Opinion
00 Civ. 3283 (DAB) (AJP).
February 23, 2001.
REPORT AND RECOMMENDATION
To the Honorable Deborah A. Batts, United States District Judge:
Pro se petitioner Arthur Riles seeks a writ of habeas corpus from his conviction, after a jury trial, of criminal sale of a controlled substance for which he was sentenced to four and one half to nine years imprisonment. (See Dkt. No. 1: Petition ¶¶ 1-6.) Riles alleges that he was denied due process by: (1) the trial court's citation, during a supplemental jury charge further explaining the agency defense, to Riles being charged with violating Penal Law § 239 instead of Penal Law § 220.39 (Pet. ¶ 12(A)), (2) the First Department's affirmance of Riles' conviction even though the prosecution's brief "show[ed] no opposing argument or citation of authority" to refute Riles' contention that he was denied due process by the trial court's mis-citation (Pet. ¶ 12(B)), and (3) the First Department's application of harmless error analysis to Riles' claim regarding the mis-citation (Pet. ¶ 12(C)).
For the reasons set forth below, the petition should be denied.
FACTS
On April 2, 1996, petitioner Arthur Riles was arrested and charged with criminal sale of a controlled substance for participating in the sale of ten dollars of crack cocaine to an undercover officer as part of a "buy and bust" operation in upper Manhattan. (12/4/00 Declaration of Assistant Attorney General S. Kenneth F. Jones ("Jones Aff.") Ex. B: Riles 1st Dep't Br. at 2-7; Dkt No. 4: State Br. at 3.)
The undercover officer testified that he had approached Riles and "asked him if he knew anyone who had work," a street name for crack cocaine. (Calloway: Trial Transcript ("Tr.") 205; Riles 1st Dep't Br. at 4.) After questioning the officer "to make sure [he was] not a cop," Riles directed the undercover to Namkell Kelly. (Calloway: Tr. 205-13, 246; see also Riles 1st Dep't Br. at 5-6.) The undercover approached Kelly, asked if he had "work" and purchased from Kelly two bags of crack cocaine for ten dollars while Riles stood by. (Calloway: Tr. 213-17; Riles 1st Dep't Br. at 6.)
In summation, defense counsel argued that the prosecution had not proven beyond a reasonable doubt that Riles had "acted in concert with Mr. Kelly in selling drugs," but that instead the evidence showed that Riles had acted on behalf of the buyer, the undercover officer. (Defense Summation: Tr. 296-304.)
Challenged Supplemental Jury Charge
In the course of charging the jury on the "agency defense," the trial court stated, inter alia, as follows:
The People contend that the defendant acted in concert with Mr. Kelly, in the commission of the crime. The defendant on the other hand denies that he acted in concert with Mr. Kelly and he in fact has interposed what we call the agency defense, with respect to this particular crime charged.
So let me get into that right now.
As I say the defendant has interposed a defense called the agency defense and specifically the agency defense is that Mr. Riles says that during the transaction at issue here, he was acting solely as the ability [sic] of the buyer. He was not acting in concert with Mr. Kelly, in selling any drugs.
You will recall that the defendant as I say is charged with violating Section 220.39 of the Penal Law which is Criminal Sale of a Controlled Substance in the Third Degree.
This provision of law punishes only the sale, only the seller, of a controlled substance. It does not punish the buyer, in such a sale or transaction. It only punishes a seller not a buyer. This particular crime.
Therefore, one who acts solely in the capacity of an agency of the buyer, cannot be convicted pursuant to this section of the Penal Law of the Criminal Sale of a Controlled Substance in the Third Degree.
. . . .
So, as I say since the defendant, the defense is the People have failed to prove beyond a reasonable doubt that he was acting in concert with Mr. Kelly and has raised the agency defense, the law requires the People to prove to your satisfaction beyond a reasonable doubt that Mr. Riles was not the agent of the undercover police officer. But was instead acting with a seller, acting in concert with Mr. Kelly in the transaction. As charged in the indictment.
Whether Mr. Riles was in fact an agent of the buyer or in fact a seller acting in concert with Mr. Kelly is a question of fact for you the jury to determine. You must therefore evaluate from all the evidence surrounding the transaction, in order to determine whether the People have proved beyond a reasonable doubt that the defendant was in fact a seller acting in concert with Mr. Kelly and was not in fact solely an agent of the buyer.
(Charge: Tr. 330, 334-37, emphasis added.)
During deliberations the jury requested that the trial judge reexplain the agency defense. (Tr. 350, 352.) The trial judge's supplemental charge in response reads in relevant part as follows:
I will now explain the law applicable to the defense of agency which I shall refer to as the agency defense.
You will recall that the defendant is charged with violating section 239 of the Penal Law. This section as I said earlier punishes only the sale of a controlled substance. It punishes only a seller of controlled substance. Not buyers.
Therefore, one who acts solely in the capacity of an agent of the buyer . . . cannot be convicted pursuant to this section of the law.
. . . .
The law requires the People to prove to your satisfaction beyond a reasonable doubt that the defendant was not the agent of the undercover. The purchaser in this case. But was instead in fact a seller acting in concert with Mr. Kelly then in the transaction at issue here.
Whether the defendant was in fact an agent of the buyer or in fact a seller acting in concert with Mr. Kelly is a question of fact for you the jury to determine. You must therefore examine all the evidence surrounding the transaction in order to determine whether the People have proved beyond a reasonable doubt that the defendant was in fact one of the sellers and not in fact solely an agent of the buyer.
(Charge: Tr. 352-54, emphasis added.) Defense counsel did not object to any portion of the court's jury instructions. (See, e.g., Charge: Tr. 346; Jones Aff. Ex. C: Riles 1st Dep't Pro Se Supp. Br. at 16.)
Verdict and Sentencing
The jury returned a guilty verdict. (Verdict: Tr. 362-64.) On March 5, 1997, Riles was sentenced as a second offender to the maximum sentence, four and one half to nine years imprisonment. (See, e.g., Jones Aff. ¶¶ 2, 3; Jones Aff. Ex. C: Riles 1st Dep't Pro Se Supp. Br. at 6.)
Direct State Appeal
On June 15, 1998, represented by counsel, Riles appealed to the First Department, arguing that the evidence was legally insufficient to prove guilt beyond a reasonable doubt. (Jones Aff. ¶ 9 Ex. B: Riles 1st Dep't Br. at 9-18.) On November 10, 1998, Riles filed a pro se supplemental brief with the First Department, alleging that the trial court's jury instruction on the agency defense was improper because, inter alia, the trial court had charged the jury under the wrong section of the Penal Law. (Jones Aff. ¶ 10 Ex. C: Riles Pro Se Supp. 1st Dep't Br. at 2, 5, 13-16.)
Prior to his direct state appeal, Riles filed a pro se motion to vacate his conviction pursuant to CPL § 440.10 on the ground that: (1) the laboratory report pertaining to his drug sale was defective; (2) the People failed to instruct the Grand Jury on the affirmative defense of agency; (3) insufficient evidence to convict; (4) court reporter error; and (5) ineffective assistance of counsel. (See Jones Aff. ¶ 6 Ex. G.) The trial court denied the motion, holding that the issues could be reviewed on direct appeal. (See Jones Aff. ¶ 7.)
The State argued that Riles' claims regarding the jury charge were unpreserved, but that in any event, the trial court's agency jury instruction was proper. (Jones Aff. ¶ 11 Ex. D: State 1st Dep't Br. at 16-22.) In a footnote, the State addressed Riles' claim regarding the trial court's citation to the incorrect section of the Penal Law:
As for defendant's complaint that the court charged the jury under the "wrong" section of the Penal Law, it is clear that the reference to "section 239" is either a typographical error or an inadvertent misstatement by the court that could not possibly have prejudiced defendant.
(State 1st Dep't Br. at 22 n. 1, record citations omitted.)
On June 3, 1999, the First Department unanimously affirmed Riles' conviction, holding:
The verdict was supported by legally sufficient evidence and was not against the weight of the evidence. The totality of the evidence permitted a reasonable conclusion that defendant's careful questioning of the undercover officer was part of the drug selling operation and that defendant was not merely assisting a stranger in locating a supplier of drugs, but could have been a screener or steerer. Also, the jury was free to reject defendant's agency defense which was properly charged without objection by defendant.
We have considered and rejected defendant's remaining claims, including those contained in his pro se supplemental brief.People v. Riles, 262 A.D.2d 16, 16-17, 690 N.Y.S.2d 582, 582 (1st Dep't 1999) (emphasis added, citation omitted).
On August 2, 1999, the New York Court of Appeals denied leave to appeal. People v. Riles, 93 N.Y.2d 1025, 697 N.Y.S.2d 584 (1999).
Riles' Federal Habeas Corpus Petition
Riles timely filed his federal habeas corpus petition, alleging that he was denied due process by: (1) the trial court's citation to the wrong Penal Law section in its supplemental jury charge (Pet. ¶ 12(A)), (2) the First Department's affirmance of his conviction even though the prosecution's brief "show[ed] no opposing argument or citation of authority" to refute Riles' contention that he was denied due process by the trial court's mis-citation (Pet. ¶ 12(B)), and (3) the First Department's application of harmless error analysis to Riles' claim regarding the mis-citation (Pet. ¶ 12(C)).
ANALYSIS
I. RILES WAS NOT DENIED DUE PROCESS BY THE TRIAL COURT'S CITATION TO THE INCORRECT PENAL LAW SECTION DURING ITS SUPPLEMENTAL CHARGE TO THE JURY
Riles alleges that he was denied due process by the trial court's citation to the wrong Penal Law section during its supplemental charge on the agency defense. (Pet. ¶ 12(A).) The State argues that Riles' claim is procedurally barred (State Br. at 12-13) and without merit (id. at 14-15).
A. The Court Cannot Say That The First Department's Decision Rests On An Independent State Ground of Procedural Default
Riles raised the claim regarding the court's mis-citation, along with various other claims regarding the agency defense charge, in his pro se supplemental brief to the First Department. (See generally Jones Aff. Ex. C: Riles Pro Se Supp. 1st Dep't Br.) In response, the State argued that Riles' claims with respect to the agency defense charge were unpreserved because defense counsel had not objected to the instruction (Jones Aff. Ex. D: State 1st Dep't Br. at 16-17) and that the instruction was proper (id. at 17-22). With respect to the mis-citation in particular, the State argued that "it is clear that the reference to 'section 239' is either a typographical error or an inadvertent misstatement by the court that could not possibly have prejudiced defendant." (Id. at 22 n. 1) The First Department ruled that "the jury was free to reject defendant's agency defense which was properly charged without objection by defendant" and that "[w]e have considered and rejected defendant's remaining claims including those contained in his pro se supplemental brief." People v. Riles, 262 A.D.2d 16, 16-17, 690 N.Y.S.2d 582, 582 (1st Dep't 1999).
It is well-established that "[w]hen a state appellate court affirms a conviction with an opinion, [a federal court] cannot assume that the decision rested on a procedural default. Indeed, in order to preclude federal review, the last state court to render judgment must 'clearly and expressly state that its judgment rest[ed] on a state procedural bar.'" Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997) (citations omitted, alterations in original). The First Department's decision here can only be described as "facially ambiguous." Hayes v. Coombe, 142 F.3d 517, 519 (2d Cir. 1998), cert. denied, 525 U.S. 1108, 119 S.Ct. 879 (1999). Accordingly, since "[i]t is unclear whether the [First Department] rejected [Riles' wrong Penal Law section in the jury instruction] claim because it was unpreserved or because it was deemed meritless as a matter of federal constitutional law," this Court will address the merits of the claim. Tankleff v. Senkowski, 135 F.3d 235, 247 (2d Cir. 1998). B. Wrong Penal Law Citation in the Supplemental Jury Charge
Accord, e.g., Fluellen v. Walker, 97 Civ. 3189, 2000 WL 684275 at *5 (S.D.N.Y. May 25, 2000) (Peck, M.J.); Estrada v. Senkowski, 98 Civ. 7796, 1999 WL 1051107 at *10 (S.D.N.Y. Nov. 19, 1999) (Pauley, D.J. Peck, M.J.); see also, e.g., Avincola v. Stinson, 60 F. Supp.2d 133, 153 n. 7 (S.D.N.Y. 1999) (Scheindlin, D.J. Peck, M.J.).
Accord, e.g., Fluellen v. Walker, 2000 WL 684275 at *5;Estrada v. Senkowski, 1999 WL 1051107 at *10; see also, e.g., Avincola v. Stinson, 60 F. Supp.2d at 153 n. 7.
Accord, e.g., Estrada v. Senkowski, 1999 WL 1051107 at *10;Avincola v. Stinson, 60 F. Supp.2d at 153 n. 7; McLean v. McGinnis, 29 F. Supp.2d 83, 92 (E.D.N.Y. 1998).
It is well-established that a federal habeas 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, 112 S.Ct. 475, 480 (1991) ("We have stated many times that 'federal habeas corpus relief does not lie for errors of state law.'") (quoting Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 3102 (1990)).
See also, e.g., Solomon v. Artuz, 00 Civ. 0860, 2000 WL 863056 at *4 (S.D.N.Y. June 28, 2000) (Peck, M.J.); Gillette v. Greiner, 76 F. Supp.2d 363, 370 (S.D.N.Y. Oct. 29, 1999) (Peck M.J.); Benitez v. Senkowski, 97 Civ. 7819, 1998 WL 668079 at *4 (S.D.N.Y. Sept. 17, 1998) (Cote, D.J. Peck, M.J.); James v. Senkowski, 97 Civ. 3327, 1998 WL 217903 at *5 (S.D.N.Y. April 29, 1998) (Cote, D.J. Peck, M.J.); Simmons v. Ross, 965 F. Supp. 473, 480 (S.D.N.Y. 1997).
As the Second Circuit has stated: "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." Blazic v. Henderson, 900 F.2d 534, 540 (2d Cir. 1990) (quoting Casillas v. Scully, 769 F.2d 60, 63 (2d Cir. 1985)).
See also, e.g., Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 400 (1973); Holden v. Miller, 00 Civ. 0926, 2000 WL 1121551 at *13 (S.D.N.Y. Aug. 8 2000) (Peck, M.J.); Solomon v. Artuz, 00 Civ. 0860, 2000 WL 863056 at *5 (S.D.N.Y. June 28, 2000) (Peck, M.J.); Gillette v. Greiner, 76 F. Supp.2d at 370;Ellison v. Hoke, No. 93 CV 3048, 1995 WL 561344 at *3 (E.D.N Y Sept. 15, 1995); Godfrey v. Irvin, 871 F. Supp. 577, 580 (W.D.N.Y. 1994).
"For an erroneous state jury charge to result in a federal constitutional deprivation, 'the ailing instruction by itself [must have] so infected the entire trial that the resulting conviction violates due process.'" Blazic v. Henderson, 900 F.3d at 541 (alteration in original, quoting Cupp v. Naughten, 414 U.S. at 147, 94 S.Ct. at 400); see, e.g., Casillas v. Scully, 769 F.2d at 63; Holden v. Miller, 2000 WL 1121551 at *13; Solomon v. Artuz, 2000 WL 863056 at *5; Davis v. Strack, 97 Civ. 5375, 1999 WL 1565178 at *12 (S.D.N.Y. Apr. 13, 1999) (Peck M.J.). The challenged instruction is not to be viewed in isolation, but "in the context of the overall charge." Cupp v. Naughten, 414 U.S. at 147, 94 S.Ct. at 400.
See also, e.g., Carmona v. Artuz, 96 Civ. 8045, 1997 WL 876737 at *11 (S.D.N.Y. Oct. 7, 1997) ("Jury charges that contain errors, even if they lead to the jury misapplying state law, do not ordinarily give rise to federal habeas corpus relief in non-capital cases. . . . Rather, an erroneous jury charge must have 'infected the entire trial' to be a cognizable claim in a habeas corpus proceeding."), report rec. adopted, 96 Civ. 8045, 1998 WL 213781 (S.D.N.Y. April 29, 1998); Ellison v. Hoke, 1995 WL 561344 at *3; Godfrey v. Irvin, 871 F. Supp. at 581.
See also, e.g., Vargas v. Keane, 86 F.3d 1273, 1277 (2d Cir.), cert. denied, 519 U.S. 895, 117 S.Ct. 240 (1996); Gillette v. Greiner, 76 F. Supp.2d at 371; Davis v. Strack, 1999 WL 1565178 at *12; Bramble v. Smith, 96 Civ. 5905, 1998 WL 395265 at *17 (S.D.N.Y. July 15, 1998); Carmona v. Artuz, 1997 WL 876737 at *11; Godfrey v. Irvin, 871 F. Supp. at 581.
Here, taking the challenged instruction "in the context of the overall charge," there is no reasonable possibility that the court's reference to the incorrect number when citing the statutory section which Riles had been charged with violating "'so infected the entire trial that the resulting conviction violates due process.'" Blazic v. Henderson, 900 F.3d at 541 (quoting Cupp v. Naughten, 414 U.S. at 147, 94 S.Ct. at 400). Even if the jurors noticed the numerical slip, it was clear that the judge was referring to the Penal Law section for criminal sale of a controlled substance in the third degree, and there is no claim before this Court that the elements of that offense were not properly charged or, for that matter, that the elements of an agency defense were not properly explained to the jury. In the unlikely event that there was a lawyer among the jurors who was familiar with the various sections of the Penal Law by number, there was no possibility of confusing Penal Law section 220.39 with section 239, because there is no section 239 of the Penal Law.
Accordingly, Riles' first habeas claim is without merit.
II. RILES' SECOND AND THIRD HABEAS CLAIMS ARE DUPLICATIVE OF THE FIRST CLAIM
As noted above, Riles admits he did not raise his second and third habeas claims in state court. (See Pet. ¶ 13.) The claims, however, are meritless.
The Court therefore need not address the State's argument that Riles' second and third habeas claims are unexhausted and procedurally barred. See 28 U.S.C. § 2254(b)(2).
Riles' second habeas claim is that the First Department decision denying his wrong citation claim violated due process because the prosecutor had not opposed the claim. (Pet. ¶ 12(B).) The factual predicate of Riles' second habeas claim, however, is incorrect. Although only in a footnote, the State's Brief did respond to Riles' wrong citation argument (State 1st Dep't Br. at 22 n. 1, quoted at page 6 above) — and this Court cannot say that a footnote was an insufficient response to so patently frivolous a claim.
Riles' third claim — that the First Department violated due process by applying harmless error analysis to Riles' instructions claim (Pet. ¶ 12(C)) — is legally frivolous. It is not clear that the First Department relied on a harmless error analysis (see page 6 above), but if it did, the numerical mis-citation to a Penal Law section, when the trial judge correctly instructed the jury as to the elements of the offense and of the agency defense, clearly could not possibly have harmed Riles. Riles' third habeas claim is no different than his first, and does not state a viable constitutional claim.
CONCLUSION
For the reasons set forth above, Riles' habeas corpus petition should be denied. Since Riles has not made a "substantial showing of the denial of a constitutional right," a certificate of appealability should not issue. 28 U.S.C. § 2253.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Deborah A. Batts, 500 Pearl Street, Room 2510, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Batts. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636 (b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).