Rodriguez v. Vance
MEMORANDUM OPINION AND ORDER. The Court has considered all of the arguments raised by the parties. To the extent not specifically addressed, the arguments are either moot or without merit. For the reasons explained above, the petition for a writ of h abeas corpus is dismissed. The Clerk is directed to enter judgment dismissing the petition and to close this case. Because the petitioner has failed to make a substantial showing of the denial of a constitutional right, the Court declines to issue a certificate of appealability pursuant to 28 U.S.C. § 2253(c). The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith, and therefore in forma pauperis status is denied for the purposes of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). SO ORDERED. (Signed by Judge John G. Koeltl on 1/6/2021) (rjm) Transmission to Orders and Judgments Clerk for processing.
Case 1:18-cv-06202-JGK Document 35 Filed 01/06/21 Page 1 of 27
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- against SUPERINTENDENT OF CLINTON
OPINION AND ORDER
JOHN G. KOELTL, District Judge:
Lorenzo Rodriguez brought this pro se petition for a writ
of Habeas Corpus pursuant to 28 U.S.C. § 2254. Mr. Rodriguez was
convicted in the New York State Supreme Court, New York County,
of second-degree burglary and sentenced to a 14-year prison
term, to be followed by five years of post-release supervision.
After the Appellate Division of the New York State Supreme Court
affirmed the conviction, and a judge of the New York State Court
of Appeals denied leave to appeal, Mr. Rodriguez filed this
petition, arguing that: (1) he was deprived of his right to
counsel at various pre-trial hearings; (2) the denial of an
adjournment request was a violation of his constitutional
rights; (3) the trial court’s instructions regarding his absence
during trial violated the United States Constitution; and (4)
the prosecutor’s summation misstated the law. For the reasons
explained below, Mr. Rodriguez’s petition is dismissed.
Case 1:18-cv-06202-JGK Document 35 Filed 01/06/21 Page 2 of 27
Evidence in the state court record shows the following
On August 28, 2013, Antonia Lopez entered her home at 552
West 160th Street, Apartment 18, in New York, New York, and saw
a male stranger leaving the apartment through a window and onto
the adjacent fire escape. Tr. at 583-86. 1 Ms. Lopez immediately
noticed that an iPad and a piggybank were missing. Tr. at 588.
Policer officers Orlando Corchado and Andrew Lassen, who were
patrolling the apartment building in response to recent
burglaries, saw Mr. Rodriguez climb up the fire escape onto the
roof. Tr. at 614-17. Mr. Rodriguez was wearing latex gloves and
carrying a white piggybank. Tr. at 617. Mr. Rodriguez stated
that he was working for the superintendent of the building and
then went back down the fire escape, despite the police
officers’ instructions to stop. Tr. at 618. Upon entering the
apartment through the window, Mr. Rodriguez said “I’m sorry,”
returned the piggybank to Ms. Lopez’s husband, and attempted to
leave the apartment through the main entrance. Tr. at 589. The
officers, who followed Mr. Rodriguez down the fire escape and
Record citations preceded by “Tr.” refer to transcripts from state court
proceedings collected in ECF No. 21, Ex. 6. Record citations preceded by
“SR1” refer to the state record documents collected in ECF No. 21, Ex. 3.
Record citations preceded by “SR2” refer to the state record documents
collected in ECF No. 21, Ex. 4.
Case 1:18-cv-06202-JGK Document 35 Filed 01/06/21 Page 3 of 27
into the apartment, asked Ms. Lopez if she knew Mr. Rodriguez
and she told them that he was a thief. Tr. at 589-90. Officer
Corchado apprehended and arrested Mr. Rodriguez in the hallway
of the apartment. Tr. at 618-620. Mr. Rodriguez pulled an iPad
out of his pants and was about to discard it when one of the
residents of the apartment grabbed it from him. Tr. at 636.
Shortly after the arrest, Officer Lassen searched Mr. Rodriguez
on the landing just outside the apartment and recovered two
flashlights, latex gloves, and an iPad charger. Tr. at 621-22.
The State charged Mr. Rodriguez with second-degree
burglary. Tr. at 130. Mr. Rodriguez twice asked the court to
replace his court-appointed counsel, and the court accommodated
him each time. Tr. at 10, 25. While working with the third
court-appointed lawyer, Robert Weinstein, Mr. Rodriguez decided
to proceed pro se. Tr. at 32. In the colloquy that followed, the
court asked Mr. Rodriguez a series of questions to ensure that
Mr. Rodriguez understood the consequences of selfrepresentation. Tr. at 33-37. Specifically, the court explained
in detail that Mr. Rodriguez would have to pick a jury, make an
opening statement, ask witnesses all the questions, and do a
summation, all through an interpreter. Tr. at 33-37, 40. The
court also explained to Mr. Rodriguez that representing himself
is a “very, very bad idea” and “a little bit like a doctor
Case 1:18-cv-06202-JGK Document 35 Filed 01/06/21 Page 4 of 27
treating himself for his own illness.” Tr. at 34. The court then
appointed Mr. Weinstein to serve as standby counsel over Mr.
Rodriguez’s objection and approved the pro se application. Tr.
at 37-38, 41.
At the suppression hearing held on May 13, 2014 to
determine the admissibility of statements made by the defendant
and evidence seized from him, after the prosecution questioned
Officer Corchado, Mr. Rodriguez asked a question in crossexamination that the court ruled was impermissible and directed
Officer Corchado not to answer. Tr. at 68. In response, Mr.
Rodriguez declared “I’m not going to continue here,” and the
court warned him that if he left, the hearing would continue
without him. Id. After a private colloquy with Mr. Weinstein,
Mr. Rodriguez decided to have Mr. Weinstein proceed with the
cross-examination of Officer Corchado. Tr. at 71. The following
day, Mr. Rodriguez changed his mind once again and decided to
continue the hearing pro se. Tr. at 106-07. For the remainder of
the suppression hearing and during a subsequent Sandoval hearing
to determine the admissibility of Mr. Rodriguez’s prior
covictions, Mr. Rodriguez represented himself. Tr. at 108-09,
119. The trial court denied a motion to suppress the statements
the defendant made to the police on the roof to the effect that
he was working for the superintendent. The court found that the
defendant was not in custody at the time and no Miranda warnings
Case 1:18-cv-06202-JGK Document 35 Filed 01/06/21 Page 5 of 27
were required. Tr. at 113. Subsequent statements at the police
station to the effect that the defendant was visiting a
girlfriend were not suppressed apparently because they were not
the result of police questioning. Id. Physical evidence seized
from the defendant was not suppressed because the items were
seized incident to a lawful arrest. Id.
As a result of the Sandoval hearing, the trial court
determined that if the defendant testified at trial, the
prosecution could ask the defendant whether he was convicted in
1999 of robbery in the second degree and grand larceny in the
third degree, but not about the underlying facts of those cases,
or about the defendant’s parole status at the time of those
convictions. The prosecution could also ask whether the
defendant was convicted of a misdemeanor in 2010, but not the
name of the misdemeanor. Tr. at 120.
During the voir dire examination of potential jurors that
followed, Mr. Rodriguez continued to represent himself, and the
court explained the procedure in detail. Tr. at 205. When his
for-cause challenge to a juror was overruled by the court, Mr.
Rodriguez declared that he did not want to continue with the
trial and left the courtroom. Tr. at 209-10. At first, the court
proceeded with voir dire examination in Mr. Rodriguez’s absence
but ultimately dismissed that panel. Tr. at 218.
Case 1:18-cv-06202-JGK Document 35 Filed 01/06/21 Page 6 of 27
On his way to the court for the next court date, May 19,
2014, Mr. Rodriguez was injured when the corrections bus that
was transporting him crashed. Tr. at 229-30. In light of his
injuries, trial was postponed eventually for several months to
September 3, 2014. Tr. at 231, 236, 240. After a few more
delays, the trial ultimately restarted on October 14, 2014. At
that point, the court advised Mr. Rodriguez to permit Mr.
Weinstein to sit at the defendant’s table to assist the
defendant during the proceedings, but Mr. Rodriguez refused. Tr.
at 251. On October 20, 2014, when jury selection was about to
commence, Mr. Rodriguez asked for a one-month adjournment on the
grounds that he was not ready to proceed. Tr. at 261. The court
denied the request, reasoning that it had been five months since
the last time the trial started and two and a half months after
Mr. Rodriguez recovered from his injuries, and that the
defendant had the discovery materials for five months. Tr. at
265-69. In response, Mr. Rodriguez refused to participate and
left the courtroom. Tr. at 269, 271. The court and Mr. Weinstein
informed Mr. Rodriguez that he could not both represent himself
and be absent during trial. Tr. at 271-73.
The trial proceeded without Mr. Rodriguez, with Mr.
Weinstein representing Mr. Rodriguez. At the outset of jury
selection, the court instructed the prospective jurors that Mr.
Rodriguez exercised his right not to be present and that the
Case 1:18-cv-06202-JGK Document 35 Filed 01/06/21 Page 7 of 27
jury should not draw any inferences from the defendant’s
absence. Tr. at 283. On the second day of jury selection, Mr.
Rodriguez asked to resume self-representation, but the court
denied the request. Tr. at 415. The court held that Mr.
Rodriguez was not capable of representing himself because he had
shown that he could not abide by the court’s rulings and would
be disruptive in court. Id. The court stated that Mr. Rodriquez
was permitted to stay for the trial but would have to be
represented by Mr. Weinstein. Tr. at 416. Mr. Rodriguez refused
to accept the court’s order and was removed from the courtroom.
Tr. at 417. The rest of jury selection and trial took place in
Mr. Rodriguez’s absence. The trial lasted for two days and the
jury found Mr. Rodriguez guilty of second-degree burglary after
24 minutes of deliberation. Tr. at 711, 713-14. The court
sentenced Mr. Rodriguez to a 14-year prison sentence as a second
violent felony offender, followed by a five-year term of postrelease supervision. Tr. at 724.
Mr. Rodriguez challenged his conviction in the Appellate
Division of the New York State Supreme Court on four grounds.
First, Mr. Rodriguez argued that his waiver of the right to
counsel during the suppression hearing was not knowingly,
voluntarily, and intelligently made. The appellate court held
that Mr. Rodriguez’s waiver of counsel was invalid under New
Case 1:18-cv-06202-JGK Document 35 Filed 01/06/21 Page 8 of 27
York State law because the trial court has failed to “ensure
that [Mr. Rodriguez] was aware of his exposure.” People v.
Rodriguez, 66 N.Y.S.3d 488, 496 (App. Div. 2018). However, the
court concluded that a new hearing would serve no purpose and
need not be ordered because the evidence of Mr. Rodriguez’s
guilt was overwhelming. Id. at 497. Second, Mr. Rodriguez argued
that the trial court committed reversible error by denying his
request for a one-month adjournment. The appellate court found
that there was no abuse of discretion in denying the adjournment
in light of the limited materials that Mr. Rodriguez claimed he
needed time to review, and the fact that they were in his
possession for five months. Id. Third, Mr. Rodriguez argued that
the trial court delivered a prejudicial instruction regarding
his absence from the courtroom because it suggested that Mr.
Rodriguez absconded. The appellate court rejected the claim,
noting that “nothing in the formulation used by the court . . .
suggested that defendant absconded. Arguably, it inured to
defendant in dispelling any notion that he was excluded from the
courtroom by the court.” Id. Fourth, Mr. Rodriguez argued that
the prosecution committed misconduct in its summation by
misstating the elements of the charged crime when it stated that
it merely had to prove unlawful entry with intent to commit a
crime in Ms. Lopez’s bedroom as opposed to in the building as a
whole. The appellate court rejected the claim as unpreserved
Case 1:18-cv-06202-JGK Document 35 Filed 01/06/21 Page 9 of 27
and, alternatively, without merit because the prosecution’s
summation accurately stated the statutory definition of a
building, under which unlawful entry into a part of a building
with the requisite intent constitutes burglary even if the
defendant entered the building as a whole with license or
without the intent to commit a crime. Id. at 498.
Pursuant to the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), a federal court may grant habeas corpus
relief to a state prisoner on a claim that was adjudicated on
the merits in state court only if it concludes that the state
court’s decision “was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined
by the Supreme Court of the United States” or “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)(1)–(2); see also Washington v. Griffin, 876 F.3d 395,
403 (2d Cir. 2017). 2
A state court decision is contrary to clearly established
federal law “if the state court arrives at a conclusion opposite
to that reached by [the Supreme Court] on a question of law” or
“if the state court confronts facts that are materially
Unless otherwise noted, this Memorandum Opinion and Order omits all
alterations, citations, footnotes, and internal quotation marks in quoted
Case 1:18-cv-06202-JGK Document 35 Filed 01/06/21 Page 10 of 27
indistinguishable from a relevant Supreme Court precedent and
arrives at a result opposite to” the Supreme Court’s conclusion.
Williams v. Taylor, 529 U.S. 362, 405 (2000); see Washington,
876 F.3d at 403.
A state court decision involves an unreasonable application
of clearly established federal law when “the state court
correctly identifies the governing legal principle . . . but
unreasonably applies it to the facts of the particular case.”
Bell v. Cone, 535 U.S. 685 (2002); see also Washington, 876 F.3d
at 403. To meet that standard, the state court’s decision must
be “so lacking in justification that there was an error well
understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Harrington v. Richter,
562 U.S. 86, 103 (2011); see also Washington, 876 F.3d at 403.
“[I]t is well-established in [this] circuit that the objectively
unreasonable standard of § 2254(d)(1) means that [a] petitioner
must identify some increment of incorrectness beyond error in
order to obtain habeas relief.” Cotto v. Herbert, 331 F.3d 217,
248 (2d Cir. 2003).
In his petition, Mr. Rodriguez first argues that he was
deprived of his right to counsel at the suppression hearing and
the Sandoval hearing.
Case 1:18-cv-06202-JGK Document 35 Filed 01/06/21 Page 11 of 27
The Sixth Amendment provides that a criminal defendant has
a “right . . . to have the assistance of counsel for his
defence.” U.S. Const. Amend. VI. That right is “part of the due
process of law that is guaranteed by the Fourteenth Amendment to
defendants in the criminal courts of the States.” Faretta v.
California, 422 U.S. 806, 818 (1975). The defendant, however, is
“free personally to decide whether in his particular case
counsel is to his advantage.” Id. at 834. Nevertheless, because
self-representation “relinquishes . . . many of the traditional
benefits associated with the right to counsel . . . the accused
must knowingly and intelligently forgo those relinquished
benefits.” Id. at 835. To do that, the defendant “should be made
aware of the dangers and disadvantages of self-representation,
so that the record will establish that ‘he knows what he is
doing and his choice is made with eyes open.’” Id. (quoting
Adams v. United States ex rel. McCann, 317 U.S. 269, 279
(1942)). The Supreme Court has not “prescribed any formula or
script to be read to a defendant who states that he elects to
proceed without counsel.” Iowa v. Tovar, 541 U.S. 77, 88 (2004).
“The information a defendant must possess in order to make an
intelligent election . . . depend[s] on a range of case-specific
factors, including the defendant’s education or sophistication,
the complex or easily grasped nature of the charge, and the
stage of the proceeding.” Id. While “not every omission by the
Case 1:18-cv-06202-JGK Document 35 Filed 01/06/21 Page 12 of 27
district court during a Faretta inquiry will invalidate an
otherwise knowing and intelligent waiver,” to ensure that a
defendant’s waiver is knowingly and intelligently made, the
trial court should “inform a defendant of the nature of the
charges, the range of allowable punishments, and the risks of
self-representation.” Torres v. United States, 140 F.3d 392, 403
(2d Cir. 1998) (citing von Moltke v. Gillies, 332 U.S. 708, 724
In this case, the trial court fell short of ensuring that
Mr. Rodriguez’s waiver was knowingly and intelligently made. It
is true that upon the first request to represent himself, the
trial court conducted a lengthy colloquy with Mr. Rodriguez
during which it established that Mr. Rodriguez has experience
with the criminal justice system and that he understood in
detail the specific tasks that he would have to undertake in the
course of self-representation. Tr. at 33-40. And the court did
warn Mr. Rodriguez that representing himself was a bad idea. Id.
at 34. Nonetheless, the failure to warn Mr. Rodriguez about his
possible sentence before he was permitted to represent himself
rendered his waiver of counsel defective. While the record shows
that Mr. Rodriguez likely knew that a conviction would lead to a
prison sentence, at no point before allowing him to proceed pro
se did the trial court inform him about the extent of potential
punishment which in this case resulted in a sentence of
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imprisonment of fourteen years. Because the waiver must be made
“with an apprehension of . . . the range of allowable
punishments,” von Moltke, 332 U.S. at 724, Mr. Rodriguez’s
waiver was not made “knowingly and intelligently.” Faretta, 422
U.S. at 835.
The State argues that Mr. Rodriguez’s waiver was valid
because there is no requirement under Supreme Court precedent to
inform a defendant who wants to waive the right to counsel
during pre-trial proceedings of potential sentencing exposure.
The State relies on language in United States v. Fore, where the
Court of Appeals for the Second Circuit stated that “our case
law does not require an explicit accounting of the potential
punishment in a Faretta discussion.” 169 F.3d 104, 108 (2d Cir.
1999). This argument is flawed. Both Supreme Court and Second
Circuit cases, including Fore, clearly state that waiver of
counsel must be made “with an apprehension of . . . the range of
allowable punishments.” von Moltke, 332 U.S. at 724; see also
Fore, 169 F.3d at 108 (“The content of [a waiver-of-counsel]
discussion normally includes a discussion of the nature of the
charges, the range of allowable punishments, and the risks of
self-representation.”); Torres, 140 F.3d at 405 (stating the
same in the context of a pre-trial waiver of counsel). In Fore,
the Court of Appeals held that an “explicit accounting of the
potential punishment” was unnecessary because the defendant “was
Case 1:18-cv-06202-JGK Document 35 Filed 01/06/21 Page 14 of 27
‘clearly aware’ of the significant penalties he would face if
convicted” where the trial court warned the defendant, who was
ultimately sentenced to a term of 27 months in prison, that he
could face a term of up to 10 years in prison. 169 F.3d at 108
(quoting United States v. Hurtado, 47 F.3d 577, 583 (2d Cir.
1995)). The defendant in Fore argued that such a warning was
defective, and his waiver of counsel thus invalid, because the
trial court failed to inform him that he faced a maximum
sentence of 125 years if the court imposed consecutive sentences
on each of the possible counts of conviction. In rejecting the
defendant’s claim and stating that such “explicit accounting”
was unnecessary, the court held that the sentencing warning that
the trial court gave provided the defendant “a realistic picture
. . . regarding the magnitude of his decision.” Id. In contrast,
the trial court in Mr. Rodriguez’s case provided no warning
about a potential sentence. While the trial court need not have
provided a full accounting of potential sentences, it must have
given the defendant a “realistic picture,” id., and ensured that
the defendant was “clearly aware of the penalties he face[d] if
convicted.” Hurtado, 47 F.3d at 583. 3 By staying entirely silent
on the range of punishments before permitting Mr. Rodriguez to
The only specific discussion of penalty that the State points to is a
discussion of a potential plea in which the trial court stated that it could
allow the defendant to plead guilty and be sentenced to seven years’
imprisonment or, if the prosecutor agreed to a lesser charge, the sentence
could be five years. Tr. at 232. This did not amount to realistic advice as
to the actual sentence the defendant faced.
Case 1:18-cv-06202-JGK Document 35 Filed 01/06/21 Page 15 of 27
represent himself, the trial court failed to ensure that his
waiver was knowingly and intelligently made.
The trial court’s error, however, does not necessarily
warrant habeas relief for Mr. Rodriguez. “Federal courts
reviewing [habeas] claims, other than those of structural error,
ask whether the alleged error ‘had substantial and injurious
effect or influence in determining the jury's verdict.’”
Yarborough v. Keane, 101 F.3d 894, 899 (2d Cir. 1996) (quoting
Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)). The deprivation
of the right to counsel during pre-trial hearings is not a
structural error. See Coleman v. Alabama, 399 U.S. 1, 11 (1970);
Arizona v. Fulminante, 499 U.S. 279, 307 (1991); Dallio v.
Spitzer, 343 F.3d 553, 569 n.4 (2d Cir. 2003) (Katzmann, J.,
concurring). Therefore, the Court “must assess the prejudicial
impact of constitutional error in a state-court criminal trial
under the ‘substantial and injurious effect’ standard.” Fry v.
Pliler, 551 U.S. 112, 121 (2007). “Under this standard, habeas
petitioners . . . are not entitled to habeas relief based on
trial error unless they can establish that it resulted in actual
prejudice.” Brecht, 507 U.S. at 637.
Upon determining that Mr. Rodriguez’s waiver of counsel was
defective, the Appellate Division found that the conventional
remedy—a new suppression hearing, followed by a new trial if the
suppression hearing led to suppression of the evidence in
Case 1:18-cv-06202-JGK Document 35 Filed 01/06/21 Page 16 of 27
question—would serve no purpose because it was clear beyond a
reasonable doubt that the result at a new trial would be the
same. Rodriguez, 66 N.Y.S.3d at 497.
The appellate court
concluded that even if defendant prevailed at the suppression
hearing—which itself was unlikely—a new trial would not have
altered the outcome because the evidence of Mr. Rodriguez’s
guilt was overwhelming. Id. As the Appellate Division explained:
Even assuming counsel would somehow be
successful in arguing for the suppression of
redhanded. Lopez encountered defendant—a person
she did not know and did not allow into her
home—in her bedroom. Defendant was observed
wearing latex gloves by Lopez and Police
Officer Corchado. He was also observed to be
in possession of Lopez’s piggy bank.
Similarly, even assuming counsel would have
Sandoval ruling, and defendant would have
testified on his own behalf, the evidence
overwhelmingly proved defendant knowingly
and unlawfully entered the Lopez apartment
with the intent to take property.
Id. Accordingly, the appellate court properly concluded that the
denial of counsel was harmless error beyond a reasonable doubt.
For the same reasons, it is plain that the limited deprivation
of Mr. Rodriguez’s right to counsel did not result in “actual
prejudice.” Brecht, 507 U.S. at 637. As such, the Appellate
Division did not unreasonably apply clearly established Supreme
Case 1:18-cv-06202-JGK Document 35 Filed 01/06/21 Page 17 of 27
Mr. Rodriguez next argues that the trial court violated his
due process right by denying his request for a one-month
“The matter of continuance is traditionally within the
discretion of the trial judge . . . .” Ungar v. Sarafite, 376
U.S. 575, 589 (1964). “There are no mechanical tests for
deciding when a denial of a continuance is so arbitrary as to
violate due process. The answer must be found in the
circumstances present in every case, particularly in the reasons
presented to the trial judge at the time the request is denied.”
Id. “The Supreme Court has identified several factors to
consider in determining whether a denial of a continuance is an
abuse of discretion, including the judge's reasons for denying
the continuance, the arguments made to the judge in support of
the continuance, the diligence of the defendant in requesting
the continuance, and the degree to which the denial of the
continuance ultimately prejudiced the defendant.” Marrant v.
Cuomo, 447 F. App'x 234, 235-36 (2d Cir. 2011).
In this case, the appellate court properly concluded that
the trial court did not abuse its discretion in denying the
adjournment request. In particular, in denying the request, the
trial court noted that the documents that Mr. Rodriguez claimed
he needed to review were not voluminous, and that he had five
Case 1:18-cv-06202-JGK Document 35 Filed 01/06/21 Page 18 of 27
months to review them. Tr. at 263-265. Furthermore, prior to his
request for adjournment, Mr. Rodriguez had previously told the
court that he was ready to proceed, and the court scheduled the
trial accordingly. Id. at 265. As such, the trial court had
compelling reasons for denying the request for adjournment.
Additionally, to the extent that his request was based on his
need for more time to prepare for trial, because Mr. Rodriguez
ultimately did not participate in the trial and was represented
by Mr. Weinstein, there was no actual prejudice caused by the
denial. Accordingly, the denial of an adjournment did not amount
to a denial of due process and the Appellate Division did not
unreasonably apply clearly established Supreme Court precedent.
Mr. Rodriguez’s third argument is that the instruction that
the trial court gave the jury about his absence from the
courtroom was a violation of the Fourteenth Amendment. On direct
appeal, Mr. Rodriguez characterized this claim as a failure to
follow the pattern jury instruction and brought the claim under
state law. SR1 at 34. The state appellate court therefore did
not consider his constitutional argument.
Before seeking habeas relief in federal court, a petitioner
must exhaust all state-provided remedies. 28 U.S.C.
§ 2254(b)(1). For exhaustion purposes, “a federal habeas court
need not require that a federal claim be presented to a state
Case 1:18-cv-06202-JGK Document 35 Filed 01/06/21 Page 19 of 27
court if it is clear that the state court would hold the claim
procedurally barred.” Harris v. Reed, 489 U.S. 255, 263 n.9
(1989). In those circumstances, the petitioner is deemed to have
no “remedies available” and the claim is therefore exhausted
within the meaning of § 2254(b)(1). Grey v. Hoke, 933 F.2d 117,
121 (2d Cir. 1991). However, such a procedurally defaulted claim
may be reviewed by a federal court only “upon a showing of cause
for the default and prejudice to the petitioner.” Bossett v.
Walker, 41 F.3d 825, 829 (2d Cir. 1994) (citing Wainwright v.
Sykes, 433 U.S. 72, 87 (1977)). Cause may be demonstrated with
“a showing that the factual or legal basis for a claim was not
reasonably available to counsel, . . . or that some interference
by state officials made compliance impracticable, . . . [or
that] the procedural default is the result of ineffective
assistance of counsel.” Murray v. Carrier, 477 U.S. 478, 488
(1986). As for prejudice, in a defective jury charge claim, the
relevant inquiry on habeas review is “whether the ailing
instruction by itself so infected the entire trial that the
resulting conviction violates due process, not merely whether
the instruction is undesirable, erroneous, or even universally
condemned.” United States v. Frady, 456 U.S. 152, 169 (1982).
Alternatively, to overcome a default, a petitioner must
demonstrate that a failure to consider the claim will result in
Case 1:18-cv-06202-JGK Document 35 Filed 01/06/21 Page 20 of 27
a miscarriage of justice because the petitioner is actually
innocent. Coleman v. Thompson, 501 U.S. 722, 750 (1991).
Mr. Rodriguez did not raise his constitutional argument
regarding the jury instruction in his direct appeal.
Accordingly, this argument is procedurally defaulted under New
York law. See People v. Harris, 491 N.Y.S.2d 678 (App. Div.
1985) (citing N.Y. Crim. P. L. § 440.10(2)(c)). While such a
defaulted claim must be deemed exhausted for the purposes of
this petition, Grey, 933 F.2d at 121, Mr. Rodriguez needs to
demonstrate cause and prejudice or a miscarriage of justice to
bring this defaulted claim now. Thompson, 501 U.S. at 750. Mr.
Rodriguez cannot satisfy any of these showings. Mr. Rodriguez
asserts no cause for the failure to bring the claim in the state
proceedings. Furthermore, Mr. Rodriguez cannot demonstrate
prejudice from the warning that the trial court gave about his
absence. First, the only deviation from the New York pattern
instruction about an absent defendant in the instruction that
the trial court gave was to tell the jury that Mr. Rodriguez
exercised his right not to be present. If anything, this
instruction removed any doubt about his absence rather than lead
the jury to speculate that Mr. Rodriguez absconded, as Mr.
Rodriguez hypothesized in his state court appeal. Second, the
evidence of his guilt was overwhelming. Therefore, whatever
inference the jury drew about his absence, there is no doubt
Case 1:18-cv-06202-JGK Document 35 Filed 01/06/21 Page 21 of 27
that the ultimate verdict was well supported by the evidence
presented at trial. For the same reason, Mr. Rodriguez cannot
show that a failure to consider this claim would result in a
miscarriage of justice. Accordingly, his due process claim about
the jury instruction is procedurally barred and, in any event,
Mr. Rodriguez’s fourth claim is that the prosecution’s
summation regarding the elements of robbery misstated the law
and constructively amended the prosecution’s trial theory. Mr.
Rodriguez has argued that the prosecutor incorrectly stated that
the state only needed to prove that Mr. Rodriguez was in Mr.
Lopez’s bedroom illegally, as opposed to being illegally in the
apartment building as a whole. This formulation, Mr. Rodriguez
asserted, undermined his defense that he was invited inside the
apartment building by another tenant. SR1 at 41. Additionally,
Mr. Rodriguez claims ineffective assistance of counsel for
failure to preserve this claim. The Appellate Division
determined that this claim was unpreserved and the court
declined to review it in the interest of justice. As an
alternative holding, the court found that the prosecutor
correctly state New York law. Rodriguez, 66 N.Y.S.3d at 498.
As an initial matter, this claim is procedurally barred.
Case 1:18-cv-06202-JGK Document 35 Filed 01/06/21 Page 22 of 27
A habeas court may not review a federal issue when the state
court relied on “a state law ground that is independent of the
federal question and adequate to support the judgment.”
Thompson, 501 U.S. at 729. New York’s contemporaneous objection
rule constitutes such an independent and adequate state law
ground. Downs v. Lape, 657 F.3d 97, 104 (2d Cir. 2011).
Accordingly, the failure to follow the rule precludes habeas
review unless the appellate court’s application was an
“exorbitant misapplication . . . that serve[s] no legitimate
state interest.” Id.
In this case, Mr. Rodriguez’s lawyer failed to make a
specific contemporaneous objection to the summation during the
trial. Tr. 139-140. The Appellate Division held that the claim
was unpreserved for appellate review because Mr. Rodriguez’s
counsel’s “unelaborated objections” were inadequate to make his
position known to the trial court. Rodriguez, 66 N.Y.S.3d at
498. This decision was a reasonable application of the rule that
“[a] general objection is not sufficient to preserve an issue
since [it] would not alert the court to defendant’s position.”
Garvey v. Duncan, 485 F.3d 709, 714 (2d Cir. 2007). See also
People v. Vega, 657 N.Y.S.2d 30, 31 (App. Div. 1997)
(“Defendant’s challenges to the prosecutor’s summation are
unpreserved because defendant made only general objections
during the summation.”). Accordingly, this claim is procedurally
Case 1:18-cv-06202-JGK Document 35 Filed 01/06/21 Page 23 of 27
barred, and Mr. Rodriguez needs to show cause and prejudice to
overcome the bar. Thompson, 501 U.S. at 750.
Mr. Rodriguez’s claim of ineffective assistance of counsel—
whether as a cause for his failure to press the summation error
in the state appellate court or as a standalone claim for habeas
relief—is without merit. In either context, “[t]he benchmark for
judging any claim of ineffectiveness of counsel must be whether
counsel’s conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having
produced a just result.” Strickland v. Washington, 466 U.S. 668,
686 (1984); see also Murray v. Carrier, 477 U.S. 478, 488 (1986)
(applying Strickland standard to the cause and prejudice inquiry
in habeas review). “[T]he defendant must show that counsel’s
performance was deficient . . . [and] that the deficient
performance prejudiced the defense.” Strickland, 466 U.S. at
687. Mr. Rodriguez cannot meet this demanding standard here
because, as the Appellate Division also explained, the
prosecution’s summation accurately characterized the law.
Therefore, Mr. Weinstein’s failure to raise a more elaborate
objection to the summation, which resulted in the procedural
default, could not have amounted to deficient performance and
prejudiced Mr. Rodriguez.
The prosecutor accurately characterized New York law. New
York Penal Law § 140.00(2) provides that “[w]here a building
Case 1:18-cv-06202-JGK Document 35 Filed 01/06/21 Page 24 of 27
consists of two or more units separately secured or occupied,
each unit shall be deemed both a separate building in itself and
a part of the main building.” See also People v. Smith, 534
N.Y.S.2d 1021, 1022 (App. Div. 1988) (“The fact that the
defendant was properly in the common areas of the house did not
give him a license to enter the locked room of another
tenant.”). As a result, the prosecution correctly stated that it
is sufficient under New York law to prove that Mr. Rodriguez
entered Ms. Lopez’s bedroom without permission. For the same
reason, the prosecution’s summation did not result in a
constructive amendment of the indictment, which stated that Mr.
Rodriguez “knowingly entered and remained unlawfully in a
building located at 552 West 160th Street with intent to commit
a crime therein, and said building was a dwelling.” Under Penal
Law § 140.00(2), a unit within a building is a building for the
purposes of the burglary statute, and therefore “a building
located at 552 West 160th Street” can refer to both the building
as a whole and the individual units within it. See People v.
James, 612 N.Y.S.2d 131 (App. Div. 1994) (“[T]he trial court did
not constructively amend the indictment and enlarge the People's
theory of burglary by instructing the jury that the term
‘building’ included the separate units within.”). Accordingly,
Mr. Rodriguez’s claim regarding the prosecutor’s summation is
both procedurally barred and without merit.
Case 1:18-cv-06202-JGK Document 35 Filed 01/06/21 Page 25 of 27
In his reply to the state’s answer to his habeas petition,
Mr. Rodriguez included two new claims and the Court granted the
state permission to file a surreply. First, Mr. Rodriguez claims
that the prosecution suppressed exculpatory evidence in
violation of Brady v. Maryland, 373 U.S. 83 (1963), and United
States v. Bagley, 473 U.S. 667 (1985). The alleged evidence
consisted of surveillance videotape and Mr. Rodriguez’s own
telephone that, according Mr. Rodriguez, would have established
that he did not commit the burglary. Second, Mr. Rodriguez
claims that he was framed for the burglary by the police who
committed a violation of his Equal Protection rights.
The state argues persuasively that the new claims cannot be
heard because they were not included in the initial habeas
petition. Rules Governing Section 2254 Cases in the United
States District Courts provide that “the petition must
specify all the grounds for relief available to the petitioner.”
Rule 2(c)(1) of the Rules Governing Section 2254 Cases in the
United States District Courts. In accordance with this Rule,
courts in this Circuit have routinely held that only claims
raised in a Section 2254 petition itself are appropriately
considered in habeas proceedings, and that claims raised solely
in the petitioner’s reply should not be reviewed. See, e.g.,
Case 1:18-cv-06202-JGK Document 35 Filed 01/06/21 Page 26 of 27
Ennis v. Artus, No. 09-cv-10157, 2011 WL 3585954, at *19
(S.D.N.Y. Aug. 12, 2011) (collecting cases), report and
recommendation adopted, No. 09-cv-10157, 2012 WL 3957046
(S.D.N.Y. Sept. 10, 2012). Accordingly, these claims need not be
In any event, the claims are without merit. Mr. Rodriguez
fails to provide any basis for the claim that there was any
exculpatory evidence that was withheld. There is likewise no
basis for Mr. Rodriguez’s argument that he was innocent and
framed by the police, particularly in view of the finding of the
Appellate Division that the proof of Mr. Rodriguez’s guilt
presented at trial was overwhelming. Accordingly, the claims
raised in Mr. Rodriguez’s reply are denied.
The Court has considered all of the arguments raised by the
parties. To the extent not specifically addressed, the arguments
are either moot or without merit. For the reasons explained
above, the petition for a writ of habeas corpus is dismissed.
The Clerk is directed to enter judgment dismissing the petition
and to close this case.
Because the petitioner has failed to make a substantial
showing of the denial of a constitutional right, the Court
declines to issue a certificate of appealability pursuant to 28
U.S.C. § 2253(c).
Case 1:18-cv-06202-JGK Document 35 Filed 01/06/21 Page 27 of 27
The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3),
that any appeal from this Order would not be taken in good
faith, and therefore in forma pauperis status is denied for the
purposes of an appeal. See Coppedge v. United States, 369 U.S.
438, 444-45 (1962).
New York, New York
January 6, 2021
____ /s John G. Koeltl_________
John G. Koeltl
United States District Judge
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