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finding that petitioner "was convicted of robbery in the first degree, an aggravated felony as defined in 8 U.S.C. § 1101(G)"
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03 CV 666 (JG).
August 5, 2004
ROBIN BROWN, Fishkill Correctional Facility Beacon, New York, Petitioner Pro Se.
This is Brown's last known address. The United States ordered his removal on October 29, 2003, and he was deported to Jamaica on January 3, 2004.
DANIEL M. DONOVAN, JR., District Attorney, Staten Island, New York, By: Daniela Conti-Maiorana Assistant District Attorney, Attorney for Respondent.
MEMORANDUM AND ORDER
Petitioner Robin Brown seeks habeas relief from a judgment of conviction entered after a jury trial in state court. For the reasons set forth below, the petition is denied.
BACKGROUND
A. FactsOn October 27, 1998 at about 1:30 p.m., near the Staten Island Expressway, Police Officers John Arrigo and Gerard Nicholson observed two vehicles stopped on the side of an exit ramp: a Mazda minivan parked behind a Honda. Lowayne Williams, Brown's codefendant, was sitting in the driver's side of the Honda and Brown was leaning into the driver's side window. Arrigo recognized the Honda as belonging to his wife, and he and Nicholson slowed down to investigate. After approaching the car for a closer inspection, the officers saw that the driver's side door lock was missing, the door handle was bent back, the ignition housing inside the car was broken, and the ignition cylinder was missing. Uncertain as to whether Brown or Williams was armed, Arrigo drew his weapon. Brown told Nicholson that he was giving directions to Williams, while Williams told Nicholson that Brown had stolen the car and was going to pay him $40 to drive it to Brooklyn. Arrigo observed that an antitheft device (the "Club") had been removed from the steering wheel of the Honda and was lying on the floor. The officers saw the ignition cylinder from the Honda lying on the driver's seat of the van and various tools on the floor of the van, including a dent puller and a slap hammer. There was also a small tool box containing additional ignition cylinders in the back of the van. Brown and Williams were arrested and the van and its contents vouchered. The police later discovered that the Mazda had been reported stolen approximately four months earlier from Richmond, Virginia.
Williams cooperated with the police and testified against Brown. He pleaded guilty to unauthorized use of and criminal possession of stolen property in the fourth degree and was sentenced principally to a five-year term of probation.
B. Procedural History
With respect to the Honda, Brown was charged with grand larceny in the third and fourth degrees, criminal possession of stolen property in the third and fourth degrees, criminal mischief, unauthorized use of stolen property, and illegal possession of a vehicle identification number ("VIN"). With respect to the Mazda, he was charged with criminal possession of stolen property in the third and fourth degrees, unauthorized use of stolen property, and illegal possession of a VIN.
On May 26, 1999, the trial court conducted a suppression hearing on Brown's Fourth Amendment challenge to the lawfulness of his arrest. Arrigo testified that when he first saw the Mazda and the Honda on the side of the exit ramp, he approached the vehicles slowly, believing there may have been an accident. He then noticed that one of the vehicles belonged to his wife. The court held that "the officers almost certainly had probable cause at that point to arrest both men" (Tr. at 8) and that "even assuming that the defendant's posture [i.e., his leaning into the vehicle] was equivocal, the officer's observations were more than sufficient to support a reasonable suspicion that the defendant was involved in the commission of a crime, thus permitting his temporary detention and a demand for an explanation." (Id.)
On June 21, 1999, Brown was convicted by a jury of grand larceny in the third degree, two counts of criminal possession of stolen property in the third degree, criminal mischief in the third degree, and illegal possession of a VIN for the Mazda. Brown then moved pursuant to New York Criminal Procedure Law § 330.30 to set aside the verdict. He argued that the People's evidence was insufficient to prove that he knew that the Mazda was stolen or that the VIN was illegal. Brown made no argument concerning the value of the vehicles. At sentencing on June 26, 1999, the court denied his application, stating that it "did not feel that any ground [w]as raised . . . which if raised on appeal would require reversal or modification of the judgment as a matter of law." (Sent. Tr. at 2.)
Brown appealed his convictions to the Appellate Division, Second Department, advancing the claims he had made in his § 330.30 motion and an additional claim that the People failed to prove the vehicles were worth more than $3000. The Appellate Division affirmed the convictions on June 17, 2002, finding that the People had met their burden of proof. People v. Brown, 744 N.Y.S.2d 688 (2d Dep't 2002). Leave to appeal was denied on July 31, 2002. People v. Brown, 98 N.Y.2d 695 (2002) (Rooney, J.).
Brown filed the instant petition pursuant to 28 U.S.C. § 2254 on November 6, 2002 in the Southern District of New York. On February 6, 2003, the petition was transferred to this district. In the petition, Brown claims that (1) his arrest was unlawful; (2) the evidence was insufficient to prove that he knew the Mazda was stolen and that it had an illegal VIN; and (3) the evidence was insufficient to convict him of criminal possession of stolen property (i.e., the Mazda) in the third degree. According to Immigration and Customs Enforcement, Brown was deported to Jamaica on January 3, 2004. On April 22, 2004, I directed the government to address (1) whether there is any possibility that Brown will suffer any collateral legal consequences on the basis of the challenged convictions, and thus whether the petition is moot; and (2) the merits of the habeas corpus petition regardless of the government's reliance on mootness.
DISCUSSION
A. The Standard of ReviewThe Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") has narrowed the scope of federal habeas review of state convictions where the state court has adjudicated a petitioner's federal claim on the merits. See 28 U.S.C. § 2254(d). Under the AEDPA standard, which applies to habeas petitions filed after AEDPA's enactment in 1996, the reviewing court may grant habeas relief only if the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). The Supreme Court has interpreted the phrase "clearly established Federal law" to mean "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000); see also Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001).
A decision is "contrary to" clearly established federal law, as determined by the Supreme Court, 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 [the Supreme Court] has on a set of materially indistinguishable facts." Williams, 529 U.S. at 413. A decision is an "unreasonable application" of clearly established Supreme Court law if a state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case." Id. "In other words, a federal court may grant relief when a state court has misapplied a `governing legal principle' to `a set of facts different from those of the case in which the principle was announced.'" Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Lockyer v. Andrade, 538 U.S. 63, 123 S. Ct. 1166, 1175 (2003)).
However, there is "force" to the argument "that if a habeas court must extend a rationale before it can apply to the facts at hand then the rationale cannot be clearly established at the time of the state-court decision"; "[§] 2254(d)(1) would be undermined if habeas courts introduced rules not clearly established under the guise of extensions to existing law." Yarborough v. Alvarado, 124 S. Ct. 2140, 2150-51 (2004). The Supreme Court has concluded, however, that while "the difference between applying a rule and extending it is not always clear," "[c]ertain principles are fundamental enough that when new factual permutations arise, the necessity to apply the earlier rule will be beyond doubt."Id. at 2151.
Under the "unreasonable application" standard set forth inWilliams, "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." Gilchrist, 260 F.3d at 93 (citingWilliams, 529 U.S. at 411); see also Yarborough v. Gentry, 124 S. Ct. 1, 4 (2003) (per curiam) ("Where . . . the state court's application of governing federal law is challenged, it must be shown to be not only erroneous, but objectively unreasonable."); Wiggins, 539 U.S. at 520-21 (same). Interpreting Williams, the Second Circuit has added that although "[s]ome increment of incorrectness beyond error is required . . . 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." Gilchrist, 260 F.3d at 93 (citing Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).
The Supreme Court recently explained that the specificity with which the rule of law at issue is defined may affect whether the state court's determination was "unreasonable":
[T]he range of reasonable judgment can depend in part on the nature of the relevant rule. If a legal rule is specific, the range may be narrow. Applications of the rule may be plainly correct or incorrect. Other rules are more general, and their meaning must emerge in application over the course of time. Applying a general standard to a specific case can demand a substantial element of judgment. As a result, evaluating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case by case determinations.Alvarado, 124 S. Ct. at 2149.
This standard of review applies whenever the state court has adjudicated the federal claim on the merits, regardless of whether it has alluded to federal law in its decision. As the Second Circuit stated in Sellan v. Kuhlman:
For the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.261 F.3d 303, 312 (2d Cir. 2001).
In addition, a state court's determination of a factual issue is presumed to be correct, and is unreasonable only where the petitioner meets the burden of "rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
However, "even in the context of federal habeas, deference does not imply abandonment or abdication of judicial review. . . . A federal court can disagree with a state court's credibility determination and, when guided by AEDPA, conclude the decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence." Shabazz v. Artuz, 336 F.3d 154, 161 (2d Cir. 2003) (ellipsis in original) (quoting Miller-El v. Cockrell, 537 U.S. 322, 123 S. Ct. 1029, 1041 (2003)).
B. Mootness
Brown filed his petition while he was incarcerated, so he meets the "in custody" requirement of 28 U.S.C. § 2254 even though he has since been deported to Jamaica. See Maleng v. Cook, 490 U.S. 488 (1989); Carafas v. LaVallee, 391 U.S. 234 (1968). Nevertheless, federal courts may exercise jurisdiction only over actions that present a live case or controversy. E.g., Spencer v. Kemna, 523 U.S. 1, 7 (1998). To satisfy that requirement, a person who has been removed from the United States must show that he has suffered an "actual injury" that is "traceable to" the removal order and "likely to be redressed by a favorable judicial decision." Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477 (1990). Brown's petition is moot if there is no "possibility that any collateral legal consequences will be imposed [on him] on the basis of the challenged conviction[s]." Sibron v. New York, 392 U.S. 40, 47 (1968). Accordingly, Brown must demonstrate that his challenged convictions impose collateral legal consequences, i.e., concrete or disabling disadvantages.
In Sibron, the Supreme Court held that the mere possibility of a collateral consequence was sufficient to presume as a matter of law that a challenge to a criminal conviction was not moot. 392 U.S. at 54-55. The Court based its holding on the theory that "most criminal convictions do in fact entail adverse legal consequences." Id. at 55. Among the collateral consequences contemplated in Sibron were the use of prior convictions for purposes of impeachment in future criminal trials and increased future sentences. In 1998, however, the Court arguably undermined the Sibron rule that collateral consequences should be presumed, holding that a petitioner who is no longer in physical custody has the burden of demonstrating both that (1) adverse legal consequences have resulted, and will continue to result, from his conviction, and (2) the consequences are concrete rather than conjectural. Spencer, 523 U.S. at 15-16 (potential effect of parole revocation on future sentence too speculative to be considered collateral).
Despite Spencer, the Second Circuit continues to followSibron by presuming the existence of collateral consequences of challenged state convictions. Consequences such as impeachment in future criminal trials and increased future sentences, though admittedly speculative, are sufficiently concrete to be presumed.See Perez v. Greiner, 296 F.3d 123, 125 (2d Cir. 2002). However, the court drew the following distinction:
There is . . . a difference between the possibility of a . . . future crime by someone in the United States and the criminal reentry into the United States of someone excluded for life. Sibron did not contemplate the latter, and we see no reason to stretch Sibron beyond its own terms.Id. at 126 n. 6. In Perez, the petitioner challenged a conviction for robbery in the second degree, an aggravated felony. Id. at 126-27. However, because he had also been convicted of attempted sale of a controlled substance in the third degree, which barred him from the United States, the court held that his "currently challenged robbery conviction [could] have no meaningful effect on his admissibility and hence [could] not serve as a possible collateral consequence." Id. at 126;see also U.S. v. Mercurris, 192 F.3d 290, 294 (2d Cir. 1999).
Brown is situated like the petitioner in Perez. In 1992, Brown was convicted of robbery in the first degree, an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(G). That conviction rendered him deportable and barred him from the United States. Because Brown is barred from reentry on grounds other than the criminal convictions at issue here, the outcome of this proceeding can have no effect on his eligibility for reentry. Perez, 296 F.3d 123; Maragh v. Girdich, No. 02 Civ. 2965, 2003 WL 18484, at *4 (S.D.N.Y. Jan. 2, 2003) (petitioner's permanent statutory bar from reentering the United States was not redressable through a habeas challenge to his deportation proceeding). In short, there is no possibility that Brown will suffer any collateral legal consequences on the basis of the challenged convictions, as he is statutorily barred from reentering the United States regardless of the outcome of this petition. The petition is therefore moot.
In any event, Brown's claims are meritless, as discussed below.
Also, on November 1, 1991, Brown pleaded guilty to robbery in the third degree and was sentenced to five years probation.
See 8 U.S.C. §§ 1182(a)(9)(A)(ii), 1227(a)(2)(A)(iii). Section 1227(a)(2)(A)(iii) states, in relevant part, that "any alien convicted of an aggravated felony at any time after admission is deportable." Section 1182(a)(9)(A)(ii) sets forth the conditions under which aliens are ineligible to receive visas and ineligible to enter the United States:
Any alien who has been ordered removed under section 240 or any other provision of law . . . and who seeks admission within 10 years of the date of such alien's departure or removal (or within 20 years of such date in the case of a second or subsequent removal or at any time in the case of an alien convicted of an aggravated felony) is inadmissible.Id. § 1182(a)(9)(A)(ii) (emphasis added). This section does not apply to an alien seeking admission to the United States "if, prior to the date of the alien's reembarkation at a place outside the United States or attempt to be admitted from foreign contiguous territory, the Attorney General has consented to the alien's reapplying for admission." 8 U.S.C. § 1182(a)(9)(A)(iii).
This case is distinguishable from Swaby v. Ashcroft, 357 F.3d 156 (2d Cir. 2004), where the petitioner was also statutorily barred from reentering the United States. There, the court held that petitioner's deportation did not render his petition moot because (1) he was requesting remand to the Board of Immigration Appeals for a hearing to consider his eligibility for discretionary waiver of deportation pursuant to § 212(c) of the Immigration and Nationality Act, and (2) the basis of his deportation was the aggravated felony conviction that he was challenging.
C. Brown's Claims
1. Unlawful Arrest
Brown claims that his October 27, 1998 arrest violated his Fourth Amendment rights. Under Stone v. Powell, 428 U.S. 465 (1976), a federal habeas court is barred from reviewing the merits of a Fourth Amendment claim so long as the state has provided a petitioner with the opportunity for a full and fair litigation of his claim.
Fourth Amendment claims in habeas petitions [may] be undertaken in only one of two instances: (a) if the state has provided no corrective procedures at all to redress the alleged Fourth Amendment violations; or (b) if the state has provided a corrective mechanism, but the defendant was precluded from using that mechanism because of an unconscionable breakdown in the underlying process.Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992) (citingGates v. Henderson, 568 F.2d 830, 840 (2d Cir. 1977)).
Here, Brown availed himself of New York's corrective procedures and there was no breakdown in that process. A suppression hearing was held and Brown's Fourth Amendment claim was addressed. Therefore, as "New York has a well-established procedure for the resolution of claims of illegal arrest," Mack v. New York, No. 02 CV 441, 2004 WL 444024, at *4 (E.D.N.Y. Mar. 11, 2004) (citing N.Y. Crim. Proc. Law § 710.20), which Brown took full advantage of, I may not review the merits of this claim.
Brown's Fourth Amendment claim is also deficient procedurally. Having failed to raise it on direct appeal, it is unexhausted. Because it is now procedurally barred in state court, the claim must be treated as procedurally defaulted. SeeGrey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991). Brown has shown neither cause nor prejudice for the default, or that a miscarriage of justice would result from the refusal to review his claim.
2. Sufficiency of the Evidence
Brown claims that the evidence at trial was insufficient to convict him of illegal possession of a VIN and criminal possession of stolen property. I address each claim in turn.
A petitioner "challenging the sufficiency of the evidence bears a very heavy burden." Einaugler v. Supreme Court, 109 F.3d 836, 840 (2d Cir. 1997) (quotation marks omitted). A conviction will be upheld if, "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). In making this assessment, a court may neither "disturb the jury's findings with respect to the witnesses' credibility,"United States v. Roman, 870 F.2d 65, 71 (2d Cir. 1989), nor "make credibility judgments about the testimony presented at petitioner's trial or . . . weigh conflicting testimony," Fagon v. Bara, 717 F. Supp. 976, 979 (E.D.N.Y. 1989) (citing United States v. Zabare, 871 F.2d 282, 286 (2d Cir. 1989)). Thus, under this "rigorous standard," a "federal habeas court faced with a record of historical facts that supports conflicting inferences must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution."Wheel v. Robinson, 34 F.3d 60, 66 (2d Cir. 1994) (quotingJackson, 443 U.S. at 326).
a. Illegal Possession of a VIN
A person is guilty of illegal possession of a VIN if the People prove beyond a reasonable doubt that he "knowingly possessed a vehicle . . . to which is attached a vehicle identification label, sticker, or plate or on which is stamped or embossed a vehicle identification number which has been destroyed, covered, defaced, altered or otherwise changed." N.Y. Penal Law § 170.70(2). The People were required to prove that Brown knew that the VIN was illegal. See People v. Von Werne, 41 N.Y.2d 584, 589 (1977) ("A central issue is whether the defendant possessed the requisite knowledge of illegality."). Here, the evidence was sufficient to support a conviction for illegal possession of a VIN.
When Brown was arrested, he was in possession of tools used by car thieves, including ignition cylinders, a hacksaw, a slap hammer, a dent puller, and a pair of gloves. (Tr. at 549.) After Brown was arrested, and the Honda and Mazda were impounded, the police discovered that the Mazda was missing the federal emissions sticker on the driver's side door frame, which would have contained the VIN (id. at 604), and that someone had tampered with the VIN plate in the dashboard (id. at 605). In addition, the original number stamped on the firewall inside the hood of the vehicle had been destroyed. Photos of the dashboard VIN plate were published to the jurors (id. at 755) and provided to them during their deliberations (id. at 1040).
The Appellate Division held that Brown's challenge to the sufficiency of the evidence regarding his conviction for illegal possession of a VIN was without merit. Brown, 744 N.Y.S.2d at 688. That conclusion was not unreasonable. The evidence, viewed in the light most favorable to the prosecution, was sufficient to allow a jury to infer that Brown knew that the VIN was illegal.
b. Criminal Possession of Stolen Property
Finally, Brown contends that the evidence was legally insufficient to support his conviction of criminal possession of stolen property in the third degree, in that the People failed to prove that the Mazda was worth more than $3000, as required by New York Penal Law § 165.50. However, Brown himself testified at trial that he paid approximately $3500 in cash for the vehicle. (Tr. at 792.) In light of this admission, the evidence was certainly sufficient to allow the jury to infer that the Mazda was worth at least $3000.
CONCLUSION
Accordingly, the petition is denied as both moot and meritless. Because Brown has failed to make a substantial showing of a denial of a constitutional right, no certificate of appealability shall issue.
So Ordered.