Opinion
01 Civ. 8045 (LAK).
May 24, 2002
ORDER
Petitioner, an inmate at New York's Mid-Orange Correctional Facility, was convicted in 1998 of criminal sale of a controlled substance in the third degree and sentenced to a term of imprisonment of 9 to 18 years. The judgment was modified to reduce the sentence to 6 to 12 years and, as modified, affirmed by the Appellate Division. People v. Lopez, 272 A.D.2d 109, 709 N.Y.S.2d 17 (1st Dept. 2000). The New York Court of Appeals denied leave to appeal on November 6, 2000. 95 N.Y.2d 936, 721 N.Y.S.2d 612 (table).
The petition asserts that petitioner was deprived of due process of law by the introduction over objection of an uncharged drug sale which the prosecutor used in his opening and summation as evidence of petitioner's guilt and that his sentence was excessive. The first of these claims was advanced in the Appellate Division, which rejected it on the grounds that the evidence was properly admitted under limiting instructions and that any prejudice that otherwise might have resulted from the prosecutor's remarks were obviated by curative instructions given by the trial court. While the second claim was advanced in the Appellate Division with respect to the original sentence, the excessive sentence argument was not made in petitioner's application for leave to the Court of Appeals. Respondent nevertheless concedes that both points were exhausted in the state system, the latter because the Court of Appeals lacked competence to consider it, and that the petition is timely.
Petitioner's burden here is a heavy one. Under the Antiterrorism and Effective Death Penalty Act, habeas relief may not be granted to a state prisoner by a federal court with respect to a claim adjudicated on the merits in the state system unless the state court adjudication of the claim: (1) "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) was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." Williams v. Taylor, 529 U.S. 362 (2000). The meaning of those two concepts was developed in some detail in the Williams case, which the Court applies here.
The contentions that petitioner's due process right was violated by the introduction of the evidence of an uncharged crime and the prosecutor's comment on it are without merit. The evidence was testimony by a police officer that she observed petitioner, prior to his arrest, give "a small object" to an unidentified male in exchange for currency. The trial court admitted the evidence as relevant to why the officer focused on petitioner. When the prosecutor referred to the event as "the purchase," the trial judge immediately intervened and stated "No, there's no purchase here, please. She testified to an exchange of something." (Tr. 193) The court charged the jury that it was not to "consider any prior exchanges as indicative of or pointing in any way to defendant's guilty" and that "the only reason" for the receipt of the evidence of the exchange was to help explain why the officer focused her attention on the defendant. (Tr. 433-34)
The prosecutor briefly commented on the evidence on opening and closing. (Tr. 174-75, 405-06) In the opening, he said only that the evidence would show that someone approached the defendant. In closing, he referred to an exchange.
The Appellate Division that the trial court acted within the limits of its discretion by admitting this evidence of what might be said to be an uncharged crime and that any prejudice was cured by its careful limiting instruction. There simply is no basis for concluding that its decision "was contrary to or involved an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States," or "was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding."
Nor is there any basis for habeas relief on the basis of the prosecutor's comments. Although the Appellate Division found the remarks to have been inappropriate, it found also that any prejudicial effect was cured by the limiting instruction. It did not unreasonably apply Supreme Court precedent or make any unreasonable determination of facts. In any case, the evidence against petitioner was overwhelming and any error surely harmless.
Finally, petitioner's excessive sentence claim would be meritorious only if he demonstrate that the sentence was "grossly disproportionate to the crime," Harmelin v. Michigan, 501 U.S. 957 (1991), and thus violated the Eighth and Fourteenth Amendments. But a sentence of imprisonment within the limits of a valid state statute ordinarily is not cruel and unusual punishment within the meaning of the Constitution. White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992); Priester v. Strack, No. 98 Civ. 7960 (LAK), 2001 WL 980563, *7 (S.D.N.Y. Aug. 23, 2001). As petitioner was subject, as a second felony offender, to a maximum sentence of at least twelve and
The respondent asserts that petitioner's record made him subject to a term of twenty-five years to life. Resp. Mem. 23 n. 4. There is no need to reach that contention. one half to twenty-five years of imprisonment,2 see N.Y. Penal L. §§ 70.06(3)(b), (4)(b), and as there are no other circumstances suggesting that his sentence was unconstitutionally severe, his second ground lacks merit.
The petition for a writ of habeas corpus is denied and the case closed. A certificate of appealability is denied, and the Court certifies that any appeal herefrom would not be taken in good faith within the meaning of 28 U.S.C. § 1915(a)(3).