Opinion
01-CV-7005 (JBW), 03-MLSC-0066 (JBW)
July 23, 2003
MEMORANDUM, JUDGMENT AND ORDER
Upon consent from both parties, this matter was initially referred to a federal magistrate judge pursuant to section 636(b) of Title 28 of the United States Code. The magistrate judge issued a Report and Recommendation on April 1, 2003, recommending that the district court judge deny the petition for a writ of habeas corpus. Objections were to be made within ten days of receipt of the Report and Recommendation, with failure to file a timely objection waiving any further judicial review. No objections to the Report and Recommendation were made. The district court judge to whom this matter was first assigned did not decide whether to adopt the Report and Recommendation before the case was reassigned to the undersigned. Upon reassignment, the referral order to the magistrate judge was vacated.
This court has made a de novo review of the record, the law, and the parties' submissions. No hearing on this matter is necessary. The petition for a writ of habeas corpus is denied. This memorandum briefly addresses petitioner's claims, incorporating much of the well-reasoned report of the magistrate judge.
I. Facts
On March 25, 1997, Kendall Farrington (hereinafter "petitioner") was in the apartment he shared with his girlfriend, Anna Nieves ("Nieves"), and their toddler. At approximately 4:00 p.m., Daniel Cartagena ("Cartagena") arrived at petitioner's building with several friends. Cartagena, an admitted drug dealer, began to argue with Nieves in front of the apartment building. Once petitioner exited the building and joined the argument, it escalated with Cartagena shoving Nieves to the sidewalk. At this point, petitioner aimed a semiautomatic weapon at Cartagena, who ran away. Petitioner fired the gun several times, hitting Cartagena once in the lower back. Petitioner then left the scene by bicycle, and neither he nor Nieves returned to the apartment for several days.
Petitioner was later arrested at his aunt's home and charged with Attempted Murder in the Second Degree (N.Y. Penal Law §§ 110;125.25[1]), Assault in the First Degree (N.Y. Penal Law § 120.10[1]), Reckless Endangerment in the First Degree (N.Y. Penal Law § 120.25), and related charges.
The prosecution presented several eyewitnesses at trial, including Daniel Cartagena, who testified that he still had bullet fragments lodged in his lower back. (Tr. 78). Cartagena testified that on the day of the shooting, he and several friends went to Anna Nieves's apartment building to confront her. According to Cartagena, he and Nieves had an ongoing sexual relationship for several years, unbeknownst to petitioner. (Tr. 47-49). Cartagena also testified that he did not know petitioner by name, or that petitioner was the father of Nieves's child. (Tr. 47-48, 57, 79-80). Acknowledging that he was a drug dealer, Cartagena explained that he employed several subordinates who sold drugs on the corner of 60th Street and Fourth Avenue in Brooklyn, and that they considered this location to be their exclusive "spot." (Tr. 50-53, R1-89). Cartagena believed that Nieves was selling drugs from her apartment on Fourth Avenue, which was located on Cartagena's turf. (Tr. 53). Cartagena testified that he sent someone to buy drugs from Nieves at her apartment to confirm that she was selling. (Tr. 52-54). Cartagena confronted Nieves at her apartment after his friend purchased drugs from petitioner at Nieves's building (Tr. 53, 57-58). When Cartagena came to Nieves's apartment building, petitioner came outside. Cartagena testified that he removed his jacket, showing petitioner that he was unarmed, and challenged petitioner to fight. (Tr. 59-61). Cartagena also testified that he shoved Nieves, who fell to the ground, and at that moment, petitioner pulled a black semi-automatic weapon from his pants and pointed it at Cartagena's face. (Tr. 59-62). Petitioner pulled the trigger, but the gun initially failed to fire. (Tr. 61). As Cartagena ran across the street, petitioner repeatedly fired at him. (Tr. 62-63, 80). Cartagena was struck by a bullet in his lower back. (Tr. 62) He spent three days in the hospital, and when he was released, he took pain medication and walked with a cane for the following month and a half. (Tr. 77-79).
Cartagena testified that he gave a statement to detectives while at the hospital. His statement inferred that petitioner had shot him because he had discovered that Cartagena was romantically involved with Nieves. Cartagena admitted that he had not told the police that he was a drug dealer and that the shooting arose from a dispute concerning drug sales. (Tr. 94-95, 240-42).
Thelma Rogers, a friend of Nieves and an eyewitness, also testified for the prosecution. Ms. Rogers testified that she. had been standing in front of the building with petitioner and Nieves, when Cartagena and his friends arrived. (Tr. 122-23). Ms. Rogers witnessed Cartagena and Nieves arguing about the drug sales in the building (Tr. 127), and watched as petitioner joined the confrontation. (Tr. 127-30, 140-47). Ms. Rogers corroborated Cartagena's testimony that he was unarmed, and that petitioner drew a gun and began to shoot at Cartagena. (Tr. 127-30, 146-48). Ms. Rogers also testified that after petitioner had fired several shots at Cartagena as he ran away, petitioner jumped on a bicycle and fled. (Tr. 130). Another eyewitness, Anna Class, corroborated both Cartagena and Ms. Rogers on the details of the confrontation which led to the shooting. (Tr. 169, 184, 188). Ms. Class took petitioner's baby upstairs to get away from the confrontation, and testified that petitioner was already shooting at Cartagena when she came back outside. (Tr. 171-72, 190-92).
Detective James Vance testified that he responded to the scene of the shooting as Cartagena was taken away by ambulance. (Tr. 221-22). The detective testified that he recovered five nine-millimeter shell casings from the sidewalk in front of Nieves's building. (Tr. 222-25). Bahistics tests indicated that each of the five bullets had been fired by the same weapon. (Tr. 306).
Petitioner testified on his own behalf, stating that he shot Cartagena in self defense. Petitioner testified that Cartagena was armed and immediately pulled a gun on petitioner when Cartagena arrived at Nieves's building. (Tr. 358-60). Petitioner denied that he possessed a gun himself and testified that Cartagena had pointed a gun at him. (Tr. 362-64, 377). Petitioner testified that he was surrounded by Cartagena's friends outside the building (Tr. 360-61, 376), and that Cartagena told petitioner that he would not get out alive. (Tr. 360-62). Petitioner testified that when Cartagena shoved Nieves to the ground, petitioner tried to tackle Cartagena, his gun fell down, and petitioner picked it up. (Tr. 363, 400, 407). Petitioner testified that as he tried to run away from Cartagena, he heard Cartagena order one of his friends to shoot him. When he saw the friend reach for a weapon, petitioner shot at the other man with Cartagena's gun. (Tr. 363-64). Petitioner testified that he only fired once, and was not even aiming at Cartagena, but at his friend. (Tr. 374-75). Petitioner admitted that he rode away on his bicycle and dropped the gun while he fled. (Tr. 364). Petitioner denied knowing Cartagena before the incident, or the fact that Cartagena sold drugs. (Tr. 366). He also denied that either he or Nieves were involved with drugs, and maintained that the shooting was not drug-related. (Tr. 386).
On April 2, 1998, petitioner was convicted of Assault in the First Degree and Reckless Endangerment in the First Degree. Petitioner was acquitted of Attempted Murder in the Second Degree and the remaining charges. On June 9, 1998, he was sentenced to concurrent terms of six to twelve years imprisonment on the assault count and two and one-third to seven years on the reckless endangerment count.
II. Procedural History
On direct appeal, petitioner argued: (1) that the introduction of testimony concerning petitioner's drug selling activity on the day of the shooting deprived him of a fair trial; and (2) that the jury's verdict was against the weight of the evidence, as the prosecution had not proved guilt beyond a reasonable doubt. The Appellate Division, Second Department, affirmed petitioner's conviction, rejecting the sufficiency of the evidence claim as "unpreserved for appellate review., and, in any event, without merit." People v. Farrington, 272 A.D.2d 624, 708 N.Y.S.2d 635 (2d Dep't 2000).
On November 21, 2000, the New York State Court of Appeals denied petitioner's application for leave to appeal. People v. Farrington, 95 N.Y.2d 938, 721 N.Y.S.2d 610 (2000). Petitioner filed no motions collaterally attacking his conviction.
On October 15, 2001, petitioner filed this petition for a writ of habeas corpus, raising a sufficiency of the evidence claim.
III. Law and Application A. Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 114, sets forth the standard of review for habeas corpus petitions. For claims that have been adjudicated on the merits in state court, a petitioner must show that the state court proceedings:
(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 in the State court proceeding.28 U.S.C. § 2254(d); See Mask v. McGinnis, 252 F.3d 85, 90 (2d Cir. 2001) ("petitioner is entitled to habeas relief only upon a showing that the state courts unreasonably applied clearly established Supreme Court precedent") (emphasis in original). 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).
In Williams v. Taylor, 529 U.s. 362 (2000), the Supreme Court held that a decision is "contrary to" Supreme Court precedent (1) "if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases," id. at 405; or (2) "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." Id. at 406. The "unreasonable application" test is met if the state court "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case." Id. at 407-08. The Supreme Court emphasized that the reasonableness of the application of the law is to be assessed objectively rather than subjectively. Id. at 409-10. Therefore, "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." Id. at 411. The Second Circuit has warned, however, 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.'" Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (quoting Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 889 (3rd Cir. 1999) (in banc)).
B. Procedural Bar
Respondent argues that petitioner's sufficiency of the evidence claim is procedurally barred, since the Appellate Division denied the claim on the basis of an independent and adequate state law ground. Respondent's Memorandum of Law ("Resp. Memo.") at 1.
"Federal courts may not review state court decisions that rest on an adequate and independent state procedural default unless petitioner can show both cause and prejudice or a fundamental miscarriage of justice." Fama v. Comm'r of Correctional Servs., 235 F.3d 804, 809 (2d Cir. 2000). The "state court must actually have relied on the procedural bar as an independent basis for its disposition of the case," Harris v. Reed, 489 U.S. 255, 261-62 (1989). Such "reliance on state law must be `clear from the face of the opinion." Fama, 235 F.3d at 809 (quoting Coleman v. Thompson, 501 U.S. 722, 735 (1991)).
The state court's reliance on the procedural bar here is clear. The Appellate Division denied petitioner's legal sufficiency claim because it was "unpreserved for appellate review and, in any event, is without merit." People v. Farrington, 271 A.D.2d 624, 708 N.Y.S.2d 635 (2d Dep't 2000). The fact that the state court reached the merits of the claim in the alternative does not make the procedural default doctrine inapplicable. See Harris v. Reed, 489 U.S. at 264 n. 10 ("a state court need not fear reaching the merits of a federal claim in an alternative holding," as long as it "explicitly invokes a state procedural bar as a separate basis for decision") (emphasis in original); Fama, 235 F.3d at 810 n. 4 ("where 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").
C. Adequacy of Independent State Grounds
Even though petitioner's legal sufficiency claim was denied on independent state procedural grounds, this Court will also assess whether the state procedural grounds were adequate.
"`The adequacy of state procedural bars to the assertion of federal questions' . . . is not within the State's prerogative finally to decide; rather, adequacy `is itself a federal question.'" Lee v. Kemna, 534 U.S. 362. 375 (2002) (quoting Douglas v. Alabama, 380 U.S. 415, 42 (1965)); See Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999) (federal habeas court is required to "examine the basis for and application of state law"). "State courts may not avoid deciding federal issues by invoking procedural rules that they do not apply evenhandedly to all similar claims." Hathorne v. Lovorn, 457 U.S. 255, 263 (1982); See Silverstein v. Henderson, 706 F.2d 361, 368 n. 11 (2d Cir. 1983). A procedural bar is adequate only if it is based on a rule that is "firmly established and regularly followed" by the state courts. Ford v. Georgia, 498 U.S. 411, 423-24 (1991).
In this circuit, a federal habeas court will deem "a state court's finding of procedural default `adequate' if there is a `fair and substantial' basis in state law for the state court's determination." Garcia v. Lewis, 188 F.3d at 78. Factors relevant to this determination include: 1) whether the parties had notice of the procedural rule; 2) whether the rule is consistently applied in similar circumstances; and 3) whether application of the rule serves legitimate state interests. Caston v. Costello, 74 F. Supp.2d 262, 267 (E.D.N.Y. 1999); accord Morales v. Artuz, No. 98 Civ. 6558, 2000 WL 1692563, at *6 (S.D.N.Y. Nov. 13, 2000).
Petitioner's legal sufficiency claim was denied by the Appellate Division for failure to comply with New York's contemporaneous objection rule:
For purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same. Such protest need not be in the form of an exception but is sufficient if the party made his position with respect to the ruling or instruction known to the court, or if in response to a protest by a party, the court expressly decided the question raised on appeal.
N.Y. Crim. Pro. Law § 470.05(2). In applying the rule to legal sufficiency claims in particular, New York courts have held that a general motion to dismiss is inadequate; instead, the defendant must specify the deficiency in proof. See, e.g., People v. Stahl, 53 N.Y.2d 1048, 1049-50, 442 N.Y.S.2d 488, 489 (1981); People v. Montalbo, 254 A.D.2d 504, 681 N.Y.S.2d 547 (2d Dep't 1998) (legal sufficiency claim was "unpreserved for appellate review since [defendant] made only a general motion to dismiss before the trial court and did not raise the issues now pursued. on appeal"); People v. Tallarine, 223 A.D.2d 738, 738, 637 N.Y.S.2d 461, 461 (2d Dep't 1996).
Here, petitioner's trial counsel moved to dismiss at the close of the prosecution's case. In general terms, counsel requested that "all charges in the indictment be dismissed because the People have not made out a prima facie case." (Tr. 349). When the trial court inquired whether trial counsel was making a legal sufficiency argument, counsel replied, "Yes." (Tr. 349). There was no further argument, and the trial court denied counsel's application, holding that for "each count of the indictment, there is legally sufficient evidence to present issues of fact for the trier of fact, and the quantum of proof in this trial was sufficient." (Tr. 349-50). Petitioner's trial counsel repeated the same motion to dismiss following the defense case, relying on the record without legal argument. (Tr. 478). The trial court again denied counsel's motion without further explanation.
Petitioner's trial counsel failed to specify the grounds for the motion to dismiss, and nothing in the trial court's decision indicates that the court "expressly decided" petitioner's motion. See People v. Turriago, 90 N.Y.2d 77, 84, 659 N.Y.S.2d 183, 186 (1997); N.Y. Crim. Pro. Law § 470.01(2). Under New York law, a general motion to dismiss is insufficient to preserve an issue for appellate review. See People v. Stahl, 53 N.Y.2d at 1050; People v. Tallarine, 223 A.D.2d at 738. Thus, the Appellate Division properly found petitioner's legal sufficiency claim to be procedurally barred. Since this Court finds that petitioner's legal sufficiency claim was denied on an independent state procedural ground, and that the state law ground was adequate, petitioner's sufficiency of the evidence claim should be denied as procedurally barred.
D. Merits
At any rate, petitioner's sufficiency of the evidence claim is without merit.
In reviewing a sufficiency of the evidence challenge, this court may only grant relief if it finds that when the evidence is viewed "in the light most favorable to the government, . . . no `rational trier of fact could have found proof of guilt beyond a reasonable doubt.'" United States v. Jones, 16 F.3d 487, 490 (2d Cir. 1994) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)); accord Farrington v. Senkowski, 214 F.3d 237, 240 (2d Cir. 2000). The Due Process Clause of the Fourteenth Amendment prohibits conviction "except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which [a defendant] is charged." In re Winship, 397 U.S. 358, 364 (1970). A federal habeas court, however, may not "make its own subjective determination of guilt or innocence," Jackson v. Virginia, 443 U.S. at 319 n. 13; nor may it "weigh the evidence" in petitioner's case. Herrera v. Collins, 506 U.S. 390, 400-01 (1993) (quoting Hyde v. Shine, 199 U.S. 62, 84 (1905)).
Petitioner claims that "the court record did not support a finding of guilt beyond a reasonable doubt." Pet. at 5. Petitioner refers to particular highlighted portions of the trial transcript which he attaches to the petition. Petitioner specifically argues the following theories: self defense, mistake, lack of intent, defense of others, and no duty to retreat in his own home. See Petition at 5. The Court construes these claims as alleging insufficiency of the evidence. Petitioner maintains that the evidence against him was not legally sufficient because, among other reasons, he "fired the weapon out of fear and self defense" and he "had no intent to commit an assault." Id.
New York law dictates that a person commits Assault in the First Degree when, "with intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument." N.Y. Penal Law § 120.10(1). Here, petitioner's culpability for the assault of Cartagena was established by the testimony of several eyewitnesses, by petitioner's own statement, and by physical evidence. Daniel Cartagena testified that petitioner aimed a firearm at him and shot several times as he was running away and that one bullet lodged in Cartagena's lower back. (Tr. 59-63, 80). Thelma Rogers and Anna Class corroborated the victim's testimony, adding that Cartagena was unarmed, and that petitioner had used his own gun. (Tr. 127-30, 146-48, 169, 184, 188). Police witnesses testified that five shell casings from the same gun were recovered from the scene of the shooting. (Tr. 222-25, 306).
Petitioner claims that he acted in self defense. He fully developed this justification defense at trial, leaving the jury unpersuaded. He testified on his own behalf that he shot Cartagena with Cartegena's gun in order to protect himself and his family. (Tr. 362-64, 377). Petitioner also testified that he heard Cartagena order his friend to shoot petitioner, and that petitioner had not intended to shoot Cartagena. (Tr. 363-64, 373-74). Petitioner's trial counsel argued in summation that petitioner was defending himself when he shot Cartagena. (Tr. 439-48). The trial court instructed the jury on justification. (Tr. 516-25).
It was not unreasonable for the jury to find that petitioner had assaulted Cartagena, and that his actions were unjustified. To the extent that petitioner attacks the credibility or perception of the trial witnesses, including the jury's apparent rejection of his testimony, this Court defers to the jury's findings of fact in the prosecution's favor. Maldonado v. Scully 86 F.3d 32, 35 (2d Cir. 1996) (holding that federal courts must "defer to the jury's assessments" of witness credibility and sufficiency). Federal court is not a "forum in which to relitigate state trials." Barefoot v. Estelle, 463 U.S. 880, 887 (1983).
Petitioner's guilty verdict was based on sufficient evidence. Habeas relief on this ground is not warranted.
IV. Conclusion
The petition for a writ of habeas corpus is denied.
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").
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. 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).
SO ORDERED.