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dismissing Petitioner's claim that sentence was excessive because it should have run concurrently rather than consecutively because sentence was within statutory guidelines
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00 Civ. 4770 (LAP) (RLE)
August 28, 2002
William Carrasquillo, Cayuga Correctional Facility, Moravia, NY, Pro Se Petitioner.
Maria Filipakis, Assistant Attorney General, New York, NY, for Respondent.
To the HONORORABLE LORETTA A. PRESKA, United States District Judge.
REPORT AND RECOMMENDATION
I. INTRODUCTION
Pro se petitioner William Carrasquillo ("Carrasquillo") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction on September 7, 1997, in New York State Supreme Court, New York County. Carrasquillo was convicted of attempted criminal possession of a controlled substance in the fifth degree. He was sentenced as a second felony offender to an indeterminate prison term of one and one-half to three years. On April 17, 2001, he was released to parole supervision.
Carrasquillo did not provide the Court with a forwarding address.
In his petition filed June 28, 2000, Carrasquillo raises the following claims: his sentence is excessive because it ran consecutively, rather than concurrently, to prior sentences; his right to a speedy trial was violated; and the prosecutor engaged in misconduct by making up a statement that Carrasquillo allegedly made and by eliciting perjured testimony from two police officers. Petition for Writ of Habeas Corpus ("Pet.") at 5-6. Reading his petition liberally, the Court also finds that he asserts claims of ineffective assistance of trial counsel and appellate counsel. Id. at 6.
Respondent argues that the first three claims are procedurally barred because Carrasquillo did not raise them in state court. Memorandum of Law in Opposition to Petitioner's Application for a Writ of Habeas Corpus at 7. Respondent further argues that Carrasquillo's claims are not cognizable for habeas corpus review because they do not raise federal constitutional questions. Id. at 10. Respondent also argues that Carrasquillo cannot rely on an ineffective assistance of appellate counsel claim to argue cause for his procedural default since such claim is unexhausted. Id. at 9. For the reasons set forth below, I recommend that Carrasquillo's petition be DISMISSED.
II. BACKGROUND
A. Factual History
On September 7, 1996, police officers John Reives ("Reives") and Robert Leahy ("Leahy") were patrolling the vicinity of 251 East Third Street, a drug-prone location. Hearing Transcript, dated July 28, 1997 ("Tr.") at 5, 7. Reives saw Carrasquillo look into a brown paper bag in his left hand and pull out a clear plastic bag. Id. at 9 11-12, 20-21. After Reives told Leahy what he saw, Leahy began to follow Carrasquillo on foot, id. at 12, and Reives drove to the corner where Carrasquillo was located. Id. at 13. When Carrasquillo saw Reives, he tried to put the paper bag in his pocket. Id. at 14. However, one of the clear bags fell out, and as it was falling, Carrasquillo grabbed it and put it in his pocket. Id. at 14, 27. Reives observed this, but Leahy did not, even though he was at the scene. Id. at 100-01.
Reives approached Carrasquillo and asked him twice what was in his hand. Id. at 15. Carrasquillo responded, "[I]ts [sic] only one bag." Id. Carrasquillo maintains that he never made that statement. Id. at 66-67. After Reives directed him to give him the bag, Carrasquillo took out a clear bag with cocaine. Id. at 67. Reives arrested Carrasquillo and recovered the paper bag containing nine additional clear bags with cocaine. Id. at 15-16, 38. He also recovered $100. Id. at 16.
Reives did not memorialize Carrasquillo's statement in his memobook or in any reports, and he did not mention it to the grand jury. Id. at 29-30. When Reives filled out a request for a laboratory analysis, he indicated that he recovered all ten bags from Carrasquillo's pocket. Id. at 32-33. However, in the complaint he stated that he recovered one plastic bag containing cocaine from Carrasquillo's hand. Id. at 34.
Carrasquillo maintains that he did not look inside the bag after taking it from an area where dealers hide drugs. Id. at 60. According to Carrasquillo, Reives called him over to the police van, asked him to open his mouth and asked him for a bag of cocaine. Id. 63-64, 66. Carrasquillo took a small plastic bag of cocaine from inside the paper bag and gave it to Reives. Id. at 63.
B. Procedural History
On July 28, 1997, the court held a Mapp , Huntley , and Dunaway suppression hearing [ Mapp v. Ohio , 367 U.S. 643 (1961); Huntley v. United States , 419 U.S. 898 (1974); Dunaway v. State of New York , 442 U.S. 200 (1979)] on Carrasquillo's motion to suppress physical evidence. After hearing testimony from Reives, Leahy, and Carrasquillo, the court denied the motion. Hearing Transcript, dated July 29, 1997 at 30.
The court found that the officer's initial observation of the glassine, coupled with the clear bag falling out of the brown bag when Carrasquillo tried to stuff it in his pocket, gave the officers probable cause to believe that Carrasquillo was in possession of the controlled substance. Id. at 27-28. Accordingly, the motion to suppress was denied. Id.
Following the court's decision denying suppression, Carrasquillo pled guilty to one count of attempted criminal possession of a controlled substance in the fifth degree. Id. at 37-38. On August 7, 1997, the judge sentenced him to an indeterminate period of one and a half to three years. Id. at 38.
Carrasquillo appealed the denial of the suppression motion to the Appellate Division, First Department. On August 7, 1997, the Appellate Division found that the court's credibility determination were supported by the record, and therefore, held that the motion was properly denied. People v. Carrasquillo , 696 N.Y.S.2d 806, 806, 264 A.D.2d 627, 628 (App. Div. 1999). On December 6, 1999, the Court of Appeals denied leave to appeal. People v. Carrasquillo , 725 N.E.2d 1098, 94 N.Y.2d 917, 708 N.Y.S.2d 356 (1999). On October 24, 1999, Carrasquillo filed a motion for reconsideration. On March 6, 2000, the Court of Appeals granted the motion and found no question of law that ought to be reviewed. People v. Carrasquillo , 729 N.E.2d 1155, 94 N.Y.2d 917, 708 N.Y.S.2d 356 (2000). The instant petition followed on June 28, 2000.
III. ANALYSIS
A. Exhaustion and Procedural Default
Under 28 U.S.C. § 2254(b), amended in 1996 by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Title I, § 106(b), Pub.L. No. 104-132, 110 Stat. 1214 (April 24, 1996), a federal court may not consider a petition for habeas corpus unless the petitioner has exhausted all state judicial remedies. See 28 U.S.C. § 2254(b)(1)(A). The exhaustion doctrine requires habeas petitioners challenging a state conviction on federal grounds to have presented their claims to the state courts first. See Dave v. Attorney Gen. of N.Y. , 696 F.2d 186, 191 (2d Cir. 1982) ( in banc ), cert. denied , 464 U.S. 1048 (1984). In doing so, petitioners are not obligated to cite "book and verse on the federal constitution," Picard v. Connor , 404 U.S. 270, 278 (1971) ( quoting Daugharty v. Gladden , 257 F.2d 750, 758 (9th Cir. 1958)), but must provide adequate notice to the state courts that they are to decide federal constitutional claims. Such notice includes:
(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.Daye , 696 F.2d at 194; see also , Gray v. Netherland , 518 U.S. 152, 153 (1996); Jones v. Vacco , 126 F.3d 408, 413 (2d Cir. 1997). Moreover, a petitioner must have "placed before the state court essentially the same legal doctrine he asserts in his federal petition." Daye , 696 F.2d at 191-92; see also Fielding v. LeFevre , 548 F.2d 1102, 1107 (2d Cir. 1977); Figueroa v. Portuondo , 96 F. Supp.2d 256, 276 (S.D.N.Y. 1999).
As a procedural matter, the claim must have been presented to "the highest state court from which a decision can be had," in order to be considered exhausted. Dave , 696 F.2d at 190 n. 3; Smalls v. Batista , 6 F. Supp.2d 211, 213 (S.D.N.Y. 1998). Generally, a petitioner must utilize all avenues of appellate review within the state court system before proceeding to federal court. Bossett v. Walker , 41 F.3d 825, 828 (2d Cir. 1994). Claims that were not raised at trial and/or direct appeal may be exhausted through state post-conviction proceedings. See , e.g. , Salahuddin v. Strack , 1998 WL 812648, at *4 (E.D.N.Y. Aug. 12, 1998).
An exception to the exhaustion requirement exists when a petitioner no longer has remedies available in state court. "[A] federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred." Grey v. Hoke , 933 F.2d 117, 120 (2d Cir. 1991) ( quoting Harris v. Reed , 489 U.S. 255, 263 n. 9 (1989); see also Taylor v. Mitchell , 939 F. Supp. 249, 253 (S.D.N.Y. 1996) ( citing Coleman v. Thompson , 501 U.S. 722, 735 n. 1 (1991)). However, the state court procedural bar that gives rise to exhaustion provides an independent and adequate state law ground for the conviction. Gray v. Netherland , 518 U.S. at 162. Thus, instead of dismissing the claim for failure to exhaust, the federal habeas court considers claim to be procedurally defaulted. A petitioner must then endeavor to justify the default.
To overcome a procedural default, a petition must be able to "demonstrate cause for the default and actual prejudice" or "that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman , 501 U.S. at 750; see also Harris , 489 U.S. at 258. The Supreme Court has defined "cause" as "some objective factor external to the defense [which] impeded counsel's efforts to raise the claim in state court." McCleskey v. Zant , 499 U.S. 467, 493 (1991) ( citing Murray v. Carrier , 477 U.S. 478, 488 (1986)). The "fundamental miscarriage of justice" exception "is only available where the petitioner can supplement his constitutional violation with a `colorable showing of factual innocence'" in the form of newly adduced evidence of innocence. Washington v. Otisville , 1997 WL 178616, at *7 (S.D.N.Y. Apr. 11, 1997) ( quoting McCleskey , 499 U.S. at 494); see also Schlup v. Delo 513 U.S. 298, 332 (1995).
Examples include: "(1) outside interference that makes compliance with state procedural rules impracticable; (2) `a showing that the factual or legal basis for a claim was not reasonably available to counsel;'" and (3) `[i]neffective assistance of counsel.'" Washington v. Otisville , 1997 WL 178616, at *5 (S.D.N.Y. Apr. 11, 1997) ( quoting McCleskey v. Zant , 499 U.S. 493, 494 (1991) ( citing Murray v. Carrier , 477 U.S. 478, 488 (1986)).
1. Ineffective Assistance of Trial Counsel
Carrasquillo claims that he was denied effective assistance of trial counsel because his inexperienced lawyer was working with the prosecutor. Pet. at 6-7. He alleges that his attorney wanted to get him convicted. Id. On direct appeal, however, Carrasquillo did not raise a claim of ineffective assistance of trial counsel.
Because an ineffective assistance of counsel claim based on collusion with the prosecutor could not be discerned from the record, it could have been raised collaterally in a motion to vacate the judgment pursuant to New York Criminal Procedural Law ("CPL") § 440.10. See , e.g. , Pierce v. United States , 2002 WL 413920, at *1 (S.D.N.Y. Mar. 14, 2002). Because Carrasquillo can still file a CPL § 440.10 motion, this claim is unexhausted, Walker v. Dalsheim , 669 F. Supp. 70, 71-72 (S.D.N.Y. 1987), and should be DISMISSED.
2. Ineffective Assistance of Appellate Counsel
Carrasquillo claims that he was denied effective assistance of appellate counsel because his counsel did not raise prosecutorial misconduct. Pet. at 6. The New York Court of Appeals has held that a "common-law coram nobis proceeding brought in the proper appellate court is the only available and appropriate procedure and forum to review a claim of ineffective assistance of appellate counsel." People v. Bachert , 509 N.E.2d 318, 319, 69 N.Y.2d 593, 596, 516 N.Y.S.2d 623, 624 (1987). Carrasquillo has not applied for a writ of coram nobis. Therefore, his claim of ineffective assistance of appellate counsel remains unexhausted. As there is no time limit barring Carrasquillo from filing the writ of coram nobis, Bond v. Walker , 68 F. Supp.2d 287, 297 n. 4 (S.D.N.Y. 1999), that recourse is still available as a method of exhausting the claim. Accordingly, Carrasquillo's claim of ineffective assistance of appellate counsel is unexhausted and should be DISMISSED.
3. Speedy Trial
Carrasquillo has failed to satisfy the requirement of substantive exhaustion in bringing his speedy trial claim. The only issue regarding the right to a speedy trial presented in his petition is that the trial court failed to prosecute his misdemeanor charge within ninety days. Pet, at 5 ( citing N.Y. Crim. Proc. Law § 30.30(1)(a) (McKinney's Cumulative Pocket Part 2001)). The claim is premised exclusively on New York State law rather than, or in conjunction with, federal constitutional law. Notably absent from his petition are references to the Sixth Amendment's speedy trial clause or any federal law interpreting that clause. Merely raising a state CPL § 30.30 claim does not present a constitutional speedy trial claim for federal habeas purposes because it involves legal and factual analyses that are different from those entailed in examining a Sixth Amendment claim. See Holden v. Miller , 2000 WL 1121551, at *6-7 (S.D.N.Y. Aug. 8, 2000); see also Rodriguez v. Miller , 1997 WL 599388, at *2 (S.D.N.Y. Sept. 29, 1997). The State of New York has adopted a bright line procedural rule for determining speedy trial time limitations. Pursuant to the New York State law standard, a court could find a violation of Carrasquillo's right to a speedy trial to have occurred if the State was not ready for trial within six months of the filing of an accusatory instrument against him. N.Y. Crim. Proc. Law § 30.30(1)(a).
In contrast, in assessing a violation of his right to a speedy trial under the Sixth and Fourteenth Amendments to the Constitution, a court would have to apply the four-factor balancing test adopted by the Supreme Court in Barker v. Wingo , 407 U.S. 514, 530 (1972). Pursuant to Barker , in determining whether Carrasquillo's right to a speedy trial was violated, a court would have to consider the following four factors: (1) length of delay; (2) the reason for the delay; (3) his assertion of his right; and (4) prejudice to him. Id.
Because Carrasquillo failed to present his speedy trial claim to the state court in federal constitutional terms, it is not substantively exhausted and should be DISMISSED.
4. Excessive Sentence
Carrasquillo asserts that his sentence is excessive because it should have run concurrently with prior sentences, rather than consecutively. Pet. at 5. In a habeas petitions, "[n]o 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). Carrasquillo's sentence of one and a half to three years falls within the sentencing limits of New York Penal Law § 70.06(3)(d) (McKinney 1998). Further, the state court was required to impose a consecutive sentence because Carrasquillo was a second felony offender. N.Y. Penal Law § 70.25(2-a) (McKinney 1998); see , e.g. , DeFeo v. Artuz , 958 F. Supp. 104, 109 (E.D.N.Y. 1997) (dismissing claim that sentence was excessive because it should have run concurrently rather than consecutively because sentence was within the guidelines). Even if a federal constitutional issue were presented, Carrasquillo procedurally defaulted this claim because he did not raise it on direct appeal. Picard , 404 U.S. at 278. Accordingly, Carrasquillo's excessive sentence claim should be DISMISSED.
5. Prosecutorial Misconduct
Carrasquillo claims that the prosecutor fabricated a statement that Carrasquillo allegedly made, and that he elicited perjured testimony from the police officers. Pet. at 6. Carrasquillo did not raise this claim on direct appeal to the Appellate Division. Therefore, it has been procedurally defaulted and should be dismissed. Picard , 404 U.S. at 275.
New York law provides that defendants may be issued leave to appeal only once. N.Y. Crim. Proc. Law § 440.10(2)(c) (McKinney's 1994). Thus, by failing to raise his claims on direct appeal, Carrasquillo forfeited his chance to raise them. In order to overcome the default, Carrasquillo would have to either "demonstrate cause for the default and actual prejudice [. . .] or "demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman , 501 U.S. at 750. Carrasquillo alleges that the ineffective assistance of appellate counsel is the cause of his procedural default. However, this claim is an "independent constitutional claim," and therefore, must be procedurally exhausted. Edwards v. Carpenter , 529 U.S. 446, 451-52 (2000). Because Carrasquillo's ineffective assistance of appellate counsel claim is unexhausted, he cannot rely on it to argue cause for his procedural default. Therefore, in the absence of any showings of cause of arguments demonstrating that a fundamental miscarriage of justice would result from the default, Carrasquillo has defaulted on his claims and they should be DISMISSED.
B. DISPOSITION
Generally, a petition for writ of habeas corpus with unexhausted claims is dismissed without prejudice to allow the petitioner to return to the state courts to exhaust all available state judicial remedies. However, the limitations period has expired, and therefore, it would be futile to dismiss without prejudice because Carrasquillo cannot return to federal court.
Pursuant to the 1996 enactment of the AEDPA, a one-year statute of limitations applies to petitions for writs of habeas corpus by state prisoners. 28 U.S.C. § 2244(d). The limitations period begins to run from the latest of:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the application was prevented from filing such state action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2244(d)(1) (West Cumulative Annual Pocket Part 2001). The Second Circuit held that the limitations period "does not begin to run until the completion of direct appellate review in the state court system and either the completion of certiorari proceedings in the United States Supreme Court, or — if the prisoner elects not to file a petition for certiorari — the time to seek direct review via certiorari has expired." Williams v. Artuz , 237 F.3d 147, 151 (2d Cir. 2001). The time in which a habeas petition is pending in federal court does not toll the one-year limitation period. Duncan v. Walker , 533 U.S. 167, 181-82 (2001).
Carrasquillo was convicted on August 7, 1997, and the Appellate Division, First Department, affirmed his conviction on September 23, 1999. Leave to appeal was denied on December 6, 1999. On March 6, 2000, the Court of Appeals granted Carrasquillo's motion for reconsideration and found no question of law that ought to be reviewed. His conviction thus became final on June 4, 2000, the conclusion of ninety days during which he could have sought certiorari in the United States Supreme Court. Williams , 237 F.3d at 151. On June 28, 2000, Carrasquillo filed his habeas corpus petition. Because the time in which Carrasquillo's habeas petition was pending in federal court does not toll the limitations period, a successive petition would not be timely. Accordingly, Carrasquillo's petition should be DISMISSED in its entirety.
IV. CONCLUSION
For the reasons stated herein, I recommend that Carrasquillo' s petition for a writ of habeas corpus be DISMISSED in its entirety.
Pursuant to Rule 72, Federal Rules of Civil Procedure, the parties shall have ten (10) days after being served with a copy of the recommended disposition to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court and served on all adversaries, with extra copies delivered to the chambers of the Honorable Loretta A. Preska, 40 Center Street, Room 201, and to the chambers of the undersigned, 500 Pearl Street, Room 1970. Failure to file timely objections shall constitute a waiver of those objections both in the District Court and on later appeal to the United States Court of Appeals. Thomas v. Arn, 474 U.S. 140, 150 (1985); Small v. Secretary of Health and Human Services , 892 F.2d 15, 16 (2d Cir. 1989) ( per curiam ); 28 U.S.C. § 636(b)(1) (West Supp. 1995); Fed.R.Civ.P. 72, 6(a), 6(e).