Opinion
01 Civ. 9992 (JSM)
June 11, 2002
OPINION AND ORDER
Bruce Sheppard, who was convicted after a jury trial in the New York State Supreme Court, Sullivan County, of Criminal Sale of a Controlled Substance in the Third Degree, brings this action pursuant to 28 U.S.C. § 2254 seeking to vacate his conviction.
Petitioner contends that (1) the evidence against him was not sufficient to prove the charges against him; (2) his sentence was excessive; and (3) the prosecutor violated Petitioner's constitutional rights by using peremptory challenges to exclude blacks from the jury.
In addition to contesting Petitioner's claims on the merits, the State argues that the Court should not consider certain of Petitioner's claims because he failed to exhaust his state remedies. However, 28 U.S.C. § 2254(b)(2) gives the Court the discretion to deny unexhausted claims on the merits. Given the fact that, as demonstrated below, these claims are so lacking in merit, the Court will exercise its discretion and decide the claims on the merits.
Before turning to Petitioner's specific claims it must be noted that Congress has limited the jurisdiction of the federal courts to provide relief under 28 U.S.C. § 2254.
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of 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.
See generally Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000).
None of the claims asserted by the Petitioner meets this standard.
Petitioner's claim that the evidence against him was not sufficient to sustain his conviction raises only a matter of state law. Petitioner does not contest the fact that he was involved in the sale of narcotics to the undercover officer. He claims only that he should have prevailed on the defense that he was acting as an agent of the purchaser. The Appellate Division, in affirming Petitioner's conviction, expressly held that the evidence was sufficient to establish that he was not acting solely as an agent. This ruling on a matter of state law is not reviewable in a habeas corpus proceeding. It is well settled that "it is not the province of a federal habeas court to reexamine state-court determinations of state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 479-80 (1991).
Petitioner's claim that his sentence was excessive does not raise a constitutional issue. Absent extraordinary factors, not present here, a sentence within the statutory range is not subject to challenge under the Eighth Amendment. See Harmelin v. Michigan, 501 U.S. 957, 994-96, 111 S.Ct. 2680, 2701-02 (1991); Briecke v. State, 936 F. Supp. 78, 85 (E.D.N.Y. 1996). Sentencing decisions are not cognizable on habeas corpus review unless the sentence imposed falls outside the range prescribed by state law. White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992). Although Petitioner argues that the sentencing judge punished him for having nine children, which if true might raise a due process issue, the court's remarks indicate that the court's concern was not that Petitioner had nine children, but that he failed to support them or in any way take responsibility for them.
Petitioner's challenge to the prosecutor's use of peremptory challenges to exclude blacks from the jury cannot be considered because no such claim was made at the time the jury was selected. As the Second Circuit ruled in McCrory v. Henderson, 82 F.3d 1243, 1247 (2d Cir. 1996), "the nature of the peremptory challenge mandates that any objection to its use be raised and ruled upon promptly."
For the foregoing reasons, the petition for relief pursuant to 28 U.S.C. § 2254 is denied and the action is dismissed. In addition, pursuant to 28 U.S.C. § 1915(a), the Court certifies that an appeal from this case may not be taken in forma pauperis; such an appeal would be frivolous and cannot be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S.Ct. 917, 920-21 (1962). The Court determines that the petition presents no question of substance for appellate review and that Petitioner has failed to make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see Fed.R.App.P. 22(b). Accordingly, a certificate of appealability will not issue.
SO ORDERED.