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holding that admission of gory photographs of the victim did not cause fundamental unfairness when the prosecution presented other evidence to disprove the defendant's self-defense claim
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No. 97 Civ. 2798 (MGC)
March 20, 2002
Jose Robles, Great Meadow Correctional Facility, Comstock, NY, Petitioner Pro Se.
Robert M. Morgenthau, One Hogan Place, New York, NY, Attorney for Respondent
OPINION
CEDARBAUM, J.
Jose Robles, a state prisoner, petitions pursuant to 28 U.S.C. § 2254 for a writ of habeas corpus on four grounds: (i) the admission at trial of gory photographs of the victim deprived him of the due process right to a fair trial; (ii) the exclusion of expert testimony regarding his state of mind while resisting a homosexual attack denied him his rights to compulsory process and a fair trial; (iii) the admission of a police officer's testimony regarding the reaction of a fellow police officer to the crime scene deprived him of his right to a fair trial; and (iv) the imposition of maximum consecutive sentences constituted cruel and unusual punishment. The petition is denied because the state courts' adjudication of these claims did not "[result] 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." 28 U.S.C. § 2254 (d)(1).
BACKGROUND
On June 27, 1988, petitioner killed Martin Guzman by slitting his throat with a knife, and repeatedly stabbed Louis Santiago and Kenneth Kleve. The evidence at petitioner's trial revealed that late on the evening of June 26, 1998, Martin Guzman introduced petitioner to his friends, Melvin Jackson, Kenneth Kleve, Louis Santiago and Thomas Lardeo, at a bar in Queens. After about half an hour, the six men went to Guzman's apartment to watch videos and drink. After a while, Jackson left. Lardeo followed soon after, leaving petitioner, Guzman, Santiago and Kleve in Guzman's apartment.
Santiago and Kleve testified regarding what followed. At some point after Jackson and Lardeo had left, petitioner said that he wanted to talk privately with Guzman, and the two of them went into the bedroom. Santiago and Kleve were talking in the living room when petitioner emerged from the bedroom and beckoned to Santiago, indicating that Guzman wanted to speak to him. Santiago looked into the bedroom and saw Guzman "laying down dead" and bleeding. Santiago grabbed the bedroom door to lock petitioner in, but petitioner slashed him with a knife, cutting his face from his hairline to his eye. Petitioner then stabbed Santiago all over his body and face. Kleve picked up a beer bottle, but petitioner knocked the bottle from his hand and stabbed Kleve once in the middle of the throat and once in the chest. Petitioner then stabbed Santiago in the ribs and slashed his face from the right side of his face across his throat.
The doorman of the apartment building, Angelo Bouhoutsos, and his girlfriend, Maria Villanueva, testified that they saw petitioner leave the building around 5:00 or 5:30 that morning, clutching to his neck the bathrobe that he wore over his clothes. Finally, Kleve testified that he and Guzman were gay, but that Santiago was not. Santiago testified that he was not gay.
Petitioner testified that he had acted in self-defense in response to an attempted homosexual rape by the three victims. He said that Guzman asked him to come into the bedroom to talk, and then grabbed his private parts. When petitioner resisted, Guzman called out to Santiago. As Santiago and Guzman tried to rape him, petitioner stabbed Guzman repeatedly with a knife that he had seen lying nearby. Petitioner testified that he subsequently slashed Kleve and Santiago with the knife in self-defense.
On August 9, 1989, the jury found petitioner guilty of murder in the second degree with respect to Guzman, attempted murder in the second degree with respect to Santiago, and assault in the first degree with respect to Kleve. On September 21, 1989, petitioner was sentenced to consecutive sentences of twenty-five years to life, eight and one-third years to twenty-five years, and five to fifteen years respectively for each of those crimes.
On direct appeal to the Appellate Division, petitioner raised the following claims: (i) the trial court's admission of certain gory photographs were so prejudicial as compared to their probative value that it deprived him of his due process right to a fair trial; (ii) the admission of police officer Lennon's testimony regarding the reaction of fellow police officers at the crime scene deprived him of a fair trial; (iii) the preclusion of expert testimony regarding the response to a homosexual attack deprived him of a fair trial; (iv) because the prosecutor had failed to prove him guilty of the crime of assault in the first degree with respect to Kleve, the judgment of conviction should be modified; and (v) the maximum consecutive sentences constituted cruel and unusual punishment in violation of his constitutional rights.
On May 23, 1991, the Appellate Division held that: (i) there was no merit to defendant's claim that the color photograph depicting the gaping gash in the deceased's neck had no probative value; (ii) defendant was not prejudiced by the testimony regarding the police officers' reactions, the evidence of the first officer's countenance was not hearsay, and the comments of the second officer added little to the stark testimony of the two victims who survived; (iii) the trial court did not abuse its discretion in denying defendant's request to call an expert on "homosexuals and attempted homosexual attacks" because this ruling followed defendant's testimony, which did not warrant an explanation by a psychiatrist; (iv) defendant's "other contentions" were "without merit"; and (v) the conviction of assault in the first degree should be reduced to assault in the second degree because the evidence did not establish beyond reasonable doubt that Kleve had suffered serious physical injury. The court remanded the case for re-sentencing on the reduced count.
In letters dated June 19, 1991 and June 24, 1991, petitioner sought leave to appeal from the Appellate Division decision. The New York Court of Appeals issued a certificate denying leave to appeal on September 13, 1991. On June 27, 1991, petitioner appeared in the Supreme Court, New York County for re-sentencing on the modified conviction of assault in the second degree. The court imposed a maximum consecutive sentence of two and one-third to seven years incarceration.
Defendant appealed from the re-sentencing, arguing that the court abused its discretion in imposing the maximum consecutive sentences and that the Appellate Division "should use its broad powers of review" to reduce the sentence for assault in the second degree and modify it to run concurrently with the murder and attempted murder sentences. On July 15, 1993, the Appellate Division affirmed the re-sentencing. In a letter dated August 30, 1993, petitioner sought leave to appeal that order. The Court of Appeals denied leave to appeal on November 2, 1993.
This petition was filed on April 8, 1997. On April 2, 1998, I dismissed the petition on the ground that petitioner did not file it within a reasonable period after the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") On May 4, 1998, Robles filed a notice of appeal. On July 22, 1998, the Court of Appeals dismissed the appeal on the ground that Robles did not pay the docketing fee or move for leave to proceed in forma pauperis.
Two months after Robles' petition was dismissed, and while his appeal was pending, the Second Circuit Court of Appeals held in a separate case that an inmate whose conviction became final before AEDPA's effective date is entitled to a one-year grace period from the effective date during which to bring a habeas petition. Ross v. Artuz, 150 F.3d 97 (2d Cir. 1998). Under the rule announced in Ross, Robles' petition was timely because it was filed prior to April 24, 1997. On November 13, 1998, petitioner moved pursuant to Rule 60(b) to vacate his dismissal. Following the rule announced in Ross, I granted that motion and reinstated his petition for habeas corpus.
DISCUSSION Procedural Default
Respondent argues that petitioner's claims pertaining to the admission of the gory photographs and Officer Lennon's testimony are procedurally defaulted. Petitioner disagrees.
Gory Photographs
Respondent contends that petitioner did not exhaust his constitutional claim pertaining to the admission of the gory photographs because he failed to: (i) invoke a constitutional right in objecting to the admission of the photographs at trial; (ii) allege the violation of a specific constitutional right in his appellate brief, aside from invoking "due process" and the "right to a fair trial"; and (iii) raise the constitutional claim with respect to the photographs in his leave letter to the New York Court of Appeals. Respondent argues that petitioner's claim should nevertheless be "deemed exhausted" because he can no longer present it to the New York courts. See N.Y. Court R. § 500.10(a); N.Y. Crim. Proc. Law § 440.10(2)(c). Respondent contends that "petitioner's failure to exhaust should [therefore,] not result in a failure to exhaust, it should result in denial of the claim on the grounds of procedural forfeiture." Furthermore, respondent argues that because state procedural law constitutes an "adequate and independent state basis" for petitioner's custody, petitioner's claim is not subject to habeas review in the absence of a showing of "cause" for the default "prejudice" resulting from it. Since petitioner has not made such a showing of "cause and prejudice, " respondent contends that petitioner's claim must be dismissed without consideration of the merits.
"An application for a writ of habeas corpus . . . shall not be granted unless it appears that — (A) the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254 (b)(1)(A). To exhaust state court remedies, the petitioner must have "fairly presented" the claim to the "highest state court" in a way "likely to alert the court to the claims s federal nature." Dave v. Attorney General of the State of N.Y., 696 F.2d 186, 191-92 (1982). While "[c]iting a specific constitutional provision . . . alerts state courts of the nature of the claim," Jones v. Vacco, 126 F.3d 408, 413-14 (2d Cir. 1997), such specificity is not necessary. Adequate notice of federal claims may be given by the following methods:
(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.Dave, 696 F.2d at 194.
Petitioner made a pre-trial motion to preclude the admission of the photographs, arguing that they were unduly prejudicial and not probative. That he did not raise the constitutional nature of his claim at trial does not bar consideration of the claim on habeas review because the Appellate Division did not reject this claim on grounds of a state procedural bar. Tankleff v. Senkowski, 135 F.3d 235, 247 (2d Cir. 1998) ("The Supreme Court has held that a procedural default does not bar consideration of a federal claim on habeas review unless the last state court rendering a judgment in the case `clearly and expressly' states that its judgment rests on a state procedural bar.") (quotingColeman v. Thompson, 501 U.S. 722, 735 (1991)). Since the Court of Appeals summarily denied petitioner leave to appeal because "there [was] no question of law presented which ought to be reviewed," it should be presumed that the court rejected the photograph claim on the same grounds as the Appellate Division.Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) ("Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.")
In his Appellate Division brief on direct appeal, petitioner argued that the trial court's admission of the gory photographs deprived him of his "due process right to a fair trial." This language "call[s] to mind," Dave, 696 F.2d at 194, the right to a fundamentally fair trial guaranteed by the due process clause of the Fourteenth Amendment. See Payne v. Tennessee 501 U.S. 808, 809 (1991) ("In the event that evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief."); Collins v. Scully, 755 F.2d 16, 18 (2d Cir. 1985). Respondent cites Gray v. Netherland, 518 U.S. 152 (1996) for the proposition that a "general appeal" to due process is insufficient to present the substance of a claim to state courts. See id. at 163 (holding that habeas petitioner's appeal to "due process" guarantee before a state court did not present the substance of a "Sandstrom claim"); Petrucelli v. Coombe, 735 F.2d 684, 688 (2d Cir. 1984) (holding that habeas petitioner's citation to a "fair trial and due process of law" did not alert the state court to his federal double jeopardy claim). Petitioner's claim does not, however, require an analysis narrower than the `due process' inquiry. It is thus distinguishable from claims such as those at issue inGray, which constitute a "general appeal" to due process when a more specific constitutional claim is at issue.
Petitioner has also fairly presented his claim pertaining to the gory photographs to the New York Court of Appeals. In his first letter to the Clerk of the New York State Court of Appeals, petitioner's counsel requested only that he be advised of the judge assigned to the case so that he could supplement the first letter and the attached Appellate Division briefs. In his supplemental letter to Chief Judge Kaye in support of his application for leave to appeal, however, petitioner stated that "[t]he issues proposed to be raised on this appeal are set forth in the appellant's brief," and that petitioner was deprived of his "federal constitutional rights to due process of law" by the admission of the gory photographs. The briefs attached by petitioner were the same as those presented to the Appellate Division, which invoked petitioner's "due process right to a fair trial." Accordingly, petitioner adequately presented his claim pertaining to the admission of the gory photographs to the New York Court of Appeals, and this claim is not procedurally defaulted.
Police Officer's Testimony
Respondent argues that petitioner's claim pertaining to the admission of Officer Lennon's testimony is procedurally defaulted because he failed to "fairly present" the constitutional basis of this claim to the state trial court and the Appellate Division. Petitioner fulfilled the requirements of New York's contemporaneous objection rule by objecting in a timely manner to the admission of this testimony at trial on the ground that it was prejudicial and not probative. See N.Y. Crim. Proc. Law § 470.05(2). In any event, any failure on his part to raise this claim at trial does not result in procedural default because the Appellate Division did not reject the claim on grounds of a state procedural bar. Tankleff, 135 F.3d at 247.
In his brief to the Appellate Division on direct appeal, petitioner argued in a heading that the trial court's admission of Officer Lennon's testimony "was erroneous," and "not probative of any issue in the case and only served to prejudice and to deprive appellant of a fair trial." He also argued in the text of that claim that "the hearsay in the instant case greatly prejudiced the defendant and denied him his Due Process right to a fair trial." For the reasons outlined above, petitioner's use of the phrase "due process right to a fair trial" sufficiently alerted the state court to the federal nature of his claim. Accordingly, the claim pertaining to Officer Lennon's testimony has not been procedurally forfeited.
Merits of Petitioner's Claims
28 U.S.C. § 2254 (d) provides:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(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.
In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court held that a state-court decision is "contrary to" Supreme Court precedent "if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of th[e] Court and nevertheless arrives at a result different from [the Court's] precedent." Id. at 405-06 (2000). "When a state-court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case, a federal court applying § 2254(d)(1) may conclude that the state-court decision falls within that provisions s `unreasonable application' clause." Id. at 409.
The merits of each of petitioner's claims are addressed below in accordance with the above standards.
Gory Photographs
Petitioner argues that the trial court's admission over his objection of five "particularly gruesome and gory photographs" of his victim were so prejudicial as to deprive him of his "due process right to a fair trial." Respondent argues that the trial court's decision was a proper exercise of discretion under state law and that habeas relief is not generally available for an erroneous evidentiary ruling unless it had a "substantial and injurious effect in determining the jury s verdict."
The trial judge found that four of the five photographs that petitioner objected to were relevant to the prosecution's case because they showed the posture of the deceased and the condition of the room at the time of death. The judge also noted that these pictures did not depict an extensive amount of blood and found that they were "clearly not inflammatory." The judge acknowledged that the fifth photograph which depicted the wounds of the deceased was not pleasant, but ruled that the manner in which the wounds were inflicted as well as the nature of the wounds themselves were of particular relevance to the People's proof, to the defendant's defense, and to the ability of the People to attempt to rebut that defense. The judge added that this photograph did not come close to the kind of "horrible scene" conveyed by the complaint's use of the term "virtual decapitation" to describe the state of the victim. The Appellate Division held that there was no merit to petitioner's claim that the color photograph depicting the gaping gash in the deceased's neck had no probative value.
The adjudication of the photograph claim by the trial court and the Appellate Division did not "[result] 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." 28 U.S.C. § 2254 (d)(1). In Brecht v. Abrahamson, 507 U.S. 619 (1993), the Supreme Court held that "the Kotteakos harmless-error standard applies in determining whether habeas relief must be granted because of constitutional error of the trial type." Id. at 638. The Kotteakos test is "whether the error `had substantial and injurious effect or influence in determining the jury's verdict.'" Id. at 637 (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946) The principal factors to be considered in measuring this "effect or influence" are the importance of the evidence, and "the overall strength of the prosecution's case." Wray v. Johnson, 202 F.3d 515, 526 (2d Cir. 2000)
_____"The introduction of improper evidence against a defendant does not amount to a violation of due process unless the evidence is so extremely unfair that its admission violates fundamental conceptions of justice." Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998). Even if the trial judge did err in admitting the photographs, this error was harmless in light of the "overall strength of the prosecution's case." Wray, 202 F.3d at 526. Two of petitioner's victims — Santiago and Kleve — survived to give a detailed account at the trial of the violence of petitioner's attack. Petitioner did not deny attacking his victims, but claimed that he had acted in self-defense. Against this background, the introduction of gory photographs was unlikely to have had "substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 637.
Police Officer's Testimony
Petitioner argues that the trial court's admission over objection of police officer Lennon's testimony regarding his colleague Officer Bartlett's reaction of shock to the crime scene deprived him of a fair trial. He contends that Lennon' s testimony had "no probative content, but was instead extremely prejudicial," and that it was "undeniably hearsay." Respondent argues that this evidence had probative value for explaining why Lennon had approached the crime scene with a gun drawn and that the remaining evidence on the wounds inflicted by petitioner already established the seriousness of his offense.
The trial transcript reveals the following exchange in the prosecution's re-direct examination of Officer Lennon:
Q: Did you look at Officer Bartlett?
A: Yes.
Q: And what, if anything did you notice about him?
A: Shock. He was very —
Mr. Lopez: Objection, your Honor, move to strike. The Court: Overruled.
Q: He was scared, you could tell he was scared and something was serious. He yelled to me Don, this is —
Mr. Lopez: I have an application, your Honor. A: — he said this is for real.
The Court: Don't tell us about anything he said. The question was, what did you notice?
A: He was shaken up.
Q: How can you tell that?
A: Because — Mr. Lopez: Again, objection your Honor.
The Court: Overruled.
A: Because of his actions, he came running back out to Officer Kavanaugh and he saw us coming, he said:
Mr. Lopez: Objection, your Honor.
The Court: Don't tell us what was said.
Q: How did his face look?
Mr Lopez: Objection your Honor, as to officer's face.
The Court: Overruled.
A: It was — he was scared. It was a scared look.
Defense counsel subsequently moved for a mistrial based on the admission of this evidence. The prosecution argued that Bartlett's reaction as he was emerging from the crime scene was probative on the issue of whether or not the officers knew at the time that the perpetrator was still there. The trial judge denied the motion for the reasons indicated by the State, and on the grounds that the "excited utterances" were probative on the "timing" and chronology of the events, including the arrival of the police officers. On appeal, the Appellate Division held that the evidence of the first officer's countenance was not hearsay, and the comments of the second officer added little to the stark testimony of the two victims who survived.
Even if the admission of this evidence was an error, it was harmless error. The jury heard the surviving victims' testimony regarding the ferocity of petitioner's attack. Against this background, the evidence that Officer Bartlett was shaken or said that "it was for real" is unlikely to have had "substantial and injurious effect or influence in determining the jury's verdict."Brecht, 507 U.S. at 637. See, e.g., Collins v. Scully, 755 F.2d 16 (2d Cir. 1985) (erroneous admission of hearsay evidence was not a due process violation in light of the considerable weight of properly admitted evidence of guilt). Accordingly, the state courts' adjudication of this claim did not "[result] 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." 28 U.S.C. § 2254 (d)(1)
Expert testimony
Petitioner argues that he was deprived of his rights to a fair trial and compulsory process when the trial court denied him permission to call a psychiatrist as an expert witness to testify as to petitioner's state of mind in resisting a homosexual assault. According to respondent, the trial judge did not err in excluding this evidence since petitioner was not raising the defenses of insanity or extreme emotional disturbance, and it was within the ken of the average juror to understand the nature of petitioner's self-defense claim.
The state courts' adjudication of this claim did not "[result] 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." 28 U.S.C. § 2254 (d)(1). "The right to call witnesses in order to present a meaningful defense at a criminal trial is a fundamental constitutional right. . . ." Washington v. Schriver, 255 F.3d 45, 56 (2d Cir. 2001) (citing Taylor v. Illinois, 484 U.S. 400, 409-09 (1988)). "`Erroneous evidentiary rulings, [however,] rarely rise to the level of harm to this fundamental constitutional right.'" Id. (quoting Agard v. Portuondo, 117 F.3d 696, 705 (2d Cir. 1997), rev'd on other grounds, 529 U.S. 61 (2000)). The Second Circuit has held:
[W]hether the exclusion of [witnesses'] testimony violated [defendant's] right to present a defense depends upon whether the omitted evidence [evaluated in the context of the entire record] creates a reasonable doubt that did not otherwise exist. In a close case, "additional evidence of relatively minor importance might be sufficient to create a reasonable doubt." On habeas review, trial errors are subject to lenient harmless error review. The creation of otherwise nonexistent reasonable doubt satisfies the `substantial and injurious' standard [of Brecht v. Abrahamson, 507 U.S. 619 (1993)]Id. (quoting Jones v. Stinton, 229 F.3d 112, 120 (2d Cir. 2000)) (alterations in the original) (internal citations omitted). It is also necessary to examine the stated reasons for the exclusion of evidence and inquire into possible state evidentiary errors to determine whether petitioner has been deprived of a fair trial.Id. at 58.
At the trial, the judge noted that "a psychiatrist can do nothing to assist the jury to decide if the defendant is a believable witness. Nor should he. That is solely the jury's job." Since the defense in this case was solely that of self-defense, and not mental disease or defect, or extreme emotional disturbance, he added that there was "nothing esoteric, nothing arcane, nothing incomprehensible or even difficult to comprehend by a jury of lay people about a person defending himself in a situation that the defendant found himself in." Accordingly, the trial judge held that he was " convinced that psychiatric testimony would not assist the jury in the resolution of the issues that [were] before it."
Under New York law, "[a]s a general rule, the admissibility and limits of expert testimony lie primarily in the sound discretion of the trial court." People v. Lee, 96 N.Y.2d 157, 162 (2001). Although courts should be wary not to exclude expert testimony merely because it invades the jury's province, "`[i]t is for the trial court to determine when jurors are able to draw conclusions from the evidence based on their day-to-day experience, their common observation and their knowledge, and when they would be benefitted by the specialized knowledge of an expert witness.'" Id. (quoting People v. Cronin, 60 N.Y.2d 430, 433 (1983)). Since the trial court's decision in this case was based on a lay jury's capacity to assess the self-defense issue, it did not err in excluding the expert psychiatric testimony.
Finally, petitioner had already testified at the trial regarding the details of the attempted rape and his self-defense, and also of his fear, as a practicing Mormon, of going to hell for engaging in a homosexual act. Accordingly, even if the trial court's evidentiary ruling was erroneous, it did not violate petitioner's constitutional right to present a defense because the expert's testimony would not have "create[d] a reasonable doubt that did not otherwise exist." Schriver, 255 F.3d at 56.
Cruel and Unusual Punishment
Finally, petitioner argues that the imposition of the maximum consecutive sentences constituted cruel and unusual punishment in violation of petitioner's constitutional rights. He also argues that the sentencing judge overlooked his "law-abiding and productive existence" prior to committing the crime. Respondent contends that petitioner has not exhausted this claim before the state courts, and that the petition should therefore be dismissed "in its entirety." Respondent further contends that petitioner does not present a constitutional issue for federal habeas review because petitioner's sentence does not exceed the maximum sentence under New York law.
28 U.S.C. § 2254 (b)(2) provides that "an application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state." The Second Circuit has interpreted this provision to mean that "an unexhausted claim should not be dismissed on the merits unless it is obvious that the claim is not one upon which habeas relief may be granted." Jones v. Senkowski, 2002 WL 246451 at *4 (2d Cir. 2002). Since it is "obvious" that petitioner's cruel and unusual punishment claim does not warrant habeas relief, I reach the merits of this claim despite respondent's contention that it has not been exhausted.
The state courts' adjudication of this claim did not "[result] 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." 28 U.S.C. § 2254 (d)(1). It is well established that "no federal constitutional 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); Gonzales v. Travis, 2001 WL 1352461 (S.D.N.Y 2001). Petitioner's sentence did not exceed the maximum sentence authorized under New York law for his crimes. See N.Y. Penal Law §§ 125.25, 70.02, 70.00 (1988) (murder in the second degree, a class A-I felony, has a maximum sentence of life imprisonment and a minimum period of not less than fifteen years nor more than twenty-five years); Id. §§ 70.02, 70.00 (attempted murder in the second degree, a class B violent felony offense, has a maximum sentence of twenty-five years and a minimum sentence of one-third of the maximum term imposed); Id. §§ 120.05, 70.02, 70.00 (assault in the second degree is a class D violent felony offense which has a maximum term of sentence of seven years and a minimum not less than one year nor more than one-third of the maximum term imposed). Furthermore, New York Penal law authorizes the imposition of consecutive sentences for "separate and distinct acts." See id. § 70.25; People v. Laureano, 87 N.Y.2d 640 (1996); People v. Brown, 80 N.Y.2d 361 (1992)
The trial judge found that each of petitioner's three crimes warranted separate punishment because they were "separate and distinct acts," and imposed sentences that did not exceed the statutory limits for any of these crimes. Accordingly, petitioner's contention that his sentence constituted cruel and unusual punishment lacks merit.
In any event, the sentencing judge did not overlook the favorable aspects of petitioner's existence prior to the crime. He noted that "[i]f anything favorable can be said about the defendant it can be found only in his life before this incident," but that "the enormity and the severity of the crimes far outweigh whatever good there may have been in the defendant's life before these crimes were committed."
CONCLUSION
For the foregoing reasons, Jose Robles' petition for a writ of habeas corpus is denied.
SO ORDERED.