Opinion
05 Civ. 6127 (DC).
July 31, 2006
MARCUS JOHNSON Petitioner, Pro Se Fishkill Correctional Facility Beacon, New York.
ELIOT SPITZER, Esq. Attorney General for the State of New York Attorney for Respondent By: Luke Martland, Esq. Malancha Chandra, Esq. Assistant Attorneys General New York, New York.
MEMORANDUM DECISION
Pro se petitioner Marcus Johnson petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted, following a bench trial in the Supreme Court of the State of New York, New York County, of criminal possession of a controlled substance in the fourth degree and resisting arrest. Petitioner was sentenced to an indeterminate term of five and one-half to eleven years on the narcotics count and a concurrent determinate term of one year on the resisting arrest count. His conviction for resisting arrest subsequently was vacated by the New York Supreme Court. Petitioner now contests his conviction for possession of a controlled substance on the following grounds: (1) the court convicted petitioner on a crime not charged at the time of his arrest; (2) there was insufficient evidence to sustain a conviction of fourth degree possession of a controlled substance; (3) he was denied effective assistance of appellate counsel; and (4) the court should have suppressed certain evidence. For the reasons that follow, the petition is denied.
BACKGROUND
I. The Facts
The following is a summary of the facts adduced at trial.
On February 18, 1999, around 2:45 a.m., a police officer in plain clothes, Joseph Fernandez, entered the first floor hallway of an apartment building at 530 West 147th Street, New York, New York, in pursuit of a lost subject from a nearby buy and bust drug transaction. (Tr. 100). Inside the public area of the building, the officer heard voices and proceeded further down the public hallway, where he encountered petitioner standing with an individual later identified as Raul Ramos. (Tr. 101-02). Petitioner was holding a sandwich bag containing a white substance in his left hand and was moving his right hand as if he were about to pay Ramos. (Tr. 102). Officer Fernandez also saw a roll of aluminum foil and what appeared to be crack cocaine on an electronic scale near the staircase. (Tr. 103).
References are as follows: "Tr." to pages of the trial transcript, "S." to pages of the sentencing transcript, "RX" to respondent's exhibits, and "PX" to petitioner's exhibits.
Fernandez approached, took the sandwich bag from petitioner's hand, grabbed both men, and tried to take them outside. (Id.). Johnson repeatedly put his feet on the exit door, preventing Fernandez from exiting with the two men. (Id.). Ramos broke free and ran out the front door of the apartment building, but was stopped by another officer outside. (Tr. 104, 315-17). Johnson attempted to leave through the back stairs, but Fernandez grabbed him and wrestled him to the ground. (Tr. 104-05). As they struggled, Fernandez threw the sandwich bag, which landed approximately a foot and a half away from them. (Tr. 105). Fernandez held the petitioner on the ground with his hands and body weight until backup officers arrived. (Tr. 105).
Detective Dicerbo arrived approximately 20 minutes later and removed $185 from petitioner's hand, as well as two electronic scales, aluminum foil, and a pager from the hallway. (Tr. 106-07, 209-25). Dicerbo also recovered the sandwich bag of white substance, although a small amount of the powder spilled onto the floor when he picked the bag up. (Tr. 210). Dicerbo placed the sandwich bag and the spilled contents into a paper bag. (Tr. 210, 213-14). Laboratory tests performed on February 19, 1999, revealed that the plastic bag contained more than one-quarter ounce of cocaine. (Tr. 302-05).
Petitioner was arrested and charged, according to the arrest report, with one count each of criminal possession of a controlled substance in the fifth degree (Penal Law § 220.06(1)) and resisting arrest (Penal Law § 205.30). (PX C). On March 22, 1999, petitioner was indicted (Indictment Number 1748/99) for Criminal Possession of a Controlled Substance in the Fourth Degree (Penal Law § 220.09(1)) and Resisting Arrest (Penal Law § 205.30). (PX K).
II. Procedural History A. Trial Proceedings
On October 21, 1999, the case was heard in the motion part of the Supreme Court, New York County. Justice Renee White made certain rulings and dismissed the resisting arrest count.
On October 25, 1999, the petitioner waived his right to a jury trial and proceeded with a bench trial before Justice Marcy L. Kahn. (Tr. 6). Justice Kahn conducted a Sandoval hearing and limited the prosecution's ability to introduce petitioner's past convictions at trial. (Tr. 3, 62-67).
Although Justice White had already conducted a Sandoval hearing, Justice Kahn explained that she preferred to conduct her own Sandoval hearings. (Tr. 3). Justice Kahn's Sandoval ruling was more favorable to petitioner. People v. Johnson, 301 A.D.2d 462 (1st Dep't 2003).
At trial, the prosecution presented the testimony of four New York City Police Officers, including Officer Fernandez, Sergeant Whiteside, and Detective Dicerbo. (Tr. 97-178, 180-200, 204-60). In addition, three New York City Police Department chemists testified that the narcotics recovered from the crime scene contained over one-quarter ounce of cocaine. (Tr. 275-305).
Petitioner testified and admitted that he was present at the crime scene on February 18, 1999, but denied any connection to the drugs found in the apartment building hallway. An independent investigator testified for the defense, attempting to discredit Officer Fernandez's testimony. (Tr. 322-436). On October 28, 1999, Justice Kahn convicted Johnson on one count of Criminal Sale of a Controlled Substance in the Fourth Degree. Unaware that Justice White had dismissed the Resisting Arrest count, Justice Kahn convicted him on that count as well. (Tr. 480-81).
On December 17, 1999, Justice Kahn sentenced petitioner to an indeterminate term of five and one-half to eleven years on the narcotics count and one year, to be served concurrently, for resisting arrest. (S. 23).
B. The Appeals and Petitioner's § 440.10 Motions
Prior to filing a direct appeal, petitioner filed a pro se § 440.10 motion to vacate the judgments before the Supreme Court of New York County in March 2000. Justice Kahn vacated the petitioner's conviction on resisting arrest when she learned that Justice White had dismissed the charge on October 21, 1999 (RX B at 4-5), but denied his motion in other respects. (See RX B at 5). Justice White subsequently denied petitioner's second § 440.10 motion. (RX D). The Appellate Division, First Department, granted petitioner leave to appeal the denial of his first § 440.10 motion, stipulating that this appeal be consolidated with petitioner's direct appeal. (RX F).
Represented by counsel on appeal petitioner argued that (1) the record contained insufficient evidence to convict the petitioner of fourth degree possession of a controlled substance; (2) the court abused its discretion in ordering a new Sandoval hearing; and (3) the court should have suppressed certain evidence when Sergeant Whiteside failed to turn over Rosario material. (RX G). Petitioner filed a supplemental pro se brief, echoing his counsel's brief and further asserting the lack of probable cause for his arrest and ineffective assistance of appellate counsel. On January 28, 2003, the Appellate Division unanimously affirmed petitioner's conviction on the narcotics count. The New York Court of Appeals denied leave to appeal.People v. Johnson, 301 A.D.2d 462 (1st Dep't), lv. denied, 99 N.Y.2d 655 (2003).
Sergeant Whiteside, one of the arresting officers, prepared a Daily Activity Report for the events of February 18, 1999, leading up to petitioner's arrest. Whiteside testified that he lost this document and could not produce it at trial.
The petitioner subsequently filed additional § 440.10 and § 440.20 motions. The New York Supreme Court denied both, concluding that all the issues raised were reviewable on direct appeal, had already been adjudicated, or were without legal merit. (RX Q, S).
DISCUSSION
I. Federal Review of State ConvictionsThe Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") "placed a new restriction on the power of federal courts to grant writs of habeas corpus to state prisoners."Williams v. Taylor, 529 U.S. 362, 399 (2000). AEDPA set forth new standards of review that made it more difficult for a habeas petitioner to obtain federal relief from a state conviction. AEDPA provides that:
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.28 U.S.C. § 2254(d) (1), (2).
AEDPA has been interpreted to require a petitioner to show not only that clearly established federal law was erroneously or incorrectly applied, but that the application was unreasonable.See Williams, 529 U.S. at 411; see also Lockyer v. Andrade, 538 U.S. 63, 66 (2003); Bell v. Cone, 535 U.S. 685, 688 (2002). As the Second Circuit has explained: "A state court decision is `contrary to' Supreme Court precedent only if it either `arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law' or `confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at [the opposite result].'" Lainfiesta v. Artuz, 253 F.3d 151, 155 (2d Cir. 2001) (quoting Williams, 529 U.S. at 405). The standards set forth by AEDPA apply to all habeas petitions filed after the statute's effective date of April 24, 1996. See Boyette v. Lefevre, 246 F.3d 76, 88 (2d Cir. 2001) (citing Williams, 529 U.S. at 402).
Federal courts may evaluate habeas corpus petitions only if the petitioner has exhausted his state remedies, i.e., he (1) has "fairly presented" his federal claims to the state's highest court and (2) "has utilized all available mechanisms to secure appellate review of the denial of [his] claim." 28 U.S.C. § 2254(b) (1) (A); see Picard v. Connor, 404 U.S. 270, 275 (1971); O'Sullivan v. Boerckel, 526 U.S. 838 (1999). Nevertheless, AEDPA provides that a district court may deny a claim "on the merits," even if the petitioner has failed to exhaust his state court remedies. 28 U.S.C. § 2254(b) (2).
II. Application
Respondent argues that the Court should dismiss Johnson's petition because it is untimely (Resp. Mem. at 15-16) and he failed to exhaust his state court remedies as to all claims, in particular his claim of ineffective assistance of counsel. (Resp. Mem. at 17-19). I do not address the exhaustion or the timeliness arguments, however, because I deny Johnson's petition on the merits.
Johnson asserts four principal claims, which I discuss in turn: (1) the court convicted petitioner for a crime not charged at the time of his arrest; (2) there is insufficient evidence to convict him of fourth degree possession of a controlled substance; (3) he was denied effective assistance of appellate counsel; and (4) the court violated petitioner's Fourth Amendment rights by admitting evidence that the police collected as part of an illegal search and seizure.
1) Changes in the Charge
Petitioner argues that he was convicted of a higher offense than the crime with which he was initially charged. He claims that "the first indictment established that [he] was arrested for [criminal possession of a controlled substance in the fifth degree, but he] was found guilty of the higher offense of the amended indictment #1748-99 for [criminal possession of a controlled substance in the fourth degree], a crime that [he] was never officially arrested for." (PX T).
Petitioner is mistaken in asserting that he was convicted for a higher offense than the offense charged in the indictment. He is apparently relying on an arrest report that shows that he was arrested for criminal possession of a controlled substance in the fifth degree. (PX C). No state or federal law, however, requires that a defendant be tried only on the crimes that he is charged with on his arrest.
To the extent petitioner's claim alleges that the indictment was improperly amended, he is also mistaken. While the record is unclear, it appears that petitioner was charged in a felony complaint, not an indictment, on February 18, 1999. Justice Kahn rejected petitioner's argument that his indictment was improperly amended in her denial of petitioner's § 440.30 motion. She explained that "contrary to defendant's contention," a felony complaint dated February 18, 1999, charged petitioner with criminal possession of a controlled substance in the fourth degree. (RX Q at 3). Thus, the felony complaint charged petitioner with the same offense charged in the indictment on which he was convicted.
It is not clear whether there was more than one indictment, as the record before the Court contains only one indictment, number 1748-99. The record does not contain a copy of any other indictment or the felony complaint. Further, the respondent's briefs offer conflicting chronologies of events.
The courts have rejected petitioner's claims, which are based in state law, see RX B, RX D, RX I, RX J, and these decisions were not contrary to established federal law. Furthermore, the Constitution does not obligate states to indict defendants by grand juries. LanFranco v. Murray, 313 F.3d 112, 118 (2d Cir. 2002). Accordingly, errors in state grand jury proceedings are questions of state law and therefore not reviewable on a petition for a writ of habeas corpus. Mirrer v. Smyley, 703 F. Supp. 10, 11-12 (S.D.N.Y. 1989). Finally, any potential defect in a grand jury proceeding is cured by a subsequent conviction. See United States v. Mechanik, 475 U.S. 66, 70 (1986); see also Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989) (holding that claims of error in grand jury proceedings may not be raised where a properly instructed jury convicted at trial); Cadilla v. Johnson, 119 F. Supp. 2d 366, 371 (S.D.N.Y. 2000) ("a jury conviction transforms any defect connected with the grand jury's charging decision into harmless error").
Petitioner has not cited to any Supreme Court precedent or federal law showing that a defendant can be tried only for the crime charged at the time of arrest. In addition, he has not demonstrated that the state courts unreasonably applied clearly established Federal law. Accordingly, this claim is denied.
2) Sufficiency of the Evidence a) Applicable Law
Petitioner claims that his conviction was based on evidence that was legally insufficient to support a conviction for fourth degree possession of a controlled substance. In evaluating a claim of insufficiency of evidence, a federal court must review the evidence in a light most favorable to the prosecution.Jackson v. Virginia, 443 U.S. 307, 319 (1979). A guilty verdict should be affirmed if any "`rational trier of fact could have found the essential elements' of the charged crime `beyond a reasonable doubt.'" United States v. Salmonese, 352 F.3d 608, 618 (2d Cir. 2003) (citing Jackson, 443 U.S. at 319). In cases where the facts support conflicting inferences, the reviewing court must presume that the jury "resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Jackson, 443 U.S. at 326; see also United States v. Chacko, 169 F.3d 140, 148 (2d Cir. 1999).
b) Application
Petitioner has failed to demonstrate that the evidence admitted at trial was insufficient to support his conviction. "A person is guilty of criminal possession of a controlled substance in the fourth degree when he knowingly and unlawfully possess[ed] [a] . . . substance containing a narcotic drug . . . of an aggregate weight of one-eighth ounce or more." Penal Law § 220.09(1).
At trial, the prosecution presented the testimony of four New York City Police Officers and three New York City Police Department chemists. Officer Fernandez testified that he saw Johnson with the bag of white substance in his hand. (Tr. 102). The chemist testified that the plastic bag of white powder contained one-quarter ounce plus two grains of cocaine. (Tr. 303). From this evidence, a rational trier of fact could have concluded that the petitioner "knowingly and unlawfully possess[ed] [a] . . . substance containing a narcotic drug . . . of an aggregate weight of one-eighth ounce or more." Penal Law § 220.09(1). Moreover, the Appellate Division concluded that if it were to review the legal insufficiency claim, it "would find that the evidence was legally sufficient." People v. Johnson, 301 A.D.2d 462. Such a finding would not be contrary to established federal law. Petitioner fails to meet the "heavy burden" required to show that his petition should be granted on the grounds of insufficient evidence. See Chacko, 169 F.3d at 148. Accordingly, this claim is denied.
3) The Effectiveness of Counsel a) Applicable Law
Petitioner argues that appellate counsel was ineffective. Although respondent argues that this claim is unexhausted, I evaluate petitioner's claim on the merits nonetheless.
To prove ineffective assistance of counsel, Johnson must show that (1) his counsel's performance fell below an objective standard of reasonableness under prevailing professional norms and (2) he was prejudiced by counsel's deficient performance.See Strickland v. Washington, 466 U.S. 668, 686-88 (1984);United States v. Vegas, 27 F.3d 773, 777 (2d Cir. 1994). To demonstrate prejudice, Johnson must show that, but for counsel's errors, there is a sufficient probability that the outcome of the proceeding would have been different. Strickland, 466 U.S. at 694.
When the court applies the Strickland test, "[j]udicial scrutiny of counsel's performance must be highly deferential."Id. at 689. "The court's central concern is not with `grad[ing] counsel's performance,' but with discerning `whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results.'" United States v. Aguirre, 912 F.2d 555, 561 (2d Cir. 1990) (internal citation omitted) (quoting Strickland, 466 U.S. at 696-97).
The Strickland test has been extended so that it also applies to claims of ineffective assistance of appellate counsel. See Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994). Appellate counsel is not required to raise every possible issue on appeal.Jameson v. Coughlin, 22 F.3d 427, 429 (2d Cir. 1994). See also Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989) ("[I]ndeed, the weeding out of weaker issues is widely recognized as one of the hallmarks of effective appellate advocacy."). Failure to raise an issue on appeal is only grounds for finding ineffective assistance of counsel when that issue is clearly a better argument than the issues raised. Mayo, 13 F.3d at 533. Accordingly, to show that appellate counsel was ineffective, petitioner must prove that counsel failed to raise "significant and obvious" issues, but pursued claims that were "clearly and significantly weaker." Id. b) Application
Petitioner has not established that but for counsel's deficient performance the outcome of the proceeding would have been different. Counsel raised three points in his brief: (1) there was insufficient evidence to convict Johnson of possession in the fourth degree; (2) the trial court's Sandoval hearing was prejudicial; and (3) the trial court erred in admitting evidence in violation of the Rosario rule. Petitioner argued that his appellate counsel was ineffective because he failed to argue legal points raised in petitioner's pro se brief, specifically the dissimilarity between the arresting charge and indictment charge. See RX I at 4; RX K at 4. Although counsel did not raise the issue that Johnson's indictment had been improperly amended, this issue is not "clearly a better argument than the issues raised," and is insufficient to sustain a claim of ineffective appellate counsel. Indeed, as petitioner's claim challenging the indictment is without merit, his ineffective counsel claim is also without merit.
4) Probable Cause for Arrest a) Applicable Law
The petitioner claims that the police officers violated his Fourth Amendment rights when they arrested him without probable cause. While federal courts may review constitutional claims, "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial."Stone v. Powell, 428 U.S. 465 (1976). The Second Circuit has established a litmus test to determine when a state prisoner has been denied an opportunity for full and fair litigation of his Fourth Amendment claims. See Cappellan v. Riley, 975 F.2d 67 (2d Cir. 1992); Gates v. Henderson, 568 F.2d 830 (2d Cir. 1977). Fourth Amendment claims may only be reviewed (1) if the state has provided no corrective procedures to redress the alleged Fourth Amendment claims; or (2) if the defendant was precluded from using the corrective mechanism because of an unconscionable breakdown in the underlying process. See Gates, 568 F.2d at 840.
b) Application
Johnson has had a full and fair opportunity to litigate this matter. Petitioner raised the issue of probable cause for his arrest at the trial, at his sentencing, and in his § 440 motions. Thus, even if I were to disagree with the state court's assessment of the Fourth Amendment issue, this court does not have the authority "to review the state record and grant the writ." Gates, 568 F.2d at 840. Moreover, even if the matter were reviewable, clearly there was probable cause. Petitioner was literally caught holding the bag of cocaine, and the officer had probable cause to arrest him. Accordingly this claim is denied.
CONCLUSION
For the reasons set forth above, Johnson's application for a writ of habeas corpus is denied and the petition is dismissed in its entirety. Because petitioner has not made a substantial showing of the denial of a constitutional right, I decline to issue a certificate of appealability. See 28 U.S.C. § 2253 (as amended by AEDPA). I certify pursuant to 28 U.S.C. § 1915(a) (3) that any appeal taken from this decision would not be taken in good faith.
SO ORDERED.