Rodriguez v. Keyser

Filing 23

MEMO ENDORSEMENT on 22 Report and Recommendations. ENDORSEMENT: The time for filing objections expired on 1/3/2016; no objections have been filed and no requests for any extension made. The court accepts the Report and adopts the Recommendat ion. The Report & Recommendation are the decision of the court. As the petitioner has not made a substantial showing of the denial of a constitutional right. I decline to issue a certificate of appealability, per 28 USC Setc. 2253. I certify that any appeal would not be taken in good faith. (Signed by Judge Colleen McMahon on 1/19/2016) Copies Mailed By Chambers. (kgo)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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SERGIO RODRIGUEZ,

Petitioner,

REPORT AND RECOMMENDATION

-againstWILLIAM F. KEYSER,

15-CV-4669 (QMf:):t~~W{}!ltl)~=.=::===:::.:
USDC SDl\Y
J::;'JCUMENT

II

Respondent.
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KEVINNATHANIELFO)(
UNITEDSTATESMAG!STRATEJUDGE

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TO TIIE HONORABLE COLLEEN MCMAHON, UNITED STATES DISTRICT JUDGE .-- _)_ .1_ ..] (I
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INTRODUCTION

MEMO rnoorrc

Sergio Rodriguez ("Rodriguez"), proceeding 12fQ ~filed a petition for a writ of habeas
corpus, pursuant to 28 U.S.C. § 2254, challenging the judgment entered following his
resentencing on convictions for: (1) attempted second-degree murder, New York Penal Law
'·

("PL")§§ 110.10, 125.25(1); (2) first-degree assault, PL§ 120.10(1); (3) first-degree robbery,
PL § 160.15(1 ); (~) first-degree robbery, PL § 160.15(4); and (5) second-degree robbery, PL §
160.10(1). The respondent opposes the petition.

BACKGROUND
On May 16, 2007, Rodney Page ("Page") was walking to his home, when Rodriguez and
co-defendants Vi~tor Perez ("Perez") and Joseph Ramirez approached Page on bicycles.
Rodriguez displafed a gun to Page, demanding that Page surrender the gold chain he had around
his neck. Page attempted to comply, but Rodriguez shot him three times. Perez took Page's

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Rodriguez was charged by a New York County indictment with second-degree attempted
murder, first-degree assault, two counts of the first-degree robbery and second-degree robbery.
He proceeded to a jury trial and was found guihy on all charges. Rodriguez was sentenced as a
violent-felony-offender to an aggregate term of 40 years imprisonment as follows: (a) 25 years
on the second-degree attempted murder conviction and 15 years on the first-degree assault
conviction, to nm consecutively; (b) 25 years on the first-degree robbery convictions and 15
years on the second-degree robbery conviction; and (c) five years ofpost-release supervision on
each conviction, to nm concrnrently.
Rodriguez appealed, contending that the comt imposed consecutive sentences for the
attempted murder and assault unlawfully, in violation of PL § 70.25(2), and that his right to be
free from double jeopardy and his due process right, were violated because the consecutive
sentences were based on the same act. The New York State Supreme Comt, Appellate Division,
First Department, modified the judgrrent "on the law, to the extent of directing that the sentence
fur the attempted murder and assault convictions be served concrnrently," remanding the matter
to the trial comt fur resentencing and otherwise affirming. People v. Rodriguez, 79 A.D.3d 644,
644, 913 N.Y.S.2d 202, 203 (App. Div. 1"1 Dep't 2010). The Appellate Division stated:
[W]e remand the matter to the trial court so that it may restructure the sentence to
arrive lawfully at the aggregate sentence which it clearly intended to impose upon
defendant, who was the actual shooter, and thus deserving of greater punishment
than his accomplices. One of the two robbery counts on which defendant was
convicted charged him with forcible stealing of property while displaying a firearm
(Penal Law § 160.15[4]). It is self:.evident that defendant's display of a gun during
the robbery, on the one hand, and his actual shooting of the victim, on the other, arise
from separate acts, and are thus not subject to the strictures of Penal Law §
[7]0.25(2). This Comt has, on at least one prior occasion, vacated illegal consecutive
sentences, but remanded the case for resentencing, so that sentences on other counts

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which were initially nm conclllTently, could be imposed consecutively so as to
reflect the court's intended sentencing scherre.
Id. at 645, 913 N.Y.S.2d at 203-04.
Rodriguez appealed to the New York Court of Appeals, arguing that ''insofar as the Appellate
Division's corrective action ordered appellant resentenced so that his lawfully imposed
conclllTent sentences may be 'restructured' to nm consecutively, it would violate C.P.L.
[Criminal Procedure Law] § 430.10, P.L. §§ 70.25(2) & 70.30(1 )(A), as well as double jeopardy
and due process." The New York Court of Appeals stated that the issue on appeal was "whether
CPL 430.10 precludes the Appellate Division from remitting a case for resentencing after
concluding that the trial court imposed unlawful consecutive sentences on two of the c01.mts,"
and determined that "it does not." People v.

Rodrigue~

18 N.Y.3d 667, 669, 944 N.Y.S.2d 438,

439 (2012). The Court of Appeals noted that, "[w]hile it is premature for us to take a position on
whether the trial court may sentence defendant other than to make all sentences nm conc\llTently,
it is clear that CPL 430.10 does not preclude the Appellate Division remitting for resentence."
Id. at 670, 944 N. Y.S.2d at 440. Chief Judge Lippman dissented, in part, concluding that "CPL
430.10 precludes any additional restructuring of defendant's now-lawful sentence and the
Appellate Division's remittal for the purpose of increasing the severity of the aggregate sentence
was erroneous." Id. at 672, 944 N.Y.S.2d at 441 (Lippman, J., dissenting). According to the
dissent, "the Appellate Division order seeks both to correct the illegality in defendant's sentence
and to remit to the trial court for finther resentencing. This is not permitted." Id. at 674, at 944
N.Y.S.2d at 442 (Lippman, J., dissenting).
Upon remittitur, Rodriguez submitted a rreIIDrandum of law, arguing that: (a)
resentencing is prohibited by CPL § 430.1 O; (b) consecutive sentences are not permitted mder
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PL§ 70.25(2); and (c) his post-sentence conduct justifies resentencing him to serve his
individual sentences concl.llTently. The trial cotnt concluded that CPL § 430.10 does not
preclude restructwing Rodriguez's sentence to achieve the same aggregate sentence originally
imposed and resentenced Rodriguez to an aggregate term of 40 years imprisonrrent as follows:
(i) 25 years on the second-degree attempted nrurder conviction; (it) 15 years on the first-degree

assauh conviction; (ill) 25 years on each of the two first-degree robbery convictions; and (iv) 15
years on the second-degree robbery conviction The sentence on the first-degree assauh
conviction was to nm consecutively to the sentence on the first-degree robbery conviction under
PL§ 160.15(4). The cotnt also sentenced Rodriguez to five years of post-release supervision on
each count to nm concl.llTently.
Rodriguez appealed, arguing that: (a) CPL§ 430.10 barred the trial cotnt's changing
from concl.llTent to consecutive then-extant, lawful sentences for the first-degree assauh and
first-degree robbery convictions under PL§ 160.15(4), that he began to serve, to his det:rirrent;
(b) the cotnt's imposition of consecutive sentences violated PL § 70.25(2) and fuderal and state
constitutional double jeopardy and due process clauses and was also barred by PL § 70.30(1 )(a);
and (c) the cotnt's remarks concerning Rodriguez's uncontested rehabilitative achievements
infucted the resentencing proceeding. The Appellate Division affirmed, finding that, on remand:
(1) the cotnt imposed, lawfully, consecutive sentences for a conviction for first-degree assauh
and first-degree robbery based on the display ofa firearm, PL § 160.15(4); (2) the fu.ct that those
sentences had been imposed concl.llTently originally did not resuh in a violation of CPL
§ 430.10; (3) the consecutive sentences did not violate PL§ 70.25(2) because the robbery
conviction was based on Rodriguez's display of something appearing to be a firearm and the
assauh conviction was based on his separate act of shooting the victim; (4) the consecutive
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sentences did not violate PL§ 70.30(1)(a) because "sentences may nm consecutively to each
other even though each of those sentences is required to nm concmrently with the same third
sentence"; and (5) the imposition ofconsecutive sentences was an appropriate exercise of
discretion People v. Rodriguez, 112 A.D.3d 488, 488-89, 976 N .Y.S.2d 96, 97-98 (App. Div. 1st
Dep 't 2013 ). The cm.n1 considered and rejected Rodriguez's constitutional argmnents. Id. at
489, 976 N.Y.S.2d at 98.
Rodriguez appealed, and the New York Cotut of Appeals affirmed, noting:
On defendant Sergio Rodriguez's prior appeal, we held that CPL 470.20 authoriz.ed
the Appellate Division to remit the matter to the sentencing cotut for consideration
of whether one of defendant's robbery sentences should be trodified to nm
consecutively in light of the appellate cotut' s correction of the unlawful imposition
of consecutive sentences with respect to his assault and attempted nrurder
convictions . . . Therefore, on this appeal, we are constrained to hold that the
sentencing cotut acted within its discretion-derived from that remittal-when it
trodified defendant's sentence in accordance with the Appellate Division's directive.
We fi.nther conclude that the sentencing cotut's imposition of consecutive sentences
for defendant's convictions of first-degree assault and first-degree robbery comports
with Penal Law§ 70.25(2). We therefore, affirm
People v. Rodrigue?, 25 N.Y.3d 238, 241, 10 N.Y.S.3d 495, 496-97 (2015).

PETITIONER'S CONTENTIONS
In this habeas corpus proceeding, Rodriguez makes the fo flowing argmnent:
The state cotut proceeding resulted in a decision that was based on an unreasonable
determination of the fucts in light of the evidence presented in the state cotut
proceeding, to wit: once the Appellate Division directed that the sentence for
petitioner's attempted nrurder and assault convictions were to be served concmrently
instead of consecutively (79 AD3d 644 [2010]), the defect in petitioner's sentence
was corrected. CPL § 43 0 .10 precludes any additional restructuring of petitioner's
now lawful sentence and the Appellate Division's remittal fur the purpose of
increasing the severity of the aggregate sentence was erroneous.
In the remainder of the petition, Rodriguez quotes, ahnost in its entirety, Judge Lippman's 2012

dissenting opinion on Rodriguez's first appeal to the New York Cotut of Appeals.

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RESPONDENT'S CONTENTIONS

The respondent contends that Rodriguez's petition does not set forth a claim of
constitutional deprivation because it rests exclusively on state-law grounds. Moreover, the state
court already rejected his constitutional clam. According to the respondent, Rodriguez does
not have a double jeopardy claim in connection with his resentencing because the Supreme Court
held that "the double jeopardy bar is not triggered if the two offenses for which the defendant is
punished or tried pass the 'same-elements' or 'Blockburger'

test,~

that each offence contains

an element not contained in the other." Moreover, the Supreme Court "also determined that,
when a state's imposition of consecutive sentences is permitted by its own statutes, a defendant's
double jeopardy rights are not violated even if the offenses for which he is sentenced
cumulatively do no pass the same-element test." The respondent contends that the imposition of
consecutive sentences here was in accordance with New York law: (a) "theft is not an element of
first degree assault," and "an element of first degree assauh is the infliction of serious physical
iqjury, which is not an element of robbery by display''; and (b) the New York Court of Appeals

held that it satisfied PL § 70.25(2). The respondent contends that the commencement of
Rodriguez's sentence did not bar the resentencing and Rodriguez has no legitimate expectation
of finality in his original sentence because New York albws appellate review of the sentence.
The respondent asserts that Rodriguez's claim, that the restructuring of his sentence to arrive to
the aggregate sentence imposed originally violated his due process right, is meritless. That is so
because the Supreme Court ''has not decided whether [North Carolina v. Pearce, 395 U.S. 711,
89 S. Ct. 2072 (1969)] applies only to resentencing folbwing a retrial or whether it also applies
to a sentencing following a finding that an initial sentence was illegal"

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LEGAL STANDARD
The Antiterrorism and Effective Death Penahy Act of 1996 ("AEDP A'') provides:
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 proceed~ unless the adjudication of
the claim - (1) resuhed in a decision that was contrary to, or involved an
unreasonable application o~ clearly established Federal law, as determined by the
Supreme Court of the United States; or (2) resuhed in a decision that was based on
an unreasonable determination of the fucts in light of the evidence presented in the
State court proceeding.
28 u.s.c. § 2254(d).
A state-court decision is contrary to clearly established Supreme Court precedent if its
conclusion on a question of law is "opposite to that reached by [the Supreme] Court," or if the
state court reaches a conclusion dllfurent from that of the Supreme Court "on a set of materially
indistingtrishable fucts." Williams v. Taylor, 529 U.S. 362, 412-13, 120 S. Ct. 1495, 1523
(2000). A state-court decision involves an unreasonable application of clearly established
federal law "if the state court identifies the correct governing legal rule from [the Supreme]
Court's cases but unreasonably applies it to the fucts of the particular state prisoner's case." Id.
at 407-08, 120 S. Ct. at 1520. "[A] determination ofa fuctual issue made by a State court shall
be presumed to be correct. The applicant shall have the burden ofrebutting the presumption of
correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(l).

APPLICATION OF LEGAL STANDARD
Rodriguez's claim, that restructuring his sentences to cause them to be served
consecutively violated CPL § 430. l 0, is based on a state-law ground and does not implicate any
:federal-law ground. Since ":federal habeas corpus relief does not lie for errors of state law,"
Estelle v. McGuire, 502 U.S. 62, 67, 112 S. Ct. 475, 480 (1991 ), Rodriguez is not entitled to
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relief based on his state-law violation claim
Ahhough Rodriguez argues that the state-comt decision was based on an tmreasonable
application of the fucts in light of the evidence presented, he does not identify any :findings of
fuct that he wishes to challenge or point to any clear and convincing evidence that wouki rebut
the preswnption of correctness of the state comt's fuctual :findings. Thus, Rodriguez is not
entitled to relief based on this grollllCl.
The Comt interprets liberally Rodriguez's claim, see Triestrnan v. Federal Blll'eau of
Prisons, 470 F.3d 471, 474 (2d Cir. 2006) ("It is well established that the submissions of a pro se
litigant nrust be construed liberally and interpreted 'to raise the strongest argurrents that they
suggest."') (citation omitted), as asserting that the state-comt decision involved an tmreasonable

application of clearly established federal law. "No person shall be ... subject for the same
offence to be twice put in jeopardy of life or limb ... nor be deprived of life, hberty, or property,
without due process of law." U.S. Const. amend. V. The Fifth Amendment double jeopardy
clause protects: (1) "against a second prosecution for the same offense after acquittaf'; (2)
"against a second prosecution for the same offense after conviction''; and (3) "rrruhiple
punishments for the same offense." Pearce, 395 U.S. at 717, 89 S. Ct. at 2076. However, ''the
double jeopardy provision" does not "impose an absolute bar to a rmre severe sentence upon
reconviction" Id. at 723, 89 S. Ct. at 2079. "Due process of law ... requires that vindictiveness
against a defendant for having successfully attacked his first conviction nrust play no part in the
sentence he receives after a new trial" Id. at 725, 89 S. Ct. at 2080. In limited circmnstances,
where a reasonable likelihood exists ''that the increase in sentence is the product of actual
vindictiveness on the part of the sentencing authority," a rebuttable presumption of
vindictiveness may arise; otherwise, to establish a due process violation, a defendant nrust prove
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actual vindictiveness. Alabama v. Smith, 490 U.S. 794, 799-800, 109 S. Ct. 2201, 2205 (1989).
Rodriguez did not receive rrrultiple pllllishments for the same offense, and his original
aggregate sentence of 40 years was not increased at resentencing. Since consecutive sentences
Rodriguez received on resentencing were in accordance with New York Law, as the New York
Court of Appeals fmmd on his appeai no double jeopardy issue was triggered. Pearce is not
clearly established law governing Rodriguez's case because Pearce involved the imposition ofa
new sentence after retriai the circumstance not involved here. Moreover, to show a violation of
due process, Rodriguez rrrust establish actual vindictiveness, and he railed to do so here. Thus,
Rodriguez is not entitled to relief based on the claim that the state-court decision involved an
unreasonable application of clearly established federal law.
RECOMMENDATION

For the foregoing reasons, I recomrrend that the habeas corpus petition be denied.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(l) and Rule 72(b) of the Federal Rules of Civil
Procedure, the parties shall have fourteen (14) 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
Colleen McMahon, 500 Pearl Street, Room 1640, New York, New York, 10007, and to the
chambers of the undersigned, 40 Centre Street, Room425, New York, New York, 10007. Any
requests for an extension of time for filing objections rrrust be directed to Judge McMahon
Failure to file objections within fourteen (14) days will result in a waiver of objections and

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will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985);
Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003).
Dated: New York, New York
December 17, 2015

Respectfully submitted,

Mailed copy to:

KEVIN NATHANIEL FOX

1uv--ic--.c~

-H

UNITED STATES MAGISTRATE JUDGE

Sergio Rodriguez

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