Opinion
01 Civ. 5717 (JSM)
May 31, 2002
MEMORANDUM OPINION
Luis Camacho, who was convicted after a jury trial in the New York State Supreme Court, New York County, of Conspiracy in the First Degree and three counts of Possession of a Controlled Substance in the First Degree, brings this action pursuant to 28 U.S.C. § 2254 seeking to vacate his conviction.
Petitioner contends that: (1) the trial court unreasonably restricted cross-examination; (2) the prosecutor improperly debriefed a co-defendant, who shared joint defense strategies with petitioner, and never disclosed this debriefing to petitioner; (3) the evidence against him was not sufficient to prove the charges against him; (4) his sentence was excessive; (5) his co-defendant's counsel was ineffective; and (6) he was illegally arrested in Queens by an investigator from the Manhattan District Attorney's Office.
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. However, 28 U.S.C. § 2254(b)(2) gives the Court the discretion to deny unexhausted claims on the merits. Given the fact that, as demonstrated below, 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 28 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 claim that the trial court unreasonably restricted the cross-examination of certain prosecution witnesses is without merit. "The extent of cross-examination rests in the sound discretion of the trial judge." District of Columbia v. Clawans, 300 U.S. 617, 632, 57 S.Ct. 660, 665 (1937); Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431 (1986); United States v. Griffith, 284 F.3d 338, 352 (2d Cir. 2002); United States v. Rahman, 189 F.3d 88, 132 (2d Cir. 1999).
Petitioner has failed to establish that the trial judge abused her discretion in this regard.
There is similarly no merit to petitioner's claim that the prosecutor improperly debriefed a co-defendant. All that the transcript of the co-defendant's sentence — which is the sole factual basis for petitioner's claim — shows is that, sometime after his arrest, the co-defendant, who had served as an informant for federal agents in the past, engaged in proffer sessions with the prosecution in an unsuccessful attempt to obtain a reduced plea. Such proffer sessions are common in criminal cases and the prosecution is under no duty to disclose them to a defendant. Petitioner has not demonstrated that any defense strategy was disclosed to the prosecutor or any other fact showing that he was prejudiced by his co-defendant's conduct.
There was ample evidence to sustain petitioner's conviction. Although petitioner himself may not have been observed in possession of narcotics, he was identified as a participant in numerous telephone calls concerning the activities of the narcotics conspiracy and he was observed by law enforcement agents while engaged in activities that were connected to the conspiracy through overheard conversations among the conspirators. As the Second Circuit observed in Farrington 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).
There is no merit to the claim that the monitors who listened to his taped conversations did not have a sufficient basis to identify his voice. See United States v. Cambindo Valencia, 609 F.2d 603, 640 (2d Cir. 1979), cert. denied, 446 U.S. 940, 100 S.Ct. 2163 (1980).
Petitioner's claim that his sentence was excessive does not raise a constitutional issue. Absent extraordinary factors, not present here, a sentence within the statutory range is not subject to challenge under the Eighth Amendment. See Harmelin v. Michigan, 501 U.S. 957, 994-96, 111 S.Ct. 2680, 2701-02 (1991); Briecke v. State, 936 F. Supp. 78, 85 (E.D.N.Y. 1996). Sentencing decisions are not cognizable on habeas corpus review unless the sentence imposed falls outside the range prescribed by state law. White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992).
Petitioner's contention that his rights were violated because his co-defendant's trial counsel was ineffective fails because he has failed to show that any alleged deficiency in the performance of his co-defendant's counsel prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984). To establish prejudice "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068.
Petitioner's claim that he was arrested in Queens by an investigator for the Manhattan District Attorney's office does not raise a federal constitutional claim.
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.
SO ORDERED.