Opinion
No. CV-03-6001 (FB).
September 14, 2004
DANIEL CARDELL, Pro Se Sing Sing Correctional Facility, Ossining, NY, for the Petitioner.
CHARLES J. HYNES, ESQ., District Attorney, Kings County ANNE FEIGUS, ESQ. Brooklyn, NY, for the Respondent.
MEMORANDUM AND ORDER
Pro se petitioner Daniel Cardell ("Cardell") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 following his convictions in the New York Supreme Court, Kings County, for murder and criminal possession of a weapon. Cardell claims that he was deprived of due process because: (1) consecutive sentences were imposed; (2) the trial court's jury instruction was erroneous; and (3) the trial court accepted an inconsistent verdict sheet and failed to so inform defense counsel. Because Cardell has not yet presented the federal nature of his first claim in state court, this claim is unexhausted. Cardell's final two claims were presented to and rejected by the Appellate Division, Second Department, People v. Cardell, 305 A.D.2d 516 (2d Dep't 2003), and were fully exhausted when the New York Court of Appeals denied leave to appeal. People v. Cardell, 100 N.Y.2d 618 (2003). For the reasons set forth below, his petition is denied in total.
Though not asserted in Cardell's pro se petition, the Court has jurisdiction because Cardell was sentenced in the Eastern District of New York. See 28 U.S.C. § 2241(d).
I.
Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), when a federal claim has been "adjudicated on the merits" by a state court, the state court's judgement is entitled to substantial deference. See 28 U.S.C. § 2254(d). "[A] state court adjudicates 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." Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001) (citations and quotations omitted). Even when the state court summarily affirms a conviction as "without merit," it is well established that the judgment is entitled to AEDPA deference. See Eze v. Senkowski, 321 F.3d 110, 122 (2d Cir. 2003) ("No further adjudication of its rationale or elucidation of its reasoning process is required. In fact, an issue may be considered to be adjudicated on its merits even when the state court does not specifically mention the claim but uses general language referable to the merits." (citations and quotations omitted)).
However, where the state court provides that a claim is "either unpreserved for appellate review or without merit," the level of deference to be afforded to the state court is not at all clear. See Su v. Filion, 335 F.3d 119, 126 n. 3 (2d Cir. 2003) ("[O]ur 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."). "[W]here the record does not otherwise preclude the possibility that the claim was denied on procedural grounds" as opposed to on the merits, the claim may be entitled to de novo review rather than the deferential standard afforded under AEDPA when the state court adjudicated the claim on the merits. See id.
In ruling on Cardell's claims, the Appellate Division stated only that they were "either unpreserved for appellate review or without merit." Cardell, 305 A.D.2d at 516 (emphasis added). Notwithstanding that Cardell's first claim is unexhausted, for each of his claims, the Court will employ a de novo review on the merits rather than attempt to decipher whether the court ruled on the merits. See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State."); Pratt v. Greiner, 306 F.3d 1190, 1197 (2d Cir. 2002) ("A district court also may . . . deny a petition on the merits even if it contains an unexhausted claim.").
II
1. Consecutive Sentences
The Appellate Division, on the merits, determined that the imposition of consecutive sentences adhered to the provisions of New York Penal Law ("N.Y.P.L") § 70.25. Cardell, 305 A.D.2d at 516 ("On the facts presented, the imposition of consecutive terms of imprisonment was legal[.] (citing People v. Laureano, 87 N.Y.2d 640, 642 (1996))). The imposition of consecutive sentences is valid under N.Y.P.L. § 70.25 when as here," acts . . . committed by defendant were separate and distinct acts[.]" Laureano, 87 N.Y.2d at 642. Cardell's claim that his sentence violates due process fails because his sentence was within the range authorized by law. See White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) ("No federal constitutional issue is presented where [a petitioner's] sentence is within the range prescribed by state law."). Cardell's claim is denied.
2. Juror Instruction Claim
Cardell contends that the trial court's instructions to the jury misstated the defense's theory regarding the voluntariness of the statement that Cardell made to police officers. According to Cardell, the instruction, while legally and factually accurate, focused the jury on the issue of whether Cardell was read his Miranda rights, rather than, as the defense argued, whether officers had deceived or coerced Cardell into making the statement. The trial court charged the jury:
Now, as you are aware, during the course of this trial, the People introduced as evidence in chief certain statements made by this defendant to [law enforcement]. I now instruct you that even though these statements have been admitted into evidence and you are aware of their contents you must give no weight whatsoever to the statements in arriving at your verdict and you shall find in accordance with my instructions first that they were voluntarily made and second that they were truthful.
Whether a statement was voluntarily made and whether a statement is truthful on [sic] both issues of fact for the jury to determine. . . . Now our law does not specifically define when a statement is voluntarily made, instead it defines when a statement is involuntarily made. Our criminal procedure law provides that a statement of a defendant is involuntarily made and therefore may not be considered by the jury if it is obtained by the police or by a prosecutor one by means of the use of force or threats of the use of force or two by means of deception, trickery or promises likely to induce a statement or three in violation of the defendant's right under the Constitution. . . .
These constitutional rights include the right to remain silent and the right to the advice and assistance of a lawyer before the defendant answers the questions and give a statement to the police or prosecutor. Defendant contends that his statements were involuntarily made since prior to making such statements he did not knowingly and intentionally waive his constitutional right to remain silent and his Constitutional right to the presence and assistance of counsel before answering any question.
. . . Since there are disputed issues of fact whether or not the defendant knowingly and intelligently waived his Constitutional rights is a question of fact for the jury on the totality of all of the circumstances surrounding the giving of the warnings and the making of the statement in evidence by the defendant. In other words, you are to take into consideration the totality of the circumstances in determining whether the statement was made knowingly, voluntarily and intelligently.
Tr. refers to the trial transcript.
In weighing the prejudice from an allegedly improper charge, the Court must view the instruction in its total context. See Cupp v. Naughten, 414 U.S. 141, 146-47 (1973). "Before a federal court may overturn a conviction resulting from a state trial . . ., it must be established not merely that the instruction is undesirable, erroneous, or even universally condemned, but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment." Cupp, 414 U.S. at 146 (internal citations and quotations omitted). The question is "whether the ailing instruction by itself so infected the trial that the resulting conviction violates due process." Id. at 147. Cardell's "burden is especially heavy because no erroneous instruction was given." Henderson v. Kibbe, 431 U.S. 145, 155 (1977) (burden is higher when petitioner does not allege an erroneous instruction).
Based upon its evaluation of the instruction in its totality, the Court finds no error even under de novo review. The trial court properly stated the law pertaining to voluntariness to the jury. Cardell's claim is denied.
3. Inconsistent Verdict Claims
Cardell's due process claim based upon an inconsistent verdict is not cognizable on federal habeas review. See Harris v. Rivera, 454 U.S. 339, 345-46 (1981) (no habeas review because an inconsistent verdict does not present a constitutional violation); Muldrow v. Herbert, 299 F.Supp.2d 166 (W.D.N.Y. 2004) (same). "Consistency in the verdict is not necessary." Dunn v. United States, 284 U.S. 390, 393 (1932). Even if an inconsistent verdict was reached,
[t]he most that can be said . . . is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant's guilt. [The Court] interpret[s] the acquittal as no more than their assumption of a power which they had no right to exercise, but to which they were disposed through lenity. [T]here is no reason to vacate [a] conviction merely because the verdicts cannot rationally be reconciled. [The individual convicted] is given the benefit of [his] acquittal on the counts on which [he] was acquitted, and it is neither irrational nor illogical to require [him] to accept the burden of conviction on the counts on which the jury convicted.United States v. Powell, 469 U.S. 57, 63, 69 (1984) (internal quotations and citations omitted). Even assuming arguendo, as Cardell claims, that the state trial court violated state law by not informing Cardell's counsel of the inconsistencies on the verdict sheet, federal habeas relief cannot be granted for mere errors in state law. Estelle v. McGuire, 502 U.S. at 68.