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finding that a rational fact-finder could have found defendant guilty beyond a reasonable doubt despite inconsistencies in the prosecution witnesses' testimony
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02 Civ. 3780 (BSJ) (AJP)
October 21, 2002
REPORT AND RECOMMENDATION
Petitioner Pedro Gutierrez, pro se, seeks a writ of habeas corpus from his March 16, 1998 conviction for attacking James Lewis, a fellow inmate at Riker's Island. (Dkt. No. 1: Pet. ¶¶ 1-6.) After a bench trial in Supreme Court, Bronx County, Gutierrez was found guilty of two counts of first degree assault, one count of second degree assault, and one count of first degree promoting prison contraband. (Id.) Gutierrez's habeas petition alleges that his conviction violated his due process rights because it was "against the weight of the evidence," which the Court liberally construes as also raising an insufficient evidence claim. (See Pet. ¶ 12.)
For the reasons set forth below, Gutierrez's petition should be DENIED.
FACTS
The Prosecution Case
On March 15, 1996, James Lewis, Curtis Chestnut, Dante Callander, Gregory Brooks, and petitioner Pedro Gutierrez were incarcerated in the Central Punitive Segregation Unit ("CPSU") on Riker's Island. (Dkt. No. 5: Sell Aff. Ex. 1: Gutierrez 1st Dep't Br. at 5; see also Brown: Trial Transcript ["Tr."]7.) The CPSU "was a special facility that housed inmates who had engaged in violent attacks upon other inmates while incarcerated." (Gutierrez 1st Dep't Br. at 5.)
The State has been unable to locate portions of the trial and sentencing transcripts. As to the missing portions of the record, the Court will credit Gutierrez's version of the facts, contained in his brief to the First Department. The Court notes that where the trial transcript exists (for Captain Brown and inmate Callander), the summary of the testimony in Gutierrez's First Department Brief was accurate.
References to Exhibits are to the exhibits attached to the Affidavit of Assistant District Attorney Peter A. Sell. (Dkt. No. 5.)
At about 2:25 p.m., Corrections Captain Randolph Brown and Corrections Officers Joseph Shell and Britt brought the five inmates to the recreation yard. Id. Brown: Tr. 7-8.) The men were chained to one another on one long chain known as a "daisy chain." (Id. at 5-6; see also Gutierrez 1st Dep't Br. at 5.) Prior to being put on the daisy chain, each man had been screened with a metal detector and strip-searched. (Gutierrez 1st Dep't Br. at 5; Brown: Tr. 5.)
A. Officer Shell's Testimony
Officer Shell testified that, as the five inmates were led into the recreation yard, they wore leg-irons and were secured by waist chains to which their handcuffs were locked. (Gutierrez 1st Dep't Br. at 5.) After entering the recreation yard, the inmates were unchained from each other. (Id. at 6.) Officer Shell uncuffed inmates Lewis and Brooks and noticed that inmates Chestnut, Gutierrez, and Callander had gathered at the opposite end of the yard. (Id.) Before Officer Shell could uncuff them, Chestnut reached into his jumpsuit and uncuffed inmates Gutierrez and Callander. (Id.) Chestnut was able to accomplish this, even though his hands were cuffed securely to his waistchain, by wiggling so that the waistchain dropped low on his hips, allowing him to reach into his jumpsuit. (Id.) After Chestnut uncuffed Callander, Callander in turn uncuffed Chestnut. (Id.)
Chestnut crossed the yard and struck Lewis with a slashing motion. (Id.) Petitioner Gutierrez and inmate Callander "repeatedly slash[ed] at Lewis with razor blades while Chestnut boxed him in." (Id.) When Lewis broke away, all three men chased Lewis. (Id.) Officer Shell opened the yard gate, allowing Lewis to escape his attackers. (Id.)
After the attack, Officer Shell saw Gutierrez, Callander and Chestnut go to the far end of the yard, re-wrap the one-and-a-half inch razor blades in black electrical tape or clear plastic, squat down, and insert the wrapped razor blades into their rectums, and resecure their handcuffs. (Id. at 6-7.) "Officer Shell testified that Department of Corrections policy prevented anyone, even a doctor, from conducting a procedure to retrieve the contraband" from the inmates' rectums. (Id at 10; see also Ex. 2: State 1st Dep't Br. at 6 n. 13.)
B. Inmate Lewis' Testimony
In contrast to Officer Shell's testimony, inmate Lewis testified that when they entered the recreation yard, all five inmates were handcuffed only in front — none wore leg irons or waist chains. (Gutierrez 1st Dep't Br. at 5-6.) According to Lewis, Callander and Chestnut were handcuffed during the attack, but Gutierrez was not; an open handcuff swung from Gutierrez's left hand. (Id. at 7.)
According to Lewis, he was attacked after twenty minutes in the yard, as follows: Chestnut approached from Lewis' right, Gutierrez from the front, and Callander from the left. (Id.) Each man held a razor blade in his hand. (Id.) Lewis ran between them to the other end of the yard, but the three inmates followed and cornered him. (Id. at 7-8.) When Callander slashed the left side of Lewis' face, Lewis broke away and ran past Gutierrez, who reached for Lewis with a hand and foot and "hit him on the right side of his face with a razor blade." (Id. at 8.) Lewis testified that Gutierrez did not intend to cut him, and only struck at him that one time. (Id.)
After the attack, but before he escaped the yard, Lewis saw Chestnut, Callander, and Gutierrez squat down and put their hands inside their jumpsuits. (Id.) The gate was opened and he escaped the yard. (Id.)
In his "voluntary inmate statement," Lewis claimed that inmates Gutierrez and Brooks "held [him] down" while Callander tried to cut him. (Id.; see also Brown: Tr. 67-68, 79-80.) At trial, however, Lewis admitted that Brooks had nothing to do with the incident and that Lewis was forced to falsely name Brooks by a corrections officer who was angry with Brooks. (Gutierrez 1st Dep't Br. at 8.) Further, Lewis explained at trial that Gutierrez had not literally held Lewis down, but had merely helped Callander in some way, such as by being a lookout or by holding out his foot to trip Lewis. (Id.)
C. Captain Brown's Testimony
Captain Brown offered yet a third version of the slashing. (Id. at 8.) Almost immediately upon entering the yard, Lewis made a jerking motion as if to push away from Chestnut, and inmates Chestnut and Brooks began to chase him in a circle around the yard. (Brown: Tr. 8-9, 12, 14; see also Gutierrez 1st Dep't Br. at 9.) Gutierrez and Callander reached into their jumpsuits, pulled something out, and unlocked their own handcuffs. (Brown: Tr. 9, 15; see also Gutierrez 1st Dep't Br. at 9.) As Lewis ran around the yard, Chestnut cut him off, and Callander and Gutierrez pursued Lewis, "striking" at him with slashing motions. (Brown: Tr. 9-10, 14-15, 51; see also Gutierez 1st Dep't Br. at 9.) Captain Brown, however, did not see anything in Gutierrez's hand, and could not determine from his position whether or not Gutierrez actually "touched" Lewis. (Brown: Tr. 51-52, 63-65.) After the attack, Gutierrez and Callander "were somehow able to recuff themselves with the mechanical restraints and they stayed in the corner." (Brown: Tr. 11; see also Gutierrez 1st Dep't Br. at 9.) Captain Brown ordered Officer Shell to open the gate so Lewis could leave the yard. (Brown: Tr. 11; see also Gutierrez 1st Dep't Br. at 9.) Lewis "had a gash on the right side of his face," and also "there were cuts and gashes in the back of his jumpsuit." (Brown: Tr. 11; see also Gutierrez 1st Dep't Br. at 9.)
D. Trial Evidence About the Post-Incident Searches and Reports
After the incident, Officer Shell informed the "probe team" captain that he had seen three inmates insert razor blades and a handcuff key into their rectums. (Gutierrez 1st Dep't Br. at 9.) At the Captain's request, Officer Shell searched the yard for weapons and keys, but found nothing. (Id. at 9-10; see also Brown Tr. 34, 39, 44, 81; Ex. 2: State 1st Dep't Br. at ¶ n. 13.) Moreover, although each inmate was stripped naked, ordered to walk through a free-standing metal detector, and probed with a hand-held metal detector, no contraband was detected. (Gutierrez 1st Dep't Br. at 10; Brown: Tr. 35, 38, 44, 81.) Officer Shell testified that the metal detectors "were not advanced enough to pick up wrapped metal objects inserted inside an inmate's rectum." (Gutierrez 1st Dep't Br. at 10.) As noted above, prison officials could not conduct intrusive searches in inmates' rectums. (See page 3 above.)
Captain Brown interviewed all of the officers and inmates who were in the yard at the time of the incident, and reported orally to the assistant deputy warden on the day of the incident. (Brown: Tr. 26, 34, 45, 77.) Subsequently, Captain Brown received written reports from the four officers on duty: Shell, Britt, Mentos, and Smith. (Id. at 27-28.) On March 28, Captain Brown wrote and submitted his own incident report along with the reports he received from the four officers. (Id. at 23-25, 27.)
Misbehavior reports were issued to the inmates in the yard. Brooks and Callander were charged with fighting with a weapon and refusing to obey orders to stop fighting. (Brown: Tr. 54-55, 58-59, 61-62, 74-76, 78.) By contrast, the misbehavior reports charged Gutierrez and Chestnut only with fighting with Lewis. (Id. at 49-50, 60-62, 72-73; see also Gutierrez 1st Dep't Br. at 11.) Officer Shell testified that the discrepancy in accusations resulted from Officer Mentos' inexperience with writing reports. (Gutierrez 1st Dep't Br. at 11.) According to Officer Shell's testimony, Officer Mentos did not realize that, even though an inmate could not be charged with fighting with a weapon if no weapon was recovered, he could be charged with fighting with a weapon if an injury was sustained. (Id.) According to Officer Shell, this explained why Officer Mentos did not accuse Gutierrez of fighting with a weapon, while Officers Shell and Smith, who were more experienced, accused inmates Callander and Brooks of fighting with a weapon. (Id. at 11-12.)
Officer Shell also testified that he submitted a misbehavior report (written by another corrections officer) accusing Brooks of fighting with a weapon, even though Officer Shell knew that Brooks had nothing to do with the incident. (Id. at 12) The Defense Case
In addition, Officer Shell testified that, because no contraband was ultimately recovered, he did not state in his report that he saw the inmates secreting contraband in their rectums. (Id. at 11.)
Inmate Dante Callander testified that he previously pleaded guilty to second degree assault for slashing Lewis on the day in question. (Callander: Tr. 103-04; see also Gutierrez 1st Dep't Br. at 12.). According to Callander, Lewis previously had thrown feces on him, they got into an argument in the morning before they were taken to the recreation yard, and Callander told Lewis that "if he went into the yard, they would get it on." (Callander: Tr. 105-08; see also Gutierrez 1st Dep't Br. at 12-13.) Although Callander told Officer Shell that he and Lewis were "going to get [it] on," Officer Shell only warned him not to say anything because the captain might overhear. (Callander: Tr. 109-10; see also Gutierrez 1st Dep't Br. at 13.)
Inmate Chestnut also pleaded guilty to second degree assault. (Ex. 2: State 1st Dep't Br. at 3 n. 1.)
On the morning of the incident, before entering the yard, Callander gave inmate Chestnut one razor blade and kept one for himself. (Callander: Tr. 109, 132-33; see also Gutierrez 1st Dep't Br. at 12.) Callander testified that these types of shaving razor blades do not set off the search monitors. (Id. at 109.) The officers who searched Callander before he entered the yard did not "stress" him by conducting a thorough search; Callander simply held the razor blade in his hand as he was searched. (Callander: Tr. 121-22, 132; see also Gutierrez 1st Dep't Br. at 13.) Callander did not know how Chestnut avoided detection during the pre-yard search. (Callander: Tr. 132-34; see also Gutierrez 1st Dep't Br. at 13.)
Once in the recreation yard, Callander began walking around in search of an opportunity to attack Lewis. (Callander: Tr. 110; see also Gutierrez 1st Dep't Br. at 13.) Officer Shell called him over and asked him to give him his hand. (Callander: Tr. 111; see also Gutierrez 1st Dep't Br. at 13.) Callander, who was afraid of being caught with the razor, opened only one hand and told Officer Shell that "he ain't doing nothing, . . . ain't got nothing." (Callander: Tr 111; see also Gutierrez 1st Dep't Br. at 13.) However, instead of searching him, Officer Shell handed him a handcuff key. (Callander: Tr. 111; see also Gutierrez 1st Dep't Br. at 13.) Callander went to the far end of the yard and opened his own handcuffs. (Callander: Tr. 111; see also Gutierrez 1st Dep't Br. at 13.) He was the only uncuffed inmate in the yard. (Callander: Tr. 116, 119; see also Gutierrez 1st Dep't Br. at 13.)
Callander approached Lewis and slashed the right side of his face. (Callander: Tr. 112; see also Gutierrez 1st Dep't Br. at 14.) Lewis turned and ran, and Callander chased him, slicing at his back from behind. (Callander: Tr. 113, 139-40; see also Gutierrez 1st Dep't Br. at 14.) Lewis ran toward Gutierrez and some of the other inmates, who moved aside to let them pass, but Callander was able to trip Lewis from behind. (Callander: Tr. 113, 140-41, 150; see also Gutierrez 1st Dep't Br. at 14.) Lewis fell, but was able to get up and run back toward the gate, which the officers opened for his escape. (Callander: Tr. 113-14, 140-42; see also Gutierrez 1st Dep't Br. at 14.) Before Lewis escaped, Callander managed to cut his face and back. (Callander: Tr. 131, 147; see also Gutierrez 1st Dep't Br. at 14.) Callander dropped the razor and handcuff key through the metal fence around the yard, but cannot explain why they were not found by the probe team's search. (Callander: Tr. 114-16, 132, 137; see also Gutierrez 1st Dep't Br. at 14.)
Callander testified that he had never associated with Gutierrez before the slashing and that Gutierrez was not involved in the slashing in any way. (Callander: Tr. 118-20, 122-24, 154, 158-59, 163; see also Gutierrez 1st Dep't Br. at 14.) But on cross-examination, Callander admitted that when he pled guilty to acting in concert assault on Lewis, he said Chestnut and others were involved. (Callander: Tr. 164-68.)
Verdict and Sentence
Gutierrez was convicted on March 16, 1998 of two counts of first degree assault, one count of second degree assault, and one count of first degree promoting prison contraband. (Gutierrez 1st Dep't Br. at 16.) All counts were based on an acting in concert theory. (See e.g., Tr. 174, 176-78, 192-93; see also Ex. 2: State 1st Dep't Br. at 3.) Gutierrez was sentenced to eight years on each first degree assault count, five years on the second degree assault count, and five years on the prison contraband count, to be served concurrently with each other but consecutive to the sentence Gutierrez was serving when the prison assault on Lewis took place. (Gutierrez 1st Dep't Br. at 16.)
The trial judge, as factfinder, found Callander had a motive to help Gutierrez while crediting victim Lewis' and Captain Brown's testimony:
The court also had "difficulty in crediting" Callander's testimony because he was a co-conspirator with motive to "help out the defendant." The court did, however, credit Mr. Lewis's testimony and, notwithstanding the inconsistencies in the testimony of Captain Brown and Officer Shell, it credited their testimony at least insofar as the court was convinced that Mr. Gutierrez acted in concert with two other inmates to slash Mr. Lewis.
The court also found beyond a reasonable doubt that Mr. Gutierrez actually possessed a weapon and inflicted wounds on Mr. Lewis.
(Gutierrez 1st Dep't Br. at 15-16, record citations omitted.)
Direct Appeal
Represented by counsel, Gutierrez appealed to the First Department on due process grounds alleging, inter alia that his conviction was against the weight of the evidence because it: (1) was based on patently incredible testimony that handcuffed inmates in a punitive maximum security facility produced razor blades and handcuff keys from their rectums, slashed the victim in an exercise yard, and then re-inserted those objects into their rectums before correction officers could intervene, especially where the inmates had no hint of rectal injuries and the Department of Corrections never recovered the razor blades; (2) depended on the testimony of a corrections officer who knowingly submitted false reports of the incident; and (3) ignored the far simpler and more plausible testimony of the inmate who orchestrated the attack. (Gutierrez 1st Dep't Br. at 17-24.)
On December 12, 2000, the First Department unanimously affirmed Gutierrez's conviction, holding in full that: "The verdict was not against the weight of the evidence. There is no basis upon which to disturb the court's determinations concerning credibility." People v. Gutierrez, 278 A.D.2d 58, 59, 717 N.Y.S.2d 527, 527 (1st Dep't 2000). The New York Court of Appeals denied leave to appeal on March 14, 2001,People v. Gutierrez, 96 N.Y.2d 784, 725 N.Y.S.2d 648 (2001), and denied reconsideration on May 8, 2001, People v. Gutierrez, 96 N.Y.2d 830, 729 N.Y.S.2d 450 (2001).
Gutierrez's Federal Habeas Petition
Gutierrez's timely-filed federal habeas corpus petition, dated April 16, 2002 and received by this Court's Pro Se Office on April 22, 2002 (Dkt. No. 1: Pet. at 2, 7), raises the same claims that Gutierrez raised before the First Department (Pet. ¶ 12).
On September 10, 2002 this Court directed Gutierrez to state whether his claim went to the weight or the sufficiency of the evidence:
Petitioner Gutierrez is to state, in writing, by September 27. 2002, whether his habeas claim goes to: (a) the weight of the evidence or [(b)] the sufficiency of the evidence. If the Court does not hear from Mr. Gutierrez by September 27, 2002, it will construe his habeas claim as going to the weight of the evidence.
(Dkt. No. 6: 9/10/02 Order, emphasis in original.) Although Gutierrez submitted a "Traverse" to the State's papers on September 24, 2002, Gutierrez never responded to the Court's Order. This Court could thus construe his claim as going only to the weight of the evidence — a claim that is not cognizable on federal habeas review. (See Point I below.) Construing Gutierrez's pro se petition liberally "to raise the strongest arguments that [it] suggest[s]," McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999), the Court treats his petition as stating claims going to both the weight and the sufficiency of the evidence See e.g., Lemons v. Parrott, 01 Civ. 9366, 2002 WL 850028 at *3 (S.D.N.Y. May 2, 2002) (noting that the weight of the evidence is not cognizable on habeas review, but construing the claim liberally "under the related claim of insufficiency of the evidence[,]" which may be considered.); McBride v. Senkowski, 98 Civ. 8663, 2002 WL 523275 at *4 n. 2 (S.D.N.Y. Apr. 8, 2002) (same); Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *7 (S.D.N.Y. July 19, 2000) (Peck, M.J.) (same).
ANALYSIS I. GUTIERREZ'S WEIGHT OF THE EVIDENCE CLAIM IS NOT COGNIZABLE ON HABEAS REVIEW
For a discussion of the AEDPA review standard, see, e.g., Velazquez v. Murray, 02 Civ. 2564, 2002 WL 1788022 at *12-15 (S.D.N.Y. Aug. 2, 2002) (Peck, M.J.) ( cases cited therein).
A challenge to a verdict based on the weight of the evidence differs from one based on the sufficiency of the evidence: "[T]he 'weight of the evidence' argument is a pure state law claim grounded in New York Criminal Procedure Law § 470.15(5), whereas a legal sufficiency claim is based on federal due process principles." Garbez v. Greiner, 01 Civ. 9865, 2002 WL 1760960 at *8 (S.D.N.Y. July 30, 2002) (citing People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761 (1987)).
The Bleakley Court explained the difference as follows:
Although the two standards of intermediate appellate review — legal sufficiency and weight of evidence — are related, each requires a discrete analysis. For a court to conclude . . . that a jury verdict is supported by sufficient evidence, the court must determine whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial and as a matter of law satisfy the proof and burden requirements for every element of the crime charged. If that is satisfied, then the verdict will be upheld by the intermediate appellate court on that review basis.
To determine whether a verdict is supported by the weight of the evidence, however, the appellate court's dispositive analysis is not limited to that legal test. Even if all the elements and necessary findings are supported by some credible evidence, the court must examine the evidence further. If based on all the credible evidence a different finding would not have been unreasonable, then the appellate court must, like the trier of fact below, "weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony."People v. Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d at 763 (citations omitted).
It is well-settled that a weight of the evidence claim is not cognizable on federal habeas review. E.g., Young v. Kemp, 760 F.2d 1097, 1105 (11th Cir. 1985) ("A federal habeas court has no power to grant habeas corpus relief because it finds that the state conviction is against the weight' of the evidence. . ."), cert. denied, 476 U.S. 1123, 106 S.Ct. 1991 (1986); Ex parte Craig, 282 F. 138, 148 (2d Cir. 1922) ("a writ of habeas corpus cannot be used to review the weight of evidence. . ."), aff'd, 263 U.S. 255, 44 S.Ct. 103 (1923); Garbez v. Greiner, 2002 WL 1760960 at *8 ("by raising a 'weight of the evidence' argument, [petitioner] does not present to this Court a federal claim as required by 28 U.S.C. § 2254 (a). Instead, [petitioner] raises an error of state law, which is not available for habeas corpus review.");Lemons v. Parrott, 01 Civ. 9366, 2002 WL 850028 at *3 (S.D.N.Y. May 2, 2002) ("[W]e have no authority to review a weight of the evidence argument because it is a state law claim."); McBride v. Senkowski, 98 Civ. 8663, 2002 WL 523275 at *4 n. 2 (S.D.N.Y. Apr. 8, 2002) (weight of evidence is not cognizable on habeas review); Correa v. Duncan, 172 F. Supp.2d 378, 381 (E.D.N.Y. 2001) ("'weight of the evidence' argument is a pure state law claim grounded in New York Criminal Procedure Law § 470.15(5), whereas a legal sufficiency claim is based on federal due process principles. Accordingly, the Court is precluded from considering the [weight of the evidence] claim.") (citations omitted); Peralta v. Bintz, 00 Civ. 8935, 2001 WL 800071 at *5 (S.D.N.Y. July 16, 2001) (Petitioner "raises only the state law issue of whether the weight of the evidence supported his conviction. Because [petitioner] raises no cognizable federal issue, his petition must be denied."); Kearse v. Artuz, 99 Civ. 2428, 2000 WL 1253205 at *1 (S.D.N.Y. Sept. 5, 2000) ("Disagreement with a jury verdict about the weight of the evidence is not grounds for federal habeas corpus relief."); Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *7-8 (S.D.N.Y. July 19, 2000) (Peck, M.J.); Rodriguez v. O'Keefe, 96 Civ. 2094, 1996 WL 428164 at *4 (S.D.N.Y. July 31, 1996) ("A claim that the verdict was against the weight of the evidence is not cognizable on habeas review."), aff'd, No. 96-2699, 122 F.3d 1057 (table) (2d Cir. Sept. 9, 1997), cert. denied, 522 U.S. 1123, 118 S.Ct. 1068 (1998); see also, e.g., Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996) (dismissing habeas claim; "assessments of the weight of the evidence or the credibility of witnesses are for the jury and not grounds for reversal on appeal; we defer to the jury's assessments of both of these issues").
Gutierrez's weight of the evidence habeas claim therefore should be denied.
II. GUTIERREZ'S SUFFICIENCY OF THE EVIDENCE CLAIM SHOULD BE DENIED A. Legal Principles Governing Sufficiency of the Evidence Habeas Claims
For additional decisions authored by this Judge discussing the sufficiency of the evidence standard in habeas cases in language substantially similar to this section of this Report Recommendation, see Ibarra v. Burge, 02 Civ. 0825, 2002 WL 1467756 at *4-5 (S.D.N.Y. July 9, 2002) (Peck, M.J.); Cromwell v. Keane, 98 Civ. 0013, 2002 WL 929536 at *13-14 n. 17 (S.D.N.Y. May 8, 2002) (Peck, M.J.); Jamison v. Grier, 01 Civ. 6678, 2002 WL 100642 at *9-10 (S.D.N.Y. Jan. 25, 2002) (Peck, M.J.); Ferguson v. Walker, 00 Civ. 1356, 2001 WL 869615 at *4 (S.D.N.Y. Aug. 2, 2001) (Peck, M.J.), report rec. adopted, 2002 WL 31246533 (S.D.N.Y. Oct. 7, 2002); Simpson v. Portuondo, 01 Civ. 1379, 2001 WL 830946 at *7 (S.D.N.Y. July 12, 2001) (Peck, M.J.); Simmons v. Mazzuca, 00 Civ. 8174, 2001 WL 537086 at *6 (S.D.N.Y. May 21, 2001) (Peck, M.J.); Jones v. Duncan, 162 F. Supp.2d 204, 214-15 (S.D.N.Y. 2001) (Peck, M.J.); Cassells v. Ricks, 99 Civ. 11616, 2000 WL 1010977 at *5 (S.D.N.Y. July 21, 2000) (Peck, M.J.); Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *7 (S.D.N.Y. July 19, 2000) (Peck, M.J.);Roldan v. Artuz, 78 F. Supp.2d 260, 266-67 (S.D.N.Y. 2000) (Batts, D.J. Peck, M.J.); Estrada v. Senkowski, 98 Civ. 7796, 1999 WL 1051107 at *14 (S.D.N.Y. Nov. 19, 1999) (Pauley, D.J. Peck, M.J.); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *25 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); Jones v. Strack, 99 Civ. 1270, 1999 WL 983871 at *12 (S.D.N.Y. Oct. 26, 1999) (Peck, M.J.); Franza v. Stinson, 58 F. Supp.2d 124, 137 (S.D.N.Y. 1999) (Kaplan, D.J. Peck, M.J.);Carromero v. Strack, 98 Civ. 3519, 1998 WL 849321 at *4 (S.D.N.Y. Nov. 19, 1998) (Preska, D.J. Peck, M.J.); Fernandez v. Dufrain, 11 F. Supp.2d 407, 416 (S.D.N.Y. 1998) (Kaplan, D.J. Peck, M.J.);Williams v. Bennet, 97 Civ. 1628, 1998 WL 236222 at *4 (S.D.N.Y. Apr. 20, 1998) (Baer, D.J. Peck, M.J.); Robinson v. Warden of James A. Thomas Ctr., 984 F. Supp. 801, 805 (S.D.N.Y. 1997) (Sprizzo, D.J. Peck, M.J.); Ehinger v. Miller, 942 F. Supp. 925, 935 (S.D.N.Y. 1996) (Mukasey, D.J. Peck, M.J.); Vera v. Hanslmaier, 928 F. Supp. 278, 284 (S.D.N.Y. 1996) (Jones, D.J. Peck, M.J.).
"'[T]he Due Process Clause of the Fourteenth Amendment protects a defendant in a criminal case against conviction 'except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.'" Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 2787 (1979) (quoting In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073 (1970)). However, "a properly instructed jury may occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. at 317, 99 S.Ct. at 2788. Accordingly, "in a challenge to a state criminal conviction brought under 28 U.S.C. § 2254 — if the settled procedural prerequisites for such a claim have otherwise been satisfied — the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. at 324, 99 S.Ct. at 2791-92.
Accord, e.g., fama v. Commissioner of Corr. Servs., 235 F.3d 804, 811 (2d Cir. 2000); Einaugler v. Supreme Court, 109 F.3d 836, 839 (2d Cir. 1997).
Petitioner Gutierrez bears a very heavy burden:
[T]he standard for appellate review of an insufficiency claim placed a "very heavy burden" on the appellant. Our inquiry is whether the jury, drawing reasonable inferences from the evidence, may fairly and logically have concluded that the defendant was guilty beyond a reasonable doubt. In making this determination, we must view the evidence in the light most favorable to the government, and construe all permissible inferences in its favor.United States v. Carson, 702 F.2d 351, 361 (2d Cir.) (citations omitted), cert. denied, 462 U.S. 1108, 103 S.Ct. 2456, 2457 (1983).
Accord, e.g., v. Commissioner of Corr. Servs., 235 F.3d at 811 ("petitioner bears a very heavy burden in convincing a federal habeas court to grant a petition on the grounds of insufficiency of the evidence"); United States v. Middlemiss, 217 F.3d 112, 117 (2d Cir. 2000); United States v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000) ("a defendant shoulders a "heavy burden' in challenging the sufficiency of evidence supporting a conviction"); United States v. Kinney, 211 F.3d 13, 16 (2d Cir. 2000), cert. denied, 531 U.S. 1079, 121 S.Ct. 778 (2001);United States v. Bicaksiz, 194 F.3d 390, 398 (2d Cir. 1999) (The defendant "bears a very heavy burden' in challenging the sufficiency of the evidence that led to his conviction. In considering any such challenge, we view all proof in the light most favorable to the government and draw all reasonable inferences in the government's favor.") (citations omitted), cert. denied, 528 U.S. 1161, 120 S.Ct. 1175 (2000); United States v. Russo, 74 F.3d 1383, 1395 (2d Cir.), cert. denied, 519 U.S. 927, 117 S.Ct. 293 (1996); United States v. Rosa, 11 F.3d 315, 337 (2d Cir. 1993) ("[T]he defendant who makes a sufficiency challenge bears a heavy burden."), cert. denied, 511 U.S. 1042, 1096, 114 S.Ct. 1565, 1864 (1994); United States v. Strauss, 999 F.2d 692, 696 (2d Cir. 1993) (burden on defendant claiming insufficiency is "very heavy" and all inferences must be drawn in the government's favor).
The habeas court's review of the jury's findings is limited:
[T]his inquiry does not require a court to "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Instead, the relevant question 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. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.Jackson v. Virginia, 443 U.S. at 318-19, 99 S.Ct. at 2789 (citations omitted).
Accord, e.g., United States v. Middlemiss, 217 F.3d at 117; United States v. Kinney, 211 F.3d at 16; United States v. Russo, 74 F.3d at 1395 (quoting United States v. Martinez, 54 F.3d 1040, 1042-43 (2d Cir.),cert. denied, 516 U.S. 1001, 116 S.Ct. 545 (1995)); Mallette v. Scully, 752 F.2d 26, 31 (2d Cir. 1984).
The Jackson v. Virginia "standard must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law." Jackson v. Virginia, 443 U.S. at 324 n. 16, 99 S.Ct. at 2792 n. 16; accord, e.g., Green v. Abrams, 984 F.2d 41, 44-45 (2d Cir. 1993) ("In considering a petition for a writ of habeas corpus based on insufficient evidence to support a criminal conviction in the state courts, a federal court must look to state law to determine the elements of the crime.").
B. The Evidence Was Legally Sufficient to Support Gutierrez's Conviction
Gutierrez was convicted of two counts of first degree assault, one count of second degree assault, and one count of first degree promoting prison contraband.
"A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person . . . by means of a deadly weapon or dangerous instrument; or (2) With intent to disfigure another person seriously and permanently, or to destroy, amputate or disable permanently a member or organ of his body, he causes such injury to such person. . . ." Penal Law §§ 120.10(1)-(2). "A person is guilty of assault in the second degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person . . .; or (2) with intent to cause physical injury to another person, he causes such injury to such person . . ., by means of a deadly weapon or a dangerous instrument; or. . . (7) Having been charged with or convicted of a crime and while confined in a correctional facility, . . . with intent to cause physical injury to another person, he causes such injury to such person. . . ." Penal Law §§ 120.05(1)-(2), (7). "A person is guilty of promoting prison contraband in the first degree when: . . . (2) Being a person confined in a detention facility, he knowingly and unlawfully makes, obtains or possesses any dangerous contraband." Penal Law § 205.25(2).
Viewing the evidence in the light most favorable to the prosecution, a rational factfinder could have found Gutierrez guilty beyond a reasonable doubt. In the light most favorable to the prosecution, the evidence showed that Gutierrez acted in concert with Callander and Chestnut to attack Lewis, cutting Lewis' face and back, leaving him scarred. (See Ex. 2: State 1st Dep't Br. at 14; see also pages 2-7 above.) Despite inconsistencies, Officer Shell, Captain Brown, and inmate Lewis all testified that Gutierrez slashed at Lewis with a razor blade. (See pages 2-5 above.) Here, as in prior cases, the factfinder's "'decision was largely a matter of choosing whether to believe [the defense's] version of the events or to believe the version offered by the State. The [factfinder] chose to believe the State's witnesses. . . . We cannot say that no rational [factfinder] could have found guilt beyond a reasonable doubt on all the evidence.'" Jamison v. Grier, 01 Civ. 6678, 2002 WL 100642 at *12 (S.D.N.Y. Jan. 25, 2002) (Peck, M.J.) (quoting Gruttola v. Hammock, 639 F.2d 922, 928 (2d Cir. 1981)); see cases cited at page 14 n. 7 above.
See also, e.g., Garcia v. Warden. Dannemore Corr. Facility, 795 F.2d 5, ¶ (2d Cir. 1986) ("When the evidence, which we have merely highlighted, is viewed in the light most favorable to the State, it cannot be said that no rational trier of the fact could have found petitioner guilty beyond a reasonable doubt."); Ruiz v. Artuz, 99 Civ. 4476, 2002 WL 31045856 at *6 (S.D.N.Y. Jun. 13, 2002) ("Although there certainly was other evidence from which the jury could have concluded that [petitioner] was not guilty, the prosecution's case was unquestionably sufficient to sustain [petitioner's] conviction."); Huber v. Schriver, 140 F. Supp.2d 265, 277 (E.D.N.Y. 2001) ("[M]ost of petitioner's argument rests on the suggestion that the eyewitness testimony was not credible and should not have been given enough weight to result in his conviction. Petitioner specifically asserts that the testimony of the defense witnesses was more credible than that of [named witness] and the other prosecution witnesses. . . . However, under . . . federal law, issues of credibility, as well as the weight to be given to evidence, are questions to be determined by the jury. . ."); Fagon v. Bara, 717 F. Supp. 976, 979 (E.D.N.Y. 1989) (habeas court "is not free to make credibility judgments about the testimony presented at petitioner's trial or to weigh conflicting testimony"); Milton v. Riley, No. 88 CV 2848, 1988 WL 140663 at *1 (E.D.N.Y. Dec. 16, 1988) (McLaughlin, D.J.) ("Questions of credibility, however, are not cognizable in a federal habeas corpus proceeding.").
The fact that there were inconsistencies in the prosecution witnesses' testimony does not change the result. See, e.g., United States v. Vasquez, 267 F.3d 79, 91 (2d Cir. 2001) ("The jury chose to believe the witnesses' testimony despite any inconsistencies. We will defer to the jury's assessment of credibility."), cert. denied, 122 S.Ct. 1111 (2002); Gruttola v. Hammock, 639 F.2d at 928 (rejecting insufficiency claim, holding that jury was entitled to believe prosecution witnesses despite inconsistencies in their testimony); United States v. Danzey, 594 F.2d 905, 916 (2d Cir.) ("[T]he testimony of a single, uncorroborated eyewitness is generally sufficient to support a conviction."), cert. denied, 441 U.S. 951, 99 S.Ct. 2179 (1979); Means v. Barkley, 98 Civ. 7603, 2000 WL 5020 at *4 (S.D.N.Y. Jan. 4, 2000) ("The testimony of a single uncorroborated witness is sufficient to achieve a showing of guilt beyond a reasonable doubt . . . even if that witness's testimony is less than entirely consistent. . . . The alleged inconsistencies in [witness's] description of [petitioner's] earring and facial hair are insufficient to undermine [witness's] testimony.") (citations omitted).
See also, e.g., Jamison v. Grier, 2002 WL 100642 at *12-13 (inconsistencies in witness testimony does not make evidence insufficient); Simpson v. Portuondo, 01 Civ. 1379, 2001 WL 830946 at *9 (S.D.N.Y. Jul.12, 2001) (Peck, M.J.); Carromero v. Strack, 98 Civ. 3519, 1998 WL 849321 at *5 (S.D.N.Y. Nov. 19, 1998) (Preska, D.J. Peck, M.J.) (evidence sufficient where jury credited prosecution witnesses' testimony "despite some inconsistencies between their trial testimony and prior statements to the police and to the grand jury"); Davis v. Senkowski, No. 97-CV-2328, 1998 WL 812653 at *5 (E.D.N.Y. Aug. 6, 1998) ("The jury here chose to believe [the prosecution witness]'s testimony despite any inconsistencies in the evidence, and I will not reassess that decision."); Williams v. Bennet, 97 Civ. 1628, 1998 WL 236222 at *5 (S.D.N.Y. Apr. 20, 1998) (Baer, D.J. Peck, M.J.) ("Williams relies on inconsistencies in his victim's trial testimony as compared to her statements to the police, the District Attorney's office and before the grand jury. These inconsistencies were placed before the jury by the defense, which made them a central focus of its case. The jury's decision to credit [the victim]'s testimony, despite its inconsistencies, over Williams' testimony, is fully supported by the record."); Taxiarhopolous v. Spence, No. CV 92-0790, 1992 WL 403112 at *4 (E.D.N.Y. Dec. 28, 1992) (The petitioner "cannot show that the evidence was insufficient to support conviction. For example, he challenges the credibility of the main prosecution witness . . ., pointing to alleged inconsistencies in his testimony. This, however, was an argument made to, and properly resolved by, the trial jury.").
Gutierrez asserts three arguments as to why the evidence was insufficient to prove that he slashed Lewis.
First, he claims that his conviction "was based on patently incredible testimony that handcuffed inmates in a punitive maximum-security facility for violent prisoners produced razor blades and hand cuff keys from their rectums, slashed the victim in an exercise yard, and then reinserted those objects into their rectums before corrections officers could intervene, especially where the inmates had no hint of rectal injuries and the department of corrections was never able to recover those dangerous objects from the inmates." (Gutierrez 1st Dep't Br. at 17; see also id. at 17-21.) Yet, Gutierrez's own witness, Donato Callander, testified that inmates carried razors in their rectums to prevent detection. (Callander: Tr. 137-39.) Testimony that inmates produced razor blades from their prison jumpsuits — whether hidden in their rectums or otherwise — is not incredible as a matter of law.See, e.g., Richardson v. Castro, No. 97 CV 3772, 1998 WL 205414 at *1 (E.D.N.Y. Apr. 24, 1998) (when corrections officer "ordered [inmate] to remove any contraband in his possession . . . [inmate] removed a straight edge razor from his anus"); People v. Clark, 284 A.D.2d 725, 726, 728 N.Y.S.2d 528, 529 (3d Dep't 2001) (inmate slashed the face of fellow inmate "then secreted the blade in his rectum, where it was later recovered"); People v. Wright, 283 A.D.2d 883, 883, 726 N.Y.S.2d 484, 485 (3d Dep't) ("razor blade wrapped in electrical tape secreted between [inmate's] buttocks" discovered during strip frisk), leave denied, 96 N.Y.2d 909, 730 N.Y.S.2d 807 (2001); People v. Rosario, 262 A.D.2d 802, 802, 693 N.Y.S.2d 648, 649 (3d Dep't) ("strip search . . . disclosed that [inmate] had secreted in his anal cavity a single-edged razor blade, wrapped in cardboard, secured with electrical tape and encased in a latex glove"), leave denied, 93 N.Y.2d 1026, 697 N.Y.S.2d 585 (1999); Mojica v. Goord, 262 A.D.2d 1002, 1002, 693 N.Y.S.2d 365, 366 (4th Dep't) (frisk revealed razor blade sheath in petitioner's rectum), leave denied, 94 N.Y.2d 752, 700 N.Y.S.2d 426 (1999), cert. denied, 529 U.S. 1039, 120 S.Ct. 1536 (2000); Figueroa v. Lacy, 260 A.D.2d 765, 766, 688 N.Y.S.2d 721, 722 (3d Dep't 1999) (x-ray of petitioner's rectum revealed a metal object resembling a razor blade wrapped in a sheath); Young v. Coombe, 227 A.D.2d 799, 800, 642 N.Y.S.2d 443, 444 (3d Dep't 1996) (although petitioner did not trigger the prison metal detector, "a round of live ammunition, a handcuff key and an encased razor blade were removed from petitioner's anus" in the hospital).
The relevant issue is whether Gutierrez used a razor to assault Lewis, not how the inmates managed to secrete the razors or what they did with them after the incident. Indeed, Gutierrez's own witness, Callander, testified that he and Chestnut attacked Lewis with secreted razor blades, even though correction officers failed to recover the weapons. (Callander: Tr. 112-13.)
See also, e.g., United States v. Tokash, 282 F.3d 962, 965 (7th Cir.) ("x-ray and digital examinations revealed that five inmates had concealed weapons, steel or plastic knives, in their rectal cavities"),cert. denied, 122 S.Ct. 2344 (2002); Dawes v. Antoine, 89 Civ. 5303, 1992 WL 204365 at *3 (S.D.N.Y. Aug. 10, 1992) (after a negligent frisking by a corrections officer, an inmate attacked a fellow inmate with a razor blade that he hid in his mouth); Culbreath v. Selsky, 286 A.D.2d 817, 817, 730 N.Y.S.2d 258, 259 (3d Dep't 2001) (weapon possession charge was "based upon the discovery of a sharpened metal object in petitioner's rectum"); Folk v. Coombe, 232 A.D.2d 683, 683, 647 N.Y.S.2d 1014, 1014 (3d Dep't 1996) ("strip search disclosed that [inmate] had secreted a sharpened metal bolt in his anus").
Second, Gutierrez argues that his conviction "depended on the testimony of a corrections officer who knowingly submitted false reports of the incident." (Gutierrez 1st Dep't Br. at 17; see also id. at 21-22.) Officer Shell testified that he submitted a misbehavior report (apparently written by another corrections officer) accusing inmate Brooks of fighting with a weapon, even though Officer Shell knew that Brooks had nothing to do with the incident. (Id. at 11-12, 21-22.) This argument only goes to Officer Shell's credibility, a question on which the habeas court must defer to the factfinder. (See cases cited on pages 15-16 above.) Moreover, even if Officer Shell were found to be patently incredible, the factfinder still could have found Gutierrez guilty based on the testimony of Captain Brown and inmate Lewis. (See pages 3-5 above.)
Third, Gutierrez argues that the trial court "ignored the far simpler and more plausible testimony of the inmate who orchestrated the attack." (Gutierrez 1st Dep't Br. at 17; see also id. at 22-24.) This Court, however, may not second-guess the factfinder by choosing Gutierrez' s version of events over the prosecution's. See e.g., Marshall v. Longberger, 459 U.S. 422, 434, 103 S.Ct. 843, 851 (1983) (under the less deferential pre-AEDPA standard, "federal habeas courts [have] no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them"); Jackson v. Virginia, 443 U.S. at 326, 99 S.Ct. at 2793 ("a federal habeas corpus court faced with a record of historical facts that supports conflicting inferences must presume . . ., that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution"); Garcia v. Artuz, 00 Civ. 4921, 2002 WL 927823 at *4 (S.D.N.Y. May 8, 2002) ("this court may not second-guess the jury's decisions to credit [witness'] identification of petitioner and to disregard the alibi testimony of petitioner's cousin"); Kirby v. Senkowski, 141 F. Supp.2d 383, 393 (S.D.N.Y. 2001) ("'[f]ederal habeas courts are not free to reassess the fact[-] specific credibility judgments by juries or to weigh conflicting testimony[; o]n collateral review, this Court must presume that the jury resolved any questions of credibility in favor of the prosecution.'") (alterations in original) (quoting Vera v. Hanslmaier, 928 F. Supp. 278, 284 (S.D.N.Y. 1996) (Jones, D.J. Peck, M.J.); see also cases cited on page 18 n. 11 page 19 n. 12 above. The factfinder heard all of the evidence and credited the State's evidence over the defense evidence of another inmate, already convicted of the assault and thus with nothing to lose by trying to get Gutierrez off the hook. (See page 7 above.) Gutierrez's arguments fail under the Jackson v. Virginia standard.
Callander's testimony also had its implausibilities. Why, for example, would Officer Shell give him a key to the handcuffs (see page 8 above) instead of opening Callander's handcuffs?
Finally, the Court notes that the Antiterrorism and Effective Death Penalty Act ("AEDPA") has further limited this Court's role in determining sufficiency of the evidence habeas petitions. See 28 U.S.C. § 2254 (d). For a discussion of the AEDPA review standard and its applicability to sufficiency of the evidence cases, see, e.g., Cromwell v. Keane, 98 Civ. 0013, 2002 WL 929536 at *12-13 n. 10, *15 n. 24 (S.D.N.Y. May 8, 2002) (Peck, M.J.) ( cases cited therein). This Court cannot say that the First Department's decision affirming Gutierrez's conviction was contrary to established federal law or was based on an unreasonable determination of facts.
CONCLUSION
For the foregoing reasons, Gutierrez's habeas petition should be DENIED and a certificate of appealability should not issue.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636 (b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Barbara S. Jones, 40 Centre Street, Room 2103, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Jones. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2dCir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636 (b)(1); Fed.R.Civ.P. 72, ¶ (a), ¶ (e).