Opinion
6:17-CV-06416 EAW
2020-07-28
Bangaly CHELLEY, Petitioner, v. The State of NEW YORK, Respondent.
Bangaly Chelley, Attica, NY, pro se. Donna Milling, Matthew B. Powers, United States Attorney's Office, Buffalo, NY, for Respondent.
Bangaly Chelley, Attica, NY, pro se.
Donna Milling, Matthew B. Powers, United States Attorney's Office, Buffalo, NY, for Respondent.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
INTRODUCTION
Pro se Petitioner Bangaly Chelley ("Petitioner") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the basis that he is being unconstitutionally detained in the custody of respondent the State of New York ("Respondent"). (Dkt. 1). Petitioner is incarcerated pursuant to a judgment entered against him on September 7, 2012, in the Erie County Supreme Court ("the trial court"), located in Buffalo, New York. (Dkt. 1 at 1). Petitioner was sentenced to an indeterminate term of 25 years to life on a conviction for murder in the second degree, and a determinate term of 15 years plus five years of post-release supervision on a conviction for criminal possession of a weapon in the second degree, to run concurrently with the first sentence. (See Dkt. 1 at 1; Dkt. 8 at 3; Sentencing T., p. 5).
Petitioner contends he is being held in violation of his constitutional rights, for the following reasons: (1) the trial court failed to give a jury instruction for circumstantial evidence; (2) the judgment of conviction is against the weight of the evidence; and (3) his sentence is harsh and excessive, and should be modified in the interest of justice. (Dkt. 1 at 5-8). For the reasons discussed below, the Court finds that Petitioner has not shown he is entitled to federal habeas relief.
BACKGROUND
I. Underlying Crime and Indictment
On Saturday, May 28, 2011, the victim, Ansumane Kanneh, was in front of his home at 19 Maryner Homes, in Buffalo, New York, fixing his granddaughter's bicycle. (Trial T., pp. 241, 243). Shortly before 5:00 p.m., Mr. Kanneh was found lying on the sidewalk, bleeding from his forehead and deceased. (Id. at 244, 247). The cause of death was determined to be a gunshot wound to the head. (Id. at 463).
Following a months-long investigation, Petitioner was identified as the perpetrator. (Id. at 270). According to the prosecution, Petitioner had confronted an individual by the name of Greg Covington, with whom he had fought the day before. (Id. at 229). Petitioner was carrying a black pistol. (Id. ). After exchanging words with Mr. Covington, Petitioner fired one shot, which missed Mr. Covington. (Id. ). Mr. Covington began to run in a direction which took him past Mr. Kanneh's home. (Id. ). Petitioner fired two additional shots as Mr. Covington fled, one of which hit Mr. Kanneh. (Id. 229-30).
Petitioner was indicted by a grand jury with one count of murder in the second degree and one count of criminal possession of a weapon in the second degree. (Arraignment T., p. 2). Petitioner entered a plea of not guilty to the crimes, and the case proceeded to trial. (Id. at 2-3).
II. Trial
At the trial, the prosecution proceeded under a theory of transferred intent; i.e. , Petitioner was intending to shoot Mr. Covington, when a stray bullet hit and killed Mr. Kanneh. (Trial T., pp. 229-30). The prosecution called several witnesses, including Shirley Covington, Mr. Covington's sister, who testified that she was aware that her bother was involved in an "incident" the day prior on May 27, 2011. (Id. at 281). She also saw Petitioner, who had just been beaten up. (Id. at 283). Ms. Covington testified that, around 5:00 p.m. on May 28, 2011, she received a phone call from a woman named Colletta, ran outside to the corner of Maryland and Trenton, and saw that a man was dead on the corner of Maryland and Effner. (Id. at 285-86). Ms. Covington was standing with an individual named Lou, who received a phone call from Petitioner. (Id. at 287). Lou handed the phone to Ms. Covington, who recognized Petitioner's voice and telephone number. (Id. at 288, 306). Ms. Covington testified that she told Petitioner that "he shooting and he couldn't even aim right because he hit his own people." (Id. at 288). Petitioner responded, "bitch I'm going to kill you too." (Id. at 289).
The government also called Colletta Yarborough, who was present on May 28, 2011, when Petitioner initially confronted Mr. Covington. (Id. at 313). Ms. Yarborough was on her way to the store at Maryland and Trenton that evening. (Id. ). She testified that she saw Mr. Covington and began speaking with him, and during that time, a red Cherokee pulled up. (Id. ). A man she did not recognize exited the vehicle and "had words" with Mr. Covington. (Id. at 314). Thereafter, Petitioner exited the vehicle and also had words with Mr. Covington. (Id. ). Ms. Yarborough testified that she then saw Petitioner start shooting at Mr. Covington with a black handgun. (Id. at 314-16). Ms. Yarborough heard two shots and ran behind the store. (Id. at 317). Ms. Yarborough testified that following the incident, she called Ms. Covington. (Id. at 318).
The government also called Abdikadir Shire, who testified that he was with Petitioner in a red truck on May 28, 2011. (Id. at 420). Mr. Shire testified that as they were going by Maryland, Petitioner "pointed out Gregory" and wanted to talk to him. (Id. at 421). Mr. Shire testified that he knew "the situation that happened the day before," and told Petitioner to stay in the car while Mr. Shire spoke with Mr. Covington. (Id. ). Mr. Covington approached Mr. Shire and told him to "stay out of it," and Petitioner exited the vehicle. (Id. at 423). Mr. Shire testified that he observed Mr. Covington point at Petitioner and "say a couple things," and then Petitioner started shooting at Mr. Covington. (Id. at 423-24). Mr. Shire testified that the gun fired by Petitioner was black and appeared to be an automatic firearm. (Id. at 424). Mr. Shire observed Mr. Covington run down Maryland. (Id. ). Mr. Shire testified that after the incident, he and Petitioner got back in the car, and he observed Petitioner tuck the handgun in his waist. (Id. at 425-26).
The prosecution also called Stuart Easter, a firearms examiner with the Erie County Department of Central Police Services. (Id. at 399). Mr. Easter testified that he examined the fired cartridge cases collected from the scene, which he determined to be three fired .32 auto cartridge cases. (Id. at 407). Mr. Easter testified that such cartridge cases are designed to be fired from a "semiauto firearm, usually pistol, handgun." (Id. at 408). Mr. Easter also examined bullets recovered from the scene, including the bullet removed from the victim's head, which he testified were "consistent in ... physical and design characteristics with .32 caliber bullets." (Id. at 409-10).
Petitioner called two alibi witnesses, Kyla and Kayla Albert, the twin daughters of Petitioner's girlfriend, who testified that he was with them playing videos games all day on May 28, 2011. (Id. at 495-539).
Following the trial, the jury returned a verdict of guilty on both the murder charge and the firearms charge. (Id. at 619). Petitioner was sentenced on October 9, 2012, to an indeterminate term of 25 years to life on the murder conviction, and a determinate term of 15 years, with a five-year term of post-release supervision, on the weapon possession conviction. (Sentencing T., p. 5). The sentences were set to run concurrently. (Id. ).
III. Direct Appeal
Petitioner appealed from the judgment, arguing: (1) he was deprived of his right to a fair trial, due to the trial court's failure to instruct the jury on circumstantial evidence; (2) his conviction was against the weight of the evidence; and (3) his sentence was harsh and excessive, and should be modified in the interest of justice. (Brief for Appellant, pp. 6-19). Petitioner also submitted a pro se supplemental brief, arguing: (1) his right to confront witnesses against him was abrogated by the testimony of the medical examiner who did not perform the autopsy; (2) his right to due process was violated by a video presentation of the evidence by the People during summation; (3) he was denied effective assistance of counsel during jury selection; and (4) his rights were violated by misconduct by the prosecution. (Appellant's Pro Se Supplemental Brief, pp. 5-18). On October 3, 2014, the Appellate Division, Fourth Department, unanimously affirmed the judgment. See People v. Chelley , 121 A.D.3d 1505, 993 N.Y.S.2d 597 (4th Dep't 2014). The New York Court of Appeals denied leave to appeal on February 3, 2015. People v. Chelley , 24 N.Y.3d 1218, 4 N.Y.S.3d 606, 28 N.E.3d 42 (2015).
IV. State Court Motion to Vacate
On June 29, 2013, Petitioner, proceeding pro se , moved pursuant to NY CPL 440.10, to vacate the judgment, arguing that he was denied his federal and state constitutional rights to receive effective assistance of counsel, and he was denied his right to a fair trial and due process of law. (Petitioner's Motion to Vacate, pp. 1-13). On December 3, 2013, the trial court denied Petitioner's motion to vacate his sentence. (Memorandum and Order, pp. 1-6). Petitioner appealed the trial court's order; on March 25, 2016, the Appellate Division, Fourth Department, unanimously affirmed the order of the trial court. People v. Chelley , 137 A.D.3d 1720, 28 N.Y.S.3d 215 (4th Dep't 2014). The New York Court of Appeals denied leave to appeal on June 23, 2016. People v. Chelley , 27 N.Y.3d 1130 (2016).
V. Habeas Petition
On June 26, 2017, Petitioner, proceeding pro se , filed the instant Petition for Writ of Habeas Corpus asserting the following claims: (1) the trial court failed to instruct the jury on circumstantial evidence; (2) the judgment of conviction is against the weight of the evidence; and (3) his sentence is harsh and excessive, and should be modified in the interest of justice. (Dkt. 1 at 5-8). On July 24, 2017, the Court directed Plaintiff to complete a § 2254 Timeliness Response Form, to provide the Court with additional information relevant to its determination of the timeliness of the Petition. (Dkt. 3). Plaintiff filed a timeliness response on August 21, 2017. (Dkt. 4). On February 9, 2018, the Court issued an Order finding that the Petition was timely filed and setting a scheduling order for Respondent to answer the Petition. (Dkt. 5; see also Dkt. 6). On April 18, 2018, Respondent filed an Answer to the Petition and a memorandum of law in support of its Answer. (Dkt. 7 & Dkt 8).
DISCUSSION
I. Legal Standard
"Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(d)(1), a federal court may not grant a state prisoner's habeas application unless the relevant state-court decision was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." Knowles v. Mirzayance , 556 U.S. 111, 121, 129 S.Ct. 1411, 173 L.Ed.2d 251 (2009) (quotation omitted). "The question is ‘not whether the state court was incorrect or erroneous in rejecting petitioner's claim, but whether it was objectively unreasonable in doing so.’ " Edwards v. Superintendent, Southport C.F. , 991 F. Supp. 2d 348, 367 (E.D.N.Y. 2013) (quoting Ryan v. Miller , 303 F.3d 231, 245 (2d Cir. 2002) ). "The petition may be granted only if ‘there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents.’ " Id. (alteration in original) (quoting Harrington v. Richter , 562 U.S. 86, 102, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) ).
II. Trial Court's Failure to Instruct the Jury on Circumstantial Evidence
Petitioner contends that he is entitled to habeas relief because the trial court failed to instruct the jury on circumstantial evidence. (Dkt. 1 at 5). Plaintiff notes that his attorney failed to request such an instruction at trial, but asks that, to the extent these issues were not preserved for appellate review, that "the Court ... reach them in the [the] interest of justice and reverse." (Id. ). Respondent contends that Plaintiff's claim does not present a federal question, and the trial court properly concluded that a circumstantial evidence charge was not required due to the direct evidence against Petitioner. (See Dkt. 8 at 6-7).
Petitioner argued on direct appeal that the trial court erred by failing to give a circumstantial evidence charge. See People v. Chelley , 121 A.D.3d 1505, 993 N.Y.S.2d 597 (4th Dep't 2014). The Fourth Department denied Petitioner's claim because his counsel had failed to request such a charge and failed to object to the instructions as given. Id. The Court further explained:
a circumstantial evidence charge was not required "because the People's case was not based entirely on circumstantial evidence" ( People v. Way , 115 A.D.3d 558, 558, 981 N.Y.S.2d 731 [2014] ; see People v. Daddona , 81 N.Y.2d 990, 992, 599 N.Y.S.2d 530, 615 N.E.2d 1014 [1993] ; People v. Smith , 90 A.D.3d 1565, 1566, 935 N.Y.S.2d 775 [2011], lv denied 18 N.Y.3d 998, 945 N.Y.S.2d 653, 968 N.E.2d 1009 [2012] ). The People offered direct evidence from two witnesses who testified that they had observed defendant fire multiple shots from a handgun in the area where the victim was fatally shot. Another witness testified that, after she had told defendant that he could not shoot straight and that he had "hit" one of his "own people," defendant had called her a "bitch" and said "I'm going to kill you too." That statement from defendant is tantamount to an admission, which constitutes direct evidence (see generally People v. Guidice , 83 N.Y.2d 630, 636, 612 N.Y.S.2d 350, 634 N.E.2d 951 [1994] ; People v. Rogers , 103 A.D.3d 1150, 1154, 958 N.Y.S.2d 835 [2013], lv denied 21 N.Y.3d 946, 968 N.Y.S.2d 8, 990 N.E.2d 142 [2013] ).
Id. at 1505-06, 993 N.Y.S.2d 597.
"Where an error in a jury instruction is alleged, ‘it must be established not merely that the instruction is undesirable, erroneous, or even "universally condemned," but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment.’ " Davis v. Strack , 270 F.3d 111, 123 (2d Cir. 2001) (quoting Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973) ). "The question is not whether the trial court gave a faulty instruction, but rather ‘whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.’ " Id. (quoting Cupp , 414 U.S. at 147, 94 S.Ct. 396 ). Accordingly, while a federal court "may not grant habeas relief for a ‘mere error of state law’ a finding that the petitioner was erroneously deprived of a jury instruction to which he was entitled under state law is the first step in the determination whether that error violated the petitioner's federal due process rights." Id. (internal citation omitted).
Petitioner has failed to show that the trial court's failure to give a circumstantial evidence charge deprived him of due process. "Under New York law, if the evidence of a defendant's guilt is exclusively circumstantial, a jury must be so advised and instructed to view the evidence with particular care, but such a charge is not required where both direct and circumstantial evidence is presented at trial." Rodriguez v. Walsh , No. 00-CV-663 (NG), 2002 WL 1447483, at *7 (E.D.N.Y. July 2, 2002). In Rodriguez , the Court found that the petitioner's claim that he was entitled to a jury instruction on circumstantial evidence was not cognizable on habeas review, because he relied entirely on New York law and the Appellate Division reasonably rejected his challenge to the jury charge, as his own inculpatory statements constituted direct evidence. Id. Here, the prosecution presented direct evidence linking Petitioner to the crime. For example, both Ms. Yarborough and Mr. Shire testified that they observed Petitioner fire multiple shots from a gun on May 28, 2011, in the vicinity of where the victim was shot. Further, Ms. Covington testified that, following the shooting, Petitioner told her that he was going to "kill [her] too." In other words, the case against Petitioner was not comprised solely of circumstantial evidence, and Petitioner was therefore not entitled to an instruction on circumstantial evidence. See also Cromwell v. Smith , No. 13 Civ. 29(KBF), 2014 WL 1280287, at *7 (S.D.N.Y. Mar. 25, 2014) ("There is no constitutional due process right to a jury charge on circumstantial evidence" and "given the nature of circumstantial evidence and the fact that the trial court determined that there was also direct evidence linking petitioner to the crime ... failure to give the instruction did not render the trial so fundamentally unfair that petitioner was deprived of his right to due process."). Accordingly, Petitioner is not entitled to federal habeas relief based on the trial court's failure to instruct the jury on circumstantial evidence.
To the extent Petitioner claims that his counsel was ineffective for failing to request such an instruction (see Dkt. 1 at 5 (noting that his attorney failed to request circumstantial evidence instruction)), any such claim is also denied. "The Sixth Amendment requires effective assistance of counsel at critical stages of a criminal proceeding." Lafler v. Cooper , 566 U.S. 156, 165, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012). "Pursuant to the well-known two-part test of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a habeas petitioner alleging ineffective assistance of counsel ‘must demonstrate (1) that his counsel's performance fell below what could be expected of a reasonably competent practitioner; and (2) that he was prejudiced by that substandard performance.’ " Woodard v. Chappius , 631 F. App'x 65, 66 (2d Cir. 2016) (quoting Pearson v. Callahan , 555 U.S. 223, 241, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) ). Where a state court has rejected the ineffective assistance of counsel claim, a "doubly deferential standard of review that gives both the state court and the defense attorney the benefit of the doubt" applies on federal habeas review. Burt v. Titlow , 571 U.S. 12, 15, 134 S.Ct. 10, 187 L.Ed.2d 348 (2013). "[T]he burden to show that counsel's performance was deficient rests squarely on the defendant.... [T]he absence of evidence cannot overcome the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance." Burt , 571 U.S. at 22-23, 134 S.Ct. 10 (quotations and original alterations omitted).
Petitioner has failed to meet both prongs of the Strickland test. First, trial counsel's performance did not fall below what could be expected of a reasonably competent practitioner because, as explained above, there was direct evidence linking Petitioner to the crimes charged. In other words, counsel did not request a circumstantial evidence charge because such a charge was not required under New York law, given the direct evidence against Petitioner. Petitioner also has not met the second prong of the Strickland test, as "he has not proven that but for the omitted jury charge, the result of the trial would have been different." Grant v. Connell , No. 06 CV 4364(KTD), 2008 WL 834184, at *5 (S.D.N.Y. Mar. 27, 2008) (denying the petitioner's ineffective assistance of counsel claim based on counsel's failure to request circumstantial evidence charge, because "[t]he circumstantial evidence against Petitioner was overwhelming" and "[t]he evidence presented at trial was more than sufficient and the failure of trial counsel to request this charge was harmless error."); Candelario v. Mann , No. CV-90-2926, 1991 WL 42917, at *3 (E.D.N.Y. Mar. 20, 1991) ("Neither counsel's failure to object to the court's unwillingness to further highlight the prosecution's burden nor his failure to ask for a circumstantial evidence charge can be construed as ineffective assistance of counsel."). As explained above, the prosecution offered direct evidence supporting Petitioner's conviction, and therefore an instruction on circumstantial evidence would not have changed the result. Accordingly, this claim does not entitle Petitioner to habeas relief.
III. Petitioner's Claim that his Conviction was Against the Weight of the Evidence
Petitioner's second argument is that he is entitled to federal habeas relief because his conviction for murder in the second degree was against the weight of the evidence. (See Dkt. 1 at 7). Respondent contends that this claim is not cognizable on federal habeas review. (See Dkt. 8 at 8). Respondent further argues that, to the extent Petitioner claims that his conviction is not supported by sufficient evidence, any such claim should be denied based on the evidence presented against Petitioner at trial. (Id. at 8-10).
Federal habeas review is permitted only where the petitioner has alleged "that he is in custody in violation of the Constitution or laws or treaties of the United States." See 28 U.S.C. § 2254(a). "In making a ‘weight of the evidence’ argument, petitioner has not asserted a federal claim as required by 28 U.S.C. § 2254(a). Instead, he has raised an error of state law, for which habeas review is not available." Garrison v. Rock , No. 08-CV-6266 (MAT), 2010 WL 3369602, at *3 (W.D.N.Y. Aug. 23, 2010) ; see also Winkfield v. Lee , No. 14 Civ. 1329 (GBD)(BCM), 2017 WL 4712631, at *1 (S.D.N.Y. Sept. 29, 2017) (petitioner's claim asserting that his "convictions were against the weight of the credible evidence" was a "pure state law claim grounded in New York Criminal Procedure Law § 4570.15(5)," and therefore "habeas relief [was] not warranted...."). Accordingly, Petitioner is not entitled to federal habeas relief on this ground.
To the extent Petitioner argues that his conviction was not supported by legally sufficient evidence, see Klosin v. Conway , 501 F. Supp. 2d 429, 439-40 (W.D.N.Y. 2007) (construing pro se petitioner's claim that his conviction was "against the weight of the evidence," as a "sufficiency of the evidence," claim), any such claim is denied. A petitioner "bears a very heavy burden in convincing a federal habeas court to grant a petition on the grounds of insufficiency of the evidence." Fama v. Comm'r of Corr. Servs. , 235 F.3d 804, 811 (2d Cir. 2000). "The standard for assessing the sufficiency of the evidence to support a guilty verdict is well settled, and it is the same under both Federal and New York state law: The reviewing court is limited to asking whether ‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ " Klosin , 501 F. Supp. 2d at 440 (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ).
Pursuant to NY Penal Law § 125.25, a person is guilty of murder in the second degree when, "[w]ith intent to cause the death of another person, he causes the death of such person or of a third person...." Viewing the evidence in the light most favorable to the prosecution, as the Court is required to do, any rational trier of fact could have found the essential elements of murder in the second degree beyond a reasonable doubt. At trial, two eyewitnesses – Mr. Shire and Ms. Yarborough – testified that they knew Petitioner and identified him as shooting a firearm at Mr. Covington on May 28, 2011, in the vicinity of where the victim was killed. Further, Shirley Covington testified that she had a telephone conversation with Petitioner following the shooting, during which he told her "I'm going to kill you too." The jury also heard from a firearms examiner, who examined the shell casings and bullets recovered from the scene, including the bullet recovered from the victim during the autopsy. Mr. Easter determined that the bullets were consistent in their physical and design characteristics with .32 caliber bullets, and with the .32 auto cartridge cases he had examined. Accordingly, there was sufficient evidence supporting Petitioner's conviction for murder in the second degree, and Petitioner is not entitled to habeas relief on this ground.
In his direct appeal, Petitioner argued that his conviction was against the weight of the evidence because "the People's key witnesses were not credible." See People v. Chelley , 121 A.D.3d at 1506, 993 N.Y.S.2d 597. At trial, Ms. Covington stated that she was testifying in hopes of receiving leniency on a federal charge. (Trial T. pp. 277-79). Similarly, Mr. Shire stated that he was currently incarcerated for a parole violation and was testifying in hopes of receiving assistance from the District Attorney's office in having his parole transferred to another state. (Id. at 416-17). Petitioner does not specifically make this argument in his habeas Petition; however, any such claim falls short of entitling Petitioner to habeas relief. See Davis v. Herbert , No. 02-CV-04908, 03-MISC-0066(JBW), 2003 WL 23185747, at *13 (E.D.N.Y. Oct. 24, 2003) ("Petitioner's first argument, that the witnesses were not credible, is generally beyond the scope of habeas corpus review. The Appellate Division specifically held that the guilty verdict was not against the weight of the evidence. The decision is not contrary to or an unreasonable application of controlling Supreme Court authority. The issue of witness credibility was extensively argued at trial and appropriately presented to the jury."), aff'd , 170 F. App'x 763 (2d Cir. 2006). The Court agrees with the Fourth Department that "the jury was in the best position to assess the credibility of the witnesses and, on this record, it cannot be said that the jury failed to give the evidence the weight it should be accorded[.]" People v. Chelley , 121 A.D.3d at 1506, 993 N.Y.S.2d 597 (internal quotations and citations omitted); see also Snyder v. New York , No. 6:12-CV-6555(MAT), 2014 WL 4219559, at *5 (W.D.N.Y. Aug. 25, 2014) ("To the extent Petitioner challenges the sufficiency of the evidence based upon Stedge's and Rivera's lack of credibility, the weight given to a witness's testimony is a question of fact to be determined by the jury ... and a district court sitting in habeas review must resolve all credibility issues in the verdict's favor and cannot second-guess the jury's determinations.") (internal citation omitted).
IV. Petitioner's Challenge to the Severity of the Sentence
Petitioner's third and final argument is that his sentence is "harsh and excessive" and "should be modified in the interest of justice." (See Dkt. 1 at 8). Respondent contends that Petitioner's challenge to the severity of his sentence is not cognizable on federal habeas review. (Dkt. 8 at 11).
"Although ‘New York's Appellate Division has discretion to reduce a sentence in the interest of justice, a federal habeas court considering a state-court conviction has no such power, and a claim that a sentence should be reduced in the interest of justice does not allege a violation of a federally protected right.’ " Rodriguez v. Bell , No. 19-cv-3218 (KAM), 2020 WL 999870, at *4 (E.D.N.Y. Mar. 2, 2020) (quoting Baide-Ferrero v. Ercole , No. 06-CV-6961 (RJS), 2010 WL 1257615, at *4 (S.D.N.Y. Mar. 31, 2010) ). Accordingly, Petitioner is not entitled to federal habeas relief on this ground.
The Court may construe Petitioner's claim as alleging an Eighth Amendment violation. See, e.g., Rodriguez , 2020 WL 999870, at *4 ("The Court could liberally construe [the petitioner's] petition as alleging that the sentence imposed is ‘grossly disproportionate to the severity of the crime.’ "). "The Eighth Amendment forbids only extreme sentences that are grossly disproportionate to the crime.... As the Supreme Court has itself observed, outside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare." United States v. Snype , 441 F.3d 119, 152 (2d Cir. 2006) (internal quotations and citations omitted).
"Where a petitioner's sentence falls within the range prescribed by state law, federal courts will recognize no federal constitutional issue.... This rule applies even if the sentence imposed constitutes the maximum term permissible under the statute." Willard v. New York , No. 08-CV-1525(JS), 2009 WL 4823365, at *5 (E.D.N.Y. Dec. 4, 2009) (internal citations omitted); see also Brito v. Keyser , No. 19 Civ. 4197 (VEC)(GWG), 2020 WL 236697, at *9 (S.D.N.Y. Jan. 15, 2020) ("While the Eighth Amendment prohibits the imposition of a sentence that is ‘grossly disproportionate to the severity of the crime,’ ... the Second Circuit has stated that ‘[n]o federal constitutional issue is presented where ... the sentence is within the range prescribed by state law.’ ") (internal citations omitted) (alteration in original), adopted , 2020 WL 995826 (S.D.N.Y. Mar. 2, 2020) ; Herrera v. Artuz , 171 F. Supp. 2d 146, 151 (S.D.N.Y. 2001) ("It is well settled that when a sentence is in accord with the range established by state statutory law there is no constitutional issue presented for habeas review."). Plaintiff does not contend that his sentences exceed what is permitted by New York law. The trial court imposed Plaintiff's sentences to run concurrently, and the sentences of 25 years to life on the murder conviction and 15 years on the weapons conviction are within the range prescribed by New York law. See N.Y. Penal Law § 125.25 (murder in the second degree is a Class A-1 felony); id. at § 70.00(2)(a), (3)(a)(i) (maximum term of sentence for Class A felony is life imprisonment, and minimum period of imprisonment for Class A-1 felony is between 15 to 25 years); id. at § 265.03 (criminal possession of a weapon in the second degree is a Class C felony); id. at § 70.00(2)(c) (maximum term of sentence for Class C felony shall not exceed 15 years); see also Alvarado Ajcúc v. New York , No. 18-CV-00183, 2019 WL 3409515, at *6 (E.D.N.Y. July 29, 2019) (holding that petitioner's excessive sentence claim did not present any grounds for federal habeas relief, where petitioner was sentenced to two indeterminate terms of 25 years to life, to be served concurrently, for his convictions on two counts of murder in the second degree).
The conduct forming the basis of Petitioner's offense, that is, his senseless and intentional firing a firearm in the early evening in the City of Buffalo, resulting in an innocent victim, who was outside his home fixing his granddaughter's bicycle, to be struck in the head by a stray bullet and killed, demonstrates Petitioner's complete disregard for human life, and is sufficient to support the sentences imposed. In other words, this is not one of those "extraordinary circumstances" in which the trial court's sentencing decision "amounted to an improper, ‘arbitrary or capricious abuse of discretion’ that deprived the petitioner of his liberty." Herrera , 171 F. Supp. 2d at 151 (citations omitted). Accordingly, Plaintiff has failed to demonstrate that he is entitled to federal habeas relief on this ground.
CONCLUSION
For the foregoing reasons, the Court denies the Petition for Writ of Habeas Corpus (Dkt. 1). The Clerk of Court is instructed to close this case. Further, because Petitioner has not made "a substantial showing of the denial of a constitutional right," see 28 U.S.C. § 2253(c)(2), the Court declines to issue a certificate of appealability. In addition, the Court hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith and leave to appeal to the Court of Appeals as a poor person is denied. Coppedge v. United States , 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962). Requests to proceed on appeal in forma pauperis should be directed on motion to the United States Court of Appeals for the Second Circuit in accordance with Rule 35 of the Federal Rule of Appellate Procedure.
SO ORDERED.