Opinion
97 Civ. 5673 (MGC)
June 13, 2002
MEMORANDUM OPINION
Jerome Delfyette, a person in custody pursuant to the judgment of a state court, petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition is denied for the reasons that follow.
On March 31, 1994, following a jury trial before Justice Leff of the New York County Supreme Court, petitioner was found guilty on one count of third degree possession of a controlled substance and one count of third degree sale of a controlled substance. Justice Leff sentenced petitioner, as a second felony offender, to concurrent prison terms of eleven to twenty-two years. On January 23, 1996, the Appellate Division, First Department, affirmed the conviction. People v. Delfyette, 636 N.Y.S.2d 782 (1st Dep't 1996). On July 16, 1996, the New York Court of Appeals denied his application for leave to appeal. People v. Delfyette, 88 N.Y.2d 965, 647 N.Y.S.2d 719 (1996).
Petitioner seeks a writ of habeas corpus on the following grounds: (1) the trial judge admitted into evidence a statement made by petitioner even though the government had not notified his counsel of its intent to use the statement at trial, which "deprived him of his due process right to a fair trial"; and (2) his sentence was "excessively harsh." Petitioner's claims are not reviewable on a petition for a writ of habeas corpus in federal court. Section 2254 states in relevant part:
[A] district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.28 U.S.C. § 2254(a). Neither of petitioner's claims presents a federal constitutional issue or a federal law issue.
With respect to his evidentiary claim, petitioner does not argue that the admission of his statement by itself deprived him of due process of law. He complains only that the government failed to notify defense counsel prior to trial, as required by New York Criminal Procedure Law § 710.30(1)(a), of its intention to use the statement. The Appellate Division ruled, as a matter of state law, that the petitioner's statement that he was unemployed was not subject to the requirement of section 710.30(1)(a) because the information constituted "pedigree information," an exception to the notice requirement. Delfyette, 636 N.Y.S.2d at 782. "[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Courts in the Second Circuit have held that an alleged violation of the notice requirement of section 710.30 presents no federal issue cognizable on habeas review. See Cromwell v. Keane, 2002 WL 929536, at *22 n. 33 (S.D.N.Y. May 8, 2002) (and cases cited therein).
Neither does petitioner's claim that his prison sentence was "excessively harsh" present a constitutional issue. "No federal issue is presented where . . . the sentence is within the range prescribed by state law." White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992). Petitioner was convicted of one count of Criminal Sale of a Controlled Substance in the Third Degree pursuant to New York Penal Law § 220.39[1], and one count of Criminal Possession of a Controlled Substance in the Third Degree pursuant to § 220.16[1]. Both counts are class B felonies under New York law. Additionally, the trial judge found petitioner to be a second felony offender within the meaning of Penal Law § 70.06[1]. Sentencing Transcript, at 3-4. The maximum indeterminate sentence that can be given to a second felony offender who commits a class B felony is twelve and one-half to twenty-five years. New York Penal Law § 70.06[3][b]; § 70.06[4][b]. Petitioner's sentence is within the statutory range, and therefore presents no constitutional issue.
For the foregoing reasons, the petition is denied. Petitioner does not show that he is held in custody in violation of the Constitution or laws or treaties of the United States.
Petitioner has not made a showing of violation of federal law on either of his claims. Accordingly, a certificate of appealability is not warranted.
SO ORDERED.