Brown v. Fischer

Full title: JOHN BROWN, Petitioner, -against- BRIAN FISCHER, Respondent

Court: United States District Court, S.D. New York

Date published: May 27, 2004

03 Civ. 9818 (BSJ)(AJP) (S.D.N.Y. May. 27, 2004)

Opinion

03 Civ. 9818 (BSJ)(AJP)

May 27, 2004

REPORT AND RECOMMENDATION

ANDREW PECK, Magistrate Judge

Pro se petitioner John Brown seeks a writ of habeas corpus from his March 13, 2000 conviction in Supreme Court, New York County, of second degree robbery and his sentence to fourteen years imprisonment. (Dkt. No. 2: Pet. ¶¶ 1-5.)

Brown's habeas petition alleges that: (1) the second degree robbery conviction was contrary to the weight and sufficiency of the evidence (Pet. ¶ 13 Art., Point I); and (2) his sentence is excessive (Pet. ¶ 13 Att., Point II).

For the reasons set forth below, Brown's habeas petition should beDENIED.

FACTS

The Prosecution Case at Trial

In the early morning hours of September 13, 1999, David Goodlette and petitioner John Brown approached Mohammed Farooq and robbed him of money, keys and a cellular phone. (State Opening: Trial Transcript ["Tr."] 222-23.) Within minutes of the robbery, these items were recovered from Brown by the police. (State Opening: Tr. 223.) Brown was charged with one count of first degree robbery and one count of second degree robbery. (Dkt. No. 2: Pet. ¶ 5.)¹ At Brown's trial, the prosecution offered testimony by Farooq and police officers and a tape recording of an eyewitness' 911 call. (See discussion below.)

1 Brown's co-defendant, Goodlette, pleaded guilty before Brown's trial and received a sentence of six and a half years imprisonment. (See Tr. 6.)

September 13.1999

In the early morning hours of September 13, 1999, Mohammed Farooq parked his limousine on West 45th Street between Ninth and Tenth Avenues to wait for an assignment from his dispatcher. (Farooq: Tr. 232-33, 260-62.) Around 3:30 a.m., Farooq received a call from his dispatcher, asking him to pick a passenger up in Westchester County. (Farooq: Tr. 233-34.) Farooq stepped out of the car in order to retrieve a map he kept in his trunk. (Farooq: Tr. 234-36.) While standing by the trunk, Farooq was grabbed from behind by two men. (Farooq: Tr. 236-39.) Farooq described one (Goodlette) as a skinny guy, white or Hispanic, about five-feet, eight-inches, wearing a white shirt. (Farooq: Tr. 236-37, 259.) Farooq described the second man (Brown) as a little bit heavy, black, about the same height, and wearing a red baseball cap. (Farooq: Tr. 237, 259.)

As the men held Farooq from behind, Brown placed a hard object above Farooq's ear on the right side of his head. (Farooq: Tr. 239, 259, 265.) Although Farooq could not see what the object was, it felt like a gun. (Farooq: Tr. 239, 259, 265.) After the men cursed at him and tried checking his pockets, Goodlette forced Farooq to the ground and placed a black plastic bag over his face. (Farooq: Tr. 240-42.) The men searched Farooq's pockets and found receipts and a couple of dollars. (Farooq: Tr. 242-43.) Brown tore off Farooq's front pants pocket. (Farooq: Tr. 243.) Farooq heard one man ask the other, "Did you got something from him?," to which the other man replied, "No, not a single dollar, no." (Farooq: Tr. 243.) After a few moments, the car door slammed and Farooq heard one man ask if anything was found, but there was no answer. (Farooq: Tr. 243.) The men checked Farooq's back pocket and removed his keys and wallet, containing about fifty dollars in paper currency and two silver dollar coins dated 1870 and 1976. (Farooq: Tr. 243-44, 265.)

Before Goodlette and Brown left, they warned Farooq, "Don't move because we'll shoot you." (Farooq: Tr. 244-45, 266.) Farooq heard running, removed the bag from his head, and saw the man in the red cap (i.e., Brown) carrying a telephone in his hand. (Farooq: Tr. 245.) Since Farooq's cellular phone was no longer in his car, he radioed his dispatcher and asked him to call the police. (Farooq: Tr. 245.)

Police Testimony

About two minutes after Farooq had relayed the message to his dispatcher, Police Officers Frank Wolf and James Gallagher arrived at the scene. (Farooq: Tr. 246.) They could see that Farooq's pants had been torn from the pocket and that he was "pretty hysterical." (Wolf: Tr. 282-83; Gallagher: Tr. 308, 316.) Farooq reported that he had been robbed by two men, one wearing red pants and a red hat and the other wearing blue jeans and a white t-shirt. (Wolf: Tr. 301; Gallagher: Tr. 309-10; Farooq: Tr. 258-59.) Officer Gallagher transmitted those descriptions and the direction the men were seen heading. (Wolf: Tr. 283; Gallagher: Tr. 310-11.) The officers asked Farooq if he would accompany them on a canvas of the area and he obliged. (Wolf: Tr. 284; Gallagher: Tr. 311; Farooq: Tr. 262.)

At approximately 3:40 in the morning, Sergeant Donald Dermody and his partner, Officer Thomas Flynn, received a radio transmission about a robbery on 45th Street between Ninth and Tenth Avenue. (Dermody: Tr. 347-48; Flynn: Tr. 366-67.) At the corner of Ninth Avenue and 45th Street, an unidentified male informed the officers that the suspects had just fled north on Ninth Avenue and that one man had been wearing red pants and a red hat. (Dermody: Tr. 349; Flynn: Tr. 367-68.) They began a search of the area and Officer Flynn spotted two men walking down West 47th Street. (Dermody: Tr. 350; Flynn: Tr. 368.) One of the men (Brown) was wearing red pants and holding a red hat. (Dermody: Tr. 350; Flynn: Tr. 368.) Sgt. Dermody and Officer Flynn stopped the two men at gunpoint. (Dermody: Tr. 350; Flynn; Tr. 368.) Sgt. Dermody frisked Brown and found a blue Nokia cellular phone in his pocket. (Dermody: Tr. 351; Flynn: Tr. 370.) Brown insisted that the phone was his and Sgt. Dermody returned it. (Dermody: Tr. 351; Flynn: Tr. 370.) Officer Flynn searched Goodlette but found nothing. (Flynn: Tr. 370.) Officer Flynn alerted the dispatcher that two men had been stopped who fit the robbers' descriptions and requested that Farooq be brought for a showup. (Dermody: Tr. 351; Flynn: Tr. 370.)

Farooq was informed that two possible suspects had been stopped on 47th Street between Eighth and Ninth Avenues. (Wolf: Tr. 284-87; Gallagher: Tr. 311.) When they reached the area, Farooq remained in the police car, which stopped about twenty to twenty five feet from the suspects. (Farooq: Tr. 246, 262-63; Wolf: Tr. 298.) Although Farooq identified both men, it took him longer to identify Brown because his view was blocked initially by Officer Flynn. (Farooq: Tr. 247. 258, 262-64; Wolf: Tr. 287, 298; Gallagher: Tr. 312-13, 318; Dermody: Tr. 352-56, 359, 364; Flynn: Tr: 371-72, 377-78.)² Brown and Goodlette were handcuffed and placed under arrest. (Wolf: Tr. 291; Dermody: Tr. 356; Flynn: Tr. 372.) The officers searched for a gun but could not find one. (Wolf: Tr. 302-04; Dermody: Tr. 361, 363-64.)

2 At trial, Farooq could not identify Brown. (Farooq: Tr. 251, 258.)

Farooq told Sgt. Dermody that Brown and Goodlette had stolen his cellular phone and wallet. (Dermody: Tr. 355, 360.) Sgt. Dermody removed the phone from Brown's pocket and showed it to Farooq, who confirmed that it was his — indeed, when the phone was turned on it had his name. (Farooq: Tr. 247, 263; Wolf: Tr. 299-300; Dermody: Tr. 355, 360-61.) After Officer Jose Segura transported Brown to the station house, he searched the back of his police car and found a set of keys. (Segura: Tr. 322-24.) Farooq confirmed that the keys belonged to him. (Farooq: Tr. 248, 250.) Officer Wolf searched Brown and recovered seventy-one dollars in paper currency and one 1976 silver dollar coin. (Wolf: Tr. 292-95.)³

3 Although Brown claimed that he had been selling drugs the night of the incident (see pages 6-7 below), the police officers found no narcotics on him. (Wolf: Tr. 296.)

Sgt. Dermody and Officers Wolf, Gallagher, Segura and Flynn all identified Brown at trial as the man who was wearing red pants and carrying a red hat when he was arrested. (Wolf: Tr. 288; Gallagher: Tr. 313; Segura: Tr. 322-23; Dermody: Tr. 350-51; Flynn: Tr. 369.)

Mario Ongania's 911 Tape

Mario Ongania, who lived at 440 West 45th Street, called 911 and reported that two black men had "mugged" a limousine driver parked across the street. (Ortiz: Tr. 396; Ongania: Tr. 400; see Dkt. No. 6: State Br. at 3.)⁴ Ongania told the operator that one of the muggers wore red pants and a red hat and that the other wore a white shirt and dark pants. (State Br. at 4; see Ongania: Tr. 405.) He also reported that after seeing the two men throw the driver to the ground and steal his money (see also Ongania: Tr. 407-08, 411), Ongania yelled out the window that he was going to call the police, but the men told him to mind his own business and ran off.⁵ Latisha Ortiz, a communications technician with the New York City Police Department, authenticated the tape, which was admitted into evidence. (Ortiz: Tr. 390-94.)

4 Because the record before this Court does not contain a transcribed copy of the 911 tape, the Court relies on the State's Brief, Dkt. No. 6. (See also Dkt. No. 5: Martland Aff. Ex. A: Brown 1st Dep't Br. at 9.)

5 The defense called Ongania to testify. (Tr. 399.) Ongania testified that he did not see a gun or anyone gesturing as if they had a gun. (Ongania: Tr. 402, 405.)

The Defense Case: Brown's Own Testimony

Brown testified in his own defense. Brown stated that he did not rob Farooq or steal the cellular phone from Farooq. (Brown: Tr. 432-33, 466-67.) Brown testified that earlier that night, Farooq had given him the phone as collateral because he did not have the money required to purchase crack cocaine from Brown. (Brown: Tr. 415, 422-23, 448-50.) Brown testified that Farooq did not return with the money and when Brown saw him on the street, Brown got very upset and thought Farooq was trying to "play" him. (Brown: Tr. 423, 425, 428, 450-51.)⁶ Acceding to Brown, Farooq demanded his phone back even though he did not have the money to pay Brown for the drugs, they exchanged words, Farooq threw his keys at Brown and the two men began fighting. (Brown: Tr. 424, 426-28, 451, 463-64.) Brown stated that no gun or black bag was used during the fight. (Brown: Tr. 433, 468.) Brown also testified that no drugs were found on him or Goodlette when they were arrested "because [they] were sold out." (Brown: Tr. 418, 421.)⁷ Verdict and Sentence

6 During cross-examination by defense counsel during the prosecutor's case, Farooq had testified that he had never seen Brown or Goodlette before, he never had any dealings with them and he did not owe them any money. (Farooq: Tr. 256-57.)

7 On cross-examination, Brown claimed that he "must have lost" the $1,200 he had made that night selling crack. (Brown: Tr. 457-58.)

The jury found Brown not guilty of first degree robbery but found him guilty of second degree robbery. (Tr. 565-66.) The court found Brown to be a second violent predicate felon (3/13/00 Sentencing Transcript ["S."] 3), and sentenced him to fourteen years imprisonment. (S. 8.)

Brown's Direct Appeal

Brown appealed to the First Department, claiming that: (i) the verdict was against the weight of the evidence (Dkt. No. 5: Martland Aff. Ex. A: Brown 1st Dep't Br. at 14-18), and (ii) the sentence of fourteen years imprisonment for second degree robbery is unduly harsh and excessive (id. at 18-20).

On April 23, 2002, the First Department affirmed Brown's conviction, holding:

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. Issues of credibility, including the conflict between the complainant's and defendant's versions of the incident, were properly considered by the jury and there is no basis upon which to disturb its determinations.

We perceive no basis for a reduction of sentence. People v. Brown, 293 A.D.2d 376, 376, 740 N.Y.S.2d 215, 215 (1st Dep't 2002) (citation omitted).

The New York Court of Appeals denied leave to appeal on September 3, 2002. People v. Brown. 98 N.Y.2d 729, 749 N.Y.S.2d 479 (2002).

Brown's Federal Habeas Petition

Brown's timely-filed federal habeas corpus petition raises two grounds: (a) the second degree robbery conviction was contrary to the weight and sufficiency of the evidence (Dkt. No. 2: Pet. ¶ 13 Att., Point I); and (b) his sentence of fourteen years is excessive (Pet. ¶ 13 Att., Point II).

ANALYSIS

I. THE AEDPA REVIEW STANDARD ⁸

Before the Court can determine whether Brown is entitled to federal habeas relief, the Court must address the proper habeas corpus review standard under the Antiterrorism and Effective Death Penalty Act ("AEDPA").

In enacting the AEDPA, Congress significantly "modifie[d] the role of federal habeas courts in reviewing petitions filed by state prisoners."Williams v. Taylor, 529 U.S. 362, 403, 120 S.Ct. 1495, 1518 (2000). The AEDPA imposed a more stringent review standard, as follows:

(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) . . . was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d)(1)-(2).⁹

9 See also, e.g., Dallio v. Spitzer, 343 F.3d 553, 559-60 (2d Cir. 2003), cert. denied, 124 S.Ct. 1713 (2004); Eze v. Senkowski, 321 F.3d 110, 120 (2d Cir. 2003) ("AEDPA changed the landscape of federal habeas corpus review by 'significantly curtail[ing] the power of federal courts to grant the habeas petitions of state prisoners.'") (quoting Lainfiesta v. Artuz, 253 F.3d 151, 155 (2d Cir. 2001). cert. denied, 535 U.S. 1019, 122 S.Ct. 1611 (2002)); Christie v. Hollins, 01 Civ. 11605, 2003 WL 22299216 at *2 (S.D.N.Y. Oct. 7, 2003) (Mukasey, D.J.) ("As Magistrate Judge Peck explained, the 'unreasonable application' clause, and AEDPA more generally, imposes a heavy burden on habeas petitioners.").

The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have "independent meaning." Williams v. Taylor, 529 U.S. at 404-05, 120 S.Ct. at 1519.¹⁰ Both, however, "restrict the source of clearly established law to [the Supreme] Court's jurisprudence." Williams v. Taylor, 529 U.S. at 412, 120 So. Ct. at 1523.¹¹ "That federal law, as defined by the Supreme Court, may either be a generalized standard enunciated in the [Supreme] Court's case law or a bright-line rule designed to effectuate such a standard in a particular context."Kennaugh v. Miller, 289 F.3d at 42. "A petitioner cannot win habeas relief solely by demonstrating that the state court unreasonably applied Second Circuit precedent." Yung v. Walker, 296 F.3d at 135; accord. e.g., DelValle v. Armstrong, 306 F.3d at 1200.

10 Accord, e.g., Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir. 2003). cert., denied. 124 S.Ct. 962 (2003); Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000); Lurie v. Wittner, 228 F.3d 113, 125 (2d Cir. 2000), cert. denied, 532 U.S. 943, 121 S.Ct. 1404 (2001); Clark v. Stinson, 214 F.3d 315, 320 (2d Cir. 2000). cert. denied, 531 U.S. 1116, 121 S.Ct. 865 (2001).

11 Accord, e.g., Wiggins v. Smith, 539 U.S. 510, 123 So. Ct. 2527, 2534 (2003); Lockyer v. Andrade, 538 U.S. 63, 123 So. Ct. 1166, 1172 (2003) ("Section 2254(d)(1)'s 'clearly established' phrase 'refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision.'"); Tueros v. Greiner, 343 F.3d 587, 591 (2d Cir. 2003), cert. denied, No. 03-9326, __ S.Ct. __, 2004 WL 1085674 (U.S. May 17. 2004): Parsad v. Greiner, 337 F.3d at 181: DelVallev. Armstrong. 306 F.3d 1197, 1200 (2d Cir. 2002); Yung v. Walker, 296 F.3d 129.135 (2d Cir. 2002):Kennaugh v. Miller, 289 F.3d 36, 42 (2d Cir.), cert. denied, 537 U.S. 909, 123 S.Ct. 251 (2002); Loliscio v. Goord, 263 F.3d 178, 184 (2d Cir. 2001); Sellan v. Kuhlman, 261 F.3d 303, 309 (2d Cir. 2001).

As to the "contrary to" clause:

A state-court decision will certainly be contrary to [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases. . . . A state-court decision will also be contrary to [the Supreme] Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.

Williams v. Taylor. . . . 529 U.S. at 405-06, 120 S.Ct. at 1519-20.¹²

12 Accord, e.g., Price v. Vincent, 538 U.S. 634, 123 S.Ct. 1848, 1853 (2003); Lockver v. Andrade, 123 S.Ct. at 1173-74: Tueros v. Greiner, 343 F.3d at 591: DelValle v. Armstrong, 306 F.3d at 1200; Yung v. Walker, 296 F.3d at 135; Kennaugh v. Miller, 289 F.3d at 42; Loliscio v. Goord, 263 F.3d at 184; Lurie v. Wittner, 228 F.3d at 127-28.

In Williams, the Supreme Court explained that "[u]nder the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams v. Taylor, 529 U.S. at 413, 120 S.Ct. at 1523.¹³ However, "[t]he term 'unreasonable' is . . . difficult to define." Williams v. Taylor, 529 U.S. at 410, 120 S.Ct. at 1522. The Supreme Court made clear that "an unreasonable application of federal law is different from an incorrect application of federal law." Id. ¹⁴ Rather, the issue is "whether the state court's application of clearly established federal law was objectively unreasonable." Williams v. Taylor, 529 U.S. at 409, 120 S.Ct. at 1521.¹⁵ "Objectively unreasonable" is different from "clear error." Lockyer v. Andrade, 123 S.Ct. at 1175 ("The gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness."). However, the Second Circuit has explained "that while '[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence.'" Jones v. Stinson, 229 F.3d at 119 (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).¹⁶

13 Accord, e.g., Wiggins v. Smith, 123 S.Ct. at 2534-35: Parsad v. Greiner, 337 F.3d at 181.

14 See also, e.g., Wiggins v. Smith, 123 S.Ct. at 2535: Price v. Vincent, 123 S.Ct. at 1853 ("As we have explained, 'a federal habeas court may not issue the writ simply because that court concludes that the state-court decision applied [a Supreme Court case] incorrectly.'") (quoting Woodford v. Visciotti, 537 U.S. 19, 24-25, 123 S.Ct. 357, 360 (2002)); Lockver v. Andrade, 123 S.Ct. at 1175; Eze v. Senkowski, 321 F.3d at 124-25; DelValle v. Armstrong, 306 F.3d at 1200 ("With regard to issues of law, therefore, if the state court's decision was not an unreasonable application of, or contrary to, clearly established federal law as defined by Section 2254(d), we may not grant habeas relief even if in our judgment its application was erroneous.").

15 Accord, e.g., Wiggins v. Smith, 123 S.Ct. at 2535; Price v. Vincent, 123 S.Ct. at 1853; Lockver v. Andrade, 123 S.Ct. at 1174-75:Woodford v. Visciotti, 537 U.S. at 25-27. 123 S.Ct. at 360-61; Eze v. Senkowski, 321 F.3d at 125; Ryan v. Miller, 303 F.3d 231, 245 (2d Cir. 2002); Yung v. Walker, 296 F.3d at 135; Eoliscio v. Goord, 263 F.3d at 184; Lurie v. Wittner, 228 F.3d at 128-29.

16 Accord, e.g., Eze v. Senkowski, 321 F.3d at 125: Ryan v. Miller, 303 F.3d at 245: Yung v. Walker. 296 F.3d at 135; Loliscio v. Goord, 263 F.3d at 184; Christie v. Hollins, 2003 WE 22299216 at *3.

Moreover, the Second Circuit has held "that a state court determination is reviewable under AEDPA if the state decision unreasonably failed to extend a clearly established, Supreme Court defined, legal principle to situations which that principle should have, in reason, governed." Kennaugh v. Miller, 289 F.3d at 45.¹⁷

17 Accord, e.g., Tueros v. Greiner, 343 F.3d at 591: Yung v. Walker, 296 F.3d at 135.

Under the AEDPA, in short, the federal courts "must give the state court's adjudication a high degree of deference." Yung v. Walker, 296 F.3d at 134.

Even where the state court decision does not specifically refer to either the federal claim or to relevant federal case law, the deferential AEDPA review standard applies:

For the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.

Sellan v. Kuhlman, 261 F.3d at 312; accord Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 365 (2002) (State court not required to cite Supreme Court cases, or even be aware of them, to be entitled to AEDPA deference, "so long as neither the reasoning nor the result of the state-court decision contradicts them."): Francolino v. Kuhlman, 365 F.3d 137, 141 (2d Cir. Apr. 20, 2004) (Where "the Appellate Division concluded its opinion by stating that it had 'considered and rejected defendants' remaining claims," AEDPA deference applies.); Jenkins v. Artuz, 294 F.3d 284, 291 (2d Cir. 2002) ("In Sellan, we found that an even more concise Appellate Division disposition — the word 'denied' — triggered AEDPA deference.").¹⁸ "By its terms, § 2254(d) requires such deference only with respect to a state-court 'adjudication on the merits,' not to a disposition 'on a procedural, or other, ground.' Where 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." Miranda v. Bennett, 322 F.3d 171, 177-78 (2d Cir. 2003) (citations omitted).¹⁹ Of course, "[i]f there is no [state court] adjudication on the merits, then the pre-AEDPA, de novo standard of review applies." Cotto v. Herbert, 331 F.3d at 230.

18 Accord. e.g., Dallio v. Spitzer, 343 F.3d at 559-60: Parsad v. Greiner, 337 F.3d at 180-81; Cotto v. Herbert, 331 F.3d 217, 230 (2d Cir. 2003): Eze v. Senkowski, 321 F.3d at 121: Ryan v. Miller, 303 F.3d at 245; Aeid v. Bennett, 296 F.3d 58, 62 (2d Cir.), cert. denied, 537 U.S. 1093, 123 S.Ct. 694 (2002); Norde v. Keane, 294 F.3d 401. 410 (2d Cir. 2002); Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir. 2001).
The Second Circuit "recognize[d] that a state court's explanation of the reasoning underlying its decision would ease our burden in applying the 'unreasonable application' or 'contrary to' tests." Sellan v. Kuhlman, 261 F.3d at 312. Where the state court does not explain its reasoning, the Second Circuit articulated the analytic steps to be followed by a federal habeas court:

We adopt the Fifth Circuit's succinct articulation of the analytic steps that a federal habeas court should follow in determining whether a federal claim has been adjudicated "on the merits" by a state court. As the Fifth Circuit has explained, "[W]e determine whether a state court's disposition of a petitioner's claim is on the merits by considering: (1) what the state courts have done in similar cases; (2) whether the history of the case suggests that the state court was aware of any ground for not adjudicating the case on the merits; and (3) whether the state court's opinion suggests reliance upon procedural grounds rather than a determination on the merits." Mercadel v. Cain, 179 F.3d 271, 274 (5th Cir. 1999).

Sellan v. Kuhlman, 261 F.3d at 314; accord, e.g., Cotto v. Herbert Kuhlman., 331 F.3d at 230; Eze v. Senkowski, 321 F.3d at 121-22: Norde v. Keane, 294 F.3d at 410: Aparicio v. Artuz, 269 F.3d at 93; see also Dallio v. Spitzer, 343 F.3d at 560.

19 The Second Circuit in Miranda v. Bennett continued: "Generally, when the Appellate Division opinion states that a group of contentions is either without merit 'or' procedurally barred, the decision does not disclose which claim in the group has been rejected on which ground. If the record makes it clear, however, that a given claim had been properly preserved for appellate review, we will conclude that it fell into the 'without merit' part of the disjunct even if it was not expressly discussed by the Appellate Division." Id. at 178.

In addition to the standard of review of legal issues, the AEDPA provides a deferential review standard for state court factual determinations: "a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1). "The petitioner bears the burden of'rebutting the presumption of correctness by clear and convincing evidence.'" Parsad v. Greiner, 337 F.3d at 181 (quoting § 2254(e)(1)).

Brown's sufficiency of the evidence and excessive sentence claims were decided on the merits by the First Department (see page 8 above), and thus AEDPA deference applies.

II. BROWN'S WEIGHT OF THE EVIDENCE CLAIM IS NOT COGNIZABLE ON FEDERAL HABEAS ²⁰

20 For additional decisions authored by this Judge discussing weight of the evidence claims in language substantially similar to that in this entire section of this Report and Recommendation, see Rodriguez v. Senkowski, 03 Civ. 3314, 2004 WE 5034 51 at *26-27 n. 33 (S.D.N.Y. Mar. 15, 2004) (Peck, M.J.); Wilson v. Senkowski, 02 Civ. 0231, 2003 WE 21031975 at *7-8 (S.D.N.Y. May 7, 2003) (Peck, M.J.); Gutierrez v. Ricks, 02 Civ. 3780, 2002 WE 31360417 at *4 (S.D.N.Y. Oct. 21, 2002) (Peck, M.J.): Ventura v. Artuz, 99 Civ. 12025, 2000 WE 995497 at *7-8 (S.D.N.Y. July 19, 2000) (Peck, M.J.).

Brown claims that his second degree robbery conviction is against the weight of the evidence. (Dkt. No. 2: Pet. ¶ 13 Att., Point I.)

A challenge to a verdict based on the weight of the evidence differs from one based on the sufficiency of the evidence: " [T]he 'weight of the evidence' argument is a pure state law claim grounded in New York Criminal Procedure Eaw § 470.15(5), whereas a legal sufficiency claim is based on federal due process principles." Garbez v. Greiner, 01 Civ. 9865, 2002 WL 1760960 at *8 (S.D.N.Y. July 30, 2002) (citing People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761 (1987)).²¹

21 The Bleakley Court explained the difference as follows:

Although the two standards of intermediate appellate review — legal sufficiency and weight of evidence — are related, each requires a discrete analysis. For a court to conclude . . . that a jury verdict is supported by sufficient evidence, the court must determine whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial and as a matter of law satisfy the proof and burden requirements for every element of the crime charged. If that is satisfied, then the verdict will be upheld by the intermediate appellate court on that review basis.

To determine whether a verdict is supported by the weight of the evidence, however, the appellate court's dispositive analysis is not limited to that legal test. Even if all the elements and necessary findings are supported by some credible evidence, the court must examine the evidence further. If based on all the credible evidence a different finding would not have been unreasonable, then the appellate court must, like the trier of fact below, "weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony."

People v. Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d at 763 (citations omitted).

It is well-settled that a weight of the evidence claim is not cognizable on federal habeas review. E.g., Young v. Kemp, 760 F.2d 1097.1105 (11th Cir. 1985) ("A federal habeas court has no power to grant habeas corpus relief because it finds that the state conviction is against the 'weight' of the evidence . . ."). cert. denied, 476 U.S. 1123, 106 S.Ct. 1991 (1986): Ex parte Craig, 282 F. 138, 148 (2d Cir. 1922) ("a writ of habeas corpus cannot be used to review the weight of evidence . . ."), aff'd, 263 U.S. 255, 44 S.Ct. 103 (1923); Garbez v. Greiner, 2002 WL 1760960 at *8 ("by raising a 'weight of the evidence' argument, [petitioner] does not present to this Court a federal claim as required by 28 U.S.C. § 2254(a). Instead, [petitioner] raises an error of state law, which is not available for habeas corpus review."); Lemons v. Parrott, 01 Civ. 9366, 2002 WL 850028 at *3 (S.D.N.Y. May 2, 2002) ("[W]e have no authority to review a weight of the evidence argument because it is a state law claim."); McBride v. Senkowski, 98 Civ. 8663, 2002 WL 523275 at *4 n. 2 (S.D.N.Y. Apr. 8, 2002) (weight of evidence is not cognizable on habeas review); Correa v. Duncan, 172 F. Supp.2d 378, 381 (E.D.N.Y. 2001) ("'weight of the evidence' argument is a pure state law claim grounded in New York Criminal Procedure Law § 470.15(5), whereas a legal sufficiency claim is based on federal due process principles. Accordingly, the Court is precluded from considering the [weight of the evidence] claim.") (citations omitted); Peralta v. Bintz, 00 Civ. 8935, 2001 WL 800071 at *5 (S.D.N.Y. July 16, 2001) (Petitioner "raises only the state law issue of whether the weight of the evidence supported his conviction. Because [petitioner] raises no cognizable federal issue, his petition must be denied."); Kearse v. Artuz, 99 Civ. 2428, 2000 WL 1253205 at *1 (S.D.N.Y. Sept. 5, 2000) ("Disagreement with a jury verdict about the weight of the evidence is not grounds for federal habeas corpus relief."): Rodriguez v. O'Keefe, 96 Civ. 2094, 1996 WL 428164 at *4 (S.D.N.Y. July 31, 1996) ("A claim that the verdict was against the weight of the evidence is not cognizable on habeas review."), aff'd. No. 96-2699, 122 F.3d 1057 (table) (2d Cir. Sept. 9, 1997). cert. denied, 522 U.S. 1123, 118 S.Ct. 1068 (1998): see also, e.g., Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996) (dismissing habeas claim; "assessments of the weight of the evidence or the credibility of witnesses are for the jury and not grounds for reversal on appeal; we defer to the jury's assessments of both of these issues").

Accordingly, Brown's weight of the evidence habeas claim should be denied. III. THE EVIDENCE WAS SUFFICIENT TO CONVICT BROWN OF ROBBERY IN THE SECOND DEGREE A. Legal Principles Governing Sufficiency of the Evidence Habeas Claims ²²

22 For additional decisions authored by this Judge discussing the sufficiency of the evidence standard in habeas cases in language substantially similar to this section of this Report Recommendation,see Rodriguez v. Goord, 02 Civ. 6318, 2004 WL 540531 at * 13-14 (S.D.N.Y. Mar. 19, 2004) (Peck, M.J.); Rodriguez v. Senkowski, 03 Civ. 3314, 2004 WL 503451 at *27 (S.D.N.Y. Mar. 15, 2004) (Peck, M.J.); Besser v. Walsh, 02 Civ. 6775, 2003 WL 22093477 at * 10-13 (S.D.N.Y. Sept. 10, 2003) (Peck, M.J.); Wilson v. Senkowski, 02 Civ. 0231, 2003 WL 21031975 at *8-9 (S.D.N.Y. May 7, 2003) (Peck, M.J.); Hediam v. Miller, 02 Civ. 1419, 2002 WL 31867722 at * 11-14 (S.D.N.Y. Dec. 23, 2002) (Peck, M.J.);Gutierrez v. Ricks, 02 Civ. 3780, 2002 WL 31360417 at *7-10 (S.D.N.Y. Oct. 21, 2002) (Peck, M.J.); Ibarra v. Burge, 02 Civ. 0825, 2002 WL 1467756 at *4-5 (S.D.N.Y. July 9, 2002) (Peck, M.J.); Cromwell v. Keane, 98 Civ. 0013, 2002 WL 929536 at * 13-14 n. 17 (S.D.N.Y. May 8, 2002) (Peck, M.J.); Jamison v. Grier, 01 Civ. 6678, 2002 WL 100642 at *9-10 (S.D.N.Y. Jan. 25, 2002) (Peck, M.J.); Ferguson v. Walker, 00 Civ. 1356, 2001 WL 869615 at *4 (S.D.N.Y. Aug. 2, 2001) (Peck, M.J.), report rec. adopted, 2002 WL 31246533 (S.D.N.Y. Oct. 7, 2002): Simpson v. Portuondo, 01 Civ. 1379, 2001 WL 830946 at *7 (S.D.N.Y. July 12, 2001) (Peck, M.J.); Simmons v. Mazzuca, 00 Civ. 8174, 2001 WL 537086 at *6 (S.D.N.Y. May 21, 2001) (Peck, M.J.); Jones v. Duncan, 162 F. Supp.2d 204, 214-15 (S.D.N.Y. 2001) (Peck, M.J.); Cassells v. Ricks, 99 Civ. 11616, 2000 WL 1010977 at *5 (S.D.N.Y. July 21, 2000) (Peck, M.J.); Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *7 (S.D.N.Y. July 19, 2000) (Peck, M.J.); Roldan v. Artuz, 78 F. Supp.2d 260, 266-67 (S.D.N.Y. 2000) (Batts, D.J. Peck, M.J.); Estrada v. Senkowski, 98 Civ. 7796, 1999 WL 1051107 at *14 (S.D.N.Y. Nov. 19, 1999) (Pauley, D.J. Peck, M.J.);Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *25 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); Jones v. Strack, 99 Civ. 1270, 1999 WL 983871 at *12 (S.D.N.Y. Oct. 26, 1999) (Peck, M.J.); Franza v. Stinson, 58 F. Supp.2d 124, 137 (S.D.N.Y. 1999) (Kaplan, D.J. Peck, M.J.);Carromero v. Strack, 98 Civ. 3519, 1998 WL 849321 at *4 (S.D.N.Y. Nov. 19, 1998) (Preska. D.J. Peck. M.J.); Fernandez v. Dufrain, 11 F. Supp.2d 407.416 (S.D.N.Y. 1998) (Kaplan, D.J. Peck, M.J.);Williams v. Bennet, 97 Civ. 1628, 1998 WL 236222 at *4 (S.D.N.Y. Apr. 20, 1998) (Baer, D.J. Peck, M.J.); Robinson v. Warden of James A. Thomas Ctr., 984 F. Supp. 801, 805 (S.D.N.Y. 1997) (Sprizzo, D.J. Peck, M.J.); Ehinger v. Miller, 942 F. Supp. 925, 935 (S.D.N.Y. 1996) (Mukasey, D.J. Peck, M.J.); Vera v. Hanslmaier, 928 F. Supp. 278, 284 (S.D.N.Y. 1996) (Jones, D.J. Peck, M.J.).

"'[T]he Due Process Clause of the Fourteenth Amendment protects a defendant in a criminal case against conviction 'except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.'" Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 2787 (1979) (quoting In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073 (1970)). However, "a properly instructed jury may occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. at 317, 99 S.Ct. at 2788. Accordingly, "in a challenge to a state criminal conviction brought under 28 U.S.C. § 2254 — if the settled procedural prerequisites for such a claim have otherwise been satisfied — the applicant is entitled to habeas corpus relief 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." Jackson v. Virginia, 443 U.S. at 324, 99 S.Ct. at 2791-92.²³

23 Accord, e.g., Fama v. Commissioner of Corr. Servs., 235 F.3d 804, 811 (2d Cir. 2000); Einaugler v. Supreme Court, 109 F.3d 836, 839 (2d Cir. 1997).

Petitioner Brown bears a very heavy burden:

[T]he standard for appellate review of an insufficiency claim placed a "very heavy burden" on the appellant. Our inquiry is whether the jury, drawing reasonable inferences from the evidence, may fairly and logically have concluded that the defendant was guilty beyond a reasonable doubt. In making this determination, we must view the evidence in the light most favorable to the government, and construe all permissible inferences in its favor.

United States v. Carson, 702 F.2d 351, 361 (2d Cir.) (citations omitted), cert. denied, 462 U.S. 1108, 103 S.Ct. 2456, 2457 (1983).²⁴

24 Accord, e.g., Fama v. Commissioner of Corr. Servs., 235 F.3d at 811 ("petitioner bears a very heavy burden in convincing a federalhabeas court to grant a petition on the grounds of insufficiency of the evidence"); United States v. Middlemiss, 217 F.3d 112, 117 (2d Cir. 2000); United States v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000) ("a defendant shoulders a 'heavy burden' in challenging the sufficiency of evidence supporting a conviction"): United States v. Kinney, 211 F.3d 13, 16 (2d Cir. 2000), cert. denied, 531 U.S. 1079, 121 S.Ct. 778 (2001);United States v. Bicaksiz, 194 F.3d 390, 398 (2d Cir. 1999) (The defendant "bears a 'very heavy burden' in challenging the sufficiency of the evidence that led to his conviction. In considering any such challenge, we view all proof in the light most favorable to the government and draw all reasonable inferences in the government's favor.") (citations omitted), cert. denied, 528 U.S. 1161, 120 S.Ct. 1175 (2000): United States v. Russo, 74 F.3d 1383, 1395 (2d Cir.), cert. denied, 519 U.S. 927, 117 S.Ct. 293 (1996); United States v. Rosa, 11 F.3d 315, 337 (2d Cir. 1993) ("[T]he defendant who makes a sufficiency challenge bears a heavy burden."), cert. denied, 511 U.S. 1042, 1096, 114S. Ct. 1565, 1864 (1994); United States v. Strauss, 999 F.2d 692, 696 (2d Cir. 1993) (burden on defendant claiming insufficiency is "very heavy" and all inferences must be drawn in the government's favor).

The habeas court's review of the jury's findings is limited:

[T]his inquiry does not require a court to "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Instead, the relevant question is whether, after 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. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.

Jackson v. Virginia, 443 U.S. at 318-19, 99 S.Ct. at 2789 (citations omitted).²⁵

25 Accord, e.g., United States v. Middlemiss, 217 F.3d at 117; United States v. Kinney, 211 F.3d at 16; United States v. Russo, 74 F.3d at 1395 (quoting United States v. Martinez, 54 F.3d 1040, 1042-43 (2d Cir.),cert. denied, 516 U.S. 1001, 116 S.Ct. 545 (1995)); Mallette v. Scully, 752 F.2d 26, 31 (2d Cir. 1984).

The Jackson v. Virginia "standard must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law." Jackson v. Virginia, 443 U.S. at 324 n. 16. 99 S.Ct. at 2792 n. 16; accord, e.g., Green v. Abrams, 984 F.2d 41.44-45 (2d Cir. 1993) ("In considering a petition for a writ of habeas corpus based on insufficient evidence to support a criminal conviction in the state courts, a federal court must look to state law to determine the elements of the crime."). B. Application of the Standard to Brown's Claim

Brown argues that there was insufficient evidence to convict him of second degree robbery. (Dkt. No. 2: Pet. ¶ 13 Att, Point I.) Brown claims that the "encounter with Farooq was a 'fight' stemming from a drug deal and not a robbery." (Pet. ¶ 13 Att., Point I at 17.)

The First Department denied Brown's insufficiency claim:

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. Issues of credibility, including the conflict between the complainant's and defendant's versions of the incident, were properly considered by the jury and there is no basis upon which to disturb its determinations.

People v. Brown, 293 A.D.2d 376, 376, 740 N.Y.S.2d 215, 215 (1st Dep't 2002) (citation omitted).

Viewing the evidence in the light most favorable to the prosecution, a rational jury could have found beyond a reasonable doubt that Brown was guilty of second degree robbery. To support the charge, the evidence must show that the defendant "forcibly stole property" while "aided by another person actually present." Penal Law § 160.10(1).²⁶ Brown did not dispute that he was accompanied by Goodlette at the time of his "fight" with Farooq. (Brown: Tr. 423-25, 464.) Thus, the only question is whether Brown "forcibly stole" money and/or a cell phone from Farooq. There was sufficient evidence to show that Brown, accompanied by Goodlette, approached Farooq in the early hours of September 13, 1999, and left with Farooq's money and cell phone. (See pages 2-6 above.) Farooq provided consistent and credible testimony about the incident and identified Brown as one of the robbers in a street showup roughly ten minutes after the attack. (See page 5 above.) The robbery was also confirmed by the taped 911 recording of Mario Ongania, who called police to report that a driver was being mugged. (See page 6 above.) Both Farooq and Ongania described one suspect as wearing red pants and a red cap; Brown was wearing those clothes when the police apprehended him a few blocks from where the incident occurred. (See pages 4, 6 above.) The police found Farooq's cell phone on Brown. (See page 5 above.)

26 Pursuant to Penal Law § 160.10:

A person is guilty of robbery in the second degree when he forcibly steals property and when:

1. He is aided by another person actually present. (Penal Law § 160.10.)

There was also sufficient evidence that Brown and Goodlette used force against Farooq while attempting to take his property. While a gun was not located at the scene, Farooq testified that what felt like a gun was placed to his head and he was warned by the attackers that if he moved they would shoot him. (See page 3 above.) Farooq also testified that he was grabbed from behind and forced to the ground, and that Brown tore his front pocket off as he attempted to reach inside. (See page 3 above.) The torn pocket was confirmed by Officers Wolf and Gallagher. (See pages 3-4 above.)

While Brown testified that Farooq gave him the cell phone as collateral for a drug transaction that had occurred earlier and the fight was about its return (see pages 6-7 above), Farooq maintains that he had never seen either attacker before the robbery and had no prior dealings with them (see page 7 n. 6 above). Farooq's version of events is further strengthened by the fact that no narcotics were found on either Brown or Farooq and the money Brown claims to have made that night dealing drugs cannot be accounted for. (See page 7 above.)

Here, as in prior cases, "the jury's 'decision was largely a matter of choosing whether to believe [the defense's] version of the events or to believe the version offered by the State. The jury chose to believe the State's witnesses. . . . We cannot say that no rational [factfinder] could have found guilt beyond a reasonable doubt on all the evidence.'"Jamison v. Grier, 01 Civ. 6678, 2002 WL 100642 at * 12 (S.D.N.Y. Jan. 25, 2002) (Peck, M.J.) (quoting Gruttola v. Hammock, 639 F.2d 922, 928 (2d Cir. 1981)); accord, e.g., Rodriguez v. Goord, 02 Civ. 6318, 2004 WL 540531 at *17 (S.D.N.Y. Mar. 19, 2004) (Peck, M.J.); Rodriguez v. Senkowski, 03 Civ. 3314, 2004 WL 503451 at *29 (S.D.N.Y. Mar. 15, 2004) (Peck, M.J.); Besser v. Walsh, 02 Civ. 6775, 2003 WL 22093477 at *22 (S.D.N.Y. Sept. 10, 2003) (Peck, M.J.); Wilson v. Senkowski, 02 Civ. 0231, 2003 WL 21031975 at * 11 n. 18 (S.D.N.Y. May 7, 2003) ( cases cited therein); see also cases cited in Point II.A above.

IV. BROWN'S EXCESSIVE SENTENCE CLAIM DOES NOT PROVIDE A BASIS FOR FEDERAL HABEAS RELIEF

Brown's habeas petition asserts that his sentence of fourteen years imprisonment is "unduly harsh and excessive" because no weapon was involved and Farooq was not injured. (Dkt. No. 2: Pet. ¶ 13 Att., Point II at 18-20.)

Brown's excessive sentence claim is quickly disposed of. An excessive sentence claim does not provide a basis for habeas relief, because "[n]o federal constitutional issue is presented where, as here, the sentence is within the range prescribed by state law." White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992).²⁷ In this case, it is undisputed that Brown's sentence was within the range prescribed by state law. Brown was found guilty of second degree robbery and sentenced to fourteen years imprisonment. (See page 7 above.) Robbery in the second degree is a class C felony. Penal Law § 160.10. Brown was sentenced as a second violent felony offender. Penal Law § 70.04(1). For a defendant convicted of a class C felony who is a second violent felony offender, the statutorily authorized term of imprisonment is a determinant sentence of between seven years and fifteen years. Penal Law § 70.04(3)(b).

27 Accord, e.g., Rodriguez v. Senkowski, 03 Civ. 3314, 2004 WL 503451 at *38 (S.D.N.Y. Mar. 15, 2004) (Peck, M.J.); McPherson v. Greiner, 02 Civ. 2726, 2003 WL 22405449 at *17 (S.D.N.Y. Oct. 22, 2003) (Peck, M.J.); Briggs v. Phillips, 02 Civ. 9340, 2003 WL 21497514 at *7 (S.D.N.Y. June 30, 2003) (Peck, M.J.); Hoover v. Senkowski, No. 00 CV 2662, 2003 WL 21313726 at *10 (E.D.N.Y. May 24, 2003): Wilson v. Senkowski, 02 Civ. 0231, 2003 WL 21031975 at *13 (S.D.N.Y. May 7, 2003) (Peck, M.J.); Naranjo v. Filion, 02 Civ. 5449, 2003 WL 1900867 at *13 (S.D.N.Y. Apr. 16, 2003) (Peck, M.J.); Alfini v. Lord, 245 F. Supp.2d 493, 502 (E.D.N.Y. 2003); Reynolds v. Artuz, 97 Civ. 3175, 2003 WL 168657 at *4 (S.D.N.Y. Jan. 23, 2003); Presslev v. Bennett, 235 F. Supp.2d 349, 368 (S.D.N.Y. 2003); Ferguson v. Walker, 00 Civ. 1356, 2002 WL 31246533 at * 10 (S.D.N.Y. Oct. 7, 2002) (Swain, D.J. Peck, M.J.); Schreter v. Artuz, 225 F. Supp.2d 249, 258 (E.D.N.Y. 2002); Bryant v. Bennett, 00 Civ. 5692, 2001 WL 286776 at *6 (S.D.N.Y. Mar. 2, 2001) (Peck, M.J.);Solomon v. Artuz, 00 Civ. 0860, 2000 WL 863056 at *7 (S.D.N.Y. June 28, 2000) (Peck, M.J.); Foreman v. Garvin, 99 Civ. 9078, 2000 WL 631397 at* 13 (S.D.N.Y. May 16. 2000) (Peck. M.J.); Thomas v. Greiner, 111 F. Supp.2d 271, 278 n. 8 (S.D.N.Y. 2000) (Preska, D.J. Peck, M.J.); Thomas v. Senkowski, 968 F. Supp. 953, 956 (S.D.N.Y. 1997) ("It is well established that, when a sentence falls within the range prescribed by state law, the length of the sentence may not be raised as grounds for federal habeas relief."); see also, e.g., Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 1255 (1948) (severity of sentence generally not reviewable on habeas); DeFeo v. Artuz, 958 F. Supp. 104, 109 (E.D.N.Y. 1997); Briecke v. New York, 936 F. Supp. 78, 85 (E.D.N.Y. 1996); Haynes v. Lacey, Civ. A. No. 93-CV-2294, 1995 WL 500474 at *4 (E.D.N.Y. Aug. 8, 1995); Underwood v. Kelly, 692 F. Supp. 146, 152 (E.D.N.Y. 1988), aff'd, 875 F.2d 857 (2d Cir.), cert. denied, 493 U.S. 837, 110 S.Ct. 117 (1989);Diaz v. LeFevre, 688 F. Supp. 945, 949 (S.D.N.Y. 1988); Castro v. Sullivan, 662 F. Supp. 745, 753 (S.D.N.Y. 1987) (citing earlier cases);Rivera v. Quick, 571 F. Supp. 1247, 1249 (S.D.N.Y. 1983).

Because Brown's sentence (of fourteen years) is within the statutory range, it is not reviewable by this Court for "excessiveness." See, e.g., Briggs v. Phillips, 2003 WL 21497514 at *7 ( cases cited therein).

Brown's excessive sentence habeas claim should be denied.

CONCLUSION

For the reasons set forth above, Brown's habeas petition should be denied in its entirety and a certificate of appealability should not be issued.

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 Barbara S. Jones, 40 Centre Street, Room 2103, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Jones. 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).

Respectfully submitted,