Opinion
97 Civ. 7048 (MGC)
June 13, 2002
MEMORANDUM OPINION
Sergio Lee, 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 June 30, 1994, following a jury trial before Justice Cerbone of the Bronx County Supreme Court, petitioner was convicted of one count of sale of a controlled substance in the third degree and one count of possession of a controlled substance in the third degree. Justice Cerbone sentenced him to concurrent prison terms of seven and one-half to fifteen years. On October 15, 1996, the Appellate Division, First Department, affirmed the conviction. People v. Lee, 232 A.D.2d 244 (1st Dep't 1996). Petitioner then sought leave to appeal to the New York Court of Appeals. On February 5, 1997, the New York Court of Appeals denied petitioner's application. People v. Lee, 89 N.Y.2d 986 (1997).
Petitioner seeks a writ of habeas corpus on the following grounds: (1) the trial court admitted into evidence several uncharged drug sales, and failed to caution the jury about the limited evidentiary purpose of uncharged crimes, or to sustain defense counsel's objection to the prosecutor's summation in which he referred to that evidence; and (2) the court's charge that guilt beyond a reasonable doubt could be proven based on the evidence or lack of evidence deprived him of due process and a fair trial.
The last state court to deliver a "reasoned opinion," see Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991), rejected both claims as procedurally defaulted, an independent and adequate state ground. A federal court is barred from reaching the merits of a habeas petition if the petitioner defaulted under state law unless the petitioner can demonstrate cause and prejudice. Coleman v. Thompson, 501 U.S. 722, 750 (1991).
The Appellate Division held that "petitioner's unpreserved claim (People v. Fleming, 70 N.Y.2d 947) that the trial court improperly admitted evidence of uncharged drug sales is without merit." Lee, 232 A.D.2d at 244 (citation in original). A state court's "clear and express" ruling that petitioner had procedurally defaulted constitutes an independent state ground, even if the court ruled in the alternative on the merits. Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996). The Appellate Division's reference to petitioner's claim as "unpreserved" constituted an independent state ground.
The record confirms the adequacy of the independent state ground. Prior to the trial, the prosecution notified the court that it planned to use the evidence to prove intent with respect to the possession charge. At the time, defendant objected on the ground that the prosecution had sufficient evidence to prove intent without using the evidence of prior crimes. The trial judge overruled the objection, and defense counsel did not object to the introduction of the evidence during the trial. On direct appeal, counsel for petitioner argued not that the prosecution had other evidence of intent, but that there was no dispute at trial over the issue of intent. Fleming, cited by the Appellate Division in denying petitioner's appeal, held that a generalized objection, without an explanation of the basis for the objection, is insufficient to preserve an issue for appellate review. Fleming, 70 N.Y.2d at 947.
Petitioner has also procedurally defaulted on his claim with respect to the trial court's reasonable doubt charge. In rejecting petitioner's appeal on this claim, the Appellate Division held that "[d]efendant's contention . . . is also unpreserved and without merit." Lee, 232 A.D.2d at 244. The record confirms the Appellate Division's ruling. The record of the proceedings in the state trial court shows that petitioner had two opportunities to object to the trial judge's charge on reasonable doubt. The first opportunity came when the trial judge gave the instruction itself, and the second came at the close of the case when the trial judge explicitly asked if the defense had any objection. Petitioner did not object at either time.
Petitioner has not offered any cause for his default, or demonstrated that failure to consider his claims would result in a "fundamental miscarriage of justice." See Coleman, 501 U.S. at 750. Therefore, petitioner has procedurally defaulted on both claims, and accordingly, his petition is denied.
Petitioner has not made a sufficiently substantial showing of violation of a federal right to warrant a certificate of appealability on either claim.
SO ORDERED.