Rodriguez v. Vance ( 2020 )

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ──────────────────────────────────── LORENZO RODRIGUEZ, Petitioner, 18-cv-6202 (JGK) - against - ORDER SUPERINTENDENT OF CLINTON CORRECTIONAL FACILITY, Respondent. ──────────────────────────────────── JOHN G. KOELTL, District Judge: The Court has received the petitioner's further reply to the respondent’s sur-reply, which is attached to this Order. The briefing on the petitioner's petition is complete and the Court takes the petition under consideration. Chambers will mail a copy of this Order to the pro se petitioner at the address listed on the docket. SO ORDERED. Dated: New York, New York June 2, 2020 ____/s/ John G. Koeltl ______ John G. Koeltl United States District Judge United States District Court Lorenzo Rodriguez # 15A0071 Southern District of New York EASTERN NEW YORK CF. c/o Chambers of Judge John G. Koeltl P.O. Box 338 500 Pearl Street Napanoch, New York 12458 New York, New York 10007-1312 18-CV-6202 (JGK) May 6, 2020 Dear Sir, After receiving the communication from the respondent dated April 22, 2020 and arrived □□ facility on April 28, 2020. I began to make the necessary reply to address the situation on May 1, □ however Eastern New York Correctional Facility went on a temporarily locked down on May 2" and |. until May 5‘" 2020. I have detected serious flaws that should be revealed before you by the respondent, and it is most c that I should be given an opportunity to reply in this request. Today I have finished my reply and enc with this letter with facsimile attached. My response is clear cut and will expose the mischaracterizat the facts by the respondent, bringing to light before this court, once again what was tacitly conceded to And I thank you again for presiding over my petition in your court and that equity be abound. Respectfully (s) Lorenzo Roderiguez United States District Court Lorenz Rodriguez # 15A0 Southern District Of New York EASTERN NEWYORK C€ Daniel Patrick Moynihan P.O. Box 338 United States Court House Napanoch, New York 100 500 Pearl Street New York, New York 10007 18-CV-6202 (JGK) May 1,2020 Dear Sir, The Petitioner having received the respondent’s reply dated April 22, 2020, and post marked Hartford, Connecticut, of which it was received in this facility dated April 28, 2020. See attached facsir With all due respect, the Petitioner’s habeas corpus should be granted in its entirety. The respondent tac conceded after the Petitioner filed a response under the guidance of this court, to the responc opposition drawing to this court attention what the respondent failed to inform and intentionally wit critical factors after having an opportunity to make a full review of the State records, that would hav court to consider petitioner’s claims in the respondent’s first reply had it been originally addressed. The respondent, continue to present the same false allegation in her reply that the petitioner was som involved in an alleged burglary of an apartment that did not exist against the petitioner. And to whi petitioner was never indicted for in violation of the petitioner’s Sixth Amendment, which was not refu untrue and tacitly conceded by the respondent. The respondent continued to offer the same unfounded claim and having offered no proof to support: refute petitioner claims and answer as untrue, of which the petitioner offered unquestionabl documented proof to support his claims. The petitioner is not surprise by this and neither should this court since the State could not prove erroneous allegation when their own State witness under oath testified it was the police that have comn the offense. The petitioner also draws this court attention that the petitioner was not present at his se trial when the State prosecution witness made that revealing statement. After the trial judge unlaw expelled him from attending his own trial which was addressed, see Petitioner Response, page 5, para. § was also conceded by the respondent. Most importantly, the State witness was never impeached for brin into light, what the police have committed in her apartment not the petitioner. The respondent is at a here. The next erroneous claim of the respondent that “a police officer was patrolling the roof, Respor reply, page 1. ls without foundation and lend no support. To begin, the respondent again tacitly conceded when the petitioner raised eight critical questions tha State failed to answer and refused to answer knowing well it would bring to light this court attentic petitioner’s factual and actual innocence, see Petitioner Response at page 7, para. 18, 19. Next, the unfounded claim by the respondent that “Antonina Lopez encountered petitioner, a man th: did not know”, Respondent reply at page 1. Is just that, unfounded assertion and down right untrue. The petitioner is confident of his innocence and regard the Federal Court, the bastion of constitu safeguard and protection. The petitioner bring to this court attention that if the respondent is confide attempting to make empty claims in her reply before this court against the facts and documented against the petitioner’s case. Then the respondent should be willing to support her false allegations anc assertions of the petitioner under no less than affirming under the penalty of perjury and acceptan forfeiting her office as an Assistant Attorney General, by producing before this court the State wit evidence of surveillance recording and photographs and have it televised live for the general public by of public television and social media. If the respondent is confident on speaking truthfully and hor before this court to support her false allegation against the petitioner, that “a man” (the respondent all “that she did not know”. The surveillance recordings would show that the petitioner was with Mrs. Lopez, whom he personally | outside on the front of the building having an amicable conversation and inside of the building, a petitioner is being led to the Lopez’s apartment by Mrs. Lopez, herself. The same recording woulc show where the petitioner was originally accosted by the police officers in the hallway of the building he has exited the apartment and on his way out of the building. And not on an alleged “roof” being c down supposedly by ex police officer Corchado (who was now a fireman at the time of petitioner’s and P.O. Lassen that petitioner contends and avowed did not occurred. Unless the respondent is ready to declare that the police officers are magicians and have out sn electronic surveillances and deterrence, the respondent’s claims are without merit and fruitless petitioner’s cell phone would have also show that Mrs. Lopez had called the petitioner is the reason wl surveillance would show why he was over at the Lopez’s resident. The respondent have not done this, the petitioner have done so and pointed out on the State record: Petitioner Response page 10, para. 27. It was also one of the reasons why the State prosecutor refu: turn over the photographs of the building to the Appellate counsel, because the Appellate counsel \ have seen the surveillance cameras and raised the Brady/Bagley violation. See SR: 21 of 149, and SR: (Exhibit Sheet), both facsimile attached. The photographs in fact, was not lost by the State prosecutor but was withheld from Appellate cou because of the additional Brady evidence that would have disclosed the intentional violation of the □ against the petitioner of the surveillance and deterrence belonging to the building, that was not discl prior to the petitioner first trial. In any event, the Brady violations of the photographs and/or surveillance were appropriately □□□□□□□□ the State prosecutor failure to disclose prior to trial, greatly prejudice the petitioner. Most importantly State prosecutor never allowed the trial jurors to ever get a glimpse of those photographs knowing wel additional evidence it contained. Nor was it ever disclosed of the surveillance recordings to the petition dispel the State unfounded and erroneous allegation that the respondent have whole heartedly and tz conceded to. The Brady violations are no new claim not even by appearance. Is the reason why the petitioner's right being violated as the petitioner properly addressed that the undisclosed and suppressed Brady materi: relevant, in response to the respondent failure to bring to this court attention of this important matter. A petitioner pointed to this court that “the State was given an opportunity to correct their errors it was pro preserved for them to do so, instead the State chose to acquiesce and therefore tacitly conceded”. Petit Response page 16, para. 46. Moreover, the respondent is estopped from presenting these same false claims before this court □□□□ State conceded to on the record (as previously proven and directed by the petitioner based on the records). When Mrs. Lopez firmly accused the police officers of committing a criminal act of burglar the Lopez’s apartment, the respondent have unequivocally tacitly conceded to this and is not refuted. Furthermore, the respondent is therefore barred from re-litigating those false claims that the State conc to, as if it is the first time the matter are being litigated, this court should preclude the respondent doing so. The unchallenged and documented proof and evidence establishes the petitioner’s □□□□□□□□□ all to lo’ and behold. The Supreme Court has held in Chapman v. California 386 U.S. 18, 24, a conviction tainte constitutional error must be set aside unless the error complained of “was harmless beyond a reaso doubt”. It is without question the constitutional errors that have occurred and existed, which are not re and tacitly conceded to, of the petitioner is not harmless but are harmful. In addition, in regard to the Brady claim, the Supreme Court have distinguished three situation in wt claim of Brady violation may arise in Kyles v. Whitley 514 U.S. 419, 433. (1) First, where previously undisclosed evidence revealed that the prosecution introduced trial testi that it knew or should have known was perjured. (2) Second, where the Government failed to accede to a defense request for disclosure of some specific of exculpatory evidence. (3) Third, where the Government failed to volunteer exculpatory evidence never requested, or requ only in a general way. Clearly under the Brady standard did not leave the State free from all obligations. The petitioner have previously requested from the State to turn over the Brady materials □□□□□□□□ recording etc.) and as a result for that request the State chosen to punish the petitioner for making request and to violate the petitioner constitutional rights instead. The Appellate counsel requested for the Brady materials (photographs) which was never disclosed t petitioner prior to trial and the State totally ignore that as well. Again the Brady violations are not novel The petitioner relied on the federal court as the last resort to address the Brady violations and all « constitutional violations that have occurred against the petitioner and is most appropriate and correct | sO, The respondent is on the wrong side of the fence accusing the petitioner when the respondent should been with the petitioner pointing and wagging the finger at the State for violating the petitioner prote constitutional rights, withholding evidence and wrongly convicted an innocent person. In United States v. Coppa 267 F.3d 132 at 135, the Second Circuit properly noted that “the □□□□□□□□□□□ a constitutional duty to disclose evidence favorable to accused when such evidence is material to gui punishment”, “With respect to when the prosecution must make a disclosure required by Brady, the also appears to be settled. Brady material must be disclosed in time for it effective use at trial’. Indes Imbler v. Pachtman 424 U.S. 409, 427 n. 25, the Supreme Court noting that the duty to make B disclosure at trial “is enforced by the requirement of due process”. The respondent stated as found on page 3, replied: “petitioner provides no basis for this court t conclude the police framed him to cover up for the fact that they had stolen the Lopez family’s piggy bank and | Likewise, petitioner set forth no basis for this court to conclude that the prosecution possessed, much withheld, exculpatory video from either a building surveillance system or data from □□□□□□□□□□□□ phone”. The petitioner relied on the Federal Court as the last resort to address the Brady violations of established federal law that the State is obligated to turnover. And all other constitutional violations have occurred as a result of that request against the petitioner, and is most appropriate and correct to ad them what the respondent have intentional withheld from this court in her initial response. Since the respondent have truly acquiesce as to the State not following well established federal law respondent should not be allowed to take another bite of the apple in the attempt to rescue the State ft wrong doing it has caused and effected. The fact still remain, firmly grounded, not refuted and t conceded, based on the State record before this court. That the police officers involved burglarize Lopez’s apartment of their electronic merchandise to wit: Ipad with charger, without their permissi consent. And the State prosecutor conceded on the matter without rebuttal and/or impeachment. As the petitioner quoted in his reply on page 10, para. 28, in reference to Kyles v. Whitley 514 U.S. 435, “Once a reviewing court applying Bagley test in determine whether suppressed favorable ma evidence violates due process, has found constitutional error, there is no need for further harmless review’. The State was acutely aware that the introduction of the Brady evidence which the State do possess of | the surveillance recordings and photographs (see SR: 307, facsimile attached) and illegally withheld w have “undermined confidence in the outcome of the trial”, United States v. Bagley 473 U.S. 667, 678. V the respondent has offered as quoted above on page 3, is refuted by documented State records in posses of this court. And since the respondent and State have not proven their fabricated charge and case beyond a reason doubt, it must fall. See In Re Winship 397 U.S. 358, 364. Respectfully (s) Lorenzo Rodriguez □□□ □□□ FEE 3ONSGNOdSSxuOS □□□ 4DAN3 a □ 4 3 qzez g7 335 nn □ = C . ¥ “aN, □ ead ke te mee br iy) i _ v.79 op iF =G + { a 8 = + s mt S o .|6°8 SN □ exw ? CO 9 > Oo = a” § □ > -— 4 a □□ = » 5 =o □□ = S □□ 4 = oS : □ = \ af = □□□□ = ~ □□□ = □ □ . = □□□□ burglary of “the building located at 552 West 160th Street’). Thus, as indicted and charged to the jury, the prosecution had to establish: (1) an unlawful entry into the apartment building itself; and (2) an intent to commit a crime at the moment of that entry. The question of whether Mr. Rodriguez committed burglary of Apartment 18 (or Ms. Lopez’ bedroom) was legally irrelevant. The Lost Exhibits. The prosecution introduced two photographs of the “building entrance” (People’s 1 and 2). People’s 2 was apparently a “close up” photograph of the building entrance. The prosecutor recognized that “[iJt is hard to see with the glare, but there appears to be, to the left. right of the photos on People’s 2, signs posted.” These “signs,” the building’s manager Michael Bows testified, wete “the trespass affidavit.” “In substance” those signs “allow[ ] tenants to be with their guests, and anyone who is not a guest will be cited as trespassing.” There is no other testimony tegarding the signs. Guevara 34-36, The prosecution has informed appellate counsel that all of the trial exhibits have been lost. Appellate counsel has also reviewed defense counsel’s file and People’s Exhibits 1 and 2 ate not in the file. Also, they were not disclosed prior to trial, The Apartment Building. The 552 West 160th Street building had twenty apartments. Two families lived in Apartment 18, which was a two- 14 rce_t_ ofa Supreme Court of the State of New Yortc Parts 42 County —___NY EXHIBIT SHEET [ Before Judge A WILEY — THE PEOPLE OF THE STATE OF | District Attorney M Detiabemm □ NEW YORK | Defendant's Attorney Legal Advisor. R. Weinstein agains! | On Trial for Burgiary 2 □ Indictment Fikd #13 Ng 3998-2013 □ Conenue Radaeies Trial Began 100/14 Trial Conclude€ Woaie PEOPLE'S EXHIBITS □□□□□ IDENT Description _ EVIDENCE Ne Photo . _ ! Photo _ 10/23/14 2 Phot Phot Phot Photo ? charger (stc)-10/23/14 Phot - □ | tonsa _| latex gloves and flashlight 10 oaana | gloves □□ □□ | | Photos _ 12-16 | ft | | wore eae | P| pee 3. SCIENTIFIC AND MEDICAL REPORTS □□□ If checked, the People hereby dissfose written reports or documents of portions thereof, concerning a physical or menial examination or scientific test or experiment, relating to this criminal action, which cere made by, or at the request or direction of a public servant engaged in law enforcement, or by a person whom the People intend to call as a witness of a trial, or which the People intend to introduce at trial. CPL §240.20(1)(c). 4. PHOTOGRAPHS AND DRAWINGS. [X] If checked, there exist photographs-cr drawings relating to this criminal action which were made or completed by a public servant engaged in law enforcement, or which were made by a person whom the People imtard to call as a witness at trial, or which the People intend to introduce at tial. CPI. §240.40(1)(d). (Cosese/ should contact the assigned assistant district attorney to arrange a mutually consericrs-time to examine this material) 5. INSPECTION OF PROPERTY (X] If checked, there exist photographs, ; drotocopies or other reproductions made by or at the direction of a police officer, peace fficer or prosecutor of property prior to its release pursuant to the provisions of Penal Lawection 450.10, irrespective of whether the People intend to introduce at trial the pimperty or the photograph, photocopy or other reproduction. CPL §240.20(1)(c). (Couns! should contact the assigned assistant district attorney to arrange a mutually convenient time to examtes *bis property.) 6. OTHER PROPERTY (X] If checked, there exist other propstty obtained from the defendant, or a co-defendant to be tried joindy, CPL §240.20(1)(f}, ax fom another source. (Counsel should contact the assigned assistant district attorney fo arrange cvsutually convenient time lo examine this property.) a. iPad b. 3 Pairs of latex gloves : c. 2 Flashlights d. Alprazolam — 26 pills and 12 parttstpills e. Cellular phone 7. TAPES AND ELECTRONIC RECORDINGS If checked, there exist tapes or other electronic recordings which the People intend to introduce at trial, irrespective of whether any such recording was made during the course of the criminal transaction. CPL §240.20(1)(g). (Counsel showld contact the assigned assistant district attorney fo arrange a mutually convenient time ta ksten to the tapes or provide a blank tape for copying) . SR 307 ¥O-EBPBE lMSoecy * Peeeney oe, 02°1 “ae . ie oy 2 Se QlWd id's" iT —==aa on cari = ° Se a 0 Mw ai ees SS Tw. 3 rt a SEE 5) c 2 a Sine vies eT Se oO HS Oo ey SS ie = Sen Pie —_—_—EEe aS SSS YO S| = aos a= —— 4 3 oy yy a a) ees bo ch ———— itu ae ei —— = Oa oO r [eee ue iy Ls oy ww » oO nha Uns HW 5 Oe a = ek 4 ad oy 4 2 2 S HS ° Ba aa. - o 2ZOm CO g sg 7 □□ & Oo: As 2 2 oO 8s 5 = “ LU tT) ae cu) a4 = 5 = aly £22 ~ oy Bas Lu OQ =< i —) 25% z w apy if co woz S . . =!