Opinion
03 CIV. 7621 (DLC).
May 30, 2006
Appearances:
For Petitioner: Ranfis Perez Pro Se
For Respondent: Walter Storey Office of the District Attorney, New York County New York.
MEMORANDUM OPINION ORDER
Ranfis Perez ("Perez") has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 to vacate his conviction in 2001 following trial. In a report of January 13, 2006, the Honorable Debra Freeman recommended that the petition be denied ("Report").
Perez contends that his rights under the Sixth and Fourteenth Amendments were denied when a conversation occurred between an alternate juror and a court officer on the first day of Perez's trial. As described more fully in the Report, the evidence at trial showed that Perez had been drinking beer in an apartment with two men, that he shot and killed one of them, and shot at and injured the second. In executing a search warrant for Perez's apartment, the police found boxes of ammunition. Perez was found guilty of murder, attempted murder, assault and criminal possession of a weapon. On March 22, 2001, he was sentenced principally to an indeterminate prison term of 25 years to life.
At the end of first day of trial, a court officer reported to counsel and the court that an alternate juror had asked why police officer witnesses at the trial were not in uniform, and then had added that he didn't think they were required to be in uniform. The officer told the juror not to speculate and not to ask questions about the case. The next day, the court added to its instructions to the jurors, cautioning them not to speculate on the evidence and not to talk to anyone, including court officers, about the case. At no time did any of the attorneys object or ask for any further instruction. The alternate juror did not deliberate.
Perez raised the issue of this conversation on appeal. The Appellate Division addressed it directly, finding that the communication was "limited and innocuous," that it was appropriately addressed by the court's supplemental instruction, and that the petitioner's rights, including his right to be present at all material stages of his trial, had not been violated. People v. Perez, 298 A.D.2d 121, 121-22 (1st Dep't 2002). The Court of Appeals denied leave to appeal. This petition was timely filed on August 11, 2003, and referred to the Magistrate Judge shortly thereafter.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, requires that a habeas corpus petition adjudicated on the merits in state court must be denied unless the state court's adjudication
(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 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) (emphasis supplied). AEDPA further mandates that a state court's determination of a factual issue shall be presumed correct and may be rebutted only by clear and convincing evidence. 28 U.S.C. § 2254(e) (1).
Perez has not shown that the Appellate Division's decision reflects an unreasonable application of clearly established federal law as determined by the Supreme Court. Nothing in Perez's objections requires this Court to revisit the Report's recommendation that the petition be dismissed.
Conclusion
The Report is adopted and the petition for a writ of habeas corpus is denied. In addition, I decline to issue a certificate of appealability. The petitioner has not made a substantial showing of a denial of a federal right, and appellate review is therefore not warranted. Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998). I also find pursuant to Title 28, United States Code, Section 1915(a) (3), that any appeal from this order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 445 (1962). The Clerk of Court shall dismiss this petition.