Opinion
02 Civ. 2309 (JSM)
November 27, 2002
Jerome Affleck, Brooklyn, NY, pro se plaintiff.
Maria Filipakis, assistant attorney general, New York, NY, for respondent.
OPINION AND ORDER
Jerome Affleck, who was convicted in the New York State Supreme Court, New York County, on charges of Criminal Possession of a Controlled Substance in the Third Degree and Criminal Possession of a Controlled Substance in the Fifth Degree brings this action pursuant to 28 U.S.C. § 2254, seeking to vacate his conviction.
In addition to contesting petitioner's claims on the merits, the State argues that the Court should not consider certain of petitioner's claims because he failed to exhaust his state remedies in that the claims were not presented to the highest state court. However, 28 U.S.C. § 2254 (b)(2) gives the Court the discretion to deny unexhausted claims on the merits. Given the fact, as demonstrated below, that these claims are so lacking in merit, the Court will exercise its discretion and decide the claims on the merits.
Before turning to petitioner's specific claims it must be noted that Congress has limited the jurisdiction of the federal courts to provide relief under 22 U.S.C. § 2254.
(d) 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.See generally Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000). None of the claims asserted by the petitioner meets this standard.
Petitioner' s first claim is that evidence seized at the time of his arrest and a statement he made at that time should have been suppressed. In Stone v. Powell, 428 U.S. 465, 482, 96 S.Ct. 3037, 3046 (1976), the Supreme Court held that "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." See also Capellan v. Riley, 975 F.2d 67, 70-72 (2d Cir. 1992). Since the State provided Petitioner with the opportunity to fully litigate his claim prior to trial, that issue may not be reconsidered by this Court. In addition, Petitioner's claim that his statement should have been suppressed fails because the state court did suppress the statement.
Petitioner's claim that the prosecutor violated his duty under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963), by failing to provide the defense with the chemist's report in a timely manner does not raise a constitutional issue. Since the report was provided at trial, there was no failure to disclose exculpatory material. The question whether the defense should have been given additional time to prepare to respond to the contents of the report was a matter committed to the discretion of the trial judge and does not present a constitutional issue.
Petitioner's claim that the evidence against him was not sufficient is merely an attack on the credibility of the principal witness. That issue was resolved against him by the jury. As the Second Circuit observed inFarrington v. Senkowski, 214 F.3d 237, 240-241 (2d Cir. 2000)
`[A] state prisoner' is entitled to habeas corpus relief [only] if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Einaugler, 109 F.3d at 839 (quoting Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). Appellant bears the burden of rebutting the presumption that all factual determinations made by the state court were correct. See 28 U.S.C. § 2254 (e).
Petitioner's claim that prosecuting him on two charges arising from the same events violates the double jeopardy clause is without merit because the crimes had different elements. Blockburger v. United States, 284 U.S. 299, 53 S.Ct. 180 (1932). Moreover, since Petitioner received concurrent sentences on the two counts, he was not prejudiced by the fact that he was charged in two counts.
For the foregoing reasons, the petition for relief pursuant to 28 U.S.C. § 2254 is denied and the action is dismissed. In addition, pursuant to 28 U.S.C. § 1915 (a), the Court certifies that an appeal from this case may not be taken in forma pauperis; such an appeal would be frivolous and cannot be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S.Ct. 917, 920-21 (1962). The Court determines that the petition presents no question of substance for appellate review and that Petitioner has failed to make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253 (c)(2); see Fed.R.App.P. 22(b). Accordingly, a certificate of appealability will not issue.