Opinion
05-CV-2250 (JG).
November 18, 2005
JAMES BENS, Reg. # 01R1252, Coxsackie Correctional Facility, West Coxsackie, NY, Petitioner Pro Se.
RICHARD A. BROWN, Queens County District Attorney, Kew Gardens, New York, By: John M. Castellano, Nicoletta J. Caferri, Ellen C. Abbot, Assistant District Attorneys, Attorneys for Respondent.
MEMORANDUM AND ORDER
James Bens petitions for a writ of habeas corpus, challenging his conviction in state court for attempted criminal possession of a controlled substance in the first degree. On November 18, 2005, I held oral argument, in which Bens participated by telephone. As discussed below, the petition is denied.
Bens requested the appointment of counsel in an October 28, 2005 letter. Because his claims, in my view, have no substance, the request is denied. See Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir 1989).
BACKGROUND
The evidence at trial established that Bens was a tenant in the basement apartment of a home owned and occupied by the Celifie family. On December 17, 1999, Bens told Myrtha Celifie, his landlord, that he was expecting a package with a VCR in it. Soon thereafter, a package was delivered. It was addressed to Georgyna Celifie, Myrtha Celifie's 17-year-old daughter. After Georgyna told her mother that the package was not hers, they took the package to a family friend, who was a police officer. The officer received permission to open the package, and upon doing so discovered a VCR with more than two pounds of cocaine inside.
After moving out (at Mrs. Celifie's direction), Bens attempted repeatedly to retrieve the package. He called the Celifies as well as the police sergeant. He told the Celifies' son Robert that his family would be endangered unless they returned the package or paid him $20,000.
Bens was arrested on December 23, 1999. He was subsequently convicted of attempted possession of a controlled substance in the first degree and sentenced to an indeterminate term of 15 years to life.
Bens was also convicted of coercion in the first degree, but that conviction was vacated on sufficiency grounds on appeal and plays no role in this petition.
On September 22, 2005, pursuant to the Drug Law Reform Act, Bens was re-sentenced to a determinate term of 13 years.
Bens appealed the judgment of conviction to the Appellate Division, Second Department. He contended that the evidence was not legally sufficient for a finding of attempted possession of a controlled substance in the first degree, and that the refusal of the trial court to allow Bens to question Georgyna Celifie about whether she had discussed her testimony with George Celifie (her incarcerated father) violated Bens's constitutional right to present a defense.
On January 22, 2004, the Appellate Division rejected these challenges and affirmed Bens's conviction. People v. Bens, 772 N.Y.S.2d 711(2d Dep't 2004). It held that the evidence presented at trial was legally sufficient to establish the defendant's guilt and that the guilty verdict was not against the weight of the evidence. Id at 712. The court did not explicitly address the curtailment of the cross-examination of Georgyna; that claim was disposed of by the cryptic statement that "the parties' remaining contentions do not require further modification of the judgment." Id. On May 18, 2004, the New York Court of Appeals denied Chapman leave to appeal. People v. Bens, 2 N.Y.3d 796 (2004).
On March 28, 2005, Bens filed the instant petition with this Court, in which he claims (1) that the evidence at trial was legally insufficient to prove his guilt of attempted criminal possession of a controlled substance in the first degree, and (2) that the trial court's refusal to permit Bens to ask Georgyna Celifie questions about George Celifie violated his constitutional right to present a defense.
DISCUSSION
A. Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") significantly narrowed the scope of federal habeas review of state convictions when the state court has adjudicated the petitioner's federal claims on the merits. 28 U.S.C. § 2254(d). Under the AEDPA standard, a reviewing court may grant a writ of habeas corpus only if the state court's decision 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). "Clearly established Federal law" generally means "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000); see also Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001).
Habeas relief may also be warranted when a state court decision was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings." 28 U.S.C. § 2254(d)(2). That provision is not at issue here.
A decision will be considered "contrary to clearly established federal law" if the answer to a question of law reached by the state court is opposite to that of the Supreme Court, or if the state court reaches a conclusion different from that of the Supreme Court on a "materially indistinguishable" set of facts. Williams, 529 U.S. at 413. Similarly, a decision will be considered an "unreasonable application" if a state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case." Id. Thus, when a "governing legal principle" has been misapplied to "a set of facts different from those of the case in which the principle was announced," a federal court may grant relief. Wiggins v. Smith, 539 U.S. 510, 520 (2003) (citations and quotation marks omitted).
Under the "unreasonable application" standard, "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." Gilchrist, 260 F.3d at 93 (citing Williams, 529 U.S. at 411); see also Yarborough v. Gentry, 540 U.S. 1, 4 (2003) (per curiam). As the Second Circuit has stated, habeas relief is inappropriate absent "some increment of incorrectness beyond error," but that increment "need not be great," and should not be "limited to state court decisions so far off the mark as to suggest judicial incompetence." Gilchrist, 260 F.3d at 93 (citations omitted).
B. Bens's Claims
1. Sufficiency of the Evidence
Bens argues that the evidence presented at trial was insufficient to establish his guilt of attempted criminal possession of a controlled substance in the first degree. Bens bears a "very heavy burden" on this claim. Ponnapula v. Spitzer, 297 F.3d 172, 179 (2d Cir. 2002) (quotation marks omitted); Einaugler v. Supreme Court, 109 F.3d 836, 840 (2d Cir. 1997) (quotation marks omitted). Even on direct review, a state conviction will be upheld as long as, "viewing the evidence in the light most favorable to the prosecution, 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). In the habeas setting, the petitioner not only must satisfy that stringent standard, but must further show that the state courts acted unreasonably in rejecting his claim.
Additionally, courts may not "disturb the jury's findings with respect to the witnesses' credibility," United States v. Roman, 870 F.2d 65, 71 (2d Cir. 1989), or "make credibility judgments about the testimony presented at petitioner's trial or . . . weigh conflicting testimony," Fagon v. Bara, 717 F. Supp. 976, 979 (E.D.N.Y. 1989) (citing United States v. Zabare, 871 F.2d 282, 286 (2d Cir. 1989)). A reviewing court must therefore presume — even if it does not affirmatively appear on the face of the record — that the trier of fact resolved any such conflicts in favor of the prosecution. Wheel v. Robinson, 34 F.3d 60, 66 (2d Cir. 1994) (quoting Jackson, 443 U.S. at 326).
In denying Bens's claims on the merits, the Appellate Division held that:
The evidence, viewed in the light most favorable to the prosecution . . . established that the defendant expected the delivery of a package containing a kilogram of cocaine to the house in which he was a tenant. Instead of alerting him to the arrival of the package, as he had requested, the defendant's landlady took the package to the police. Since the defendant's conduct `had gone to the extent of placing it in [his] power to commit the offense unless interrupted,' he came `very near' to the accomplishment of the intended crime of possessing the cocaine, notwithstanding the interruption caused by the landlady's diversion of the package . . . Thus, the evidence at trial was legally sufficient to establish the defendant's guilt of attempted criminal possession of a controlled substance.Bens, 722 N.Y.S.2d at 712.
Bens claims that, because the package containing the cocaine was sent from a fictitious address and addressed to the landlord's daughter, there is insufficient evidence to link him to the package. He is wrong. The prosecution presented evidence that Bens attempted to possess the VCR and the drugs hidden therein. There was testimony from members of the Celifie family that Bens had indicated he was expecting delivery of the package and would like to be notified as soon as it arrived. According to this testimony, Bens asked both Myrtha and Georgyna Celifie to contact him when the package arrived, and also inquired of Robert Celifie whether the package had arrived. There was additional testimony that Bens continued attempting to come into possession of the drugs contained in the package after it had been opened by a police officer. The jury could reasonably have found that Bens did everything in his power, including making threats against the Celifie family, not simply to get possession of a VCR, but of the drugs inside as well.
The state court's rejection of Bens's claim was not contrary to or an unreasonable application of clearly established Supreme Court law.
2. Questioning of George Celifie
Bens argues further that the trial court's refusal to allow defense counsel to question Georgyna Celifie about her father, George Celifie, was a violation of Bens's constitutional right to present a defense. When Bens raised this argument on direct appeal, the Appellate Division found only that it did not "require modification of the judgment." Bens, 772 N.Y.S.2d at 712.
Under AEDPA, a deferential standard of review applies to adjudications made by a state court on the merits, 28 U.S.C. § 2254(d)(1), even if the state court does not expressly refer to federal law. It is unclear whether the Appellate Division's statement in this regard is an adjudication on the merits and so analyzed under the deferential standard proscribed by AEDPA.
Some Second Circuit cases "seem to contemplate situations in which, because of uncertainty as to what the state courts have held, no procedural bar exists and yet no AEDPA deference is required." Shih Wei Su v. Filion, 335 F.3d 119, 126 n. 3 (2d Cir. 2003). In those situations, the Second Circuit has recognized a middle ground — de novo review — between the procedural default analysis and the "unreasonable application" standard. See DeBerry v. Portuondo, 403 F.3d 57, 66-67 (2d Cir. 2005); see also Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir. 2003) ("[w]here it is `impossible to discern the Appellate Division's conclusion on [the relevant] issue,' a federal court should not give AEDPA deference to the state appellate court's ruling." (quoting Boyette v. Lefevre, 246 F.3d 76, 91 (2d Cir. 2001)); see Shih Wei Su, 335 F.3d at 126 ("where a state court's ruling does not make clear whether a claim was rejected for procedural or substantive reasons and where the record does not otherwise preclude the possibility that the claim was denied on procedural grounds, AEDPA deference is not given, because we cannot say that the state court's decision was on the merits"); but compare Ryan v. Miller, 303 F.3d 231 (2d Cir. 2002) (finding that when there is no evidence that the state court relied on procedural grounds and neither party disputes that a claim has been preserved for review, a petitioner's claim should be accorded AEDPA deference). I believe this to be such a case. However, even reviewed de novo, petitioner's claim regarding the trial court's evidentiary ruling is without merit.
Generally, erroneous evidentiary rulings made by a state trial court generally do not rise to the level of constitutional violations upon which a federal court may issue a writ of habeas corpus. See Jenkins v. Bara, 663 F. Supp. 891, 899 (E.D.N.Y. 1987) (citing Lipinski v. New York, 557 F.2d 289, 292 (2d Cir. 1977)). Erroneously excluded evidence warrants habeas relief only if the omission deprived the petitioner of a fundamentally fair trial. Estelle v. McGuire, 502 U.S. 62, 72 (1991); Taylor v. Curry, 708 F.2d. 886, 891 (2d Cir. 1983). In determining whether the exclusion of evidence improperly infringed on a defendant's right to present a complete defense, reviewing courts analyze (1) whether the trial court's evidentiary ruling was proper; and (2) whether the excluded evidence was material. See Wade v. Mantello, 333 F.3d 51, 58-59 (2d Cir. 2003). The determinative question for the latter inquiry is "whether the omitted evidence would have created reasonable doubt." Id. at 58 (citing Justice v. Hoke, 90 F. 3d 43, 47 (2d Cir. 1996)); see also Jones v. Stinson, 229 F.3d 112 (2d Cir. 2000).
No federal constitutional issue is presented by the evidentiary ruling made in this case. Bens's counsel indicated that he wished to question Georgyna Celifie about whether she had spoken to George Celifie, or to anyone else in her family, about her testimony. (Trial Tr. at 414-16). At no point during the trial did defense counsel indicate that George Celifie's testimony was part of his substantive defense, or that the court's preclusion of this testimony undermined his ability to present a defense in any way. The trial court's ruling was based entirely on the relevance of George Celifie's testimony:
THE COURT: So what was the relevance of asking her whether she spoke to her father about this?
MR. RUSSO: I wanted to know who she discussed her testimony with. I am not talking about December 17. I am talking about, in general, outside of the courtroom.
THE COURT: Hold on a second. I would think we're talking about who she spoke to. You started out asking if she spoke to two other witnesses in this case, and we know that Myrtha Celifie and Robert Celifie testified in the past and all likelihood based upon the witness list that was given to us that they'll be testifying in this case. So that being the case and knowing that George Celifie didn't testify at the last case, so he is not a witness. . . . There is no way and no relevance with the father, because he is not a witness in this case.
(Trial Tr. at 415). Not only was the trial court's evidentiary ruling entirely proper, the but the excluded evidence was also not material. Indeed, when pressed at oral argument, Bens could not identify any evidence Georgyna could have provided to support Bens's assertion that he did not know the package contained cocain. In short, it cannot be said that Bens was deprived of a fundamentally fair trial.
CONCLUSION
For the foregoing reasons, the petition is denied. Because Bens has failed to make a substantial showing that he was deprived of his constitutional rights, see 28 U.S.C. § 2253(c)(2), a certificate of appealability will not issue.So Ordered.