Rodriguez v. Lee

Full title: MARCOS RODRIGUEZ, Petitioner, v. WARDEN WILLIAM LEE, Superintendent of the…

Court: United States District Court, S.D. New York

Date published: Jun 28, 2022

Civil Action 19 Civ. 8398 (PAE) (SLC) (S.D.N.Y. Jun. 28, 2022)

Opinion

Civil Action 19 Civ. 8398 (PAE) (SLC)

06-28-2022

MARCOS RODRIGUEZ, Petitioner, v. WARDEN WILLIAM LEE, Superintendent of the Eastern Correctional Facility, Respondent.

SARAH L. CAVE, UNITED STATES MAGISTRATE JUDGE.

REPORT AND RECOMMENDATION

SARAH L. CAVE, UNITED STATES MAGISTRATE JUDGE.

TO THE HONORABLE PAUL A. ENGELMAYER, United States District Judge

I. INTRODUCTION

Petitioner Marcos Rodriguez, through counsel, brings this petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging his 2001 conviction in New York State Supreme Court, Bronx County, for two counts of second-degree murder, for which he is serving a sentence of 25 years to life in Eastern Correctional Facility. (ECF Nos. 1 at 2-3 ¶¶ 1-3; 1-1 (the “Petition”)).¹Rodriguez's conviction stems from the May 23, 1999 kidnapping in Rhode Island of Ricardo Gomez (“Ricardo”), whose bound and burned remains were discovered two days later under the Whitestone Bridge in the Bronx, New York. See State v. Rodriguez, 917 A.2d 409, 412 (R.I. 2007) (“Rodriguez II”). Following investigations in New York and Rhode Island, police officials in both states identified Rodriguez and charged him with kidnapping Ricardo from Rhode Island and murdering him for failing to repay a $67,000 drug debt. Id. Rodriguez raises three grounds in his Petition: (i) New York lacked territorial jurisdiction to prosecute him for murder; (ii) his trial counsel was ineffective; and (iii) the prosecution failed to disclose Brady ²and Rosario ³material. (ECF No. 1 at 15-16; 1-1 at 1-15).

1 The Petition was filed in two segments, at ECF Nos. 1 and 1-1. All citations refer to ECF page numbers unless otherwise noted.

2 Brady v. Maryland, 373 U.S. 83 (1963) requires the prosecution to disclose to a defendant evidence that is favorable to the defendant, material either to guilt or to punishment, and that is known to the government.

3 In People v. Rosario, the New York Court of Appeals held that a criminal defendant is entitled to inspect the prior statements of a prosecution witness, prior to cross-examination and whether or not the statements vary from the witness's statements on the stand, “[a]s long as the statement[s] relate[] to the subject matter of the witness' testimony and contain[] nothing that must be kept confidential.” 9 N.Y.2d 286, 289 (1961).

Respondent Warden William Lee, Superintendent of the Eastern Correctional Facility (“Respondent”), appearing through Darcel D. Clark, District Attorney of Bronx County (the “Bronx DA”), opposes the Petition on the grounds that: (i) the New York courts' resolutions of Rodriguez's claims “were neither contrary to nor unreasonable applications of federal law or clearly established Supreme Court precedent, nor did they involve unreasonable determinations of the facts[;]” (ii) the Petition improperly asks the Court to interpret New York's territorial jurisdiction statute; and (iii) Rodriguez failed to exhaust any due process challenges to New York's territorial jurisdiction statute. (Declaration in Opposition of Robert C. McIver, dated Nov. 21, 2019, ¶ 41 (ECF No. 12) (the “McIver Declaration”); see Memorandum of Law (ECF No. 12-1 (the “Opposition”)).

For the reasons set forth below, I respectfully recommend that the Petition be DENIED.

II. BACKGROUND

A. Factual Background

1. Events in Rhode Island Before Ricardo's Disappearance

In early 1999, in Providence, Rhode Island, Ricardo purchased “on credit” from Rodriguez two kilograms of cocaine worth about $67,000. (ECF Nos. 1 at 5 ¶ 11; 12-1 at 2 (citing trial transcript); 12-11 at 1 (the “330.30 Decision”)).⁴ After Ricardo failed to repay this debt to Rodriguez, Rodriguez called Ricardo and Ricardo's wife, Emily Gomez (“Emily”), threatening Ricardo and demanding payment. (ECF Nos. 1 at 5 ¶ 11; 12-1 at 2-3; 12-11 at 1). Rodriguez asked Emily where Ricardo was, complained that Ricardo was not returning his calls, and warned her that he could be “very nasty.” (ECF Nos. 1 at 5 ¶ 11; 12-1 at 2; 12-11 at 1-2). Rodriguez also called Ricardo's father, Rafael Gomez (“Rafael”), telling him that he would kill Ricardo and Rafael would “never see the body.” (ECF Nos. 1 at 5 ¶ 11; 12-1 at 2; 12-11 at 2). In addition, Rodriguez, sometimes accompanied by Edward “Popito” Pozo (“Pozo”), threatened Rafael at his home “many times.” (ECF No. 12-1 at 3). In late March 1999, Rodriguez's girlfriend, Martha Villalona (“Martha”), visited Emily at her job and demanded that Ricardo pay his debt to Rodriguez, after which Ricardo paid Rodriquez $1,000 of the debt. (ECF No. 1 at 5 ¶ 12; 12-1 at 2; 12-11 at 1-2). Rodriguez's threatening demands stopped at the end of April or early May. (ECF Nos. 12-1 at 3; 12-11 at 2).

4 The Bronx DA has submitted minutes of pre-trial hearings in Rodriguez's New York criminal trial, but represents that “the trial and sentencing transcript minutes remain missing[,]” among certain other documents. (ECF No. 12 at 2 ¶ 4 n.1). Given that the substance of the witnesses' trial testimony is undisputed, the Court relies on the parties' representations as to that testimony, with corroboration to other exhibits in the record as available. (See ECF Nos. 1 at 4-10 ¶¶ 10-24; 12-1 at 2-8).

2. The Kidnapping and Murder

On Saturday, May 22, 1999, Martha received a call from an unidentified person who had supplied Rodriguez with the drugs he resold to Ricardo, threatening that if Rodriguez did not pay for the drugs, Rodriguez's family in New York would be killed. (ECF No. 12-11 at 2). Later that same day, from 6:00 p.m. until around midnight or 1:00 a.m. the next day (May 23), Ricardo, Emily, and Rafael attended a family party. (ECF Nos. 1 at 5 ¶ 13; 12-1 at 3; 12-11 at 2). Between 12:30 a.m. and 1:00 a.m. on Sunday, May 23, 1999, Ricardo, who had been drinking all evening and appeared to be drunk, left the party, and his family never again saw him alive. (ECF Nos. 1 at 5-6 ¶ 13; 12-1 at 3; 12-11 at 2).

Around 2:30 a.m. on May 23, 1999, Rodriguez and Martha were asleep in her bedroom in her apartment. (ECF Nos. 1 at 6 ¶ 14; 12-1 at 3; 12-11 at 2). Martha heard a tapping on her window, and Rodriguez allowed Pozo, an unidentified Puerto Rican man, and an unidentified Dominican man, who had Ricardo with them, to enter Martha's apartment. (ECF Nos. 1 at 6 ¶ 14; 12-1 at 3-4; 12-11 at 2). Martha stayed in the bedroom, from which she heard Ricardo begging, “[d]on't kill me, please . . . I have money to pay you.” (ECF Nos. 1 at 6 ¶ 14; 12-1 at 4). Martha heard Rodriguez tell him that he was a “robber” and Rodriguez was going to kill him. (ECF Nos. 1 at 6 ¶ 14; 12-1 at 4; 12-11 at 2). Rodriguez and one of the other men came into the bedroom and took from Martha's closet floral bed sheets that matched a covering on her bed. (ECF Nos. 1 at 6 ¶ 14; 12-1 at 4; 12-11 at 2). From her bedroom, Martha heard the men hitting Ricardo, tearing bed sheets, and ripping plastic. (ECF Nos. 1 at 6 ¶ 14; 12-1 at 4). Ricardo's yelling became muffled, and then the men took him from Martha's apartment to her car. (ECF Nos. 1 at 6 ¶ 15; 12-1 at 4; 12-11 at 2). Rodriguez told Martha that he was taking Ricardo to New York to kill him, and threatened to kill her and her son if she told the police. (ECF Nos. 1 at 6 ¶ 15; 12-1 at 4; 1211 at 2). Rodriguez also took Martha's car keys, and he and Pozo drove away in her car, which was never returned to her. (ECF Nos. 1 at 6 ¶ 15; 12-1 at 4; 12-11 at 2).

On Monday, May 24, 1999, Rodriguez called Martha, stating that he was in New York and that he would kill her and her son if she told police what happened. (ECF Nos. 12-1 at 4; 12-11 at 2-3). Martha abandoned her apartment the same day. (ECF No. 12-1 at 4). Either that night, or on the night of May 25, 1999, in Providence, Rhode Island, Rafael saw Rodriguez, who asked whether Ricardo had “disappeared,” and told Rafael that he (Rafael) was responsible, not Rodriguez. (ECF Nos. 1 at 6-7 ¶ 16; 12-11 at 3).

3. The Investigation

Around 11:00 a.m. on Tuesday, May 25, 1999, land surveyor Donald Coleman was beneath the Whitestone Bridge in the Bronx when he discovered what was later identified as Ricardo's body. (ECF Nos. 1 at 7 ¶ 17; 12-1 at 5; 12-11 at 3). Police officers arrived about 30 minutes later, followed by a Detective with the New York City Police Department (“NYPD”). (ECF Nos. 1 at 7 ¶ 17; 12-1 at 5; 12-11 at 3). They examined the body, which was “burned pretty much beyond recognition,” and observed that the hands and feet were bound with floral bed sheets, and the face was covered with burned plastic and a floral-patterned sheet. (ECF Nos. 1 at 7 ¶ 17; 12-1 at 5; 12-11 at 3). Using fingerprints and an identification card found in a pocket, police identified the body as Ricardo's. (ECF Nos. 1 at 7 ¶ 17; 12-1 at 5; 12-11 at 3).

At 1:40 p.m., Assistant Medical Examiner Manuel Montez (“Dr. Montez”) conducted an initial examination of Ricardo's body at the scene. (ECF Nos. 1 at 7 ¶ 18; 12-11 at 3). Dr. Montez subsequently performed an autopsy and prepared an autopsy report. (ECF Nos. 12-1 at 6; 12 at 3 (the “Autopsy Report”)). At trial, Assistant Medical Examiner Susan Ely (“Dr. Ely”), who was not present at the autopsy, testified as to Ricardo's cause of death based on the Autopsy Report and the crime scene evidence. (ECF Nos. 1 at 7-8 ¶ 20; 12-1 at 6; 12-11 at 3-4). Dr. Ely noted no signs of shooting or stabbing, and opined, based on the Autopsy Report and her expertise, including authoring an article on asphyxia deaths, that Ricardo died from asphyxiation “by covering his head.” (ECF Nos. 1 at 8 ¶ 20; 12-1 at 6; 12-11 at 3). Because no soot was found in Ricardo's airways, Dr. Ely opined that he was already dead when his body was burned. (ECF Nos. 12-1 at 6; 12-11 at 3; see ECF No. 1 at 7 ¶ 17). A toxicology report showed that Ricardo's blood contained opiates and cocaine, but no alcohol. (ECF Nos. 1 at 8 ¶ 20; 12-1 at 6; 12-11 at 3-4). Dr. Ely opined that, if Ricardo had consumed four drinks of alcohol at the party on the night of May 22, 1999 or the early morning of May 23, 1999, he was alive for at least five or six hours after he stopped drinking, because it takes the body more than an hour to eliminate one drink of alcohol from the body. (ECF Nos. 1 at 8 ¶ 20 & n.4; 12-1 at 6; 12-11 at 3-4 & n.3). From the “livor mortis” or “lividity pattern” visible in the photographs of Ricardo's body at the crime scene, Dr. Ely concluded that Ricardo died less than eight hours before Dr. Montez examined his body at 1:40 p.m. on May 25, 1999. (ECF Nos. 12-1 at 6; 12-11 at 4 & n.4). The Autopsy Report did not provide a time of death and Dr. Ely did not opine as to one, but the trial court understood Dr. Ely's testimony to mean that Ricardo's time of death was “within eight hours of the time the body landed where it was found” under the bridge. (ECF No. 12-11 at 4 n.4; see ECF Nos. 1 at 8 ¶ 20; 12-1 at 6-7).

On June 9-10, 1999, detectives from the NYPD and the Providence Police Department inspected, with consent, Martha's apartment, which had remained unoccupied since she left it on May 24, 1999. (ECF Nos. 1 at 7 ¶ 19; 12-1 at 5; 12-11 at 4). The detectives noticed blood stains outside and inside the apartment, including a patterned pillow containing blood droplets that subsequent DNA testing showed matched Ricardo's DNA. (ECF Nos. 12-1 at 5; 12-11 at 4). The detectives also found bed linens with a floral pattern matching the ligatures on Ricardo's body, and a pillow cushion and rug that appeared to have been washed. (ECF Nos. 12-1 at 5-6; 12-11 at 4).

In September 1999, during a search for Rodriguez and Pozo, NYPD detectives found Rodriguez's mother living in Washington Heights and Martha living in the Bronx. (ECF No. 12-11 at 4). Neither woman provided helpful information, and Martha initially denied being in her apartment when Ricardo was kidnapped, but later “decided to tell the truth.” (ECF Nos. 1 at 7 ¶ 19; 12-11 at 4-5). On December 1, 1999, the NYPD apprehended Pozo, and on June 24, 2000, apprehended Rodriguez, each at separate locations in Washington Heights. (ECF No. 12-11 at 5). A search incident to Rodriguez's arrest found a North Carolina driver's license, issued in August 1999, bearing Rodriguez's photo and the name Pedro Maldonado. (Id.)

B. Procedural History

1. New York Criminal Proceedings

a. Indictment and Pretrial Proceedings

On or about June 30, 2000, a Bronx County Grand Jury returned an indictment charging Rodriguez with three counts of second degree murder in violation of New York Penal Law §§ 125.25(1) (intentional murder), (2) (depraved indifference), and (3) (felony murder). (ECF Nos. 1 at 2 ¶ 1; 12 ¶ 6; 12-2 (the “Indictment”)). During pretrial and trial proceedings, Telesforo Del Valle, Jr., Esq. (“Del Valle”), of Del Valle & Gordon, LLP, represented Rodriguez. (ECF No. 12 ¶ 7).

In September 2000, Rodriguez, through Del Valle, filed pretrial motions seeking, inter alia, discovery, suppression hearings, inspection of Grand Jury minutes, and dismissal of the Indictment, along with requests for a bill of particulars and other discovery. (ECF Nos. 12 ¶ 8; 123). On November 27, 2000, the Honorable William C. Donnino, Bronx County Supreme Court, denied the motion in part, but granted Rodriguez's request for hearings to determine the voluntariness of a statement pursuant to People v. Harris, 25 N.Y.2d 175 (1969), and to determine an identifying witness's familiarity with Rodriguez pursuant to People v. Rodriguez, 79 N.Y.2d 445 (1992), although the record does not contain any transcripts or rulings as to these hearings. (ECF Nos. 12 ¶¶ 9, 12; 12-5). In November 2001, Rodriguez filed a pro se motion for additional discovery, but Justice Donnino's ruling does not appear in the record. (ECF Nos. 12 ¶ 10; 12-6).

b. Trial

Justice Donnino presided over Rodriguez's trial. (ECF No. 12 ¶ 11). At the close of the prosecution's case, Rodriguez moved for dismissal, which Justice Donnino denied. (ECF No. 1211 at 5). The defense presented one witness, Detective Kenneth Leuck, who “testified as to inconsistent statements that” Emily made about conflicts between Ricardo and other drug dealers, and that Ricardo's family had threatened Martha. (ECF No. 12-11 at 5; see ECF No. 12-1 at 7). After the close of the evidence and before summations, Justice Donnino provided the parties with proposed final jury instructions, to which Del Valle made no objections. (ECF No. 1211 at 5).

In his defense summation, Del Valle argued that Rodriguez was wrongly implicated by Martha, who was a “liar,” and by Ricardo's family, focusing on the lack of direct evidence that Rodriguez killed Ricardo and the greater motive and opportunity others had to kill Rodriguez. (ECF Nos. 1 at 9 ¶ 23; 12-11 at 6).

Because Del Valle had not challenged territorial jurisdiction, in the final instructions to the jury, Justice Donnino “did not instruct the jury to consider the question of territorial jurisdiction.” (ECF No. 12-11 at 5-6; see ECF No. 1 at 9 ¶¶ 23-24). As to the elements of the murder charges, Justice Donnino instructed the jury:

In order for you to find the defendant guilty of Murder in the Second Degree under Count One, [the] People are required to prove from all the evidence in the case beyond a reasonable doubt both of the following two elements: One, that on or about May 23rd, 1999, within the geographical jurisdiction of the County of the Bronx, the defendant himself or acting in concert with another caused the death of Ricardo Gomez by asphyxiation . . . In order for you to find the defendant guilty of murder in the second degree under count 2, also known as felony murder, the People are required to prove from all of the evidence in the case, beyond a reasonable doubt, both of the following two elements: One; that on or about May 23, 1999, the defendant within the graphical [sic] jurisdiction in the county of Bronx, himself or acting in concert with another, committed or attempted to commit kidnapping . . .

(ECF No. 12-9 at 3-4 (quoting trial transcripts)). Justice Donnino also instructed the jury that:

If you find that the offense of murder was committed and that the victim's body was found in Bronx County, under our law that crime is committed [“]within the geographical jurisdiction of the County of the Bronx[,”] even if the death or the conduct leading up to and causing that death took place elsewhere.

(ECF No. 12-11 at 6). Del Valle “agreed” that these instructions “were satisfactory.” (Id.; see ECF No. 1 at 9-10 ¶ 24).

On December 11, 2001, a jury found Rodriguez guilty of two counts of second degree murder (intentional murder and felony murder). (ECF Nos. 1 at 2 ¶ 2, 10 ¶ 25; 12 ¶ 13; 12-11 at 7).⁵ On October 10, 2002, Justice Donnino sentenced Rodriguez to two concurrent prison terms of 25 years to life. (ECF Nos. 1 at 15 ¶ 38; 12 ¶ 18; 12-11 at 8). On November 13, 2002, Rodriguez, with assistance from new counsel, Raymond Sussman, Esq. (“Sussman”), filed in the Bronx County Supreme Court a notice of appeal from his conviction and sentence and from the 330.30 Decision (discussed further below). (ECF No. 12-12 (the “Notice of Appeal”)). This filing came two days after Rodriguez's time to appeal had expired. (ECF No. 12 ¶ 20); see N.Y. CRIM. PROC. L. § 460.10(1)(a).

5 A certificate of conviction the Bronx DA obtained from Bronx Supreme Court appears to incorrectly reflect that Rodriguez was convicted of intentional murder and depraved indifference murder in violation of N.Y. Penal Law §§ 125.15(1) and (2), contrary to Justice Donnino's statement that the jury convicted Rodriguez of “both the intentional murder count and the felony murder count.” (ECF No. 12-11 at 7; see ECF No. 12 ¶ 13 & n.1).

c. The 330.30 Motion

On December 20, 2001, Rodriguez, through Sussman, filed a motion pursuant to New York Criminal Procedure Law § 330.30 to set aside the conviction. (ECF No. 12-7 (the “330.30 Motion”); see ECF Nos. 1 at 10 ¶ 26; 12-11 at 7).⁶ In the 330.30 Motion, Rodriguez challenged his conviction on four grounds: (1) the trial court lacked jurisdiction; (2) Del Valle's representation was ineffective; (3) the Bronx DA withheld Brady and Rosario material, including Martha's allegedly contradictory statements to federal and Rhode Island law enforcement that “may have demonstrated” that Ricardo died in Rhode Island and rebutted the presumption in New York Criminal Procedure Law § 20.20(2)(a); and (4) an accomplice-in-fact instruction should have been given as to Martha's testimony. (ECF Nos. 12-7 at 1-2; 1 at 10 ¶ 26).⁷

6 Where there is no claim of juror misconduct or newly discovered evidence, section 330.30 permits a court to set aside a verdict only on a ground “appearing in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court.” N.Y. CRIM. PROC. L. § 330.30(1). To be a “matter of law” requiring reversal or modification of the verdict, the ground must have been presented to or expressly decided by the trial court in response to an argument the defendant made “when the court had an opportunity of effectively changing the same.” N.Y. CRIM. PROC. L. § 470.05(2); see N.Y. CRIM. PROC. L. § 470.15(4). In other words, to succeed on a Section 330.30 motion, the defendant must have preserved the ground at trial. See People v. Hector, 295 A.D.2d 212, 213 (1st Dep't 2002).

7 The fourth ground, the accomplice-in-fact charge, is absent from the copy of the 330.30 Motion in the record, but Justice Donnino acknowledged that Sussman raised this argument, and, accordingly, analyzed it in his decision. (ECF No. 12-11 at 7, 19-20).

In an affirmation accompanying the 330.30 Motion, Sussman asserted that he was challenging the presumption in N.Y. Criminal Procedure Law § 20.30(2), “namely that the death of the victim occurred within the State of New York.” (ECF No. 12-7 at 3 (the “Sussman Affirmation”)). Sussman argued that § 20.30(2) violated the United States and New York Constitutions by, inter alia, permitting a conviction “without proof beyond a reasonable doubt of each and every essential element contained in the indictment.” (ECF No. 12-7 at 4). Sussman also argued that the “facts defeat[ed] the presumption[,]” pointing to the absence of a location of death on the death certificate, the “two-day time lapse” between the kidnapping and discovery of the body, and Pozo's federal arrest for the same crime. (Id.) Sussman noted that Del Valle had not challenged the presumption in § 20.30(2). (Id.)⁸In support of the 330.30 Motion, Del Valle submitted an Affirmation attesting that he neither received nor was aware of the minutes of the December 30-31, 1999 Rhode Island proceedings relating to Pozo's prosecution, during which Martha testified (“Martha's RI Testimony”), and that his failures to move to dismiss the Indictment for lack of jurisdiction and to request an accomplice-in-fact charge as to Martha were not strategic defense decisions. (ECF No. 12-8 at 1-2 (the “Del Valle Affirmation”); see ECF No. 12-9 at 8).

8 The copy of Sussman's Affirmation in the record is missing its third page. (Compare ECF No. 12-7 at 4 with id. at 5). Justice Donnino also referred to a memorandum of law dated July 15, 2002, and the Petition refers to an April 3, 2002 supplemental motion, but these too are absent from the record. (ECF Nos. 1211 at 7; 1 at 11 ¶ 28).

The Bronx DA opposed the 330.30 Motion, claiming that Del Valle was not ineffective for failing to challenge territorial jurisdiction because Justice Donnino “specifically charged jurisdiction as an element of each of the murder counts submitted to the jury[,]” and therefore, “the jury was expressly (and appropriately) charged on [] both the concept of geographical jurisdiction and the standard of proof beyond a reasonable doubt.” (ECF No. 12-9 at 3-5). In addition, the Bronx DA noted that Del Valle “tested the waters regarding the jurors' receptiveness to jurisdiction arguments[,]” by “introduc[ing] the idea that the jurors might believe [Rodriguez] was involved in the murder but had taken place elsewhere[,]” but “shift[ed] focus to other areas” after “[a] clearly perceptible negative reaction” from the jurors. (Id. at 6). The Bronx DA also said it had never possessed Martha's RI Testimony “until it was served on them by the defense in connection with the” 330.30 Motion, had no obligation to obtain it from Rhode Island, and did disclose an interview of Martha by Rhode Island authorities, so there was no Rosario violation. (Id. at 8). Finally, the Bronx DA argued that Martha, at most, was involved in attempts to collect a debt from Ricardo, not his kidnapping or murder, of which she was a witness. (Id. at 9).

On September 20, 2002, Rodriguez filed a reply in further support of the 330.30 Motion, addressing only the Rosario argument concerning Martha's RI testimony. (ECF No. 12-10).

On February 4, 2003, Justice Donnino issued a decision denying the 330.30 Motion. (ECF No. 12-11 (the “330.30 Decision”)). Justice Donnino first found that Rodriguez had failed to assert during trial his arguments regarding Martha's RI Testimony or the accomplice-in-fact charge, and therefore, they were unpreserved. (ECF No. 12-11 at 8-9). In any event, because the record showed that Rodriguez had Martha's RI Testimony before the Bronx DA did, Justice Donnino found that the Rosario claim lacked merit. (Id. at 8 n.5).

After recounting federal and New York authority pertaining to territorial jurisdiction, Justice Donnino explained that “when territorial jurisdiction is ‘disputed' or ‘put in issue,' ‘proof of that power' will of course be required.” (ECF No. 12-11 at 10 (quoting People v. McLaughlin, 80 N.Y.2d 466, 470-72 (1992)). He added that “a jury instruction to the effect that the territorial jurisdiction of the state must be proved beyond a reasonable doubt will be required when a defendant alerts the court that territorial jurisdiction is in dispute.” (Id. at 10-11). He observed that, at trial, Rodriguez made no challenge to the sufficiency of the evidence of territorial jurisdiction nor the jury instructions, and given that “the record on its face demonstrate[d] the existence of territorial jurisdiction,” Rodriguez's failure to “put in issue a factual or legal question of territorial jurisdiction, or to request a charge on the subject, render[ed] those claims unpreserved as a matter of law and thus not cognizable here.” (Id. at 11).

Justice Donnino then summarized the trial evidence of territorial jurisdiction to include that: (i) Ricardo's body was found in New York; (ii) Martha's testimony that Rodriguez told her he was taking Ricardo to New York to kill him; (iii) Dr. Ely's testimony that there was “no trace of alcohol in his body at the autopsy”; and (iv) Rodriguez's call to Martha on May 24 from New York. (ECF No. 12-11 at 12-13). As to the jury instructions, Justice Donnino concluded that Rodriguez's failure to request a territorial jurisdiction charge, or object to its absence, waived the issue. (Id. at 13-14 (explaining that territorial jurisdiction charge was not given because “territorial jurisdiction was not placed in issue”)). Justice Donnino also reviewed the jury instructions regarding venue, and found them to be correct. (Id.)

Turning to the ineffective assistance claim, Justice Donnino found that “[t]here was ample reason for not pressing” the territorial jurisdiction issue, which “lacked merit and litigation of the claim could only have harmed the defense.” (ECF No. 12-11 at 17-18). Accordingly, he found that Del Valle was “certainly not ineffective for failing to raise a claim that has no merit[,]” and, in any event, there were “sound strategic reasons not to take [the] chance” of arguing territorial jurisdiction. (Id. at 18). Justice Donnino also noted that Del Valle “in fact attempted to make affirmative use of the New York connection as raising doubt as to whether [Rodriguez] was involved in the killing in the first place.” (Id. at 18).

Finally, Justice Donnino concluded that “there was good reason for counsel not to bother with” requesting an accomplice-in-fact charge as to Martha, who “was not an accomplice in law or fact.” (ECF No. 12-11 at 19). He explained that Martha was not charged with any crime, first learned of the plan to kidnap and murder Ricardo by overhearing it from her bedroom as it was occurring, and was threatened by Rodriguez not to reveal his crime. (Id.) Accordingly, “with little chance of persuading the jury that she was an accomplice, it would be (and was) a reasonable strategy to avoid” requesting an accomplice-in-fact charge. (Id. at 20).

In sum, Justice Donnino denied the 330.30 Motion because Rodriguez “was properly prosecuted and convicted in New York[,]” and Del Valle “was not ineffective, either for failing to dispute territorial jurisdiction or otherwise.” (ECF No. 12-11 at 20).

d. 440.10 Motion

On September 5, 2015, Rodriguez, through Sussman, filed a motion pursuant to New York Criminal Procedure Law § 440.10 to vacate his conviction and sentence, raising four grounds: (i) the trial court erred in failing to deliver an accomplice-in-fact charge with respect to Martha's testimony; (ii) the Bronx DA failed to turn over Martha's RI Testimony in violation of Rosario; (iii) territorial jurisdiction was not proved beyond a reasonable doubt; and (iv) Del Valle was ineffective for failing to challenge territorial jurisdiction or request an accomplice-in-fact charge. (ECF No. 12-13 (the “440.10 Motion”)). Sussman attached to the 440.10 Motion a copy of Martha's RI Testimony, which did not indicate the date or caption of the proceeding in which she testified. (ECF No. 12-13 at 18-47). The Bronx DA opposed the 440.10 Motion. (ECF No. 12-14).

On April 21, 2016, the Honorable Robert E. Torres denied the 440.10 Motion without a hearing. (ECF No. 12-15 (the “440.10 Decision”)).⁹Justice Torres first noted that Rodriguez had an opportunity to seek appellate review of the claims raised in the 440.10 Motion, but had “unjustifiably failed to do so.” (ECF No. 12-15 at 5 (citing N.Y. CRIM. PROC. L. §§ 440.10(2)(c), 460.30(1)). Justice Torres denied the Rosario claim because it was based on “unsubstantiated and self-serving allegations[,]” and was not supported by an “affidavit from trial counsel” or explanation where he obtained Martha's RI Testimony. (Id. at 6). Further, Justice Torres found that Rodriguez failed “to establish the material inconsistency necessary to show prejudice that would amount to a reasonable possibility the trial would have resulted differently.” (Id.)

9 Justice Torres' initial decision contained typographical errors referencing 1996 charges of first degree rape and sexual abuse, and an incorrect date of the jury's verdict. (ECF No. 12-15 at 1, 4 n.1). On June 1, 2016, Justice Torres issued an amended decision removing the typographical errors and stating the correct date of the verdict, but was otherwise substantively identical. (ECF No. 12-15 at 4-6). For simplicity, the Court refers to the initial decision and amended decision as the 440.10 Decision.

On May 31, 2016, Rodriguez, now pro se, filed an application under New York Criminal Procedure Law § 460.15 for leave to appeal the 440.10 Decision. (ECF No. 12-16). On October 6, 2016, the Appellate Division, First Department (“Appellate Division”) denied his application. See People v. Rodriguez, No. M-2983, 2016 WL 5822383 (1st Dep't Oct. 6, 2016) (“Rodriguez IV”). (See ECF No. 12 ¶ 30).

e. Appeals

In July 2017, nearly 15 years after filing the Notice of Appeal, Rodriguez filed a direct appeal to the Appellate Division. (ECF Nos. 12 ¶ 35; 12-17). Through assigned counsel, Marisa K. Cabrera, Esq., of the Center for Appellate Litigation, Rodriguez raised two arguments: (i) that territorial jurisdiction was not proved beyond a reasonable doubt, and Del Valle was ineffective for failing to move to dismiss the Indictment and request a territorial jurisdiction charge; and (ii) that Del Valle was ineffective for failing to request an accomplice-in-fact charge and for waiving Rodriguez's Sixth Amendment Confrontation Clause challenge to Dr. Ely's testimony. (ECF No. 12-17). Rodriguez submitted a pro se appellate brief raising the additional arguments that the Bronx DA violated Rosario and Brady by failing to disclose Martha's RI Testimony, and that Del Valle failed to conduct a reasonable investigation of Martha. (ECF No. 12-20).

On March 29, 2018, the Appellate Division unanimously affirmed Rodriguez's conviction. People v. Rodriguez, 159 A.D.3d 646 (1st Dep't 2018) (“Rodriguez V” or the “State Court Decision”). First, the Appellate Division found “that territorial jurisdiction in New York was established beyond a reasonable doubt[,]” citing New York's statutory presumption that “where the body of the victim is found in New York, ‘it is presumed that the result, namely the death of the victim, occurred within this state[.]"' Id. at 647 (quoting N.Y. CRIM. PROC. L. § 20.20(2)(a)). In addition to the statutory presumption, the Appellate Division cited the “extensive proof that the victim died in New York,” the “circumstantial evidence,” such as Rodriguez's “plan [] to take the victim to New York and kill him there,” and the “convincing forensic evidence supporting the same conclusion.” Id. The Appellate Division noted that, on appeal, Rodriguez “offer[ed] little more than speculation that the victim may have died on the way to New York.” Id.

Second, the Appellate Division held that Rodriguez “received effective assistance of counsel under the state and federal standards.” Rodriguez V, 159 A.D.3d at 647. The court explained:

Regardless of whether trial counsel should have moved to dismiss for lack of territorial jurisdiction and requested a jury instruction on that issue, defendant has not shown that either or both of these omissions fell below an objective standard of reasonableness, or that, viewed individually or collectively, they deprived [Rodriguez] of a fair trial or affected the outcome of the case. As noted, the evidence, viewed in light of the presumption, plainly established territorial jurisdiction, and neither of these alleged omissions by counsel could have prejudiced [Rodriguez].

With regard to [Rodriguez's] other claims of ineffective assistance, he has likewise failed to satisfy either the reasonableness or prejudice prongs contained in either the state or federal standards. There was no basis for counsel to request an accomplice-in-fact charge regarding a prosecution witness, because there was no evidence to support an inference that she participated in this crime . . . Under the law prevailing at the time of [] trial, which predated Crawford v. Washington (541 U.S. 36 [2004]), there was also no basis to challenge the admission of the autopsy report.

Id. at 647. The Appellate Division added that, “[t]o the extent that, independent of his ineffective assistance claims, [Rodriguez sought] review of any of the above-discussed issues,” they were unpreserved, and the court “decline[d] to review them in the interest of justice.” Id. Finally, the court found Rodriguez's pro se arguments “procedurally defective, because they involve matters outside the record.” Id. at 648.

On June 12, 2018, the New York Court of Appeals denied Rodriguez's application for leave to appeal the State Court Decision. People v. Rodriguez, 31 N.Y.3d 1121 (2018) (“Rodriguez VI”).

2. Rhode Island Criminal Proceedings

After his conviction in New York, Rodriguez was transported to Rhode Island to face charges of kidnapping and conspiracy to commit kidnapping, for which he had been indicted on July 7, 2000. See Rodriguez II, 917 A.2d at 412; State v. Rodriguez, No. P1/00-2232A, 2004 WL 603516 (R.I. Sup. Ct. Mar. 16, 2004) (“Rodriguez I”). In denying Rodriguez's motion to dismiss the kidnapping charge on Double Jeopardy grounds, the Rhode Island trial court stated “that the evidence would tend to show that Ricardo Gomez was kidnapped in Rhode Island[,] . . . was in continuous custody until he was killed[,] [and] [w]herever the fatal blow was struck or Ricardo Gomez drew his last breath, the presence of his remains in New York gave that state the strongest prima facie claim of jurisdiction to prosecute the homicide.” Rodriguez I, 2004 WL 603516, at *3. The Rhode Island Supreme Court affirmed, holding that, “under the principle of dual sovereignty, the same villainous act may give rise to separate offenses in two jurisdictions.” Rodriguez II, 917 A.2d at 412.

While he was awaiting trial in Rhode Island state court, Rodriguez filed in the United States District Court for the District of Rhode Island a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, again raising a Double Jeopardy claim. Rodriguez v. McCauley, No. C.A. 08112ML, 2008 WL 3200724 (D.R.I. Aug. 6, 2008) (“Rodriguez III”). On August 6, 2008, the Honorable Mary M. Lisi, “[f]inding no merit” in Rodriguez's Double Jeopardy arguments, denied and dismissed his petition. Id. at *1.

The Bronx DA represents that, “at the latest in 2011,” Rhode Island's prosecution of Rodriguez for kidnapping and conspiracy to commit kidnapping “ceased.” (ECF No. 12 ¶ 25).

C. Federal Habeas Corpus Petition

On September 10, 2019, Rodriguez, through new counsel, Paul Martin, Esq. (“Martin”), of the Law Office of Paul P. Martin PLLC, filed the Petition. (ECF No. 1). The Petition asserts three grounds: (i) New York lacked territorial jurisdiction to prosecute Rodriguez for murder, in violation of the Fourteenth Amendment to the United States Constitution and Article 1 § 6 of the New York Constitution; (ii) Rodriguez was denied effective assistance of counsel under federal and state constitutional standards based on Del Valle's failures to request a territorial jurisdiction instruction, request an accomplice-in-fact charge for Martha, raise a Confrontation Clause claim to the Autopsy Report, and investigate and obtain Martha's RI Testimony; and (iii) the Bronx DA failed to disclose Brady and Rosario material. (ECF Nos. 1 at 15-16; 1-1 at 1-20).

Following a direction to answer and several extensions, on November 25, 2019, the Bronx DA filed a Declaration and Memorandum of Law in opposition to the Petition, along with records from Rodriguez's New York criminal proceedings. (ECF Nos. 12; 12-1; 12-2 - 12-22). On February 18, 2020, Rodriguez, through counsel, filed a reply in further support of the Petition. (ECF No. 15 (the “Reply”)). The Honorable Paul A. Engelmayer has referred the Petition to the undersigned for this Report and Recommendation. (ECF No. 5).

III. DISCUSSION

A. Applicable Legal Standards

1. Standard of review

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) provides that:

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 or, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

“A claim is ‘adjudicated on the merits' if the state court ruled on the substance of the claim rather than on a procedural ground. Jordan v. Lamanna, 33 F.4th 144, 150 (2d Cir. May 5, 2022) (citing Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001)). “A 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 decided a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Id. (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)). “A decision is an ‘unreasonable application' of clearly established federal law ‘if the state court identifies the correct governing legal principle from [the Supreme] Court's decision but unreasonably applies that principle to the facts of the prisoner's case.'” Id. (quoting Williams, 529 U.S. at 413).

The Second Circuit recently reiterated the Supreme Court's instruction to district courts that “[a] writ cannot be granted ‘simply because . . . the relevant state-court decision applied clearly established federal law erroneously or incorrectly.'” Id. (quoting Williams, 529 U.S. at 411). “Rather, whether a decision is ‘contrary to' or an ‘unreasonable application of' clearly established federal law is a ‘substantially higher threshold' than mere incorrectness.” Id. (quoting Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (internal citations omitted)). Thus, a district court should grant a writ on unreasonableness grounds only if “the state court's ruling on the claim . . . was so lacking in justification that there was an error well understood and in comprehended in existing law beyond any possibility of fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). “In other words, the existence of ‘reasonable arguments on both sides' is ‘all [the state] needs to prevail in [an] AEDPA case.'” Jordan, 33 F.4th at 151 (quoting White v. Woodall, 572 U.S. 415, 427 (2009)).

2. Adequate and Independent State Grounds

“A federal habeas court will not review a claim rejected by a state court ‘if the decision of [the state] court rests on a state law ground that is independent of the federal question and adequate to support the judgment.'” Walker v. Martin, 562 U.S. 307, 315 (2011) (quoting Beard v. Kindler, 558 U.S. 53, 55 (2009)). “The state-law ground may be substantive or procedural.” Moreno-Gratini v. Sticht, No. 19 Civ. 5964 (GHW) (SN), 2022 WL 1425712, at *5 (S.D.N.Y. Apr. 18, 2022); see Jimenez v. Walker, 458 F.3d 130, 138 (2d Cir. 2006) (“When the state court's decision rests on an independent procedural bar . . . a federal court must still determine whether that state procedural ground is adequate to support the judgment.”). “Even where the state court has ruled on the merits of a federal claim ‘in the alternative,' federal habeas review is foreclosed where the state court has also expressly relied on the petitioner's procedural default.” Murden v. Artuz, 497 F.3d 178, 191 (2d Cir. 2007) (quoting Green v. Travis, 414 F.3d 288, 294 (2d Cir. 2005)). Only if the state court's decision rests on an “independent procedural bar” that is “‘adequate to support the judgment'” will federal habeas review be barred. Id. at 191-92 (quoting Jimenez, 458 F.3d at 138). “A state procedural bar is ‘adequate' if it ‘is firmly established and regularly followed by the state in question' in the ‘specific circumstances presented in a case.'” Moreno-Gratini, 2022 WL 1425712, at *6 (quoting Monroe v. Kuhlman, 433 F.3d 236, 241 (2d Cir. 2006) (internal citation omitted)).

3. Exhaustion

The AEDPA also provides that a federal court may not consider a petition for a writ of habeas corpus by a prisoner in state custody unless the petitioner has exhausted all state judicial remedies. 28 U.S.C. § 2254(b)(1)(A); see Jackson v. Conway, 763 F.3d 115, 133 (2d Cir. 2014). To satisfy the exhaustion requirement, the petitioner must have “fairly presented” his claims in federal constitutional terms to the state courts, thereby affording those courts the opportunity to correct the alleged violations of federal rights. Picard v. Connor, 404 U.S. 270, 275 (1971). The exhaustion requirement is fulfilled once the federal claims have been presented to “the highest court of the state.” Galdamez v. Keane, 394 F.3d 68, 73 (2d Cir. 2005) (internal citation omitted).

In New York, a “defendant must first appeal . . . to the Appellate Division, and then must seek further review . . . by applying to the Court of appeals for a certificate granting leave to appeal.” Galdamez v. Keane, 394 F.3d. 68, 74 (2d Cir. 2005). “New York procedural rules bar its state courts from hearing either claims that could have been raised on direct appeal but were not, or claims that were initially presented on appeal but were not presented to the Court of Appeals.” Sparks v. Burge, No. 06 Civ. 6965 (KMK) (PED), 2012 WL 4479250, at *4 (S.D.N.Y. Sept. 28, 2012); see N.Y. CRIM. PROC. L. § 440.10(2)(c). For claims involving matters “not reflected in, or fully explained by, the record,” People v. Moreno-Grantini, 167 A.D.3d 471, 472 (1st Dep't 2018), “a petitioner must assert the claim in a N.Y. C.P.L. § 440.10 motion. If that motion is denied, he must then seek leave to appeal to the Appellate Division in order to exhaust his state court remedies.” Moreno-Gratini, 2022 WL 1425712, at *7; see N.Y. CRIM. PROC. L. § 450.90; see also Cosey v. Lilley, 460 F.Supp.3d 346, 370 (S.D.N.Y. 2020) (noting that no further appellate review is available after Appellate Division denies leave to appeal denial of § 440.10 motion).

A court may excuse procedural default “if the petitioner demonstrates either cause for the default and actual prejudice from the alleged violation of federal law, or that the failure to consider the claims will ‘result in a fundamental miscarriage of justice.'” Acosta v. Giambruno, 326 F.Supp.2d 513, 520 (S.D.N.Y. 2004) (quoting Coleman v. Thompson, 501 U.S. 722, 750 (1991)). In this context, “cause” means “‘some objective factor external to the defense [that] impeded counsel's efforts' to raise the claim in state court.” Id. at 520 (quoting McCleskey v. Zant, 499 U.S. 467, 493 (1991)). “Actual prejudice” requires the petitioner to show “‘actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.'” Id. (quoting United States v. Frady, 456 U.S. 152, 170 (1982)). “A miscarriage of justice occurs ‘in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent[.]'” Id. (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)). “To establish actual innocence, petitioner must demonstrate that ‘in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him.” Dixon v. Miller, 293 F.3d 74, 81 (2d Cir. 2002) (internal citations omitted); see Bousley v. United States, 523 U.S. 614, 623-24 (1998) (“‘Actual innocence' means factual innocence, not mere legal insufficiency”).

B. Analysis

1. Adequate and Independent State Grounds

The State Court Decision held that, “[t]o the extent that, independent of his ineffective assistance claims,” Rodriguez sought review of his territorial jurisdiction claim or the absence of an accomplice-in-fact charge, such claims were “unpreserved.” Rodriguez V, 159 A.D.3d at 647; see N.Y. CRIM. PROC. L. § 470.05(2). Rodriguez effectively concedes this point as to the accomplice-in-fact charge, acknowledging that whether such an instruction is appropriate is a matter of New York substantive law excluded from federal habeas corpus review. (ECF No. 1-1 at 7 n.10). The New York Court of Appeals has “held repeatedly that the contemporaneous objection rule [N.Y. CRIM. PROC. L. § 470.05(2)] is a firmly established and regularly followed New York procedural rule.” Downs v. Lape, 657 F.3d 97, 104 (2d Cir. 2011) (collecting cases).

The contemporaneous objection rule is an adequate and independent state law bar as to claims regarding an accomplice-in-fact instruction, and Brady and Rosario materials. See Alleyne v. Racette, No. 15 Civ. 1915 (SFJ), 2020 WL 2797521, at *16-17 (E.D.N.Y. May 28, 2020) (finding that contemporaneous objection rule was adequate procedural bar precluding habeas review of accomplice-in-fact claim); Hayes v. Lee, No. 11 Civ. 1365 (KMK) (PED), 2015 WL 5943677, at *30 (S.D.N.Y. Oct. 13, 2015) (finding that contemporaneous objection rule was adequate procedural bar to Brady claim); Tobias v. Portuondo, 367 F.Supp.2d 384, 389 (W.D.N.Y. 2004) (explaining that “New York courts routinely and regularly use the contemporaneous objection rule as a basis for denying as unpreserved Brady claims of which defendants became aware prior to their verdicts at trial”); Ranta v. Bennett, No. 97 Civ. 2169 (ERK) (JMA), 2000 WL 1100082, at *34-35 (E.D.N.Y. May 23, 2000) (finding that contemporaneous objection rule was adequate procedural bar to Rosario claim). Because, however, territorial jurisdiction “goes to the very essence of the State's power to prosecute and may never be waived,” Rodriguez's failure to challenge the sufficiency of the territorial jurisdiction evidence at trial or request a specific instruction does not constitute an adequate and independent state ground and does not bar habeas review of that claim. People v. McLaughlin, 80 N.Y.2d 466, 471 (1992).

“New York's highest courts uniformly instruct that to preserve a particular issue for appeal, defendant must specifically focus on the alleged error.” Richardson v. Greene, 497 F.3d 212, 218 (2d Cir. 2007) (quoting Garvey v. Duncan, 485 F.3d 709, 714-15 (2d Cir. 2007)). At trial, Rodriguez did not specifically challenge the disclosure or non-disclosure of Martha's RI Testimony, and he conceded that Del Valle “said nothing” about Martha's “potential status as an” accomplice-in-fact or request. (See ECF No. 12-11 at 9 (explaining that Rodriguez failed to preserve Brady/Rosario and accomplice-in-fact claims); id. at 11 (noting that Rodriguez did not challenge territorial jurisdiction at trial)). Rodriguez's direct Brady/Rosario and accomplice-in-fact claims are therefore unpreserved.

A habeas petitioner may yet overcome a procedural bar by “show[ing] cause for the default and prejudice attributable thereto, or demonstrat[ing] that failure to consider the federal claim will result in a fundamental miscarriage of justice,” Harris v. Reed, 489 U.S. 255, 262 (1989) (citations omitted), which requires the petitioner to show “actual innocence.” Calderon v. Thompson, 523 U.S. 538, 559 (1998). Apart from framing as ineffective assistance arguments (which the Court finds lack merit for the reasons set forth infra § III.B.3), Rodriguez has neither demonstrated good cause to excuse his failure to preserve these claims nor presented “new,” “credible,” and “compelling” evidence that he is innocent of the second degree murder of Ricardo in 1999. Hyman v. Brown, 927 F.3d 639, 656-57 (2d Cir. 2019).

Therefore, to the extent that Rodriguez's Petition seeks to raise direct Brady or accomplice-in-fact claims, I respectfully recommend that the Court find that such claims are procedurally barred because the State Court Decision rested on the adequate and independent state ground of lack of preservation.

2. Territorial Jurisdiction

Rodriguez argues that New York “lacked territorial jurisdiction to prosecute” him for Ricardo's murder, and also “failed to prove beyond a reasonable doubt that [Ricardo] died in New York.” (ECF Nos. 1 at 15; 1-1 at 1). The Bronx DA counters that Rodriguez presented, and the state courts decided, his territorial jurisdiction claim on state, not federal constitutional, grounds, such that it is not cognizable on federal habeas review, and, in any event, the State Court Decision was neither contrary to nor an unreasonable application of clearly established Supreme Court precedent. (ECF No. 12-1 at 8-28).

a. Exhaustion

The Court finds that Rodriguez did not present his territorial jurisdiction claim as one of federal constitutional law in a manner sufficient to permit federal habeas review. In his counseled brief to the Appellate Division, Rodriguez supported his argument that the Bronx DA failed to prove territorial jurisdiction by citing exclusively to New York State authorities. (ECF No. 12-17 at 23-28 (citing People v. Carvajal, 6 N.Y.3d 305 (2005)); People v. McLaughlin, 80 N.Y.2d 466 (1992); People v. Thomas, 124 A.D.3d 56 (1st Dep't 2014); N.Y. CRIM. PROC. L. § 20.20(2)(a)). His brief's headings referenced the Sixth and Fourteenth Amendments to the United States Constitution only with respect to his alternative argument that Del Valle was ineffective in failing to assert the territorial jurisdiction issue. (See ECF No. 12-17 at 2, 8, 23; see also id. at 24 (citing Fourteenth Amendment in support of argument that Del Valle was “ineffective for failing to, at the very least, request a jury instruction on territorial jurisdiction”)). Justice Donnino, and later the Appellate Division, each analyzed and rejected Rodriguez's territorial jurisdiction claim as a matter of New York State law. Rodriguez V, 159 A.D.3d at 647 (quoting N.Y. CRIM. PROC. L. § 20.20(2)(a)). (See ECF No. 12-11 at 9-16). Further, Rodriguez does not, and could not, argue that New York's jurisdiction was an “element” of either of the second degree murder charges of which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319 (1979) (explaining that limited federal habeas review is available for claims challenging legal sufficiency of the evidence of “the essential elements of the crime”); Sengupta v. Att'y Gen. of N.Y., No. 16 Civ. 6967 (ALC) (GWG), 2019 WL 4308610, at *16 (S.D.N.Y. Sept. 11, 2019) (holding that “jurisdiction - while it circumscribes a state's power to prosecute a crime - is not an ‘element' of any crimes with which” petitioner was charged and therefore habeas review was barred); see N.Y. Pen. L. §§ 125.25(2), (3).

In the Petition, Rodriguez asserts the unremarkable and undisputed point that the Bronx DA was required to prove territorial jurisdiction beyond a reasonable doubt. (ECF No. 1-1 at 1). The State Court Decision itself so recognized. See Rodriguez V, 159 A.D.3d at 647 (holding that “territorial jurisdiction in New York was established beyond a reasonable doubt”). (See also ECF No. 12-11 at 10-11 (explaining that “a jury instruction to the effect that the territorial jurisdiction of the state must be proved beyond a reasonable doubt will be required when a defendant alerts the court that territorial jurisdiction is in dispute”)). That does not, however, transform Rodriguez's territorial jurisdiction claim into one that is cognizable under Section 2254(d). See Sengupta, 2019 WL 4308610, at *16 (collecting cases recognizing that question of state courts' jurisdiction was not cognizable on federal habeas corpus review); see Estelle v. McGuire, 502 U.S. 62, 67 (1991) (explaining that “federal habeas corpus relief does not lie for errors of state law”); Carvajal v. Artus, 633 F.3d 95, 107 (2d Cir. 2011) (holding that federal habeas corpus review was not available for claim challenging “state court's interpretation of its state statute as unwise, or even as jurisdictional overreaching”); Mannix v. Phillips, 619 F.3d 187, 199 (2d Cir. 2010) (“It is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.”).

Accordingly, because Rodriguez did not exhaust his claim that New York lacked territorial jurisdiction to prosecute him for Ricardo's murder, this claim “is not cognizable on federal habeas review.” Sengupta, 2019 WL 4308610, at *13.

b. Sufficiency of Territorial Jurisdiction Evidence

Should the Court, however, interpret Rodriguez's claim as a challenge to the legal sufficiency of the evidence of territorial jurisdiction, which is cognizable under Jackson, 443 U.S. at 319-20, that claim nevertheless fails on the merits because he has not shown that the State Court Decision “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2).¹⁰On federal habeas corpus review, the District Court's task is “limited to determining whether, after viewing the evidence in the light most favorable to the prosecution, ‘any rational trier of fact' could have found the essential elements of the crime beyond a reasonable doubt.” Whitlatch v. Senkowski, 344 F.Supp.2d 898, 905 (W.D.N.Y. 2004) (quoting Jackson, 443 U.S. at 319). The federal habeas court may not “‘make its own subjective determination of guilt or innocence.'” Quartararo v. Hanslmaier, 186 F.3d 91, 97 (2d Cir. 1999) (quoting Herrera v. Collins, 506 U.S. 390, 402 (1993)). The Court finds that Rodriguez has not met the “very heavy burden” required to satisfy this standard. Einaugler v. Supreme Court of State of N.Y., 109 F.3d 836, 840 (2d Cir. 1997) (citation omitted).

10 In the absence of any reliance on United States Supreme Court precedent in this portion of the Petition (see ECF No. 1-1 at 1-4), Rodriguez has waived any argument that the State Court Decision “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.” 28 U.S.C. § 2254(d)(1).

For New York to have had jurisdiction over the murder charges against Rodriguez, “either the alleged conduct or some consequence of it must have occurred within the State.” McLaughlin, 80 N.Y.2d at 471 ; see Strassheim v. Daily, 221 U.S. 280, 285 (1911) (Holmes, J.) (“Acts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a state in punishing the cause of the harm as if he had been present at the effect, if the state should succeed in getting him within its power.”)

In the State Court Decision, the Appellate Division held that three grounds supported the conclusion that “territorial jurisdiction was established beyond a reasonable doubt.” Rodriguez V, 159 A.D.3d at 647. First, with respect to homicide, New York's territorial jurisdiction statute provides that when the victim's body is found in New York, “‘it is presumed that the result, namely the death of the victim, occurred within this state,' thereby establishing jurisdiction.” Rodriguez V, 159 A.D.3d at 647 (quoting N.Y. CRIM. PROC. L. § 20.20(2)(a)). The discovery of Ricardo's body in the Bronx meant that this presumption applied, and it was then incumbent on Rodriguez to offer evidence to rebut the presumption. See id. (noting that Rodriguez “offer[ed] little more than speculation that” Ricardo died outside New York). (See also ECF No. 12-11 at 12 (finding that “there was no evidence rebutting [the presumption in § 20.20(2)(a)] in this case”)). Rodriguez, neither before the state courts nor in his Petition, has shown any evidence that Ricardo died in any state other than New York and, therefore, did not rebut the statutory presumption in § 20.20(2)(a).

Second, the prosecution presented circumstantial evidence that Ricardo died in New York, including Rodriguez's statement to Martha in her apartment early on the morning of May 23, 1999 that he planned to take Ricardo to New York and kill him there, and his call to Martha from New York on May 24, 1999 threatening her not to go to the police about what she had witnessed in her apartment the day before. (ECF Nos. 1 at 6 ¶ 15; 12-11 at 2-4; 12-11 at 2). Martha's decision to abandon her apartment after receiving that call from Rodriguez lends credibility to her testimony that Rodriguez not only made the threat, but would carry it out if she did not comply. (ECF No. 12-1 at 4).

Finally, as the Appellate Division noted, “[t]here was also convincing forensic evidence supporting the” conclusion that Ricardo died in New York. Rodriguez V, 159 A.D.3d at 647. Photographs showing lividity patterns demonstrated that Ricardo had died less than eight hours before Dr. Montez examined his body at 1:40 p.m. on May 25, 1999. (ECF Nos. 12-1 at 6; 12-11 at 4 & n.4; see ECF Nos. 1 at 8 ¶ 20; 12-1 at 6-7). Toxicology reports showing no alcohol remaining in his system corroborated that he was alive for at least five or six hours after he stopped drinking, i.e., until sometime mid- to late-morning on Sunday May 24, 1999, the same day Rodriguez called Martha from New York. (ECF Nos. 1 at 8 ¶ 20 & n.4; 12-1 at 6; 12-11 at 3-4 & n.3).

As against these categories of evidence, the Appellate Division noted, Rodriguez “offer[ed] little more than speculation that the victim may have died on the way to New York.” Rodriguez V, 159 A.D.3d at 647. The Court finds that “a rational trier of fact,” comparing the Bronx DA's evidence, as against Rodriguez's pure speculation, could have found beyond a reasonable doubt that Ricardo died in New York sufficient for the exercise of territorial sn jurisdiction over Rodriguez's criminal prosecution. Sengupta, 2019 WL 4308610, at *17 (rejecting petitioner's territorial jurisdiction claim where “a rational trier of fact could conclude that the evidence established [he] committed the offenses . . . in New York”); see Olivo v. Graham, No. 15 Civ. 9938 (VB) (AEK), 2021 WL 3272080, at *7 (S.D.N.Y. Mar. 23, 2021) (recommending denial of petition where “it was objectively reasonable for the Appellate Division to reject Petitioner's challenge to the legal sufficiency of the evidence supporting his conviction”), adopted by 2021 WL 3271833 (S.D.N.Y. July 30, 2021).

Accordingly, because Rodriguez has not met his burden to show that the State Court Decision concerning territorial jurisdiction “was based on an unreasonable determination of the facts” in evidence during his trial, he is not entitled to relief under 28 U.S.C. § 2254(d)(2).

3. Ineffective Assistance of Counsel

In the Petition, Rodriguez alleges that Del Valle was ineffective in four respects: (i) for failing to challenge territorial jurisdiction and request a territorial jurisdiction charge; (ii) for failing to request an accomplice-in-fact charge as to Martha's testimony; (iii) for failing to object to Dr. Ely's testimony and introduction of the autopsy report absent testimony from Dr. Montez; and (iv) for failing to investigate Martha's RI Testimony. (ECF No. 1-1 at 5-11). To be entitled to relief, Rodriguez must demonstrate that the State Court Decision holding that he “received the effective assistance of counsel under [] federal standards,” Rodriguez V, 159 A.D.3d at 647, was “contrary to, or involved an unreasonable interpretation of, clearly established Federal law established by the Supreme Court of the United States[.]” 28 U.S.C. § 2254(d)(1). The Court finds that Rodriguez has failed to meet this burden.

a. Exhaustion

To exhaust a claim of ineffective assistance of counsel, the petitioner must have “asserted in state court the specific conduct giving rise to the claim.” Moreno-Gratini, 2022 WL 1425712, at *7; see Caballero v. Keane, 42 F.3d 738, 740 (2d Cir. 1994) (“[T]o reach the merits of [an ineffective assistance claim], all of [the] allegations must have been presented to the state courts.”); Castillo v. Walsh, 443 F.Supp.2d 557, 566-67 (S.D.N.Y. 2006) (same). In his counseled brief to the Appellate Division, Rodriguez raised the first three ineffective assistance arguments listed above, and raised the fourth in his pro se appellate brief. (See ECF Nos. 12-17 at 2-3; 1220 at 2). Rodriguez then sought leave to appeal from the New York Court of Appeals, which denied his request. See Rodriguez VI, 31 N.Y.3d 1121. Rodriguez also raised these ineffective assistance arguments in the 440.10 Motion, from which the Appellate Division denied leave to appeal. (ECF Nos. 12-13 at 1-14; 12 ¶ 30). See Rodriguez IV, 2016 WL 5822383. Accordingly, Rodriguez adequately exhausted his ineffective assistance of counsel claims to permit this Court to review them on his Petition. See Galdamez, 394 F.3d at 74; Cosey, 460 F.Supp.3d at 370.

b. Legal Standard for Ineffective Assistance of Counsel Claims

“In order to prove ineffective assistance, [a petitioner] must show (1) ‘that counsel's representation fell below an objective standard of reasonableness'; and (2) ‘that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'” Pham v. United States, 317 F.3d 178, 182 (2d Cir. 2008) (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)); Massaro v. United States, 538 U.S. 500, 505 (2003) (explaining that “a defendant claiming ineffective counsel must show that counsel's actions were not supported by a reasonable strategy and that the error was prejudicial”); United States v. Brown, 623 F.3d 104, 112 (2d Cir. 2010) (same); Baghoumian, 2019 WL 2209205, at *8 (same). A petitioner “‘must demonstrate both that counsel's performance was deficient and that the deficient performance prejudiced the defense.'” Garner v. Lee, 908 F.3d 845, 861 (2d Cir. 2018) (quoting Waiters v. Lee, 857 F.3d 466, 477 (2d Cir. 2017) (internal citation omitted)).

With respect to the first prong, “[a] defense counsel's performance is unreasonable when it is so deficient that it falls outside the ‘wide range of professionally competent assistance.'” Kovacs v. United States, 744 F.3d at 44, 50 (2d Cir. 2014) (quoting Strickland, 466 U.S. at 690). “[T]he record must demonstrate that ‘counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.'” Wilson v. Mazzuca, 570 F.3d 490, 502 (2d Cir. 2009) (quoting Strickland, 466 U.S. at 687). In evaluating counsel's performance, “‘[j]udicial scrutiny . . . must be highly deferential,'” and a petitioner must overcome the “presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Bell v. Cone, 535 U.S. 685, 698 (2002) (quoting Strickland, 466 U.S. at 689) (internal quotations omitted); see Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002) (according counsel a “strong presumption” of competence). As set forth in Strickland, “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable . . . In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” 466 U.S. at 690-91. A petitioner “will be able to demonstrate that trial counsel's decisions were objectively unreasonable only if there was no tactical justification for the course taken.” Lynn v. Bliden, 443 F.3d 238, 247 (2d Cir. 2006) (citation omitted).

c. Application

i. Territorial Jurisdiction

In the State Court Decision, the Appellate Division held that Rodriguez had not shown that Del Valle's failure to challenge territorial jurisdiction or request a jury instruction on that issue “fell below an objective standard of reasonableness, or that, viewed individually or collectively, they deprived [him] of a fair trial or affected the outcome of the case.” Rodriguez V, 159 A.D.3d at 647. The court reiterated its finding that “the evidence, viewed in light of the presumption, plainly established territorial jurisdiction, and neither of these alleged omissions by counsel could have prejudiced” Rodriguez. Id.

In the Petition, Rodriguez argues that the evidence that Ricardo had died of asphyxiation “placed [Del Valle] on notice that there was a significant evidentiary hurdle that the prosecution would face if he called into question whether or not New York had territorial jurisdiction to prosecute the case.” (ECF No. 1-1 at 5-6). He contends that Del Valle's decision “to ignore[e] this glaring evidentiary gap” was deficient, and “had the jury received instructions that the People bore the burden of establishing that [Ricardo] died in New York beyond a reasonable doubt and heard argument on this matter from defense counsel, there was a strong likelihood that [Rodriguez] would have been acquitted of all charges.” (ECF No. 1-1 at 6).

The Second Circuit has concluded that a defense counsel's failure to request an additional instruction “constitutes unreasonably deficient performance only when the trial court's instruction contained ‘clear and previously identified errors.'” Aparicio v. Artuz, 269 F.3d 78, 99 (2d Cir. 2001) (quoting Bloomer v. United States, 162 F.3d 187, 193 (2d Cir. 1998)). “Conversely, when a trial court's instruction is legally correct as given, the failure to request an additional instruction does not constitute deficient performance.” Id. (citing United States v. Brooks, 82 F.3d 50, 54 (2d Cir. 1996) and United States v. Javino, 960 F.2d 1137, 1145 (2d Cir. 1992)).

The Court finds that Rodriguez has not shown that the instructions Justice Donnino gave were legally incorrect. “The legal sufficiency of a jury charge in a state trial is ordinarily an issue of state law.” Perez v. Greiner, No. 01 Civ. 5522 (AKH), 2002 WL 31132872, at *6 (S.D.N.Y. Sept. 25, 2002) (citing U.S. ex rel. Smith v. Montanye, 505 F.2d 1355, 1359 (2d Cir. 1974)). To justify overturning “a state court conviction based on an incorrect jury instruction, a habeas petitioner must demonstrate that the exclusion of the requested charge was not merely ‘undesirable, erroneous, or even universally condemned, but that the exclusion violated some right which was guaranteed to the [petitioner] by the Fourteenth Amendment.'” Id. (quoting Cupp v. Naughten, 414 U.S. 141, 146 (1973)). Federal habeas courts “do not review jury instructions in isolation, but instead assess them on the whole to determine whether they provide the jury with a clear and accurate portrayal of applicable law.” Santos v. Rock, No. 08 Civ. 10997 (RO), 2013 WL 2896979, at *5 (S.D.N.Y. June 13, 2013). “Where the complaint is that a particular jury instruction was not given . . . [a] petitioner's burden is particularly heavy because ‘[a]n omission . . . is less likely to be prejudicial than a misstatement of the law.'” Perez, 2002 WL 31132872, at *6 (quoting Henderson v. Kibbe, 431 U.S. 145, 155 (1977)).

In instructing the jury on the elements of both second degree murder charges, Justice Donnino stated that the jury had to find “beyond a reasonable doubt” that the crime was committed “within the geographical jurisdiction” of Bronx County. (ECF No. 12-9 at 3-4 (quoting trial transcripts)). Justice Donnino also instructed the jury that:

If you find that the offense of murder was committed and that the victim's body was found in Bronx County, under our law that crime is committed [“]within the geographical jurisdiction of the County of the Bronx[,”] even if the death or the conduct leading up to and causing that death took place elsewhere.

(ECF No. 12-11 at 6). This was a correct statement of the presumption under § 20.20(2)(a), as well as the Bronx DA's burden of proof. See McLaughlin, 80 N.Y.2d at 471-72. Rodriguez does not describe in his Petition which additional or different instruction Justice Donnino should have given to the jurors to make it any clearer that they needed to find beyond a reasonable doubt that Rodriguez committed the crime of Ricardo's murder in the Bronx, i.e., in New York. (See ECF No. 1-1 at 5-7). He has therefore not met his “particularly heavy” burden of showing that the omission of any additional instruction on territorial jurisdiction rendered the jury instructions legally incorrect. Perez, 2002 WL 31132872, at *6.

Given that the jury instructions were legally correct, Rodriguez cannot show that Del Valle was unreasonably deficient in failing to request an additional instruction on territorial jurisdiction. See Aparicio, 269 F.3d at 100 (holding that, because “the jury instructions were not improper, the failure of [p]etitioner's trial counsel to object or request an additional instruction was not objectively unreasonable”); Lopez v. Ercole, No. 09 Civ. 1398 (PAC) (AJP), 2014 WL 285079, at *16 (S.D.N.Y. Jan. 27, 2014) (rejecting ineffective assistance of counsel claim where jury instruction “was a correct statement of the law” such that counsel was not ineffective for failure to object to instruction); Rivera v. Duncan, No. 00 Civ. 4923 (WHP) (AJP), 2001 WL 1580240, at *15-16 (S.D.N.Y. Dec. 11, 2001) (holding that trial counsel was not constitutionally deficient where “trial judge's instructions gave an accurate statement of the law, his charge was not subject to objection, and trial counsel cannot be faulted for failing to request additional charges”) (citation omitted).

Even if Del Valle's failure to request an additional territorial jurisdiction instruction rendered his representation constitutionally deficient, Rodriguez has failed to demonstrate that the result of his trial would have been different. See United States v. Chin, 224 F.3d 121, 125 (2d Cir. 2000) (holding that defense counsel was not constitutionally ineffective where petitioner had not shown that “but for counsel's alleged errors the result of the proceeding would have been different”). As discussed above, there was substantial evidence-direct, circumstantial, and forensic-that Ricardo died in New York to support jurisdiction, and the speculative probability of a different result had Del Valle raised territorial jurisdiction arguments “is insufficient to undermine confidence in the proceeding.” McWilliams v. New York, No. 09-CV-0239T, 2011 WL 841336, at *10 (W.D.N.Y. Mar. 8, 2011); see Vassel v. McGinnis, No. 04 Civ. 856 (JG), 2004 WL 3088666, at *11 (E.D.N.Y. Dec. 22, 2004) (holding that trial counsel was not ineffective for failing to request additional jury instruction because petitioner did not show that there was a “reasonable probability that, but for counsel's failure . . ., the result of the proceeding would have been different”).

Finally, despite acknowledging that “losing tactics[] generally do not amount to ineffective assistance,” (ECF No. 1-1 at 5 (citing Henry v. Poole, 409 F.3d 48, 63 (2d Cir. 2005)), Rodriguez nevertheless contends that “there was also no strategic reason for failing to request the more favorable ‘territorial jurisdiction' charge since the [c]ourt was already instructing the jury on the issue of venue, via the ‘geographical jurisdiction' charge.” (Id. at 6). In support of his 330.30 Motion, Rodriguez submitted Del Valle's hindsight-statement that failing to move to 07 dismiss the Indictment for lack of jurisdiction “was not part of any ‘strategy.'” (ECF No. 12-8 at 2). Del Valle conspicuously does not explain the conduct that Rodriguez alleges was deficient- failing to request the additional territorial jurisdiction instruction and argue the issue to the jury (compare Id. with ECF No. 1-1 at 5-7)-and, given its subjectivity, it is of minimal, if any, value in evaluating whether his representation was constitutionally sufficient. See Harrington, 562 U.S. at 109 (“After an adverse verdict at trial even the most experienced counsel may find it difficult to resist asking whether a different strategy might have been better, and, in the course of that reflection, to magnify their own responsibility for an unfavorable outcome.”).

As the Supreme Court explained in Strickland, defense counsel must have “wide latitude” in making tactical decisions, such that “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable,” 466 U.S. at 688, 690, “and even strategic choices made after less than complete investigation do not amount to ineffective assistance-so long as the known facts make it reasonable to believe that further investigation was unnecessary.” Henry, 409 F.3d at 63 (citing Strickland, 466 U.S. at 690-91). The record here reflects that Del Valle did explore whether the jury would be receptive to a territorial jurisdiction defense, and on observing that they were not, elected not to press the issue further. (ECF No. 12-9 at 6). The Bronx DA's statement that the prosecution would have been “delighted” at trial “to point out to jurors that the essence of the defense case [was] that while [] Rodriguez may have murdered Ricardo [], his case [was] being tried in the wrong courthouse” only reinforces that Del Valle's decision was sound, even if inadvertent, defense strategy. (ECF No. 12-9 at 5-6). Under these circumstances, Del Valle's decision to focus instead on the witnesses' credibility-as he did by introducing Detective Leuck-“was a reasonable trial strategy.” Rivera, 2001 WL 1580240, at *16. The fact that the strategy Del Valle chose “did not succeed in exonerating [Rodriguez] does not create a claim of ineffective assistance of counsel.” Rivera, 2001 WL 1580240, at *17; see United States v. DiTommaso, 817 F.2d 201, 215 (2d Cir. 1987) (explaining that courts do “not second guess trial counsel's strategy simply because the chosen strategy has failed”).

Rodriguez has therefore failed to show that the State Court Decision's rejection of the argument that Del Valle was ineffective for failing to press the issue of territorial jurisdiction contravened or unreasonably applied the Supreme Court's Strickland standard.

ii. Accomplice-in-Fact & Failure to Investigate

Rodriguez argues that Del Valle “was also ineffective for failing to request an accomplicein-fact charge for Martha [] where she was present during the course of the kidnapping, and very much a participant in the crime.” (ECF No. 1-1 at 7). He points to her contacting Ricardo's family to demand payment of his debt to Rodriguez, use of the profits of Rodriguez's drug sales to pay household expenses, her presence in the apartment when Ricardo was kidnapped, and her allowing Rodriguez and Pozo to use her sheets and car. (ECF No. 1-1 at 7). Rodriguez adds that Del Valle should have “been aware of and monitoring” the Rhode Island case to investigate and obtain Martha's RI Testimony. (ECF No. 1-1 at 9-10; see ECF No. 12-20 at 25-26). In reviewing this claim, the Appellate Division held “[t]here was no basis for counsel to request an accomplicein-fact charge regarding [Martha], because there was no evidence . . . that she participated in this crime.” Rodriguez V, 159 A.D.3d at 647. The Court finds that the State Court Decision on this point was neither contrary to nor an unreasonable application of Strickland.

First, Rodriguez has not shown that Del Valle's failure to request an accomplice-in-fact charge or further investigate Martha's role as a potential accomplice rendered his representation constitutionally deficient. New York Criminal Procedure Law § 60.22 provides that “[a] defendant may not be convicted of any offense upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the defendant with the commission of such offense.” N.Y. CRIM. PROC. L. § 60.22(1). The statute defines accomplice as a witness who “may reasonably be considered to have participated in” the crime with which the defendant was charged, or a crime “based upon the same or some of the same facts or conduct which constitute” the crime with which the defendant was charged. Id. § 60.22(2)). As the Bronx DA correctly points out, under this definition, Martha “was, at most, an accomplice in the commission of separate criminal activity that preceded the crimes at issue[] or was merely an accessory after the fact, neither of which would have entitled” Rodriguez to an accomplice-in-fact charge. (ECF No. 12-1 at 40 (emphasis added)). See People v. Goldbold, 117 A.D.3d 565, 566 (1st Dep't 2014) (holding that trial court “properly declined to give an accomplice corroboration charge” where there “was no evidence that [witness] was involved in any of the facts or conduct constituting the offenses charged” and was accomplice to “separate criminal activity that preceded the crimes at issue”). Thus, Del Valle's failure to request a meritless charge does not render his representation “constitutionally deficient.” Hicks v. Ercole, No. 09 Civ. 2531 (AJN), 2015 WL 1266800, at *23 (S.D.N.Y. Mar. 18, 2015); see Aparicio, 269 F.3d at 99 (holding that “the failure to include a meritless argument does not fall outside the wide range of professionally competent assistance” under Strickland); Parks v. Sheahan, 104 F.Supp.3d 271, 285-86 (E.D.N.Y. 2015) (holding that state court was not unreasonable or contrary to Strickland in rejecting petitioner's argument based on counsel's failure to make meritless argument about corroboration of accomplice testimony). As with the territorial jurisdiction charge, that Del Valle's “chosen strategy”-i.e., not asking for an accomplice charge-“was ultimately unsuccessful does not render his performance objectively unreasonable.” Valerio v. Phillips, No. 02-CV-901(RJA), 2008 WL 305007, at *16 (W.D.N.Y. Feb. 1, 2008); see Clark v. Sup't of Wende Corr. Fac., No. 6:14-cv-06070(MAT), 2015 WL 6142864, at *6 (W.D.N.Y. Oct. 19, 2015) (finding that “it was not unreasonable for counsel to decide that requesting an accomplice charge [] might have undermined” other aspects of defense strategy).

Second, because the Appellate Division found that Rodriguez's argument for an accomplice-in-fact charge was meritless as a matter of New York law, Rodriguez did not suffer any prejudice. See Parks, 104 F.Supp.3d at 286; Hicks, 2015 WL 1266800, at *25 (finding no prejudice where petitioner had not shown any “reason to believe that the jury verdict would have come down differently if [his] desired instruction had been given”). Had Del Valle requested, and Justice Donnino given, the accomplice-in-fact charge, the prosecution would have been required to corroborate Martha's testimony, but it had in fact done so. N.Y. CRIM. PROC. L. § 60.22(1). Martha's testimony was corroborated by the match between the linens in her Rhode Island apartment and the fabric with which Ricardo's limbs were bound, blood stains in her apartment matching Ricardo's DNA, and Rafael's and Emily's testimony that Rodriguez had threatened Ricardo for failing to pay back the drug debt, none of which Rodriguez has disputed. (ECF Nos. 1 at 5 ¶ 11; 12-11 at 2-4; 12-17 at 9-13). And, apart from Martha's RI Testimony, which the Court addresses below (see § III.B.4, infra), Rodriguez does not explain what additional facts about Martha or the Rhode Island trial would have been beneficial to him. See Barnes v. Burge, 372 Fed.Appx. 196, 199-200 (2d Cir. 2010) (explaining that, “even assuming Petitioner's counsel's failure to investigate . . . witness fell below an objective standard of reasonableness, Petitioner [was] unable to show that his counsel's alleged errors resulted in any prejudice to him”). In fact, Pozo appears to have absconded such that a trial never occurred. See Rodriguez II, 917 A.2d 409 (stating that Pozo was a fugitive in 2007). Accordingly, any lapse by Del Valle in not requesting the accomplice-in-fact charge or further investigating the Rhode Island proceeding was not “so serious as to deprive [him] of a fair trial,” Strickland, 466 U.S. at 687, and thus, the State Court Decision was not unreasonable or contrary to the Strickland standard.

iii. Autopsy Report

Rodriguez argues that Del Valle was deficient for failing to seek to exclude Dr. Ely's testimony and failing to object to the introduction of the Autopsy Report. (ECF No. 1-1 at 9). The State Court Decision rejected this claim because, at the time of Rodriguez's trial in December 2001, “there was no basis to challenge the admission of the autopsy report.” Rodriguez V, 159 A.D.3d at 647 (noting that trial “predated” Crawford v. Washington, 541 U.S. 36 (2004)).

Rodriguez's argument derives from his right under the Sixth Amendment, applicable to New York via the Fourteenth Amendment, “to be confronted with the witnesses against him” in his criminal trial. U.S. Const. amend. VI, XIV. Under Supreme Court precedent applicable when Rodriguez's trial occurred, “unconfronted testimony was admissible as long as it bore indicia of reliability.” Melendez-Diaz v. Mass., 557 U.S. 305, 312 (2009) (citing Ohio v. Roberts, 448 U.S. 56, 66 (1980)). The Supreme Court had held in Ohio v. Roberts that an unavailable witness's out-ofcourt statement was admissible provided it had adequate indicia of reliability, i.e., it fell within a “firmly rooted hearsay exception” or bore “particularized guarantees of trustworthiness.” 448 U.S. at 66. In 2004, the Supreme Court overruled Ohio v. Roberts, barring “testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had a prior opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36, 53-54 (2004); see Melendez-Diaz, 557 U.S. at 309 (explaining Crawford's standard). Five years later, in Melendez-Diaz, “the Supreme Court ruled that forensic reports - certified by state laboratory analysts and identifying a controlled substance as cocaine - fell within the ‘core class of testimonial statements' covered by the Confrontation Clause, and that the defendant had the right to confront the analysts at trial.” Garlick v. Lee, 464 F.Supp.3d 611, 615 (S.D.N.Y. 2020) (quoting Melendez-Diaz and reviewing Confrontation Clause precedent). Nevertheless, “the Supreme Court has not ruled that every certified, out-of-court scientific report is a testimonial statement that gives rise to a right to confrontation.” Id. at 616. Although the Supreme Court has not squarely held that autopsy reports are per se testimonial and thus subject to the Confrontation Clause, id. at 619, as of Rodriguez's trial, the Second Circuit had held that, under Ohio v. Roberts, a defendant did not have the right to confront the author of an autopsy report. See United States v. Rosa, 11 F.3d 315, 333 (2d Cir. 1993) (explaining that “the reported observations in [autopsy] reports bear sufficient indicia of reliability to satisfy the demands of the Confrontation Clause”); see also People v. Nisonoff, 293 N.Y. 597, 602 (1944) (under New York law, “[t]he right of an accused in a criminal action to be confronted by the witnesses who testify against him[] is not violated by the introduction of so-called public documents or official records required to be kept[,]” including autopsy report).

As the law stood in December 2001, then, any objection to Dr. Ely's testimony and the admission of the Autopsy Report would have been meritless, and Del Valle cannot be faulted for failing to make a legally defective argument. See Aparicio, 269 F.3d at 99 (holding that “[t]he failure to include a meritless argument does not fall outside the wide range of professionally competent assistance” under Strickland). As one court in this District has explained, “it cannot be said that counsel's failure to object [to introduction of an autopsy report] on the basis of a Melendez-Diaz-type analysis represented non-professional performance” where the trial occurred years before Melendez-Diaz was decided, and Second Circuit precedent at the time “had held that such forensic reports were not testimonial because they constituted business records of the Medical Examiner.” Soler v. United States, Nos. 10 Civ. 4342 (LAP), 05 Cr. 165 (LAP), 2015 WL 4879170, at *16 (S.D.N.Y. Aug. 14, 2015).

Finally, Rodriguez has not demonstrated prejudice from Del Valle's failure to object to Dr. Ely's testimony and the admission of the Autopsy Report. He has not argued, let alone shown, that if Del Valle had objected, Justice Donnino would have excluded that evidence, given the state of Supreme Court and New York precedent at the time. Further, contrary to Rodriguez's contention that Dr. Ely “exaggerated” the Autopsy Report by estimating the time of death, (ECF No. 1-1 at 9), Dr. Ely in fact acknowledged that Dr. Montez had not estimated a time of death, and offered her own expert opinion based on the photographs of Ricardo's body, her knowledge of the body's processing of alcohol, and her own research. (ECF No. 12-1 at 45-46 (citing trial transcript)). Rodriguez has therefore not shown that Del Valle would have successfully challenged this evidence such that the trial outcome would have been different. See Soler, 2015 WL 4879170, at *17 (finding that petitioner failed to demonstrate prejudice from counsel's failure to object to admission of autopsy report).

Having failed to show that the State Court Decision was an unreasonable application of or contrary to Supreme Court precedent regarding the admissibility of autopsy reports at the time of his trial in December 2001, Rodriguez is not entitled to habeas corpus relief on this claim.

4. Brady and Rosario Claims

Rodriguez argues that Martha's RI Testimony was “both a prior inconsistent statement under Rosario and exculpatory evidence under the precepts of Brady, ” such that the prosecution's failure to disclose the evidence deprived him of his right to a fair trial and confront witnesses. (ECF No. 1-1 at 11-12).

a. Exhaustion

In the 330.30 Motion, the 440.10 Motion, and his pro se appellate brief, Rodriguez argued that the Bronx DA violated Brady and Rosario by failing to disclose Martha's RI Testimony. (ECF Nos. 12-7 at 1-2; 12-13 at 3, 6-8; 12-20 at 2). In the 330.30 Decision, Justice Donnino rejected this argument as not cognizable under § 330.30 due to the absence of a discussion of the issue in the trial record, and, in the alternative, as meritless because Rodriguez “had the material before the prosecutor did,” thus negating any Rosario violation. (ECF No. 12-11 at 8 & n.5). In the 440.10 Decision, Justice Torres found that Rodriguez “provide[d] no affidavit from trial counsel nor does he explain where he got” Martha's RI Testimony, and “fail[ed] to establish the material inconsistency necessary to show prejudice that would amount to a reasonable possibility the trial would have resulted differently.” (ECF No. 12-15 at 3, 6). In the State Court Decision, the Appellate Division held that this claim was “procedurally defective” because it was based on “matters outside the record. Rodriguez V, 159 A.D.3d at 648. As noted above, the Court of Appeals denied leave to appeal from both the 440.10 Decision and the State Court Decision. See Rodriguez VI, 31 N.Y.3d 1121; Rodriguez IV, 2016 WL 5822383. Accordingly, Rodriguez has exhausted this claim for purposes of § 2254(d). See Galdamez, 394 F.3d at 74 (direct appeal); Cosey, 460 F.Supp.3d at 370 (§ 440.10 motion).

b. Analysis

Although Rodriguez may have exhausted his Rosario and Brady claim based on Martha's RI Testimony, this claim nevertheless fails to provide a basis for relief under § 2254(d). First, the State Court Decision rejecting this claim rests on a New York procedural ground-the absence of “[a]ny ground appearing in the record,” i.e., a contemporaneous objection as required by § 330.30(1)-this claim is procedurally barred from habeas review on adequate and independent state grounds. See Collier v. Sup't, Coxsackie Corr. Fac., No. 9:18-cv-1104-JKS, 2020 WL 2341062, at *4 (N.D.N.Y. May 11, 2020) (holding that procedural default under § 330.30(1) is an adequate and independent state ground barring federal habeas review); see also Downs v. Lape, 657 F.3d 97, 103 (2d Cir. 2011) (under New York's contemporaneous objection rule, “New York appellate courts will review only those errors of law that are presented at a time and in a manner that reasonably prompted a judge to correct them during criminal proceedings”). (See § III.B.2.a supra).

Second, “to the extent that this claim is based on a Rosario violation, it must fail, because a habeas petition can only be granted to remedy some violation of federal law; the obligation to turn over Rosario material arises under state law.” Landy v. Costello, 141 F.3d 1151 (2d Cir. 1998) (summary order).

Third, to establish a Brady claim, Rodriguez was required to show that Martha's RI Testimony was “‘favorable'” to him, the Bronx DA knew about and suppressed the evidence, and the failure to disclose it caused him prejudice. Jiminez v. Stanford, No. 16 Civ. 8545, 2021 WL 4199914, at *9 (S.D.N.Y. Sept. 15, 2021) (quoting Strickler v. Greene, 527 U.S. 263, 281-82 (1999)). Even assuming, for the purposes of the Petition, that Martha's RI Testimony was favorable to Rodriguez and was prejudicial-two points about which reasonable jurists might disagree¹¹-both Justice Donnino and Justice Torres found that Rodriguez had Martha's RI Testimony before the Bronx DA did. (ECF Nos. 12-11 at 8 n.5; 12-15 at 3, 6). Rodriguez offers no, let alone clear and convincing evidence, as is required to rebut the presumption of correctness applicable to the state courts' factual finding that he had not shown that the Bronx DA knew of Martha's RI Testimony before he did, under 28 U.S.C. § 2254(e)(1). See Rispers v. Capra, No. 18 Civ. 4604 (VB) (PED), 2021 WL 5360642, at *5 (S.D.N.Y. Oct. 26, 2021), adopted by, 2021 WL 6064540 (S.D.N.Y. Dec. 21, 2021).

11 The Petition does not specify why Rodriguez believes Martha's RI Testimony that Pozo left her apartment before Pozo and that she could not see whether Rodriguez was in her car when Pozo “set off for New York” was prejudicial, but offers the conclusion that “[t]his made her testimony both a prior inconsistent statement under Rosario and exculpatory evidence under the precepts of Brady.” (ECF No. 11 at 11-12). The Court has reviewed Martha's RI Testimony and does not find it inconsistent with her testimony, as Rodriguez and the Bronx DA described it, in the New York trial. (See ECF Nos. 1 at 5-6 ¶¶ 11-15; 12-1 at 2-4, 58; 12-13 at 29-44). In any event, “fairminded jurists could disagree about” whether the testimony was inconsistent, whether it would have impacted Martha's credibility before the jury, and whether it would have had any impact at trial. Jimenez, 2021 WL 4199914, at *9.

Each of these grounds provides a reasonable basis to deny relief to Rodriguez on his Brady claim under the AEDPA standard of deference.

IV. CONCLUSION

For the reasons set forth above, I respectfully recommend that the Petition be DENIED in its entirety.

NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION

The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Engelmayer.

FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).