Petition for Writ of Certiorari — Jose A. Rodriguez, Petitioner v. Thomas Griffin, Superintendent, Green Haven Correctional Facility

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IN THE

SUPREME COURT OF THE UNITED STATES

JOSE A. RODRIGUEZ- petitigA

vs.

THOMAS GRIFFIN-RESPONDENT

FILED

MAR 0 6 2020

ON PETITION FOR A WRIT OF CERTIORARI TO

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

PETITION FOR WRIT OF CERTIORARI

JOSE A. RODRIGUEZ, #11B3913

GREEN HAVEN CORRECTIONAL FACILITY

P.O. BOX 4000

STORMVILLE, NY 12582

Dennis A. Rambuad, AAG, Respondent

Attorney General Office

28 Liberty St., 14th Floor

New York, NY 10005

RECEIVED

APR 1 - J020

QUESTION(S) PRESENTED FOR REVIEW

1. Whether the State Court constructively amended the indictment

which charged petitioner on September 1, 2009 through

September 1, 2010, before the New York State Penal Law §

220.77 (I), Operating as a Major Trafficker statue, went into

effect and the instructions altered an essential element of that

crime by refusing to re-submit indictment to the Grand Jury?

2. Whether petitioner enjoyed the Right to Counsel at the initial

arraignment proceeding during a critical stage, haven been

charged of the highest felony offence in New York State, an A-l

felony and is appellate counsel ineffective for failing to raise

such colorable claim?

3. Whether the lower federal courts legally and factually

circumvented and debased committing structural U.S.

Constitutional error in failing to follow Supreme Court

precedent by ruling that petitioner has not exhausted his federal

claims in State court?

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LIST OF PARTIES

[ 7 ] All parties appear in the caption of the case on the cover page.

[ ] All parties do not appear in the caption of the case on the cover page. A list of all

Parties to the proceeding in the court whose judgment is the subject of this

Petition is as follow:

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TABLES OF CONTENTS

QUESTION(S) PRESENTED FOR REVIEW....

LIST OF PARTIES..............................................

TABLES OF CONTENTS...................................

INDEX TO APPENDICES..................................

TABLE OF AUTHORIZES CITED...................

OPINIONS BELOW............................................

RELEVANT CONSTITUTIONAL PROVISION

THE STATEMENT OF FACTS..........................

REASON FOR GRANTING THE WRIT...........

POINT I...............................................................

2

3

4

5

6

8

8

9

10

10

THE QUESTION PRESENTED ARE WHETHER THE LOWER FEDERAL COURT

IGNORED THE STATE JUDGE CONSTITUTIONAL VIOLATION IN

CONSTRUCTIVELY AMENDING THE INDICTMENT SUBSEQUENTLY

ALTERING AN ESSENTIAL ELEMENT OF THE CRIME

10

POINT II.............................................. ..................................

16

THE QUESTION PRESENTED IS WHETHER PETITIONER ENJOYED THE

SIXTH AMENDMENT CONSTITUTIONAL RIGHT TO COUNSEL AT A

CRITICAL STAGE DURING ITS INITIAL ARRAIGNMENT

16

POINT III............................................................................ .......

19

THE QUESTION PRESENTED IS WHETHER PETITIONER EXHAUSTED THE

US CONSTITUTIONAL VIOLATION IN STATE COURT BEFORE SEEKING

RELIEF IN THE FEDERAL COURTS

19

CONCLUSION......................................

27

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f

INDEX TO APPENDICES

APPENDIX A - New York State Appellate Division: Third Department Ordered

Affirm dated October 30th, 2014;

APPENDIX B - Permission to Submit a Pro-Se Supplemental Brief

APPENDIX C - New York State Court of Appeal denying leave to appeal

January 24th, 2015;

APPENDIX D - Northern Federal District Court (16-cv-1037) dated 12/11/2018

APPENDIX E -Certificate of Appealabihty to the Second Circuit (#19-79)

dated 8/14/2019

APPENDIX F - En Banc to the Second Circuit, Court of Appeals 12/17/2010

APPENDIX G - Initial Critical Stage, Arraignment

APPENDIX H - Indictment and Bill of Particular

APPENDIX I - Trial Transcript

APPENDIX J- Poor Person, IFP Application granted in the lower Federal Court

APPENDIX K - Foil Request

APPENDIX L - Police Report

APPENDIX M - The Motion the set aside the sentence CPL 440.20

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TABLE OF AUTHORIZES CITED

CASES

Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270 (1961)

In Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781 (1887)

United States v. Miller, 471 U.S. 130, 105 S.Ct. 1811

Untied States v. Cotton, 535 U.S. 625, 122 S.Ct 1781 (2002)

United States v. Vilar, 729 F.3d 61. 82 (2nd Cir. 2013)

United States v. Salmones 352 F.2d at 621

Evitts v. Lucey, 469 U.S. 387 (1985)

Anders v. California, 386 U.S. 738, 7430758 (1967)

Davila v. Davis, 137 S.Ct 2058, at 2067 (2017).

Strickland V. Washington at 694-695.

Gideon v. Wainwright, 372 U.S. 335 (1963).

United Sates v. Cronic, 466 U.S. 335 (1963)

Hamilton v. Alabama, 368 U.S. 52, 54 (1961)

People v. Young, 35 Ad.3d 958, 960 (3rd Dept. 2006),

Rodriguez v. Griffin 2018 WL 6505808 *27

Hurrell-Harring v. State of New York, 15 N.Y. 3d 8, 20 (May 6th, 2010)

Missouri v. Frye, 132 S.ct at 1399 1405;

Lafler v. Cooper, 132 S.ct 1376, sl384.

O’ Suvillan v. Boerckel, 526 U.S. 838 (1999)

Picard v. Connor, 404 U.S. 279 (1971).

Chisholm v. Henderson, 736 F. Supp. 444, 446 (1990).

Blockburger V. United States 284 U.S. 299 (1932);

Jeffers V. United States 423 U.S. 137 (1977);

In re Snow 120 U.S. 274 (1887).

Wilson v. Seller, 138s.ct 118 (2018);

People v. Rosenfeld 11 N.Y.2d 290, 297 (1962);

People v. Heckstall 90 A.D.2d 835 (2nd Dept. 1982);

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People v. Calabria, 94 A.D. 519, 522 (2000).

United States v. Jackson 621 F.2d 220,

. U.S. v. Seeright 978 f.2d 842, 36

Bruton v. U.S. 392 U.S. 123 (1968).

U.S. v. Modica,663 f.2d 1173 (2nd Cir. 1981)

U.S. v. Young 470 U.S. 1 (1985);

U.S. v. Murphy 768 f.2d 1518,1534 (7th Cir. 1985).

U.S v. Wallace 848 f2d. 1464, 1473 (9th Cir. 1988)

U.S. v. Myerson, 18 f.3d 153,

US v. Wilkins 754 f2d 1427, 1435 (2nd Cir. 1985);

US v. Pena 793 f2d 486 (2nd Cir. 1986).

Rose v. Lundy 455 U.S. 509, 515 (1982)

Zarvela v. Artuz 245 F.3d 374, 379-382 (2nd Cir. 2001)

Rhines v.Weber 544 US 269 (2005)

People V. Taylor, 156 AD3d 86 (3rd Dept. 2017).

Roviaro v. U.S. 353 U.S. 53, 60-61;

Pennsylvania v. Rithie 480 U.S. 39-60 (1987).

STATUES AND RULES

New York State Penal § 220.77 (1)

New York State Penal § 220.00 (19)

Criminal Procedure Law 470.05

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PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

See Appendix A-F

JURISDICTION

This court has jurisdiction to hear this matter. Certificate of Appealability to the

Second Circuit (#19-79) was not issued and denied on 8/14/2019 . An En Banc to the

Second Circuit, Court of Appeals was denied on 12/17/2010.

RELEVANT CONSTITUTIONAL PROVISION

•

The Fifth Amendment to the United States Provides in relevant part that “no

person shall be held to answer of a capitol, or otherwise infamous crime, unless

upon presentment or indictment of a Grand Jury...”

•

The Sixth Amendment to the United States Provides in relevant part

that “In all criminal prosecutions, the accused shall enjoy the right... to be

informed of the nature and cause of the accusation... and to have the Assistance

Counsel for his defense.

•

The Fourteen Amendment to the United States Constitution provides, in

relevant part, “nor shall any State deprive any person of life, liberty, or property,

without due process of law”

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THE STATEMENT OF FACTS

In 2009 and 2010, two police officer conducted controlled drug buy operations

targeting local dealers. Each were arrested and charged with felony drug offences in

New York State. In turn, the arrestees cooperated to testify that they were being

supplied by or working for petitioner. The wholesale lack of investigation is

stunning. Petitioner never possessed any drugs, not a single attempt by police to

conduct a controlled drug buy operating against petitioner; no eavesdropping

warrant to any recordings; nor any video or audios surveillance conducted; no

subpoena of records from any money-wiring services as to the herculean amount of

money testified was never recovered and no drugs were recovered.

It is the above reason that is appropriate to surmise the lack of interest from

the US Attorney General, Department of Justice, and the Drug Enforcement

Administration. Those arrestees became accomplice at trial and one confidential

informant, who never met petitioner, also testified. On December 17, 2010,

Rodriguez was arraigned in Otsego County Court. There was no counsel present

during this critical stage. Without hearing from the court or any counsel within

almost a month, Rodriguez family retained counsel. Before the jury started to

deliberate at trial defense counsel noticed, then protested, that the indictment

charges petitioner from September 1, 2009 through September 1. 2010, before the

operating a major trafficker went into effect. Upon the jury conclusion during

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deliberation, petitioner at the age of 27 was sentence for the non-violent drug crime

to 40 years in New York State prison.

At the state level appeal, petitioner requested permission to submit a

supplemental brief asserting US Constitutional grounds but denied by the New

York State Appellate Court, third department and State Court of Appeals.

Petitioner also submitted a post-conviction motion pursuant to criminal procedure

law 440.20, but the continuous constitutional claim was not heard. The Northern

Federal District stated that the petitioner did not exhaust his remedy. The Second

Circuit Court of appeal denied Certificate of Appealability. This petition issued.

REASON FOR GRANTING THE WRIT

POINT I

THE QUESTION PRESENTED ARE WHETHER THE

LOWER FEDERAL COURT IGNORED THE STATE

JUDGE

CONSTITUTIONAL

VIOLATION

IN

CONSTRUCTIVELY AMENDING THE INDICTMENT

SUBSEQUENTLY

ALTERING

AN

ESSENTIAL

ELEMENT OF THE CRIME.

Petitioner was the first defendant convicted at trial of Operating as Major

Trafficker in New York State. It was only before jury deliberation, trial counsel

notice that the indictment charged petitioner under New York State Penal Law

220.77 as follow:

"That the defendant, Jose A. Rodriguez, between

the 1st day of September, 2009 and the 1st day, in

the city of Oneonta and state of New York, did act

as a director of controlled substance organization

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during which period the organization sold on or

more controlled substances, and the proceeds

collected or due from such sales had a total

aggregate value of seventy-five thousand dollars

($75,000) or more. See Indictment at SR 296.

The time "period twelve months or less" is an essential element to the statue

in question. See New York State Penal Law §220.77 (1). Nevertheless, November

1st, 2009 is the enactment of penal law 220.77, not September 1st, 2009 as assumed

by the State and noted in the indictment. See Indictment and Bill of Particular as

Appendix H. It is incontrovertible that the indictment charged petitioner from

September 1st, 2009 through September 1st, 2010, before the statue went into effect.

It is also undisputed that the time “period” twelve months or less, an essential

element, was altered by the jury instructions affecting the core criminality of the

trial. Moreover, the evidence sohcited (as charged in the indictment as lesser

counts) from the witnesses are from events that happened before November 1st,

2009, the effective date of the crime in question. After the Indictment changed it

was no longer the indictment presented to the Grand Jury.

The constitutional per-se violation, which so infected the trial outcome,

became a protest in the state trial court and was fairly exhausted, and clearly

preserve pursuant to the state criminal procedure law C.P.L. 405.15 for federal

review. Thus the claim should not have been barred. Faced with this scenario, the

state court denied the prosecutor from doing as suppose: What the Fifth

Amendment to the United States Constitution requires. Instead, the State court

decided to disregard the prosecutor and simply instruct the jury that it could not

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consider any evidence or testimony related to the time period of September 1st, 2009

to October 31st, 2009 during their dehberation on the charges of Operating as a

Major Trafficker. This was a no no. It was like telling the jurors to disregard the

pink elephant that just ran across the court room. See trial transcripts 1254-1256,

1327-1329 at Appendix -1. '

In Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781 (1887), overruled on other

grds., United States v. Miller, 471 U.S. 130, 105 S.Ct. 1811 and Untied States

v. Cotton, 535 U.S. 625, 122 S.Ct 1781 (2002), the Supreme Court cautioned

on the danger of the grand jury and individual rights protected thereby becoming

feckless through the amendment of an indictment:

If it lies within the province of a court to change

the charging part of an indictment to suit its own

notions of what it ought to have been, or what the

grand jury would probably have made it if their

attention had been called to suggested changes, the

great importance which the common law attaches

to an indictment by a grand jury as a prerequisite

to a Idefendant’sl trial for a crime, and without

which the Constitution says “no person shall be

held to answer,” may be frittered away until its

value is almost destroyed.

Id. at 10, 7 S.Ct 781. Then, in addressing the ultimate issue of the impact of when

an indictment is amended, the Supreme Court in Bain proceeded to hold:

that after the indictment was changed it was no

longer the indictment of the grand jury indictment

of the grand jury who presented it. Any other

doctrine would place the rights of the citizen,

which were intended to be protected by the

constitutional provision at the mercy or control of

the court or prosecuting attorney, for if it be once

held that changes can be made by the consent or

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order of the court in the body of the indictment as

presented by the grand jury, and the [defendant]

can be called upon to answer to the indictment as

thus

changed, the

restriction which

the

Constitution places upon the power of the court in

regard to the prerequisite of an indictment in

reality no longer exist.

Id. at 13, 7 S.Ct. 781

While Bain dealt with an amendment of an indictment so as to narrow the

criminal charges, supra, in Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270

(1961) and its progeny, Supreme Court directly addressed the situation when the

scope of the charges are broadened by amendment:

[A]fter an indictment has been returned and criminal proceedings are

underway, the indictment’s charges may not be broadened by amendment,

either literal or constructive, except by the grand jury itself...

The very purpose of the requirement that a man be indicted by grand jury

is to limit his jeopardy to offenses charged by a group of his fellow citizens

acting independently of either prosecuting attorney or judge.

Id. at 215-16 & 218, 80 S.Ct. 270.

While the indictment in Stirone identified the article impacted as being sand,

at trial the government offered evidence that steel shipments were also affected. By

the trial court allowing the admittance of evidence going to the impact on steel

shipment (which were not identified in the indictment), the Supreme Court rejected

the contention that it was simply a variance between allegation and proof:

Although the trial court did not permit a formal

amendment of the indictment, the effect of what it

did was the same... While there was a variance

between pleading and proof, that variation here

destroyed the defendant’s substantial right to be

tried only on charges presented in an indictment

returned by a grand jury. Deprivation of such a

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basic right is far too serious to be treated as

nothing more than a variance, and then dismissed

as harmless error.

Id. at 217, 70 S.Ct. 270. Thus, because the indictment in Stirone charged a specific

type of commodity was impacted, the defendant could not be tried (and convicted)

upon proof of a different commodity also being impacted:

when only one particular kind of commerce is

charged to have been burdened, a conviction must

rest on that charge, and not another, even though it

be assumed that, under and indictment drawn in

general terms, a conviction might rest upon a

showing that commerce of one kind or another had

been burdened. The right to have the grand jury

make the charge on its own judgment is a

substantial right which cannot be taken away with

or without court amendment.

Id. at 218-19, 80 S.Ct. 270.

In a nutshell, constructively amending an indictment is a per-se violation

which was certainly overlooked by the lower state and federal courts. Thus a

v

petitioner raising a constructive amendment violation claim must establish that

“the presentation of evidence [or] jury instructions... so modify[ied] essential

elements of the offense other than that charged in the indictment” United States

v. Vilar, 729 F.3d 61. 82 (2nd Cir. 2013). As seen in the beginning of this claim, a

constitutional claim occurred. Mr. Rodriguez unquestionably could have been

indicted on different charges such as a B-Felony, conspiracy, instead of the A-l

Felony as convicted if the state court would have adhered to the US Const. Fifth

Amendment and resubmit to the Grand Jury.

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Alternative variance occurring due to adding a new time period to the

indictment, broaden the offense, and because of it, Rodriguez was certainly

prejudice due to the State court denying the prosecutor the right to resubmit to the

grand jury, leaving the indictment defective. A "variance occurs when the charging

terms of the indictment is left unaltered, but the evidence in the trial proves facts

materially different from those alleged in the indictment" United States V.

Salmones 352 F.2d at 621. The state trial records are clear as day, for example:

Jessica Gaston testified to giving rides for the purpose of transporting drugs

before the operating as major trafficker charge went into effect from April 2009 to

September 2009. T. 844. 872.1 Another witness, Jordan Krone testified that he

started working for Mr. Rodriguez in 2008. T. 1154-1159 Another witness, Rebecca

Kennedy, testified that she sold to a confidential informant On September 2, 2009

SCR 329. Also see indictment More evidence of variance took place at trial. See Bill

of Particular. The witnesses were part of the element "four or more" under the

controlled substance organization statue within operating as a major trafficker.

New York Penal Law 220.00 (19).

In any event, without first re-submitting to the Grand Jury, Mr. Rodriguez

asserts that the deviation between the text in the indictment and jury instructions

to the jurors affected the 'core of criminality' at the trial and modified an 'essential

element' of the crime. When an essential element of the charges has been altered

without resubmission to the grand jury, depravation of such right is far to serious to

1 T. are trial transcripts found at Appendix I

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be treated as nothing more than a variance and then dismissed petitioner

constitutional claim without first correcting it. Stirone supra at 7.

POINT II

THE QUESTION PRESENTED IS WHETHER

PETITIONER ENJOYED THE SIXTH AMENDMENT

CONSTITUTIONAL RIGHT TO COUNSEL AT A

CRITICAL

STAGE

DURING

ITS

INITIAL

ARRAIGNMENT

It is well settled that every State Criminal defendant has a due process right

to effective assistance of counsel on direct appeal. This requires appellate counsel to

act as an advocate, not merely as a amicus curie, and to marshal legal arguments

on appellant behalf in order that he may have a full and fair resolution and

consideration on his appeal. Evitts v. Lucey, 469 U.S. 387 (1985); Anders v.

California, 386 U.S. 738, 7430758 (1967). As recently mentioned by the U.S.

Supreme Court in Davila v. Davis; “In most cases, and unpreserved trial

error would not be a plainly stronger ground for appeal then preserved

errors.” 137 S.Ct 2058, at 2067 (2017). Three out four grounds were unpreserved at

petitioner direct appeals. There is a reasonable probability that had appellate

counsel raised the ground below, which were ripe for review due to trial

ineffectiveness and/or because those issues were on the record, appellant State

direct appeal result would have been different. Strickland V. Washington at 694695.

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Actually or Constructively denied counsel at arraignment

The Sixth Amendment of the United States provides that: “In all criminal

prosecution, the accused shall enjoy the right... to have the Assistance of Counsel

for his defense.” Gideon v. Wainwright, 372 U.S. 335 (1963). Also see, United

Sates v. Cronic, 466 U.S. 335 (1963) [“the court has uniformly found constitutional

error without any showing of prejudice when counsel was either totally absent, or

prevented from assisting the accused during a critical stage of the proceeding”].

Arraignment is so critical of a stage. Hamilton v. Alabama, 368 U.S. 52, 54 (1961)

The Northern Federal District Court stated that: “Petitioner was able to have

the benefit of counsel’s advice and advocacy at that critical stage in his trial” and

cited State common law in People v. Young, 35 Ad.3d 958, 960 (3rd Dept. 2006),

stating that the “error had no impact on the case as a whole”. Rodriguez v. Griffin

2018 WL 6505808 *27. Not true, the record show that there was no counsel in

attendance to benefit of any advice or advocacy at that "critical [arraignment] stage”

(See Arraignment Transcripts at Appendix G ). Second, it relied on a State

r

common law case instead of the US Constitution in which Young allege that he was

not “represented by counsel at this second arraignment” after a felony complaint

while Mr. Rodriguez declares a U.S. Constitutional Violation because he did not

have the right to Counsel representation at his initial arraignment after a sealed

indictment.

In New York, arraignment is, as a general matter, such a critical stage.

Serious questions have, however, arisen in many jurisdictions in the United States

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as to whether Gideon’s mandate is being met in practice. Hurrell-Hairing v.

State of New York, 15 N.Y. 3d 8, 20 (May 6th, 2010) citing Gideon v Wainwright.

As erroneously stated by the District Court, is not what happened at the second

arraignment, but the need for counsel that without, harm appellant at his first

arraignment. See Mr. Rodriguez would have copped out to a favorable plea like he

had done in the past at arrangement. For example, in 2007 appellant was before

that very same New York State, Otsego County Court under indictment 2007-032 in

which he was initially arranged on April 27th, 2007, facing a sentence of 18 years,

but accepted a favorable plea bargain of 2 years on the day of that, initial

arraignment back then and sentenced within 28 days (May 25th, 2007). The

difference between that 2007 indictment and indictment at hand (2010) is that Mr.

Rodriguez had counsel representation at that initial arraignment and counsel was

capable of negotiating a favorable plea right there & then with the State. But here

in the 2010 indictment there was no Counsel available to negotiate any plea offers

with anyone. Coincidentally, the 28 days that appellant was without counsel in the

indictment at hand was the same amount of days (28) that it took appellant to

dispose and get sentence in the 2007 indictment. A counsel presence made the

difference.

The United States " Supreme Court has already identified pre-trial

negotiations to be a “critical stage” for purposes of the sixth amendment. Missouri

v. Frye, 132 S.ct at 1399 1405; Lafler v. Cooper, 132 S.ct 1376, sl384. It is not

uncommon that pretrial negotiations would involve multiple separate offenses and

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that separated offenses, like the one at hand would have then been package into one

global plea. This gap of without Counsel in petitioner case culminated to a 40 years

sentence instead of 12 to 24 years sentence range if counsel would have been

available at arraignment: Mr. Rodriguez would have certainly taken a plea of 12

years as offered. People v. Rodriguez, 121 ad3d 1435 (3rd Dept. 2014). .

POINT III

THE QUESTION PRESENTED IS WHETHER

PETITIONER

EXHAUSTED

US

THE

CONSTITUTIONAL VIOLATION IN STATE COURT

BEFORE SEEKING RELIEF IN THE FEDERAL

COURTS.

This Court has emphasize in O' Suvillan v. Boerckel, 526 U.S. 838

(1999) that petitioner (as did) must present their federal claims for one complete

round of review in State Court in order for those claims to be deemed exhausted for

federal review. To satisfy the exhaustion requirement, the claim raised in the state

court must be the “substantial equivalent” of the claim raised in the Federal

Petition. As noted below the lower Federal system has precluded reviewing Mr.

Rodriguez claim unpreserved. Picard v. Connor, 404 U.S. 279 (1971).

a)

According to State Court Records, subsequently raised in Federal Court, Mr.

Rodriguez filed a Motion to file a Pro-Se brief to the Appellate Division, Third

Department asserting U.S. Constitutional Violations on December 19th, 2013:

“The Defendant-Appellant was deprived of His

Fundamental Right to A Fair Trial, Due to

Prosecutor’s Misconduct throughout trial by

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Violating Pre-trial Ruling and Improper

comments during summation In Violation of U.S.

Const., Amend.5,14; N.Y.Art. I §6”

“The

Defendant-Appellant

was

Seriously

Prejudiced by trial court’s Failure to Provide

Jury’s Requested Read Back of Relevant

testimony. The court Also Committed “mode of

proceeding Error” And Violated C.P.L § 310.30,

U.S. Const. Amend. 5,6,14; N.Y. const I §6.

Both State Appellate division and Court of anneal affirm SCR 024027,200,203.2 Also See Appendix B. But the Northern Federal District Court

stated the following: that the “PROSECUTORIAL MISCONDUCT & THE JURY’S

NOTE” claim, was “never asserted an independent claim for relief on these grounds

in

state

court

during his

direct

appeal... Accordingly,

the

claim

are

unexhausted.”See Rodriguez v. Griffin 2018 WL 6505808 at *23. Contrary to the

above ruling, appellant fairly presented those claims and are indeed exhausted.

The Second Circuit did not correct what the Northern District fail to notice.

Later, Mr. Rodriguez filed a Post-Judgment motion to set-aside his sentence

under New York State Criminal Procedural Law 440.20, among other things, based

on Double Jeopardy Clause (SCR 250-252). Claiming that Penal Law 220.77 (1),

Operating as Major Trafficker, is a continuous crime which requires proof of

several additional elements and statues such as Penal Law 220.39 (1) to make out

the crime. Requiring a 20 years sentence, instead of the 40 year consecutive

sentence imposed. Rodriguez did cite the following U.S. Constitutional Federal Law

in the New Your Post Conviction CPL 440.20 motion: Blockburger V. United

2 SCR to the State Court Record as reference by the Respondent in the Lower Federal Court.

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States 284 U.S. 299 (1932); Jeffers V. United States 423 U.S. 137 (1977); In re

Snow 120 U.S. 274 (1887). However, hereto the federal lower court totally

overlooked the above sub-claim in its decision (SCR 385) and the Federal Court

has failed to adjudicate appellant claim on the merits. See Motion to set aside the

sentence (CPL 440.20) as Appendix M. No court has heard this claim.

c).

Concerning the Prosecutional Misconduct claims overlooked by the Lower

Federal court, State Appellate Court and appellate counsel, Mr. Rodriguez trial

counsel submitted an Omnibus Motion relating to the introduction of recorded

conversation. The State was “prohibited from so doing”. SCR 138,142,153. The

aggravating blunted impact of such conduct cannot be overestimated; improper

conduct that might merit judicial rebuke but affirmance of a conviction often

becomes prejudicial error requiring reversal, especially after repeated warnings No

“look through” was done by the lower federal courts although the breach of not

referring to the recorded conversation was violated. SCR 473-474. Wilson V.

Seller, 138s.ct 118 (2018); See People v. Rosenfeld 11 N.Y.2d 290, 297 (1962);

People v. Heckstall 90 A.D.2d 835 (2nd Dept. 1982); People v. Calabria, 94

A.D. 519, 522 (2000).

For example, in United States v. Jackson 621 F.2d 220, the Court held

an “Omnibus hearing” after which the prosecutor agreed that he would not, unless

subsequent development disclosed use prior acts and convictions of a similar nature

to prove guilt. At trial, however, the prosecutor violated pre-trial agreement by

introducing considerable evidence of prior similar acts and offences. Two factors

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usually are cited. First, the Court should inquire whether the defendant had

reasonable notice and, second, whether the reason for the release outweighs the

potential for prejudice. U.S. v. Seeright 978 f.2d 842, 36 Fed. R. Evid. Serv. 1399

(4th Cir. 1992). The Second Circuit Court of Appeal should have adopted the above

standard.

The questions of importance here are whether the witness “can testify as to

what he heard over that telephone call during the course of a criminal transaction”

although the lower Court stated it couldn’t at the pre-trial stage. Second, whether

the officer’s testimony of allegedly speaking to appellant was from another

uncharged crime, was erroneously accepted. Third, whether “there is a difference

between a person testifying as to what they heard and playing (the actual

recording) in Court”? T. 782-791; substantial prejudice not mentioned T. 815-833;

SCR. 563-581. See Bruton v. U.S. 392 U.S. 123 (1968). Even with the State

having committed the sin, it is doubtful if any instructions had the desired effect in

the matter as a hole, especially after failing to strike the first part of the answer - it

would have been like telling the Jurors to disregard the pink elephant that just ran

across the Courtroom.

d).

Further, concerning the violation during summation not raised by appellate

counsel, the Second Circuit has articulated the following:

“The prosecutor is cloaked with the authority of

the United States Government; he stands before the

jury as the community’s representative. His

remarks are those, not simply of an advocate, But

rather of a federal Official duty-bound to see that

justice is done. The jury knows that he has

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prepared and presented the case and that he has

completed access to the facts uncovered in the

government’s investigation. Thus, when the

prosecutor conveys to the jurors his personal view

that a witness spoke the truth, it may be difficult

for them to ignore his views, however biased and

baseless they may in fact be. Personal expression of

opinion are especially improper if phrased to leave

the impression that the prosecutor opinion is based

on matters in the investigate file and not in the

trial evidence”

U.S. v. Modica,663 f.2d 1173 (2nd Cir. 1981). Compare U.S. v. Young

470 U.S. 1 (1985);U.S. v. Murphy 768 f.2d 1518,1534 (7th Cir. 1985).

Young and Murphy also condemned prosecutors, but did not reverse the convictions

because there was no objection and found no “plain error. Similarly criticized in U.S

v. Wallace 848 f2d. 1464, 1473 (9th Cir. 1988), but again there was no

reversal because trial counsel had not objected and the appellate Court again held

that it was not a “plain error”. Moreover, prosecutor has “a special duty not to

mislead” U.S. v. Myerson, 18 f.3d 153, 40 Fed. R. Evid. 601 (2nd Cir 1994) or

become an unsworn witness. There is a conflict among circuits on this matter.

Timely objections were made here. For example, characterizing Mr.

Rodriguez as a “criminal master mind” SCR. 585-586. Reversing the burdened of

proof and vouching: “their testimony is consistent with each other... and Mr. Slovis

would have you beheve it’s one he corroborating another” SCR 588. “Conspiracy

Theory” SCR 589. Demeaning counsel: as “mislead” in impeaching the State

witness. Again, reversing the burden of proof: “You’re being asked to view the

evidence as it is NOT, as is NOT in the record. The defendant wants to beheve”

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The appellant did not take stand. SCR 591. Further vouching: “the witness are

telling the truth for him, but not for the defendant?...Because he’s Flip, because

they’re telling the truth” SCR 592. Matters not in evidence and personal opinions:

“trail they traced”(SCR 593),“! guaranteed you back in to Bronx he had [drug]

records of what was going on”, “I submit to you that someone who is this careful

would have kept records” (SCR 594-595). Preparation of defense witness: “Even

without the defense conceding he had and knew the defendant, how would he know

to call him as a witness if he did know”? (SCR 596). Reasonable Doubt: “There is no

doubt” that defendant sold a mostly $ 75, 000 between”, but the actual sales charges

appellant was convicted did not exceed $400 dollars.

No curative instructions were given after. Counsel did not have to go further

and request a curative instruction since such instruction was clearly called for after

the objections. US v. Roberts, 618 f2d 530, 534 (9th Cir. 1980). Trial counsel was

thereby damned by his valid and proper objections. Case after case criticizes

trial counsel for not objecting to Prosecutorial Misconduct and affirming based on

the “plain error” doctrine. US v. Wilkins 754 f2d 1427, 1435 (2nd Cir. 1985);

Criteria to consider, US v. Pena 793 f2d 486 (2nd Cir. 1986). The State motion

court, the State Appellate Court, the Federal Court, and the Second Circuit Court of

Appeals have abortive to reach the merit of appellants exhausted claims as

unpreserved.

Concerning petitioners Brady Claim, Rose v. Lundy 455 U.S. 509, 515

(1982) and Zarvela v. Artuz 245 F.3d 374, 379-382 (2nd Cir. 2001) has told

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the federal district court that they must dismiss State prisoners habeas corpus

‘mixed petition’ containing both unexhausted and exhausted claims. It should have

done so for the issues mentioned above and the Brady claim mentioned here.

Materiality and exculpatory are a question of exceptional importance and Mr.

Rodriguez had requested for the unexhausted Brady claim to be reviewed de novo in

his federal habeas corpus, although the sub claim was raised in Mr. Rodriguez

Amended Petition at 13 as prosecutorial misconduct but not raised independently in

the State Courts. Rodriguez v. Griffin, 2018 WL 6505808 at *23. Reason for

not bringing such claim in the lower court is because appellant made a FOIL request

to the District Attorney’s (DA) office on 3/18/15. It was revealed that the DA did not

turn over certain material related to a testifying witness, Mark Rathbun, relating to

the events of what happened after his arrests not documented in the initial police

report and the same reason why appellant submitted a motion to compel. See. (FOIL

#45, 46, 48, 98 at Appendix K). In any event, Respondent did not expressly waived

appellant claim, but heard it on its merits so should have the Federal Court.

Federal Court had a lot of different options but to relinquish Mr. Rodriguez

Brady claim. The petition could have been held in abeyance pursuant to Rhines

v.Weber 544 US 269 (2005) or dismiss pursuant to Rose v. Lundy supra.

What's extra, Mr. Rodriguez has not filed CPL 440.10 motion in the State Court

containing on and off the records allegations, as he still had the remedy to do so.

People V. Taylor, 156 AD3d 86 (3rd Dept. 2017).

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Furthermore, the search warrant application, consent statement by Rathbun,

search warrant, and premise records of the crime scene are exculpatory and

impeachment by nature. SCR 469-474. Evenly importantly, Rodriguez did not

receive any documents concerning Foil request #98 in which the DA responded that

it “would disclose the identity of confidential sources”. Mr. Rodriguez was not aware

that there were any confidential sources relating to Mark Rathbun which was

another reason why appellant submitted the Motion to Compel to the District Court

and this court should consolidate the matter. Mr. Rodriguez is entitled to this

unknown information about confidential sources, especially since he was never

charged for that Rathbun crime, but used to enhance elements (four or more) in the

Operating as major trafficker. SCR 561. See Police Report at Appendix L. Roviaro

v. U.S. 353 U.S. 53, 60-61; Pennsylvania v. Rithie 480 U.S. 39-60 (1987).

Further attestation, there is nothing in the initial police report of 256 bags of

heroin seized at the apartment, aside from the “fifty -six packets of heroin [that]

were seized from the vehicle”, nor was there any mention of a search warrant

application, Statements or any other withheld information of the events after

Rathbun arrest, not before the arrest as asserted by the respondent in the lower

federal court (See. SCR 550-554, 557, 559-560). Something is not right here.

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Conclusion

For the foregoing reasons this honorable court should grant petitioner the Writ of

Certiorari and rule in the totality of all the circumstances found in this petition. Petitioner

respectfully prays that a writ of certiorari issue to review the judgment below.

Dated: March 6th, 2020

Respectfully Submitted,

Pl/sT.

JoW A. Rodriguez, F1B3913

Green Haven Corr. Fac.

P.O. Box 4000

Stormville, NY 12582

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