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finding no pattern of racial discrimination where prosecutor struck three out of six African-American jurors and noting that petitioner's Batson claim was "belied by the fact that of the African-American venirepersons from the second round emerged as jurors ***"
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No. 01CIV2909WHPGWG.
September 5, 2002
Mr. Randolph Jamison, Great Meadow Correction Facility, Comstock.
Brian M. Stettin, Esq., Assistant Attorney General, Office of the Attorney General of the State of New York, New York, for the State Defendants.
MEMORANDUM AND ORDER
On April 6, 2001, Randolph Jamison ("Jamison") filed a pro se petition for habeas corpus pursuant to 28 U.S.C. § 2254 seeking reversal of his conviction in New York State Supreme Court for Criminal Possession of a Controlled Substance in the First Degree (N.Y. Penal Law § 220.21). On November 2, 2001, Magistrate Judge Gabriel W. Gorenstein issued a thorough and well-reasoned report and recommendation ("Report" or "R.") recommending that this Court deny Jamison's petition in its entirety. On December 27, 2001, this Court received Jamison's objections to Magistrate Gorenstein's Report. Jamison does not object to the Report's factual findings.
After de novo review of petitioner's objections and the full record herein, this Court adopts Judge Gorenstein's Report and dismisses Jamison's habeas petition in its entirety.
Background
On August 15, 1988, Angel Ortiz was found dead in the lobby of an apartment building on East 105th Street in Manhattan, the apparent victim of robbery and murder. (Tr. at 5.) Two days later, a surviving victim identified Jamison from an array of police photos as an individual who was present in the lobby at the time of the shooting. (Tr. at 6-7.) On August 20, 1988, the surviving victim told police that he saw Jamison shoot him and then point the gun at Ortiz's head. (Tr. at 8.) The victim fled up a flight of stairs and heard gunfire behind him. (Tr. at 9.) Based on that testimony, together with corroborating testimony from another eyewitness and an accomplice who acted as a lookout, police identified Jamison as a suspect. (Tr. at 13.)
On June 27, 1989, an informant led police detectives to the location of Jamison's double-parked car. (Tr. at 32.) Shortly thereafter, the informant and police observed Jamison and five other individuals enter the car and head east on 125th Street. (Tr. at 33.) The detectives stopped the car, ordered its occupants to exit, and recovered an automatic weapon that was jutting out from the seat where Jamison had been sitting. (Tr. at 57-59, 107.) The detectives also seized a plastic bag containing cocaine and drug paraphernalia that had been sitting on the floor between Jamison's feet. (Tr. at 57-59, 107.) The police took Jamison into custody. (Tr. at 107.) At a lineup following Jamison's arrest, a witness identified Jamison as the culprit of a separate murder: the June 8, 1989 murder of Greg Jones. (Tr. at 91.)
On December 1, 1989, Jamison was indicted by a grand jury for Second Degree Murder in connection with Greg Jones' death (N.Y. Penal Law § 125.25(1)), Criminal Possession of a Weapon in the Third Degree (N.Y. Penal Law § 265.02(4)), and Criminal Possession of a Controlled Substance in the First Degree (N.Y. Penal. Law § 220.21).
Jamison moved to suppress the physical evidence seized at his arrest pursuant to section 710.20 of New York Criminal Procedure Law and Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). On June 10, 1993, the trial court held a suppression hearing. The court denied Jamison's motion finding that the contraband recovered from the automobile was in plain view and incidental to his arrest, and that it was also lawfully recovered pursuant to the automobile exception to the warrant requirement. (Tr. at 120.)
Following the suppression hearing, the court began jury selection. In response to the trial court's solicitation for peremptory challenges of the first twelve prospective jurors, the prosecution challenged six individuals including three African-Americans. (Tr. at 236-37.) Jamison objected that the prosecution's peremptory challenges were racially motivated in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). (Tr. at 237.) The court noted that one black juror who had not been challenged remained on the panel, and declined to excuse any jurors at that time. However, the court stated it would require the prosecution to state a racially neutral reason for its peremptory challenges if a pattern of excluding African-American jurors arose in subsequent rounds. (Tr. at 237-38.) The court then permitted the prosecution to exercise two peremptory challenges against the next ten prospective jurors. The prosecution excluded two white females and did not challenge the two African-Americans from the second group. (Tr. at 244-45.) At the conclusion of that second round, the trial court found that no racial pattern had been exhibited on the prosecution's part. (Tr. 245.) Without objection from the prosecution or defendant, the court excused the struck venirepersons. (Tr. at 246-48.)
At trial, witnesses testified that they sat in a stopped car with Jones when someone outside the car shot him. (R. at 5.) One of those witnesses identified Jamison as the individual who shot Jones. (R. at 5.) Police officers recounted recovering the automatic weapon at Jamison' s June 27, 1989 arrest and a ballistics expert testified that the bullets recovered from Jones's body were fired from the weapon. In addition, police witnesses testified regarding the 4 and 3/8 ounces of cocaine and drug paraphernalia found in the plastic bag. (R. at 5.)
On June 28, 1983, the jury convicted Jamison of Criminal Possession of a Controlled Substance in the First Degree and acquitted him of all other charges. On September 15, 1983, Jamison was sentenced to fifteen years to life. (Stettin Decl. Ex. C.) Three days later, Jamison, with the benefit of appointed counsel, appealed. Jamison argued that the trial court erred in ruling that the warrantless seizure of the cocaine was lawful under the "plain view" and "automobile" exceptions, and that the first-degree drug conviction should be modified to a second-degree possession conviction because there was insufficient evidence that Jamison was aware that the seized cocaine's weight exceeded the four-ounce statutory threshold. (Stettin Decl. Ex. E, F.) In October 1998, Jamison submitted a pro se brief to the Appellate Division reasserting his Batson objection to the prosecution's peremptory challenges and the trial court's failure to require the prosecution to state a racially neutral reason for its challenges. (R. at 6.) That argument was adapted by Jamis on's appointed counsel in a supplemental brief submitted to the Appellate Division. (Stettin Decl. Ex. E.)
At the time of Jamison's conviction, New York law required that a defendant convicted for Criminal Possession of a Controlled Substance in the First Degree have knowledge that he was in possession of more than four ounces of the narcotics in question. That statute has been modified to eliminate the knowledge-of-the-weight requirement. (R. at 6.) (citing People v. Ryan, 82 N.Y.2d 497, 502, 605 N.Y.S.2d 235, 626 N.E.2d 51 (1993) and People v. Peterson, 269 A.D.2d 788, 788, 703 N.Y.S.2d 629 (4th Dep't 2000).
On October 14, 1999, the Appellate Division unanimously affirmed Jamison's conviction. (Stettin Decl. Ex. G.) The Appellate Division held that Jamison's suppression and sufficiency-of-the-evidence claims were "unpreserved" and declined to review them in the interests of justice. (Stettin Decl. Ex. G.) However, the Appellate Division also noted its agreement with the trial court's conclusion that the evidence adequately supported the jury's verdict. (Stettin Decl. Ex. G.) With respect to the Batson claim, the Appellate Division affirmed the trial court concluding that Jamison had not made a prima facie showing of race discrimination with respect to the prosecutor's peremptory challenges. (Stettin Decl. Ex. G.) On February 10, 2000, the New York Court of Appeals denied Jamsion leave to appeal the Appellate Department's decision. (Stettin Decl. Ex. I.)
The grounds for Jamison's habeas petition and his objections to the Report rely on the same arguments that served as the basis for appeal to the Appellate Division and the Court of Appeals. Jamison argues that (1) the trial court wrongfully failed to suppress the contraband recovered during his June 27 arrest and the resulting warrantless search and seizure (2) that the evidence adduced at trial was insufficient to support a finding that he had knowledge of the cocaine's weight; and (3) that the prosecutor's peremptory challenges violated Batson.
Discussion
A writ of habeas corpus will not be granted unless the state court adjudication of the claim either: (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. See 28 U.S.C. § 2254(d)(1) and (2). A petitioner bears the burden of proving by a preponderance of the evidence that his constitutional rights have been violated. See Jones v. Vacco, 126 F.3d 408 (2d Cir. 1997).
1. State Court Suppression Rulings
Magistrate Judge Gorenstein concluded that Jamison's claim regarding the suppression rulings motion was not subject to federal habeas review because he did not preserve the issue for appeal by objecting to the court's ruling. See N.Y. Crim. P. Law ¶ 440.10(2)(c) (3); see also Garcia v. Lewis, 188 F.3d 71, 79 (2d Cir. 1999) ("failure to follow New York's contemporaneous objection rule" is an adequate and independent state ground for procedural default and bars habeas review).
Immediately after the trial court found that the police lawfully recovered the cocaine, Jamison's counsel stated, "Just for the record, I note my exception." (Stettin Decl. Ex. B.: Tr. at 120.) However, that exception referred to defense counsel's objection to the court's ruling that police had probable cause to stop Jamison's car. (Tr. at 114.) Here, Jamison does not argue that the officers did not have probable cause to stop the car, but that they lacked the probable cause to search and seize the car following the arrest. Because Jamison's counsel objected only on the former ground at trial, and Jamison argues the latter ground in his habeas petition, Magistrate Judge Gorenstein correctly found that Jamison failed to preserve that issue for trial.
Even if the issue had been preserved, "federal habeas corpus relief is not available on the ground that evidence produced at trial was the result of an unconstitutional search and seizure, unless the state denied the prisoner an opportunity for full and fair litigation of the claim." Grey v. Hoke, 933 F.2d 117, 121 (2d Cir. 1991) (citing Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037. 49 L.Ed.2d 1067 (1976)). Here, the state court's suppression hearing provided Jamison with a full and fair opportunity to litigate his suppression claims prior to trial. See Capellan v. Riley, 975 F.2d 67, 70 n. 1 (2d Cir. 1992) (noting that New York's procedure for litigating Fourth Amendment claims embodied in N.Y. Crim. Proc. Law § 710.10 et seq., is "facially adequate"); accord White v. Sabourin, No. 00 Civ. 3287 (LAP)(RLE), 2002 WL 418023 at *4 (S.D.N.Y. Mar. 13, 2002). Accordingly, Jamison's claim regarding the trial court's suppression rulings are dismissed.
2. Legal Sufficiency of Evidence at Trial
Jamison also claims that there was insufficient evidence for the jury to find that he knew the cocaine weighed in excess of four ounces to support a conviction of Criminal Possession of a Controlled Substance in the First Degree. As the Appellate Division and Magistrate Judge Gorenstein found, Jamison failed to make this objection at trial and thus failed to preserve the issue. Accordingly, Jamison s sufficiency of the evidence argument cannot be considered on a habeas review.
Moreover, while the Due Process Clause of the Fourteenth Amendment prohibits the criminal conviction of any person except upon proof of guilt beyond a reasonable doubt, a habeas petitioner "challenging the sufficiency of the evidence supporting his conviction bears a `heavy burden, ' because the government receives the benefit of having all permissible inferences drawn in its favor." United States v. Martinez, 54 F.3d 1040, 1042 (2d Cir. 1995) (citations omitted); see also Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (a state prisoner "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."); Einaugler v. Supreme Court of State of N.Y, 109 F.3d 836, 840 (2d Cir. 1997) (petitioner "bears a very heavy burden" in challenging the sufficiency of the evidence against him.). "The findings of the state court are presumptively correct and entitled to a high degree of deference as that court was in the best position to view the credibility of the witnesses and all of the facts as they were adduced [at trial]." Smithwick v. Walker, 758 F. Supp. 178. 184 (S.D.N.Y. 1991). Moreover, a federal habeas court may not reassess the credibility of a trial witness's testimony. Kirby v. Senkowski, 141 F. Supp.2d 383, 393 (S.D.N.Y.2001).
At trial, the prosecution offered evidence that police discovered Jamison with not only 4 3/8 ounces of cocaine, but with paraphernalia including empty vials and vial caps. (See Settein Aff. Ex. E at 19.) From that evidence, the jury could conclude that Jamison intended to distribute the cocaine and thus infer that he had knowledge of the quantity of cocaine in his possession. Accordingly, Jamison's sufficiency of the evidence claim is dismissed.
3. Batson Claim
At trial, Jamison objected that the prosecution's exclusion of three African-American jurors violated Batson. The trial court found that there was no prima facie showing that the prosecution's selections exhibited a racial pattern. Jamison contends that the trial court's determination was "objectively unreasonable." (Objections to Report at 6)
A trial court's determination of whether a defendant has demonstrated a prima facie case under Batson is a mixed question of law and fact. United States v. Alvarado, 891 F.2d 439. 443 (2d Cir. 1989), vacated on other grounds, 497 U.S. 543, 110 S.Ct. 2995, 111 L.Ed.2d 439, (1990); accord Millan v. Keane, 97 Civ. 3874, 1999 WL 178790, at *3 (S.D.N.Y. Mar.31, 1999). Thus, where the state court's decision is governed by the correct legal principles, this Court will give deference to the state court's determination that there was no constitutional violation. The state court's ruling will be disturbed only if its decision unreasonably applied the law to the facts of this case. Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Kennaugh v. Miller, 289 F.3d 36, 42 (2d Cir. 2002).
As Magistrate Judge Gorenstein concluded, the facts from Jamison's trial indicate that the trial court was reasonable in finding that the prosecutor's peremptory challenges were not racially motivated. The prosecution used three of its eight, or 38 percent, of its peremptory challenges against African-Americans. At least six of twenty-one, or 29 percent, of the individuals of the venire were African-Americans. While the percentage of the prosecution's challenges used against African-Americans potentially exceeded the percentage of African-Americans venirepersons, that margin is not "significantly higher" to support an inference of discrimination. United States v. Alvarado, 923 F.2d 253, 255-56 (2d Cir. 1991) (where the rate of minority challenges is "significantly higher" than the minority percentage of the venire, there is an inference of discrimination sufficient to meet the requisite prima facie showing under Batson); see also United States v. Diaz, 176 F.3d 52, 77 (2d. Cir. 1999) (government's 25 percent rate of minority strikes was not significantly higher than the 23 percent minority population of the venire); United States v. Brisk, 171 F.3d 514, (7th Cir. 1999) (though government used four of six peremptory challenges to challenge women, venire consisted of eighteen women and thirteen men, and thus no prima facie case existed because the government "neither used a significant number of its total strikes to remove women, nor did it remove a significant number of the women").
Moreover, the Report correctly concludes that Jamison' s Batson claim of racial discrimination is belied by the fact that, three of five, or 60 percent, of the African-American venirepersons from the second round emerged as jurors after the prosecution's peremptory challenges. See Diaz, 176 F.3d at 77 (final jury composition evidenced no racial discrimination on the part of the prosecution); see also Rodriguez v. Lord, No. 00 Civ. 0402, 2001 WL 1223864, at *20 (S.D.N.Y. Oct.15, 2001) (where the rate at which the prosecution exercised peremptory challenges may support an inference of discrimination, it was not unreasonable for the state trial and appellate courts to find that this statistic, standing alone, did not compel finding of a prima facie case); United States v. Jiminez, 983 F.2d 1020 (11th Cir. 1993) (though prosecutor used five of seven peremptory challenges against African-Americans, no prima facie case where seven of twelve jurors were African-Americans).
Thus, the trial court did not act unreasonably in finding that there was no Batson violation. Accordingly, Jamison s habeas petition is denied with respect to his Batson claim.
Conclusion
Accordingly, Jamison's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied in its entirety. It is further ordered that because petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253(c), as amended by the Antiterrorism and Effective Death Penalty Act of 1996. In addition, this Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962). The Clerk of the Court is directed to close this case.