Summary
reviewing most of petitioner's claims under a de novo standard of review after determining that at least one of the claims was unexhausted and all claims were meritless under any standard of review
Summary of this case from King v. CunninghamOpinion
02-CV-6044 (JBW), 03-MISC-0066 (JBW)
November 26, 2003
MEMORANDUM, JUDGMENT ORDER
The petition for a writ of habeas corpus is denied. No hearing on this mailer is necessary. This memorandum briefly addresses petitioner's claims.
I. Facts and Procedural History
Petitioner was arrested as part of a "buy and bust" narcotics operation, According to an undercover officer who testified at petitioner's bench trial, the undercover and his partner (a "ghost" or backup officer) approached petitioner in an unmarked car, with the undercover officer driving, Petitioner approached the passenger side window and asked the undercover, "What do you want," Trial Tr. at 74-75. The undercover said be was looking for "a dime." Id. at 76, Petitioner told the officer to "meet him on Vernon in a minute," Id. The undercover drove away, saw in his rearview mirror petitioner enter a housing project, and radioed his field team that he was proceeding to the street-comer rendezvous, Soon petitioner arrived at the corner, handed a loose rock of cocaine to the undercover, and said, `That's a dime," Id at 50. The undercover then handed petitioner ten dollars of pre-recorded "buy money." He drove up the block, losing sight of petitioner briefly, then radioed his field team that there had been a positive buy. Petitioner was apprehended within a minute of this radio call. No narcotics or pre-recorded buy money was found on petitioner at his arrest, The arresting officer testified that she did not search the surrounding area for the money because she was primarily concerned with assuring the safe apprehension of petitioner.
At the close of the prosecution's case, petitioner sought a missing witness charge based on the fact that the ghost officer was present during the drug transaction but was not called to testify by the prosecution, The prosecutor opposed the motion, stating that the officer was no longer on the New York City police force and that he had moved to South Carolina, where he was no longer under the government's control. The motion was denied, with the court stating, "He is not a member of the police force. Nobody can order him back, so that ends it right there, Our subpoena power ends at the state line." Id. at 420,
Petitioner testified in his own defense. He stated that he observed a car parked with two white men inside it and that the car horn honked as he and a friend, Evelyn, was walking by. The passenger in the car waved him over, and when he approached he saw a bottle of beer between the driver and the passenger and a bag of marijuana on the passenger's lap. According to petitioner, the driver then asked petitioner if he had any "rock" and petitioner replied, "what was rock?" and "I don't sell drugs," Id. at 428, 448, The driver then told petitioner that he used to get drugs at a nearby corner but that the sellers were not out then, and he asked petitioner if he could get him some crack and a girl, If so, he would share the narcotics with petitioner. He handed petitioner ten dollars and told him to get a "dime." Id. at 430. Petitioner found someone to give him a rock of cocaine for the ten dollars and returned to give the narcotics to the driver, keeping no money or drugs for himself. He then went looking for a girl so that he, the men in the car and the girl could get high. When he returned to the car with a female acquaintance, a van pulled up and officers arrested him.
On cross-examination, petitioner admitted that he had three previous drug-related convictions from the same neighborhood, including a guilty plea for attempting to sell drugs on the same corner where he allegedly purchased the crack,
The trial court found petitioner guilty of criminal sale of a controlled substance in the third degree. Petitioner was adjudicated a second felony offender and sentenced to 8 to 16 years in prison.
His conviction was affirmed by the Appellate Division, Leave to appeal to the New York Court of Appeals was denied.
Petitioner filed a state habeas corpus application, which was denied by the Appellate Division. A motion to vacate judgment was denied by the trial court, Petitioner did not seek leave to appeal either of these denials to a higher court, as was his right.
In his application for a writ of habeas corpus, petitioner claims that (1) the prosecution failed to disprove his agency defense beyond a reasonable doubt; (2) the trial court erred in refusing to draw a negative inference against the prosecution for failing to call the ghost officer to testify; and (3) the trial court's "improper and impermissible limitation and restriction of its own subpoena power jurisdiction nullified all other legal mechanisms petitioner had at his disposal to secure the ghost's attendance and/or material testimony to establish petitioner's agency defense at trial."
II. AEDPA
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that the adjudication of the claim "(1) 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; 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),
An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim," Sellan v. Kuhlman, 261 R3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 E3d 1174, 1178 (10th Cir. 1999)). Under the "contrary to" clause, "a federal habeas court may grant the writ 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 decides a case differently than this Court has on a set of materially indistinguishable facts," Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and writing for the majority in this part). Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case," Id at 413. Under this standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. In order to grant the writ there must be "some increment of incorrectness beyond error," although "the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence," Francis S. v. Stone, 221 F.3d 100, 111 (24 Cir. 2000) (internal quotation marks omitted),
"[F]ederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright-line rule designed to effectuate such a standard in a particular context." Overton v. Newton, 295 R3d 270, 278 (2d Cir. 2002); see also Yung v. Walker, No, 01-2299, 2002 U.S. App, LEXIS 28137 (2d Cir. Aug. 1, 2003) (amended opinion) (district court's habeas decision that relied on precedent from the Court of Appeals is remanded for reconsideration in light of "the more general teachings" of Supreme Court decisions). The Court of Appeals for the Second Circuit has also indicated that habeas relief may be granted if a state court's decision was contrary to or an unreasonable application of "a reasonable extension" of Supreme Court jurisprudence. Torres v. Berbary, No, 02-2463, 2003 U.S. App. LEXIS 16167, at *25 (2d Cir. Aug. 7, 2003). Determination of factual issues made by a state court "shall be presumed to be correct," and the applicant "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence," 28 U.S.C. § 2254(e)(1).
III. Exhaustion
In the past, a state prisoner's federal habeas petition had to be dismissed if the prisoner did not exhaust available state remedies as to any of his federal claims. See Rose v. Lundy, 455 U.S. 509, 522 (1989). "This exhaustion requirement is . . . grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights." Coleman v. Thompson, 501 U.S. 722, 731 (1991), The exhaustion requirement requires the petitioner to have presented to the state court "both the factual and legal premises of the claim he asserts in federal court." Days v. Attorney General, 696 F.2d 186, 191 (2d Cir. 19S2) (en banc),
Pursuant to AEDPA, a district court may now, in its discretion, deny on the merits habeas petitions containing unexhausted claims — so-called "mixed petitions." See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state,"). In addition, the state may waive the exhaustion requirement, but a "State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement," Id. § 2254(b)(3); see also Ramos v. Keane, No. 98 CIV. 1604, 2000 US, Dist LEXIS 101, at *10 (S.D.N.Y. 2000) (state's failure to raise exhaustion requirement does not waive the issue),
IV. Procedural Bar
A federal habeas court may not review a state prisoner's federal claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule, "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750. In determining whether a procedural bar is sufficient to preclude habeas review, a federal court must consider as "guideposts" the following:
(1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state easel aw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had "substantially complied" with the rule given "the realities of trial," and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest,Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (quoting Lee v. Kemna, 534 U.S. 362 (2002)),
If a state court holding contains a plain statement that a claim is procedurally barred then the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alter native. See Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedural rule as a separate basis for its decision),
When a state court says that a claim is "not preserved for appellate review" and then rules "in any event" on the merits, such a claim is not preserved. See Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996). When a state court "uses language such as `the defendant's remaining contentions are either unpreserved for appellate review or without merit,' the validity of the claim is preserved and is subject to federal review." Fama v. Comm'r of Corr. Svcs., 235 F.3d 804, 810 (2d Cir. 2000), Where "a state court's ruling does not make clear whether a claim was rejected for procedural or substantive reasons and where the record does not otherwise preclude the possibility that the claim was denied on procedural grounds, AEDPA deference is not given, because we cannot say that the state court's decision was on the merits." Su v. Filion, No, 02-2683, 2003 U.S. App, LEXIS 13949 at *15 n. 3 (2d Cir. July 11, 2003) (citing Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir. 2003)). This congeries of holdings leaves it an open question whether there are "situations in which, because of uncertainty as to what the state courts have held, no procedural bar exists and yet no AEDPA deference is required." Id.
V. Certificate of Appealabilily
A certificate of appealability may be granted with respect to any one of petitioner's claims only if petitioner can make a substantial showing of the denial of a constitutional right. Petitioner has a right to seek a certificate of appealability from the Court of Appeals for the Second Circuit. See 28 U.S.C, § 2253; Miller-El v. Cockrell, 123 S.Ct, 1029 (2003). The court has taken into account the rule of section 2253(c)(3) of Title 28 of the United States Code that a certificate of appealability "shall indicate which specific issue or issues satisfy the [substantial showing of the denial of a constitutional right] required by paragraph (2)," See also Shabazz v. Artuz, No, 02-2320, 2003 U.S, App, LEXIS 14450, at *15 (2d Cir. July 18, 2003),
This opinion complies with Miranda v. Bennett, 322 F.3d 171, 175-77 (2d Cir. 2003), and Rule 52 of the Federal Rules of Civil Procedure, No other issue open to consideration by this court has merit. See Summer v. Mata, 449 U.S. 539, 548 (1981) ("a court need not elaborate or give reasons for rejecting claims which it regards as frivolous or totally without merit").
VI. Analysis of Claims
It appears that at least one of petitioner's claims is unexhausted. Because the claims are meritless under any standard of review, it is unnecessary to engage in an extended analysis of exhaustion and procedural default. Unless otherwise noted below, all claims are reviewed under a de novo standard.
A
Petitioner first claims that the prosecution failed to disprove his agency defense beyond a reasonable doubt. The Appellate Division rejected this claim on the merits. Review proceeds under the deferential standards of AEDPA.
Where a petitioner claims that his guilt was not proven beyond a reasonable doubt, the relevant question for this court is 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, Jackson v. Virginia, 443 U.S. 307, 319 (1979), Petitioner "beats a very heavy burden" when challenging the legal sufficiency of the evidence in. a.state criminal conviction, Einaugler v. Supreme Court, 109 F.3d 836, 840 (2d Cir. 1997).
Under section 22039 of the New York Penal Law, a person is guilty of criminal sale of a controlled substance in the third degree when, inter ali, he "knowingly and unlawfully sells . . . narcotic drug. A person is not considered a seller under New York law, however, when he acts as an agent or a mere extension of the buyer. See People v. Ortiz, 560 N.E.2d 162, 163 (N.Y. 1990),
Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have concluded that the agency defense was disproved beyond a reasonable doubt. The failure of police officers to recover the pre-recorded buy money can be explained by the possibility that petitioner secreted it somewhere in the brief moments when he was not under observation or that he disposed of it — perhaps recognizing the sting — once he realized he was about to be arrested. At any rate, this fact merely goes to the weight of the evidence of petitioner's guilt. Contrary to his contention, the testimony of the police officers was not unworthy of credit, nor was it patently unbelievable. Moreover, a rational factfinder could find that petitioner's account of the narcotics transaction and of his role in it strains credulity. Did petitioner, a convicted drug dealer, really not know what the undercover meant when he referred to "rock"? What was the likelihood that petitioner would engineer a drug sale on behalf of perfect strangers when his only recompense was the possibility of sharing in the ingestion of the drugs? A reasonable factfinder could, of course, have believed petitioner's account in its entirety and concluded that the officers who testified at trial were perjuring themselves, but when the evidence is viewed in the light most favorable to me prosecution, the verdict was not inappropriate. Habeas corpus relief on this claim is not warranted,
B
Petitioner next claims that the trial court erred in refusing to draw a negative inference against the prosecution for failing to call the ghost officer to testify.
"In order to obtain a writ of habeas corpus in federal court on the ground of error in a state court's instructions to the jury on matters of state law, the petitioner must show not only that the instruction misstated state law but also that the error violated a right guaranteed to him by federal law," Casillas v. Scully, 769 F.2d 60, 63 (2d Cir. 1985), In weighing the prejudice from an allegedly improper charge, a reviewing court must view the instruction in its total context, Cupp v. Naughten, 414 U.S. 141, 146-47 (1973). The question is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Id. at 147, The decision whether to give a missing witness charge rests within the sound discretion of the trial court. See United States v. Torres, 845 F.2d 1165, 1170-71 (2d Cir. 1988). "Its decisions in this area will rarely support reversal or habeas relief since reviewing courts recognize the aura of gamesmanship that frequently accompanies requests for a missing witness charge as to which the trial judge will have a surer sense than any reviewing court." Malik v. Kelly, No. 97 CV 4543, 1999 U.S. Dist. LEXIS 7942, at *21-*22 (E D.N.Y. Apr. 6, 1999) (quotations omitted),
The trial court acted within its discretion in refusing to give a missing witness charge in the instant case. Under New York law, the party seeking the missing witness charge
must sustain an initial burden of showing that the opposing party has failed to call a witness who could be expected to have knowledge regarding a material issue in the case and. to provide testimony favorable to the opposing party. The burden then shifts to the opposing party, in order to defeat; the request, "to account for the witness' absence or otherwise demonstrate that the charge would not be appropriate. This burden can be met by demonstrating that the witness is not knowledgeable about the issue, that the issue is not material or relevant, that although the issue is material or relevant, the testimony would be cumulative to other evidence, that the witness is not `available,' or that the witness is not under the party's `control' such that he would not be expected to testify in his or her favor."People v. Macana, 639 N.E.2d 13 (N.Y. 1991) (quoting People v Gonzalez, 502 N.E.2d 583, 586 (N.Y. 1986); further citations omitted); see also Graves v United States, 150 U.S. 118, 121 (1893) (`The rule . . . in criminal cases is that if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable.").
It was reasonable for the trial court to conclude that the ghost officer's testimony would be cumulative of that of the testifying officers, that the ghost officer was not peculiarly under the control of the prosecution and that the officer (no longer on the police officer and living in South Carolina) was not available. The circumstance of the instant case suggest that the prosecution concluded that its case was strong enough without going to the expense of attempting to produce the officer. There is no reason to believe that this decision was made in bad faith. Moreover, the request for the charge was made prior to petitioner's testimony and the defense argument that petitioner was acting merely as an agent for the driver of the car,
Even if a missing witness charge would have been desirable, the believable evidence of petitioner's guilt was strong, rendering any evidentiary error harmless. See Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (habeas relief warranted only where constitutional error "had substantial and injurious effect or influence in determining the [factfinder's] verdict" and resulted in "actual prejudice"). Habeas corpus relief on this ground is not warranted,
C
Finally, petitioner claims that the trial court's `improper and impermissible limitation and restriction of its own subpoena power jurisdiction nullified all other legal mechanisms petitioner had at his disposal to secure the ghost's attendance and/or material testimony to establish petitioner's agency defense at trial," resulting in the denial of his Compulsory Process Clause rights under the Sixth Amendment, In particular, he notes that the Uniform Act to Secure Attendance of Witnesses From Without the State in Criminal Cases Act, N.Y. Crim. Pro, L. § 640,10(3), empowers a trial court to subpoena a witness,
Although couched in constitutional terms, petitioner's claims is not of constitutional dimension. As the New York Court of Appeals has explained,
a State is not constitutionally required by the Sixth Amendment guarantee of compulsory process to compel the attendance of witnesses beyond its jurisdiction over whom it has no subpoena power. Thus, while the constitutionality of the "Uniform Act" has been upheld ( New York v O'Neill, 359 U.S. 1), the "Act" is clearly not constitutionally mandatory ( see People v. Carter, 37 N.Y.2d 234, 240; People v. Cavanaugh, 69 Cal.2d 262; State v. Blount, 200 Or. 35; State v Smith, 87 N.J. Super. 98). The "Uniform Act" has been sustained against the claim that, by requiring the Judge to pass upon the issue of a witness' materiality, it constitutes a violation of due process and a denial of a fair trial ( Glynn v Donnelly, 360 F. Supp. 214, petition den 485 F.2d 692, cert den 416 U.S. 957), It is important to note, therefore, that we are not here faced with a question of constitutional dimension but, rather, one of statutory construction,People v. McCartney 345 N.E.2d 326, 328 (NY 1976) (footnote omitted).
Moreover, the claim is meritless. In order to trigger use of the Uniform Act, a defendant has the burden of demonstrating that the likely testimony of the requested witness is material, i.e., that it is "relevant, admissible and of significance to [the] case." Id. at 329. Petitioner in the instant case provided no evidence in the form of an affidavit from the witness or otherwise that his testimony might be material. See id. The trial court did not abuse its discretion in determining that petitioner had not met his burden of demonstrating that the ghost officer's testimony was material. There was no constitutional violation. Habeas corpus relief on this claim is not warranted.
VII. Conclusion
The petition for a writ of habeas corpus is denied,
No certificate of appeal ability is granted with respect to any of petitioner's claims, petitioner having made no substantial showing of the denial of a constitutional right.
SO ORDERED