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finding that the petitioner's Rosario claim did not "rise to the level of a federal constitutional violation, as required for habeas review"
Summary of this case from Enoksen v. SquiresOpinion
97 CV 5917(SJ)
June 18, 2003
JOHN PERKINS, Marcy Correctional Facility, Marcy, New York, for Petitioner
CHARLES J. HYNES, Amy Applebaum, Brooklyn, New York, for Respondent
MEMORANDUM AND ORDER
John Perkins ("Petitioner"), has brought the above-captioned petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. On June 10, 2003, the Court heard oral argument on the petition. Having considered the papers and arguments of the parties, the Court issues the following decision denying the petition for a writ of habeas corpus.
FACTUAL BACKGROUND
The facts are set out in the papers and are not in dispute. Briefly, Petitioner Perkins and several co-defendants were arrested and charged following the execution of a search warrant for an apartment in Kings County. The warrant was obtained through information provided by a confidential informant. At trial, the state presented physical evidence obtained from the search of the apartment and the testimony of co-conspirators and arresting officers. The prosecution did not call the confidential informant, nor reveal his or her identity. The trial court conducted an ex parte. in camera hearing and determined that revealing the identity of the confidential informant would jeopardize his safety. The court also refused to give a Missing Witness jury instruction as requested by the Defense. Petitioner was convicted and sentenced, as a second felony offender, to concurrent terms of 12.5 years to life and 12.5 to 25 years. He subsequently appealed his convictions to the Appellate Division, alleging the same claims he raises here. The convictions were affirmed, he was denied permission to appeal further, and his application for reconsideration was denied. This habeas petition is timely.DISCUSSION
I. Jury Instructions
Petitioner alleges that he was harmed by the trial court's failure to give a Missing Witness jury instruction regarding the confidential informant. Jury instructions are normally a matter of state law. "[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). "In order to obtain a writ of habeas corpus in federal court on the ground of error in a state court's instructions to the jury on matters of state law, the petitioner must show not only that the instruction misstated state law but also that the error violated a right guaranteed to him by federal law." Casillas v. Scully, 769 F.2d 60, 63 (2d Cir. 1985. Here, Petitioner has failed even to show that the instruction violated state law. Under New York law, a defendant may establish the need for a Missing Witness charge where "there is an uncalled witness believed to be knowledgeable about a material issue in the case." People v. Gonzalez, 68 N.Y.2d 424, 427 (1986). The material issues were 1) whether petitioner knowingly possessed a controlled substance, 2) with the intent to sell, and 3) whether he criminally used drug paraphernalia. The confidential informant gave information sufficient to obtain a warrant to search the apartment, but was not there during the search. Petitioner was convicted on the basis of the evidence found at the apartment and on the testimony of co-conspirators. Thus, nothing the confidential informant could testify to was material, and so Petitioner was not entitled to a Missing Witness instruction. Even if the omission was made in error, such error was harmless, because, as discussed below, the evidence of guilt was overwhelming, and Petitioner has not demonstrated that "actual prejudice" occurred. See Brecht v. Abrahamson, 507 U.S. 619, 639 (1993) (Petitioner is only entitled to habeas relief if trial error substantially influenced the verdict).
II. Non-Production of a Witness
Petitioner also contends that he was prejudiced by the non-production of the confidential informant at trial. Federal courts considering habeas petitions must give deference to state courts' findings of fact, unless they are unsupported by the record and legal conclusions, or "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" 28 U.S.C. § 2254(d)(1), (2): see also Lockyer v. Andrade, 123 S.Ct. 1166, 1172 (2003), In Petitioner's case, the Appellate Division held that he had failed to demonstrate that the confidential informant would have provided material, exculpatory testimony. This decision is supported by the record and comports with Federal law; therefore the Court may not review this claim. Even if the Court were to consider Petitioner's claims on the merits, this claim would be denied. The confidential informant had no material information, thus, non-production of the confidential informant did not cause any prejudice to Petitioner and did not deny him a fair trial.
III. Sufficiency of the Evidence
Petitioner further contends that the evidence presented at trial was legally insufficient to establish that he "knowingly" possessed two ounces of cocaine. It appears that Petitioner is arguing that the evidence did not establish that he knowingly possessed cocaine in an amount in excess of two ounces. He appears to argue that the testimony of the two expert witnesses in chemistry who testified at trial failed to establish "proof of knowledge of the weight." This claim is without merit. New York courts have held that such an inference is fairly derived under the "aggregate weight" standard: since the entire weight of the mixture, including cutting agents is counted, a person handling the cocaine plus cutting agents would know that the weight exceeded that amount. People v. Ryan, 82 N.Y.2d 497, 505 (1993). See also, U.S. ex rel. Daneff v. Henderson, 501 F.2d 1180, 1184-85 (2d Cir. 1974) (upholding New York's statutory scheme using the aggregate weight standard). When a conviction is reviewed for the legal sufficiency of the evidence, the relevant standard is whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). Here, a rational trier of fact could have credited the testimony of the chemists regarding the weight of the cocaine, and thus could have found beyond a reasonable doubt the essential elements of Criminal Possession of a Controlled Substance in the Second Degree. Petitioner's claim must be denied.
IV. Rosario Materials
Finally, Petitioner contends that he was harmed by the late disclosure of Rosario materials. People v. Rosario, 9 N.Y.2d 286 (1961), requires that defendants in New York State courts receive the statements of prosecution witnesses. Petitioner's allegations do not rise to the level of a federal constitutional violation, as required for federal habeas review. Even if the Court could consider Petitioner's claims on the merits, this claim would be denied. The record reveals that most materials were handed over in advance of trial. In one case, a letter was disclosed on the morning of opening statements, and Defense Counsel used it on cross-examination. In another case, a rap sheet was provided on the morning a witness was supposed to testify, and the court granted a continuance. Petitioner acknowledges that the materials were turned over in technical compliance with the law, but complains that the late turn-over "established a pattern of gamesmanship . . . which continued throughout the whole trial, which in whole denied the petitioner a fair trial." However, there is no claim or evidence that prejudice resulted. Thus, there was no violation of People v. Rosario, nor of federal due process.CONCLUSION
For the foregoing reasons, Petitioner's application for a writ of habeas corpus is denied. Because Petitioner has not made a substantial showing of the denial of any constitutional right, a certificate of appealability will not be issued. The Court further certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this order would not be taken in good faith.
SO ORDERED.
A Memorandum and Order of Honorable Sterling Johnson Jr., United States District Judge, having been filed on June 23, 2003, denying petitioner's application for a writ of habeas corpus; declining the issuance of a Certificate of Appealability; and certifying pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from the Court's Memorandum and Order would not be taken in good faith; it is
ORDERED and ADJUDGED that petitioner take nothing of the respondent; that petitioner's application for a writ of habeas corpus is denied; that a Certificate of Appealability shall not issue; and that pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from the Court's Memorandum and Order would not be taken in good faith.