Opinion
01-CV-803 (JBW), 03-MISC-0066 (JBW)
July 25, 2003
MEMORANDUM JUDGMENT ORDER
The petition for a writ of habeas corpus is denied. No hearing on this matter is necessary.
This memorandum briefly addresses petitioner's claims.
I. Facts and Procedural History
Petitioner stood trial on two counts of second degree assault and one count of aggravated criminal contempt. The charges stemmed from an incident occurring on October 7, 1997. The evidence supported the following facts:
Petitioner met the complainant Carrie Stein in May or June of 1997, and the two began dating. Approximately two and one-half months later, petitioner left the apartment in which he was living. According to Ms. Stein's testimony, she allowed him to stay with her for a week while he looked for a new place to live. When petitioner had not yet found a place at the end of that week, Ms. Stein began helping him look for one, but was unsuccessful.
On September 10, 1997, Ms. Stein secured a "don't harrass" order of protection against Petitioner in Long Beach City Court. Petitioner was present in court when that order was issued. With Ms. Stein's consent, petitioner continued to live with her until the beginning of October 1997, when she asked him to leave after an argument.
According to Ms. Stein, she received a call from petitioner at about 5:30 p.m. on October 7, 1997, asking her to come over to his sister Kathleen's house, where he was then staying. Ms. Stein agreed to meet him, but explained that she could not be there until 8:00 p.m. After making dinner for her younger daughter at home, Ms. Stein left to meet petitioner at around 7:45 p.m. Ms. Stein's daughter testified that, after Ms. Stein left home, she received a call from petitioner, who threatened that if her mother was not at his sister's house within ten minutes he would kill them both. Ms. Stein testified that she received a page on her way from home, which displayed her home phone number followed by "911" — indicating an emergency at home. She did not immediately call home, but continued driving to petitioner's sister's house.
Ms. Stein testified that when she first arrived the house was dark and there was no response to the doorbell or to her knocking at the door. When she began walking back to the car, defendant appeared at the front door and called to her to come back. As Ms. Stein approached the door, petitioner grabbed her by the throat, threw her into the house, and locked the door. He then proceeded to beat her up, punching and kicking her in the head and the abdomen, throwing her into the wall, and knocking her down repeatedly. When Ms. Stein ran for the front door, which was made of steel and glass, petitioner slammed her face into the door. At this point Ms. Stein testified that she couldn't see anything, she thought that her eyes had fallen out, and she was covered with blood. She stayed motionless on the floor, pretending to be dead. When she did not respond to him, petitioner left the house.
She crawled to the front door and, observing petitioner near the driveway looking away from the house, ran out the door. When she reached a commercial area a block and a half away, someone dialed 911. Ms. Stein spoke with the police on their arrival before being taken to the hospital in an ambulance accompanied by the police. She received treatment for cuts and bruises and head trauma. A cut on her forehead was stitched by the emergency room physician, and a one and one-half inch long cut on her upper lip running into the underlying muscle was sutured by a plastic surgeon.
Another police officer who had responded to the 911 call went to petitioner's sister's home, where he found Ms. Stein's car in the driveway. He did not see any blood on the door, the stoop area in front of the door, or the tiled foyer area, but did observe an area of the carpet beyond the foyer covered with blood and one of petitioner's sisters scrubbing blood from the carpet near the foyer. Defendant was arrested by this officer later in the evening.
In addition to Ms. Stein and her daughter, two officers who had responded to Ms. Stein's 911 call, a detective who spoke with Ms. Stein late on the night of the incident, and the plastic surgeon who sutured her lip testified for the state. Photographs of Ms. Stein's condition on October 7, 1997 and medical reports were introduced into evidence.
Petitioner testified in his own defense. According to his testimony, he moved in with Ms. Stein because the two had discussed marriage and decided to try living together for a year. Their relationship allegedly soured because Ms. Stein began receiving late-night calls and pages from other men and began to repeatedly threaten petitioner with having an ex-boyfriend beat him up. He testified that she came to his sister's home on the evening of the incident of her own accord, and began to threaten him. He asked her to leave, and slammed the door behind her as he was turning to walk away. When she screamed, petitioner turned back around and saw that her face was bloody. He claims he believed she had been hit by the door when trying to come back in and offered to help her, but that she refused and left. He then left the home and called his father, who advised him to call the police. Petitioner testified that he called the police from the bar at which he was arrested.
Another of petitioner's sisters who was at the home where the incident occurred when the police officer arrived also testified in support of petitioner's case. According to her testimony, when she arrived at the house the front door was open and there was some blood at the front of the tiled foyer inside the front door and on the living room carpet near the foyer, but the house was otherwise undisturbed. When the officer arrived, she claimed that she was cleaning blood out of the rag so that a stain would not set.
Petitioner was convicted of one count of second degree assault (felony assault) and of aggravated criminal contempt. The jury found petitioner not guilty of another count of second degree (intentional) assault and the lesser included offense of third degree (intentional) assault. As a prior felony offender, petitioner was sentenced to a definite term of seven years on the assault count and an indefinite term of three and one-half to seven years on the contempt count. The two sentences were to run concurrently. The court also ordered restitution in the amount of $4107.02, and granted a permanent order of protection. Petitioner's convictions and sentence were affirmed by the Appellate Division, Second Department on direct appeal. Leave to appeal to the New York Court of Appeals was denied. No state collateral proceedings were initiated.
In the instant application for a writ of habeas corpus, petitioner claims that (1) his guilt was not proven beyond a reasonable doubt; (2) the court's charges as to counts two and three of the indictment were error; and (3) his sentence was excessive.
II. AEDPA
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that 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." 28 U.S.C. § 2254 (d).
An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim." Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)). Under the "contrary to" clause, "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and writing for the majority in this part). Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. "[F]ederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright-line rule designed to effectuate such a standard in a particular context." Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002). Determination of factual issues made by a state court "shall be presumed to be correct," and the applicant "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254 (e)(1).
III. Exhaustion
In the past, a state prisoner's federal habeas petition had to be dismissed if the prisoner did not exhaust available state remedies as to any of his federal claims. See Rose v. Lundy, 455 U.S. 509, 522 (1989). "This exhaustion requirement is . . . grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights." Coleman v. Thompson, 501 U.S. 722, 731 (1991). The exhaustion requirement requires the petitioner to have presented to the state court "both the factual and legal premises of the claim he asserts in federal court." Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc).
Pursuant to AEDPA, a district court may now, in its discretion, deny on the merits habeas petitions containing unexhausted claims — so-called "mixed petitions." 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."). in addition, the state may waive the exhaustion requirement, but a "State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement." Id. § 2254(b)(3); see also Ramos v. Keane, No. 98 CIV. 1604, 2000 U.S. Dist. LEXIS 101, at *10 (S.D.N.Y. 2000) (state's failure to raise exhaustion requirement does not waive the issue).
IV. Procedural Bar
A federal habeas court may not review a state prisoner's federal claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule, "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750.
If a state court holding contains a plain statement that a claim is procedurally barred then the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alternative. See Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedural rule as a separate basis for its decision).
When a state court "says that a claim is 'not preserved for appellate review' and then ruled 'in any event' on the merits, such a claim is not preserved." Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996). When a state court "uses language such as 'the defendant's remaining contentions are either unpreserved for appellate review or without merit,' the validity of the claim is preserved and is subject to federal review." Fama v. Comm'r of Corr. Svcs., 235 F.3d 804, 810 (2d Cir. 2000). 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." Su v. Filion, No. 02-2683, 2003 U.S. App. LEXIS 13949 at *15 n. 3 (2d Cir. July 11, 2003) (citing Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir. 2003)). This congeries of holdings leaves it an open question whether there are "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." Id.
V. Certificate of Appealability
This opinion complies with Miranda v. Bennett, 322 F.3d 171, 175-77 (2d Cir. 2003), and Rule 52 of the Federal Rules of Civil Procedure. No other issue open to consideration by this court has merit. See Sumner v. Mata, 449 U.S. 539, 548 (1981) ("a court need not elaborate or give reasons for rejecting claims which it regards as frivolous or totally without merit").
A certificate of appealability may be granted with respect to any one of petitioner's claims only if petitioner can make a substantial showing of the denial of a constitutional right. Petitioner has a right to seek a certificate of appealability from the Court of Appeals for the Second Circuit. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 123 S.Ct. 1029 (2003).
VI. Analysis of Claims
Petitioner first claims that his guilt was not proven beyond a reasonable doubt. This claim is procedurally barred because it was not fairly presented to the state courts and state court review is now foreclosed. Although it was raised on appeal before the Appellate Division, it was not included in petitioner's application for leave to appeal to the New York Court of Appeals. Petitioner can no longer attempt to raise this claim in the New York Court of Appeals because he has already made the one leave application to which he is entitled. See N.Y. Court Rules § 500.10(a); O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999); Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991). Petitioner has failed to establish cause for, or actual prejudice resulting from, this default. A failure to consider this claim will not result in a fundamental miscarriage of justice because the claim is without merit.
To the degree petitioner claims that his guilt was not proven beyond a reasonable doubt, the relevant question for this court 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. Jackson v. Virginia, 443 U.S. 307, 319 (1979). Petitioner "bears a very heavy burden" when challenging the legal sufficiency of the evidence in a state criminal conviction. Einaugler v. Supreme Court, 109 F.3d 836, 840 (2d Cir. 1997). To the degree petitioner claims the verdict was against the weight of the evidence, such a claim does not present a federal constitutional issue. As held by the Appellate Division, the evidence was sufficient for a rational trier of fact to have found all elements of second degree assault and aggravated criminal contempt proven beyond a reasonable doubt. See People v. Donovan, 706 N.Y.S.2d 896 (App.Div.2d Dep't 2000).
The remainder of petitioner's claims have been exhausted and are not procedurally barred. They may therefore be addressed on the merits by this court under the deferential standard of review of AEDPA.
Petitioner claims that portions of the court's jury instructions with respect to counts two and three of the indictment were error. "In order to obtain a writ of habeas corpus in federal court on the ground of error in a state court's instructions to the jury on matters of state law, the petitioner must show not only that the instruction misstated state law but also that the error violated a right guaranteed to him by federal law." Casillas v. Scully, 769 F.2d 60, 63 (2d Cir. 1985). In weighing the prejudice from an allegedly improper charge, a reviewing court must view the instruction in its total context. Cupp v. Naughten, 414 U.S. 141, 146-47 (1973). The question is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Id. at 147.
Petitioner was charged in count two of the indictment with second degree assault in violation of New York Penal Law section 120.05(6) ("felony assault"):
A person is guilty of assault in the second degree when . . . [i]n the course of and in furtherance of the commission or attempted commission of a felony, other than a felony defined in article one hundred thirty which requires corroboration for conviction, or of immediate flight therefrom, he, or another participant if there be any, causes physical injury to a person other than one of the participants.
With respect to this count the jury was charged:
Under our law, a person is guilty of assault in the 2nd degree when, in the course of and in furtherance of the commission or attempted commission of a felony or immediate flight therefrom, that person or another participant, if there be any, causes physical injury to a person other than one of the participants.
. . . I charge you that the crime of aggravated criminal contempt, which I will define for you shortly, is a felony.
Physical injury means impairment of physical condition or substantial pain.
If you find that physical injury was caused by the defendant or by a participant in the crime, then it does not matter that the physical injury was caused unintentionally or accidentally, rather than with an intention to cause physical injury, or that it resulted from the victim's fear or fright.
In order for you to find the defendant guilty of this crime, the People are required to prove from all the evidence in the case beyond a reasonable doubt both of the following elements:
One, that on or about October 7, 1997, in the County of Nassau, the defendant, Brian Donovan, committed or attempted to commit aggravated criminal contempt; and
Two, that in the course of and in furtherance of the commission or attempted commission of activated [sic] criminal contempt, the defendant caused physical injury to Carrie Stein and that Carrie Stein was not a participant in the felony.
Petitioner objects to that portion of the instruction charging that the required physical injury need not be intentionally caused, but may be unintentional or accidental. He contends that the instruction was erroneous because aggravated criminal contempt, the underlying felony, requires proof that petitioner intentionally or recklessly injured Stein.
This claim is without merit. The instruction does not misstate state law, let alone violate a right guaranteed by federal law. It is clear from a plain reading of section 120.05(6) of the Penal Law and from the New York case law interpreting it that a showing of intentional injury is not required to sustain a felony assault conviction. See, e.g., People v. Spivey, 81 N.Y.2d 356, 360-61 (1993). The court instructed "it does not matter that the physical injury was caused unintentionally or accidentally" only in reference to the general definition of felony assault, clearly instructed the jury that it must find that the People proved beyond a reasonable doubt that petitioner committed or attempted to commit aggravated criminal contempt in order to find him guilt of felony assault, and properly charged the jury on the intent required for aggravated criminal contempt.
Petitioner was charged in count three of the indictment with aggravated criminal contempt in violation of New York Penal Law section 215.52:
A person is guilty of aggravated criminal contempt when in violation of a duly served order of protection, or such order of which the defendant has actual knowledge because he or she was present in court when such order was issued, . . . he or she intentionally or recklessly causes physical injury or serious physical injury to a person for whose protection such order was issued.
With respect to this count the jury was charged:
Under our law, a person is guilty of aggravated criminal contempt when, in violation of a duly served Order of Protection or such Order of which the defendant has actual knowledge because he or she was present in court when such Order was issued, he or she intentionally or recklessly causes physical injury or serious physical injury to a person for whose protection such Order was issued.
In order for you to find the defendant guilty of this crime, the People are required to prove . . . beyond a reasonable doubt each of the following three elements:
One, that prior to October 7, 1997, an Order of Protection was issued in the City of Long Beach Court, Nassau County, by a judge of said court on behalf of Carrie Stein and against the defendant as reflected by People's Exhibit number 1.
Two, that the defendant had actual knowledge of such Order of Protection in that he was present in court when such Order was issued.
Three, that the defendant, in violation of such Order of Protection intentionally or recklessly caused physical injury or serious physical injury to Carrie Stein, the person for whose protection such Order was issued.
Petitioner contends this instruction constituted error because the court failed to clearly instruct the jury that it must find petitioner's conduct violated the Order of Protection in order to convict petitioner of aggravated criminal contempt.
This claim is without merit. The court's instruction does not misstate state law. The jury was more than once instructed that the petitioner's conduct must be in violation of the Order of Protection in order to sustain the charge of aggravated criminal contempt. The court could have separated the third element as charged into two separate elements — that is, charge the jury that they must find proved beyond a reasonable doubt three, that defendant intentionally or recklessly caused physical injury to Carrie Stein; and four, that defendant's conduct violated the terms of the Order of Protection. Viewing the instruction in its total context, such a separation is not necessary and the instruction as given does not violate due process.
The question of state law and its interpretation is a matter for state, not federal, courts.
Petitioner finally claims that his sentence is excessive. The assertion that a sentencing judge abused his or her discretion in sentencing is generally not a federal claim subject to review by a habeas court. See Fielding v. LeFevre, 548 F.2d 1102, 1109 (2d Cir. 1977) (citing Townsend v. Burke, 334 U.S. 736, 741 (1948)). A challenge to the term of a sentence is not a cognizable constitutional issue if the sentence falls within the statutory range. White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992).
This claim does not assert a federal constitutional question on which habeas corpus relief may be granted. Petitioner is a second felony offender; he was convicted of driving while intoxicated as a felony and sentenced to three months in jail, five years probation, a $500 fine, and a license suspension in 1990 in Nassau County. See N.Y. Penal Law § 70.06(1). His sentence — seven years on the second degree assault count and three and one-half to seven years on the aggravated assault count — fell within the limits set by the New York State legislature for such offenders. See N.Y. Penal Law § 70.06(3)(d) (maximum term of imprisonment for second felony offender convicted of a class D felony such as aggravated criminal contempt must be at least four and not more than seven years), (4)(b) (minimum term of imprisonment for a second felony offender must be one-half of the maximum sentence imposed), (6)(c) (term of imprisonment for second felony offender convicted of a class D violent felony such as second degree assault must be at least three and not more than seven years).
VII. Conclusion
The petition for a writ of habeas corpus is denied.
No certificate of appealability is granted with respect to any of petitioner's claims, petitioner having made no substantial showing of the denial of a constitutional right. As already noted, petitioner may seek a certificate of appealability directly from the Court of Appeals for the Second Circuit.
SO ORDERED.