Opinion
00 Civ. 2293 (SAS)
October 24, 2000
Herbert Steed, Brooklyn, New York, for Petitioner (Pro Se).
Valerie Singleton, Esq., Assistant Attorney General, New York, New York, for Respondent.
OPINION AND ORDER
Pro se petitioner Herbert Steed seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner raises ten claims, each of which will be discussed below. For the following reasons, Steed's petition is denied.
For ease of disposition, some of petitioner's claims are combined. Specifically, lack of geographical jurisdiction and applicability of the Warsaw Convention are combined in Footnote 4; and right to appear before the grand jury and improper consolidation of the two indictments are combined in Part II.C.7.
I. BACKGROUND
Steed was president of Gamair Tours Operator ("Gamair"), a Manhattan-based travel agency. See Memorandum of Law in Opposition to Petitioner's Application for a Writ of Habeas Corpus ("Opp. Mem.") at 2. In the Spring of 1994, Steed agreed to make travel arrangements for a group of 225 Ghanian tourists wishing to travel to Los Angeles to attend the World Cup Soccer tournament scheduled for June 1994. See id. On June 8, 1994, a Ghanian-based travel agent, Jonathan Eyeson, wired Steed $800,000 to purchase airfare and hotel accommodations for the tourists. See id. at 2-3. During the next two months, Steed converted this money for his own use. See id. at 3.
On August 9, 1994, New York City police officers arrested Steed for grand larceny as a result of the above theft. Id. A felony complaint charging Steed with grand larceny was also filed on the same date. Following the arrest, an inventory search revealed a welfare card which led to the discovery that Steed was collecting public assistance while living in Trump Towers, a luxury residential building. See id.
There is some discrepancy regarding the exact date of Steed's arrest. The New York City Police Department Arrest Report states that he was arrested on August 8, 1994. See Arrest Report, Ex. 6 to Memorandum of Law to Petitioner's Application for a Writ of Habeas Corpus ("Pet. Mem."). However, other documents state that petitioner was arrested on August 9, 1994. See, e.g., Opp. Mem., at 3. There is no significance, however, as to the precise date of petitioner's arrest.
On October 4, 1994, a grand jury returned an indictment charging Steed with fourth-degree grand larceny and other counts in connection with the theft of welfare funds from the Human Resource Administration ("HRA"). See id. Steed moved to dismiss on the ground that he should have been given notice of the grand jury proceeding. See id. at 3-4. On October 28, 1994, that motion was denied. See id.
On November 30, 1994, a second New York grand jury indicted Steed for second-degree grand larceny and second-degree possession of stolen property in connection with Steed's theft of $800,000. See id. at 4. The state moved to consolidate the indictments for trial, and, on April 13, 1995, that motion was granted. See id.
On January 23, 1996, a suppression hearing was held in response to Steed's motion to suppress evidence obtained from his apartment when he was arrested. Id. The uncontradicted evidence submitted at the hearing established that the police officers used a ruse to lure Steed to the police station, that they removed nothing from Steed's apartment while waiting for him to accompany them to the police station and that the police did not arrest Steed at his apartment. Id.
On February 5, 1996, a jury convicted Steed of all charges. See Habeas Petition ("Pet.") at 2. On February 22, 1996, Steed was sentenced to two concurrent fifteen year terms for the Ghanian theft charges and two concurrent one-year terms for the welfare fraud charges, for an aggregate five-to-fifteen year term. See Opp. Mem. at 5.
A. Collateral Attack
On November 4, 1997, petitioner moved pursuant to New York Criminal Procedure Law § 440.10 to vacate his conviction. Steed raised the following claims: (1) violation of his Fourth Amendment rights; (2) violation of his right to privacy; (3) denial of his right to appear before the grand jury; (4) lack of geographical jurisdiction; (5) denial of his right to a speedy trial; (6) denial of bail; (7) violation of the Warsaw Convention; (8) improper consolidation of the two indictments for trial; and (9) improper bolstering of testimony at trial. See id.
On April 23, 1998, Judge Herbert Altman denied petitioner's motion in its entirety. See 4/23/98 Order Denying Defendant's § 440.10 Motion, Ex. I to 7/10/00 Affidavit of Respondent's Attorney Valerie Singleton ("Singleton Aff."). In January 1999, petitioner sought leave to appeal to the Appellate Division, First Department. See Opp. Mem. at 6. On March 4, 1999, the Appellate Division, First Department, denied petitioner's application. See 3/4/99 Certificate Denying Leave, Ex. K to Singleton Aff.
B. Direct Appeal
On direct appeal to the Supreme Court of the State of New York, Appellate Division, First Department, petitioner argued that: (1) the welfare-related indictment should have been dismissed because petitioner was denied his right to be present at the grand jury; (2) his illegal arrest required the suppression of evidence seized from his apartment; (3) the consolidation of two separate indictments was error; (4) the trial court permitted the improper bolstering of testimony; and (5) he received an excessive sentence. See Brief of Defendant-Appellant, Ex. A to Singleton Aff.
On September 29, 1998, the Appellate Division, First Department, in a written decision, unanimously found that petitioner was not denied the right to appear before the grand jury, that the indictments were properly joined for trial, that the suppression motion was properly denied, and that there was no abuse of sentencing discretion. 9/29/98 Decision and Order of the Appellate Division, Ex. D to Singleton Aff., People v. Steed, 678 N.Y.S.2d 93 (1st Dept. 1998). Subsequently, petitioner sought leave to appeal to the Court of Appeals and on January 22, 1999, the Court of Appeals denied petitioner's application for leave to appeal. See 1/22/99 Certificate Denying Leave, Ex. F to Singleton Aff.
C. Habeas Corpus
On February 10, 2000, petitioner applied for a writ of habeas corpus. See Pet. at 7. He asserts the same claims as those raised in his § 440.10 motion and on direct appeal.
II. DISCUSSION A. Exhaustion of State Remedies
A state prisoner must exhaust state remedies before filing a habeas petition. See Picard v. Connor, 404 U.S. 270, 275 (1971). To accomplish this, the federal claims asserted must have been "fairly presented" to the state courts. Daye v. Attorney Gen. of New York, 696 F.2d 186, 191 (2d Cir. 1982) (en banc). While conceding that most of petitioner's claims were raised in state courts, respondent claims that petitioner's speedy trial and denial of bail claims are raised for the first time in the instant petition. See Opp. Mem. at 7. These claims were, however, raised in petitioner's § 440.10 motion. See Notice of Motion to Vacate Judgment at 2 with annexed Affidavit of Herbert Steed ¶ 6, Ex. G to Singleton Aff.
The exhaustion requirement, codified in 28 U.S.C. § 2254 (b) and (c), is designed to permit state courts the initial opportunity to adjudicate alleged violations of a defendant's rights, reflecting a policy of federal-state comity. See Picard, 404 U.S. at 275. Petitioner cited the Constitutional amendments providing the basis for the claims raised in his § 440.10 motion and stated facts in support of those claims. See Ex. G to Singleton Aff. In response to that motion, the court held:
The majority of defendant's claims may be addressed upon appeal, as sufficient facts appear on the record to permit adequate review of the arguments previously raised and as to one of the evidentiary claims. Although there is nothing in the record which pertains to defendant's remaining claims, the defendant unjustifiably failed to raise these matters prior to sentence and has never adduced facts in support of his arguments. His current motion also suffers from a paucity of factual support. In addition, the arguments appear to be witho ut merit. Accordingly, defendant's motion is denied in its entirety.
Decision of Justice Herbert Altman dated April 23, 1998, Ex. I to Singleton Aff. ("Altman Decision") (emphasis added). The fact that certain claims were summarily dismissed does not mean that they were not adjudicated on the merits. See Salcedo v. Artuz, No. 00 Civ. 0930, 2000 WL 1092669, at *3 (S.D.N.Y. Aug. 2, 2000).
B. Legal Standard
Claims that have been adjudicated on the merits in state court proceedings are governed by 28 U.S.C. § 2254(d) which precludes federal habeas relief unless the state court adjudication "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) (West Supp. 1999). Until recently, the applicable standard of review under § 2254(d) was uncertain. See Clark v. Stinson, 214 F.3d 315, 320 (2d Cir. 2000). Then, in Williams v. Taylor, 120 S.Ct. 1495, 1518-23 (2000), the Supreme Court clarified the key phrases "contrary to" and "unreasonable application." With regard to the former, the Williams Court held that
a state-court decision is contrary to this Court's precedent if the state court arrives at a conclusion opposite to that reached by this Court on a question of law. Second, a state-court decision is also contrary to this Court's precedent if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to ours.
Id. at 1519. With regard to the latter, the Court held that a
state-court decision involves an unreasonable application of this Court's precedent if the state court identifies the correct governing legal rule from this Court's cases but unreasonably applies it to the facts or the particular state prisoner's case.
Id. at 1520. The Court emphasized that "unreasonable" is different from "incorrect" or "erroneous," stating: "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 1522. Further, a rule is not "clearly established" under § 2254(d), and therefore not cognizable on collateral review if if "breaks new ground or imposes a new obligation on the states". Vasquez v. Strack, 98-2590, 2000 WL 1290362, at *5 (2d Cir. Sept. 14, 2000) (citing Teague v. Lane, 489 U.S. 288, 301 (1989)). To prevail on collateral review, "Supreme Court precedent must 'dictate' the outcome." Id. at *6 (internal citations omitted).
Following Williams, the power of a federal habeas court to grant a state prisoner's application with respect to claims adjudicated on the merits in state court is sharply circumscribed. The newly articulated standard prohibits a federal habeas court from substituting its own judgment for that of the state court judge, requiring a great deal of deference to the state court judgment. Moreover, the standard set forth in Williams abrogates the de novo review that was required under Brown v. Allen, 344 U.S. 443 (1953).
Prior to the passage of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), review of questions of law and mixed questions of law and fact was de novo, requiring a federal habeas court to treat the petition as a wholly new complaint. Under Brown, state court adjudications were treated as nothing more than a potentially relevant authority. 344 U.S. at 458. Of course, pure questions of fact were accorded a statutory presumption of correctness both before and after AEDPA. See Swain v. Pressley, 430 U.S. 372, 383 (1977) ("a state judge's resolution of a factual issue will be presumed to be correct") (citing 28 U.S.C. § 2254(d)(2) and (3)). For historical context, AEDPA redesignated former subsection (d) as (e).
The fact that some of petitioner's claims were summarily dismissed does not alter the conclusion that they were adjudicated on the merits for purposes of § 2254(d). See, e.g., Thomas v. Taylor, 170 F.3d 466, 474 (4th Cir.), cert. denied, 527 U.S. 1016 (1999) ("[T]he phrase 'adjudication on the merits' in section 2254(d) excludes only claims that were decided in state court, and not claims that were not raised in state court, albeit in summary fashion."); Thomas v. Davis, 192 F.3d 445, 455 (4th Cir. 1999) (section 2254(d) applies to all claims adjudicated on the merits namely "those claims substantively reviewed and finally determined as evidenced by the state court's issuance of a formal judgment or decree"); Hennon v. Cooper, 109 F.3d 330, 335 (7th Cir. 1997) (perfunctory state court rulings are nonetheless evaluated pursuant to § 2254(d) for reasonableness).
Summary dismissal, however, makes it more difficult to review the state court's application of federal law, thus lessening the practical significance of the new standard. See Weeks v. Angelone, 4 F. Supp.2d 497, 522 (E.D.Va. 1998) ("In cases where there is no indication of how the state court came to its decision, it will obviously be more difficult for the federal court to judge whether the ultimate determination involved an unreasonable application of federal law."), appeal denied and petition dismissed, 176 F.3d 249 (4th Cir. 1999). Nonetheless, this added difficulty does not abrogate the standard of heightened deference. A federal habeas court must review the state court ruling to determine if there are any violations of a defendant's constitutional rights. See Edwards v. Murphy, 96 F. Supp.2d 31, 42 (D.Mass. 2000); see also Cardwell v. Greene, 152 F.3d 331, 339 (4th Cir. 1998) (where the state court decision fails to articulate any rationale for its adverse determination of petitioner's claim, federal habeas court cannot review state court's "application of clearly established Federal law" but must independently ascertain whether the record reveals a constitutional violation). In effect, where a state court summarily dismisses a petitioner's habeas claim, a federal habeas court is forced to engage in a type of de novo review — one which considers the facts of petitioner's case anew but employs the more deferential reasonableness standard described above.
C. Petitioner's Claims 1. Denial of Bail Claim
Petitioner claims that New York County does not have jurisdiction over his claims. However, New York State or a county thereof has geographical jurisdiction when part of the alleged criminal conduct occurred within the state or county sufficient to establish an element of the offense. See N.Y. Crim. Proc. Law §§ 20.20(1)(a) and 20.40(1)(a) (McKinney 1992); see also People v. Mahboubian, 519 N.Y.S.2d 619 (Sup. Ct. N.Y. Co. 1987). Because Steed received the $800,000 wire transfer in New York County and was found guilty of converting the funds to his own use in New York County, the case was properly venued in this county. Moreover, the Warsaw Convention, which governs civil actions against international carriers, does not apply to a criminal complaint of grand larceny, contrary to petitioner's assertion.
While there is no constitutional right to the grant of bail, it may not be denied arbitrarily or unreasonably. See Finetti v. Harris, 609 F.2d 594 (2d Cir. 1979). A federal court will only inquire into whether the setting of bail was "arbitrary or discriminatory or results in either the denial of counsel or the denial of a fair trial." Bobick v. Schaeffer, 366 F. Supp. 503 (S.D.N.Y. 1973). Further inquiry would unduly burden the federal courts with hearing evidence and setting bail de novo. Id.
Here, the state court set bail at $250,000. Petitioner makes no allegation that this was arbitrary or discriminatory, or resulted in the denial of counsel or a fair trial. Accordingly, petitioner does not state a cognizable federal claim.
2. Speedy Trial Claim
There is clearly established federal law guaranteeing a speedy trial under the Sixth Amendment. See Barker v. Wingo, 407 U.S. 514 (1972). Under Barker, the following factors must be considered: (1) length of the delay; (2) reason for the delay; (3) defendant's timely assertion of the right; and (4) prejudice to defendant from the delay. Id. at 530. No specific factor, however, is "either a necessary or sufficient condition to the finding of a deprivation of the right." Id. Courts must still weigh the conduct of the prosecution and the defendant. See Rayborn v. Scully, 858 F.2d 84, 89 (2d Cir. 1988). The weight given to each factor may vary depending on the reason for the delay. See Holden v. Miller, No. 00 Civ. 0926, 2000 WL 1121551, at *10 (S.D.N.Y. Aug. 8, 2000). However, the length of the delay "is to some extent a triggering mechanism." Barker, 407 U.S. at 530. "Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance." Id.
Petitioner is presumably raising this claim under the Sixth Amendment, as he did in his § 440.10 motion. To the extent that he raises a claim under N.Y.C.P.L. § 30.30, such claim is unreviewable on a federal habeas petition. See Rodriguez v. Miller, No. 96 Civ. 4723, 1997 WL 599388, at *2 (S.D.N.Y. Sept. 29, 1997).
Here, the period between Steed's arrest on August 9, 1994 and the start of trial was less than two years. The Supreme Court and courts in the Second Circuit have found no constitutional violation when the period of delay exceeded two years. See, e.g., Barker, 407 U.S. at 533-34 (over five years); Rayborn v. Scully, 858 F.2d at 89 (over seven years); Montalvo v. United States, 862 F.2d 425 (2d Cir. 1988) (over eight years); Holden, 2000 WL 1121551, at *35, 44 (two and one half years).
Petitioner was arrested and charged on August 9, 1994. See Opp. Mem. at 10. On October 4, 1994, an indictment charging him with fourth-degree grand larceny and related counts was filed. On November 30, 1994, the second indictment was handed down. Subsequently, the indictments were consolidated. On January 23, 1996, a suppression hearing was held and the trial began shortly thereafter. The Government's brief erroneously states that the period between arrest and trial was almost four years. That calculation was based on the incorrect use of September 15, 1998 as the date when trial began. See id.
Therefore, the length of delay alone does not establish that the state court unreasonably misapplied clearly established federal law.
Because the state court summarily dismissed the speedy trial claim without applying the constitutional test, a modified de novo review is required. See Cardwell, 152 F.3d at 331.
The delay was caused, in part, by a consolidation of the two indictments. In the absence of bad faith or deliberate delay by the Government, however, this is a legitimate reason for delay. See United States v. McGrath, 622 F.2d 36, 41 (2d Cir. 1980); United States v. Lane, 561 F.2d 1075, 1079 (2d Cir. 1977) (no violation where delays not attributable to deliberate procrastination or negligent inaction on Government's part); Holden, 2000 WL 1121551, at *37 (no violation where no evidence that state deliberately attempted to hamper petitioner's defense). Here, petitioner does not claim that the Government deliberately delayed petitioner's defense or acted in bad faith.
Petitioner alleges that "the District Attorney has gone out of his way knowingly to disregard all the rules of the court in his capacity as a prosecutor, in order to prosecute Petitioner under 'state color of law' wrongfully. This prosecution commenced as a result of the unlawful arrest of Petitioner in his home, and the seizure of the welfare card." Pet. Mem. at 12 (emphasis in original). Such a broad claim of bad faith does not satisfy the Barker test especially where the state court has already held that petitioner's right to a speedy trial was not violated. See Altman Decision, Ex. I to Singleton Aff., aff'd, 678 N.Y.S.2d 93 (1st Dept. 1998).
Accordingly, the state did not unreasonably misapply clearly established federal law.
The following interests must be considered to determine whether Steed was prejudiced by any delay: "(1) to prevent oppressive pretrial incarceration; (2) to minimize anxiety and concern of the accused; and (3) to limit the possibility that the defense will be impaired." Barker, 407 U.S. at 532. Courts are reluctant to find a constitutional speedy trial violation where there is no prejudice to the defendant. See Rayborn, 858 F.2d at 94; see also Dunavin v Leonardo, No. 95 Civ. 296, 1997 WL 151771 (N.D.N.Y. Mar. 31, 1997).
While Steed timely raised his speedy trial claim at various stages of the state court proceedings, he did not allege any facts demonstrating that he was prejudiced by the delay. He states that he was "held in custody for over (18) months without explanation from the District Attorney's office, the courts, or Petitioner's court appointed Attorney." This does not rise to the level of prejudice required by Barker. Thus, the state court did not unreasonably apply clearly established federal law.
3. Violation of Privacy
There is a clearly established federal right to privacy. See Griswold v. Connecticut, 381 U.S. 479 (1965). To determine whether there has been a violation of privacy, courts weigh the interests of the state against the individual's right to privacy. See Whalen v. Roe, 429 U.S. 589 (1977) (state implementation of patient drug prescription identification requirements does not violate an individual's right to privacy where state has vital interest in curbing illegal drug use).
Nonetheless, "[t]he concept of a constitutional right of privacy remains largely undefined." Kurland, The Private I, The University of Chicago Magazine 7, 8 (Autumn 1976) (quoted in Whalen, 429 U.S. at 599 n. 24). Here, Steed argues that his right to privacy was violated by the HRA's disclosure of his welfare records in the absence of a grand jury subpoena for that information.
The state's interest in preventing welfare fraud, however, outweighs petitioner's privacy interest. See F.E.R. v. Valdez, 58 F.3d 1530 (10th Cir. 1995) (recognizing state interest of ending fraud in Medicaid program as "compelling"); see also Alcaraz v. Block, 746 F.2d 593 (9th Cir. 1984) (government had compelling interest in reducing fraud in entitlement programs); Claugus v. Roosevelt Island Hous. Management Corp., No. 96 Civ. 8155, 1999 WL 258275, at *6 (S.D.N.Y. Apr. 29, 1999) (in housing program, "functionally similar" to public assistance program, court found compelling interest in assuring that the intended beneficiaries of assistance programs are those who actually benefit from the aid).
See also New York Social Services Law § 145 (McKinney 1992) which provides further support for the investigation of welfare fraud as an important government interest.
There was no violation of petitioner's privacy in light of the important government interest in preventing welfare fraud.
Thus, the state did not reach a decision contrary to, nor did it unreasonably apply, clearly established federal law.
4. Suppression of Evidence
Petitioner alleges that the police illegally entered his home and that any evidence they obtained in support of the welfare charges should have been suppressed. See Pet. Mem. at 14-19. These claims, alleging a Fourth Amendment violation, are precluded by Stone v. Powell, 428 U.S. 465, 494-95 (1976). Stone clearly establishes that "[w]here a State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at the trial." See also Grey v. Hoke, 933 F.2d 117, 121 (2d Cir. 1991); Gumbs v. Kelly, No. 97 Civ. 8755, 2000 WL 1172350, at *9. (S.D.N.Y. Aug. 18, 2000). Only where there are no state corrective procedures available to redress Fourth Amendment claims can the claim be permitted on habeas review. Gumbs, 2000 WL 1172350, at *9 (citing Gates v. Henderson, 568 F.2d 830, 840 (2d Cir. 1977)).
Here, the trial court held a pretrial suppression hearing to determine whether the police entry into petitioner's home was illegal and whether the evidence relating to the welfare charge should be suppressed. See Opp. Mem. at 4. Judge Altman found that petitioner was not arrested in his home and that no evidence was obtained by the police while they were in his home. See id. Petitioner had a further opportunity to litigate this claim at trial. Petitioner also raised this issue on appeal. See People v. Steed, 678 N.Y.S.2d at 94 ("The police entry into defendant's apartment, as they waited for him to get dressed, was entirely consensual and, in any event, the evidence in question was unconnected to the entry into the apartment."). Thus, petitioner utilized available state processes and had a full and fair opportunity to litigate his Fourth Amendment claim.
Accordingly, petitioner's challenge to his arrest and to the suppression of evidence obtained subsequent to his arrest is barred by Stone.
To the extent petitioner now raises an ineffective assistance of counsel claim with respect to his attorney's failure to raise a claim that the state's witness committed perjury during the suppression hearing, this claim can be summarily dismissed. Petitioner has offered no evidence that his counsel's performance failed the two-pronged test of Strickland v. Washington. 466 U.S. 668, 687 (1984) (stating that a defendant must show: (1) that counsel's performance was not only deficient but resulted in errors so serious that he was effectively without counsel; and (2) that defendant suffered prejudice from counsel's performance).
As petitioner's ineffective assistance of counsel claim was not previously presented to the state courts, he has failed to exhaust state remedies. See supra Part II.A. Thus, petitioner presents a "mixed" petition. See Rodriguez v. Miller, No. 96 Civ. 4723, 1997 WL 599388, at *2 (S.D.N.Y. Sept. 29, 1997). However, a federal court has discretion to deny an unexhausted claim on the merits where it deems the claim "patently frivolous". See 28 U.S.C. § 2254(b)(2); Rodriguez, 1997 WL 599388, at *3.
5. Excessive Sentence
While petitioner's claim of an excessive sentence is not subject to habeas review in its present form, it could be reviewed if construed as a claim of cruel and unusual punishment in violation of the Eighth Amendment. Petitioner alleges that the trial court's imposition of two concurrent fifteen-year prison sentences for the Ghana-related charges and two concurrent one-year jail terms for the welfare-related counts, an aggregate of a five-to-fifteen year prison term, is harsh and excessive.
As petitioner is pro se, this Court must hold his petition to a less stringent standard of review than formal pleadings drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972).
A sentence is not properly before a federal court on habeas review unless the sentencing court lacked jurisdiction or a constitutional error was made resulting in a fundamentally unfair sentence or underlying conviction. See Bean v. United States, 679 F.2d 683 (7th Cir. 1982) (citing United States v. Addonizio, 442 U.S. 178, 186 (1979)). Further, "[n]o federal constitutional issue is presented where . . . the sentence is within the range prescribed by state law." White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992); see also Thomas v. Greiner, 111 F. Supp.2d 271, 278 n. 8 (S.D.N.Y. 2000) (collecting cases).
Courts must give deference to the length of sentence deemed appropriate by the legislature. See Rummel v. Estelle, 445 U.S. 263, 271-74 (1980) (finding legislature's interest in preventing recidivism is valid and justifies a life sentence). Cf. Solem v. Helm, 463 U.S. 277 (1983) (sentence of life without possibility of parole disproportionate to crime of uttering a "no account" check for $100).
Petitioner, who had a prior criminal record, converted $800,000 for his personal benefit by taking advantage of his position as president of a tour company. Petitioner was also convicted of welfare fraud and has offered no explanation for why he was living in Trump Towers while collecting public assistance.
Finally, the sentences are both within the limits established by the state legislature. See also People v. Murphy, 525 N.Y.S.2d 98 (4th Dept. 1988) (approving indeterminate sentences of 5-15 years for forgeries and larceny in excess of $429,000); People v. Evans, 605 N.Y.S.2d 287 (1st Dept. 1993) (approving 4-12 years for second degree grand larceny in connection with $500,000 Medicaid fraud). Thus, there are no extraordinary circumstances warranting the conclusion that petitioner's sentence amounts to cruel and unusual punishment. This claim is therefore dismissed.
Grand larceny in the Second Degree and Criminal Possession of Stolen Property in the Second Degree are each Class C felonies. See N.Y. Penal Law §§ 155.40, 165.52 (McKinney 1999). As such, "the term shall be fixed by the court, and shall not exceed fifteen years." N.Y. Penal Law § 70.00(2)(c) (McKinney 1998). Similarly, Grand Larceny in the Fourth Degree and Offering a False Instrument for Filing in the First Degree are each Class E felonies. See N.Y. Penal Law §§ 155.30, 175.35 (McKinney 1999). As such, "the term "shall be at least one year." N.Y. Penal Law § 70.00(3) (McKinney 1998).
6. Improper Bolstering
Petitioner alleges that the state court improperly admitted testimony that had the effect of "bolstering" the People's case. See Pet. at 8. However, the issue of bolstering has never been presented to the Supreme Court because it is a matter of state law. It is clearly established that "[f]ederal habeas corpus relief does not lie for errors of state law." See, e.g., Estelle v. McGuire, 502 U.S. 62, 67 (1991) (internal citations omitted); see also Snow v. Reid, 619 F. Supp. 579, 582 (S.D.N.Y. 1985) ("[bolstering] is at most a New York State rule or policy, derived from People v. Trowbridge"); Fed.R.Evid. 801(d)(1)(c) ("there is no inherent unfairness in [bolstering] testimony sufficient to raise its use to constitutional dimension."). Accordingly, petitioner's bolstering claim is not subject to habeas review and must be dismissed.
While certain evidentiary errors may violate due process and become a basis for federal habeas review, they may only do so if such errors raise a reasonable doubt as to a defendant's guilt. See Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998); Taylor v. Curry, 708 F.2d 886, 891 (2d Cir. 1983). Because petitioner makes no such allegation and there is no such evidence in the record, petitioner does not raise a federal claim.
7. Right to Appear Before Grand Jury and Consolidation of Indictments
Petitioner claims his Fifth Amendment due process rights were violated by the state's refusal to allow him to appear before the grand jury. However, it is clearly established federal law that there is no constitutional right to appear before a grand jury. See United States v. Williams, 504 U.S. 36 (1992) ("[N]either in this country nor in England has the suspect under investigation by the grand jury ever been thought to have a right to testify or to have exculpatory evidence presented."). Thus, these claims are not reviewable on a habeas petition.
Petitioner does not claim that the consolidation of the indictments resulted in a constitutional violation. Rather, he claims that because the indictments were consolidated, he was improperly denied his right to appear before the grand jury on both of the charges. Because the consolidation of indictments did not result in an independent constitutional violation, it is immaterial to petitioner's grand jury claim, which similarly does not raise a constitutional question.
III. CONCLUSION
For the foregoing reasons, petitioner's motion for a writ of habeas corpus is denied. Because petitioner has failed to make a substantial showing that he was denied a constitutional right, a certificate of appealability will not issue from this Court. See 28 U.S.C. § 2253 (c)(2); see also Lucidore v. New York State Div. of Parole, 209 F.3d 107, 112 (2d Cir. 2000) (holding that substantial showing exists where (i) the issues involved in the case are debatable among jurists of reason or (ii) a court could resolve the issues in a different manner or (iii) the questions are adequate to deserve encouragement to proceed further); Clark v. Garvin, No. 99 Civ. 9075, 2000 WL 8909272, at *6 (S.D.N.Y. June 30, 2000). The Clerk of the Court is directed to close this case.
SO ORDERED.