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concluding that a pro se petitioner is deemed to have raised a challenge to the legal sufficiency of the evidence by asserting that the verdict was against the weight of the evidence
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No. 03 Civ. 9757 (RWS).
September 17, 2004
TYRONE HOWIE, Petitioner Pro Se, Warwick, NY.
HONORABLE ELIOT SPITZER, Attorney General of the State of New York, Attorneys for Respondent, New York, NY, By: LUKE MARTLAND, Assistant Attorney General, ROBIN A. FORSHAW, Assistant Solicitor General Of Counsel.
OPINION
Tyrone Howie, ("Howie"), proceeding pro se and currently incarcerated at the Mid-Orange Correctional Facility, petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that his New York State Court conviction on December 19, 2000 violated his rights under the U.S. Constitution. For the reasons set forth below, the petition is denied.
Prior Proceedings
Howie's conviction arose from his encounter with Randy Santana ("Santana") on the afternoon of July 28, 2000. Following a jury trial, a judgment of conviction was entered on January 23, 2001, by the Honorable Marcy Kahn of New York Supreme Court, New York County, for Criminal Possession of a Weapon in the Second Degree and Criminal Possession of a Weapon in the Third Degree. As a second felony offender, Howie was sentenced to concurrent terms of ten years on the second degree count and seven years on the third-degree count.
Howie's conviction was affirmed on January 21, 2003 by the Appellate Division, First Department. People v. Howie, 301 A.D.2d 443, 752 N.Y.S.2d 851 (1st Dep't 2003). On March 18, 2003, the Court of Appeals denied leave to appeal that affirmance.People v. Howie, 99 N.Y.2d 629, 760 N.Y.S.2d 110 (2003). Howie did not seek review of the conviction by the United States Supreme Court.
Howie timely filed the present habeas petition, pro se, on October 14, 2003, for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 after first exhausting his remedies in state court. The government responded on March 29, 2004, at which time the motion was deemed fully submitted.
Prosecution's Case
At trial, the prosecution presented evidence showing that on July 28, 2000, at approximately 2:00 PM, Howie and a companion approached Santana and his friend Juan Carlos ("Carlos") at the corner of 145th Street and Broadway in Manhattan and began speaking to them in English. Because Santana did not speak English, Carlos, who spoke both Spanish and English, translated. Howie wore a blue shirt and his companion wore a black jacket. Howie and his companion repeatedly demanded, in English, that Santana return their money. Santana replied, through Carlos, that they were mistaking him for someone else, and that he did not know anything about their money. The four men began walking uptown until they reached 159th Street, where they stopped. Howie's companion reached into the back of his waistband and produced a revolver, which he held near his side with the muzzle pointed towards the ground. He again demanded money from Santana and snatched Santana's cell phone from his hand A few minutes later, Howie's companion put his revolver back in his waistband and returned Santana's cell phone.
The four men then began walking downtown on Broadway. As Santana and Howie were approaching 158th Street, Howie put his arm around Santana and said something to him in English. Howie then lifted up the front of his shirt to reveal a silver-colored pistol with a black grip tucked into his waistband Howie's companion and Carlos stood approximately 18 feet away while this happened. When Howie concealed his weapon again, Santana warned Carlos of the weapon, and Carlos walked away.
While standing behind Howie, Santana called 911 on his cell phone and spoke to a police dispatcher in Spanish. At approximately 2:15 PM, Police Officer Maria Alvarez ("Alvarez") and her partner approached Santana at 158th Street and Broadway. Santana told Alvarez in Spanish that Howie threatened him with a firearm and had entered a nearby jewelry store. Alvarez entered the jewelry store and ordered Howie against the wall. She handcuffed him, patted him down and recovered a silver-colored pistol with a black handle from Howie's front waistband, loaded with a magazine containing eight bullets and one bullet in the chamber. Alvarez then placed Howie under arrest. Detective Sean Walsh of the Firearms Analysis Section identified the weapon as an operable nine-millimeter semi-automatic Luger pistol. Howie's Case
Howie testified that on the morning of July 28, 2000, he traveled from Jersey City, New Jersey to Manhattan to purchase drugs for a drug dealer named Sean. Over the course of the year preceding July 28, 2000, Howie had purchased drugs from Santana, also known as "Poppi," on 158th Street in Manhattan on approximately seven different occasions. Howie had been given $1,000 by Sean on July 28th to purchase cocaine from Santana, and was promised $150 in exchange for making the transaction. At approximately 2:00 PM, Howie approached Santana in his usual location on 158th Street and Broadway and gave him $1,000, after which Santana went into a building on 158th Street. He emerged three minutes later with a bag of cocaine and gave it to Howie. Howie tasted the cocaine, which he said tasted "starch," and his tongue did not go numb. Trial Transcript ("Tr.") at 491. Howie told Santana that the cocaine was no good and returned the bag to him. Santana, however, insisted that the cocaine was good. Howie then demanded: "Listen, man, take this back. Either give me back my money or give me some good drugs." Tr. at 475.
Eventually, Santana told petitioner to "hold on a minute," took his cell phone out of his pocket and said, "I'm going to call my friend upstairs and have him come downstairs and give you something good." Id. After the phone call, Howie repeatedly asked Santana about his friend, and was reassured that his friend was coming. Approximately fifteen minutes after Santana's phone call, police cars began arriving at the scene and, fearing apprehension, Howie walked away. Alvarez arrested him moments later, but Howie did not see Santana at the time of the arrest.
Howie acknowledged that he carried his loaded pistol with him that day, but said that it was the first time he had carried it while purchasing drugs from Santana. On July 28, Howie carried the gun in his front waistband, but Santana could not have seen the bulge it created in his pants because it was covered by his blue sweatshirt. Howie also testified that he never displayed the weapon, nor threatened Santana with it. Howie, who was six foot two inches tall and weighed 240 pounds, had studied martial arts for over 17 years, testified that he could have easily "tak[en]" the much smaller Santana without using a weapon. Tr. at 483.
At the time of his arrest, Howie was on parole for a 1998 theft-related felony conviction in North Carolina. Howie was also convicted of a drug-related felony in 1991.
Discussion
Howie argues that his conviction for Criminal Possession of a Weapon in the Second Degree was "against the weight of the credible evidence" because "[t]he sole evidence that petitioner intended to use his gun unlawfully against another was based on the testimony of a convicted drug dealer who, in any event, testified that it was the man with petitioner who actually pulled out a gun and threatened him . . ." Petition at 2, 4. Howie has not challenged his conviction for Criminal Possession of a Weapon in the Third Degree.
Standard of Review
In addressing the present motion, the Court is mindful that the plaintiff is proceeding pro se and that his submissions should be held "`to less stringent standards than formal pleadings drafted by lawyers. . . .'" Hughes v. Rowe, 449 U.S. 5, 9, 101 S. Ct. 173, 176, 66 L. Ed. 2d 163 (1980) (per curiam) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 595, 30 L. Ed. 2d 652 (1972)); see also Ferran v. Town of Nassau, 11 F.3d 21, 22 (2d Cir. 1993). Indeed, district courts should "`read the pleadings of a pro se plaintiff liberally and interpret them to raise the strongest arguments they suggest.'"McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quotingBurgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). Nevertheless, the Court is also aware that pro se status "does not exempt a party from compliance with relevant rules of procedural and substantive law." Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (quotations omitted).
Howie challenges the factual findings that formed the basis for his conviction. The factual determinations of a state court are given a great deal of deference on federal habeas review. The standard of review is provided by the Antiterrorism and Effective Death Penalty Act ("AEDPA").
In enacting AEDPA, Congress significantly "modifie[d] the role of federal habeas courts in reviewing petitions filed by state prisoners." Williams v. Taylor, 529 U.S. 362, 403, 120 S. Ct. 1495, 1518 (2000). Under AEDPA, "a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e) (1). "The petitioner bears the burden of `rebutting the presumption of correctness by clear and convincing evidence.'" Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir. 2003) (quoting § 2254 (e) (1)).
Howie's Weight of the Evidence Claim is Not Cognizable on Federal Habeas Review
From a literal reading of the petition, Howie is challenging his conviction as being "against the weight of the credible evidence." Petition at 2. However, challenges to the weight of the evidence supporting a conviction, unlike challenges to the sufficiency of the evidence, are not cognizable on federal habeas review. Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996); Ex parte Craig, 282 F. 138, 148 (2d Cir. 1922) ("a writ of habeas corpus cannot be used to review the weight of evidence . . ."),aff'd, 263 U.S. 255, 44 S. Ct. 103 (1923); McBride v. Senkowski, 98 Civ. 8663, 2002 WL 523275 at *4 n. 2 (S.D.N.Y. Apr. 8, 2002) (weight of evidence is not cognizable on habeas review); see also Young v. Kemp, 760 F.2d 1097, 1105 (11th Cir. 1985) ("A federal habeas court has no power to grant habeas corpus relief because it finds that the state conviction is against the `weight' of the evidence . . ."), cert. denied, 476 U.S. 1123 (1986). Unlike New York State appellate courts, the federal courts may not independently "weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony." People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 (1987). Therefore, this Court may not consider the "weight of the evidence" claim.
Construing Howie's petition to raise the strongest possible arguments, however, Howie is deemed to have raised a challenge to the legal sufficiency of the evidence. Howie did not argue on direct appeal in the state courts that his conviction was based on legally insufficient evidence, and only argued that his conviction was against the weight of the evidence. Howie "is now barred from making any additional leave application because his application for leave to appeal has already been denied by the New York Court of Appeals." Richardson v. Greiner, No. 97 Civ. 5448, 2003 WL 76994, at *2 (S.D.N.Y. Jan. 9, 2003) (citing New York Court Rules § 500.10(a), Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994)). "Nor may he now seek collateral review in the state courts because his claims either could have been, or were in fact, raised on direct appeal." Id. (citing New York Criminal Procedure Law §§ 410.10(2) (a), (2) (c), Bossett, 41 F.3d at 829). Howie's claim is therefore exhausted for federal habeas purposes because he is procedurally barred from raising the issue in state court. "For exhaustion purposes, `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, 120-21 (2d Cir. 1991) (quotingHarris v. Reed, 489 U.S. 255, 263 n. 9, 109 S. Ct. 1038, 1043 n. 9, 103 L. Ed. 2d 308 (1989)).
Although the legal insufficiency claim has been exhausted, it is also procedurally defaulted from habeas review because of the failure to raise the claim in state court earlier. See Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001) ("it has been held that when `the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred,' federal habeas courts also must deem the claims procedurally defaulted.") (quoting Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991)). In order for a court to consider a claim that has been procedurally barred, "the petitioner must show cause for the default and prejudice, or demonstrate that failure to consider the claim will result in a miscarriage of justice (i.e., the petitioner is actually innocent)." Id. (citing Coleman, 501 U.S. at 748-50).
Howie has not shown any cause for the failure to raise the legal insufficiency claim below, nor has he claimed that he is actually innocent and that the failure to consider the claim would be a miscarriage of justice. Howie's claim is therefore procedurally defaulted.
Even if the claim were to be considered on the merits, it would fail. When challenging the legal sufficiency of the evidence, a "state prisoner `is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.'" Einaugler v. Supreme Court of the State of New York, 109 F.3d 836, 839 (2d Cir. 1997) (quoting Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)); accord Farrington v. Senkowski, 214 F.3d 237, 240-241 (2d Cir. 2000); Rukaj v. Fischer, No. 02 Civ. 3529, 2003 WL 194201, at *3 (S.D.N.Y. Jan. 28, 2003). Moreover, the Court must consider "the evidence in the light most favorable to the prosecution." Ponnapula v. Spitzer, 297 F.3d 172, 176 (2d Cir. 2002). Thus, on the matter of the sufficiency of the evidence, Howie has a heavy burden and must "rebut the presumption that all factual determinations made by the state court were correct." Id.; see also 28 U.S.C. § 2254(e). Bearing these principles in mind, the jury was entitled to find that Howie's guilt of second-degree criminal possession was proven beyond a reasonable doubt.
In reviewing the legal sufficiency of the evidence of a state conviction, "[a] federal court must look to state law to determine the elements of the crime." Ponnapula, 297 F.3d at 179 (quoting Quartararo v. Hanslmaier, 186 F.3d 91, 97 (2d Cir. 1999)), cert. denied 528 U.S. 1170 (2000). To convict Howie of Criminal Possession of a Weapon in the Second Degree, the prosecution had the burden to prove that Howie possessed "a loaded firearm with the intent to use the same unlawfully against another." N.Y. Penal Law § 265.03(2).
Howie has not disputed that he possessed a loaded gun, and only challenges the sufficiency of the finding that he intended to use it unlawfully against another. In convicting Howie, the jury was entitled to rely on the statutory presumption under § 265.15(4), which provides that "[t]he possession by any person of . . . any weapon . . . is presumptive evidence of intent to use the same unlawfully against another." N.Y. Penal Law § 265.15(4)); see also People v. Gibbs, 254 A.D.2d 209, 209, 681 N.Y.S.2d 10 (1st Dep't 1998), app. denied, 92 N.Y.2d 1049, 685 N.Y.S.2d 427 (1999). In People v. Almodovar, 62 N.Y.2d 126, 130, 476 N.Y.S.2d 95, 464 N.E.2d 463 (1984), the Court of Appeals held that "[t]he essence of the conduct defined in the sections 265.01-265.05 of the Penal Law is the act of possessing a weapon unlawfully." The Court added that although "[t]he crime may be more serious because of the intent with which the defendant acts . . . [o]nce the unlawful possession of the weapon is established, the possessory crime is complete and any unlawful use of the weapon is punishable as a separate crime." Id.; see also Davis v. Strack, 270 F.3d 111, 134 (2d Cir. 2001) (same).
The prosecution presented evidence in the form of testimony from Santana that Howie and his companion had repeatedly demanded money from him. Santana also testified that Howie later lifted his shirt to show Santana the handle of the gun concealed in his waistband Based on these facts and the statutory presumption under § 265.15(4), the jury was entitled to infer that Howie possessed the gun with intent to use it unlawfully against another, even if Howie did not actually pull the gun out of his waistband and threaten Santana with it.
With respect to Howie's claim that the evidence was insufficient because the sole evidence of unlawful use of his gun came from the testimony of a convicted drug dealer, a court reviewing a habeas petition may not revisit the fact-finder's credibility determinations. Marshall v. Lonberger, 459 U.S. 422, 432-35, 103 S. Ct. 843, 74 L. Ed. 2d 646 (1983); United States v. Strauss, 999 F.2d 692, 696 (2d Cir. 1993); Vera v. Hanslmaier, 928 F. Supp. 278, 284 (S.D.N.Y. 1996). One of the inviolable rules of jury trials is that determinations of witness credibility "are within the sole province of the jury." Hayes v. New York City Dept. of Corr., 84 F.3d 614, 619 (2d Cir. 1996)see also Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996) ("[A]ssessments of the weight of the evidence or the credibility of witnesses are for the jury and [are] not grounds for reversal on appeal"). For this reason, "the testimony of a single, uncorroborated eyewitness is generally sufficient to support a conviction." United States v. Danzey, 594 F.2d 905, 916 (2d Cir. 1979); see also Edwards v. Jones, 720 F.2d 751, 755 (2d Cir. 1983) (following Danzey even though the testimony and character of the sole witness who directly implicated the petitioner was "less than inspiring"). Howie's challenge to Santana's credibility is therefore not a ground for granting the petition based on the legal insufficiency of the evidence.
Conclusion
Petitioner's claims have been considered and dismissed as lacking merit as he has shown no violation of his constitutional rights in his conviction. His petition for a writ of habeas corpus is therefore denied. As petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253(c)(2); Lucidore v. N.Y.S. Div. of Parole, 209 F.3d 107, 111-113 (2d Cir. 2000). Pursuant to 28 U.S.C. § 1915(a)(3), it is hereby certified that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-445 (1962).
It is so ordered.