Tr.
1346:5-6, id. at 98. He spent most of this time on two tasks of marginal importance: (1) asking
detailed questions about nine different tips submitted to the department – up to fourteen
questions on a single tip, see, e.g., Tr. 1262:16-1265:18, id. at 14-17; and (2) discussing an
artist’s sketch that was not used in the investigation and not admissible at trial, Tr. 1224:191255:12, ECF No. 11-16 at 128 through ECF No. 11-17 at 7. Nor can petitioner argue that his
trial counsel was unprepared for Alger’s testimony. As the court noted, he had already cross
examined this witness in petitioner’s first trial. Tr. 1321:16-18, ECF No. 11-17 at 73.
In addition, the court was flexible in imposing the time limit. After imposing the initial
thirty minute limitation, and warning defense counsel when ten minutes remained, the court
nonetheless allowed an additional “five or 10 minutes to start wrapping it up.” Tr. 1300:5-9, id.
at 52. Thirty minutes after that, the court gave defense counsel five more minutes to finish his
cross examination. Tr. 1316:18-1317:1, id. at 68-69. And then, after ending the cross
examination, the court allowed defense counsel to ask the three additional questions he
requested. Tr. 1319:24-25, 1320:18-1321:9; id. at 71-73. Furthermore, as the court imposed
time limitations, defense counsel failed to move immediately onto more relevant topics. See,
e.g., Tr. 1283:10-1284:5, id. at 35-36.

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Further, the court had a legitimate interest in the orderly progression of the trial. See
Chambers v. Mississippi, 410 U.S. 284, 295 (1973) (“Of course, the right to confront and to
cross-examine is not absolute and may, in appropriate cases, bow to accommodate other
legitimate interests in the criminal trial process.” (citing Mancusi v. Stubbs, 408 U.S. 204
(1972))). During jury selection, the court had informed prospective jurors that it “anticipate[d]
two, two and a half weeks of trial.” Tr. 262:13-14, ECF No. 11-10 at 90. At the cross
examination of Detective Alger, four weeks had already elapsed, Tr. 1283:3-4, ECF No. 11-17 at
35, and the state had yet to close its case-in-chief. The court faced the possibility that a juror
would need to be excused as the trial progressed.
Under these circumstances, it cannot be said that “there is no possibility [that] fairminded
jurists could disagree that the state court’s decision conflicts with [the Supreme] Court’s
precedents.” Harrington, 562 U.S. at 103. Rhodes had an adequate opportunity to cross examine
Detective Alger; that he chose not to is not redressable on habeas review. See Fenenbock v. Dir.
of Corr. for Cal., 692 F.3d 910, 919 (9th Cir. 2012) (denying habeas relief where trial court
imposed a time limit on cross examination because “[g]enerally speaking, a court violates the
Confrontation Clause only when it prevents a defendant from examining a particular and relevant
topic, such as bias”).

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CONCLUSION
Because petitioner has failed to show that the state court unreasonably applied a clearly
established federal rule, the petition is denied.
SO ORDERED.

__________/s/____________________
Allyne R. Ross
United States District Judge

Dated:

January 4, 2017
Brooklyn, New York

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