Opinion
00 Civ. 4921 (AKH)
May 8, 2002
MEMORANDUM AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Manuel Garcia petitions pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner makes the following challenges concerning his conviction of two counts of Attempted Murder in the Second Degree, N.Y. Penal Law §§ 110.00, 125.25[1], and one count of Riot in the First Degree, N.Y. Penal Law § 240.06, entered by the Supreme Court, New York County, on July 12, 1996: (1) the evidence adduced at trial was insufficient to support a verdict of guilty beyond a reasonable doubt, in violation of petitioner's due process rights; (2) the prosecutor further violated petitioner's due process rights by improperly commenting upon petitioner's failure to produce certain alibi witnesses, thereby shifting the burden of proof; and (3) petitioner's sentence of sixteen-and-one-third to forty-nine years was excessive. None of the stated grounds merits relief, and the petition is denied.
I. Background
On the night of July 2, 1995, at approximately 11:00 p.m., Rafael Figueroa, Omar Rojas Beltran, and Virgilio Rodriguez met for drinks at the Pizzeria Uno restaurant on East 86th Street between Second and Third Avenues in Manhattan. After one round of drinks, Figueroa went outside to speak with a young woman who was part of a crowd gathered outside the Country Club nightclub, a few doors from Pizzeria Uno. Figueroa then began arguing with some men who were part of the crowd. Figueroa's friend, Beltran, and the Pizzeria Uno security guard, Archie Rivera, attempted to break up the argument, but it escalated into a fight. As more people from the group became involved, Figueroa and Beltran fled on 86th Street toward Second Avenue, chased by a crowd of fifteen or twenty people. Several members of the crowd overtook Figueroa and Beltran, and two men beat them with a pole and stabbed them with an ice pick, and other members of the crowd joined, punching and kicking Figueroa and Beltran. Beltran was treated that night in the emergency room of Metropolitan Hospital for five puncture wounds in his back, and Figueroa was admitted to the hospital in a coma and placed on a respirator. As of June 1996, the time of trial, Figueroa was still suffering from serious neurological impairments resulting from an ice pick wound in the head.
By indictment number 6249/95, filed on July 14, 1995, a Bronx County Grand Jury indicted petitioner, Manuel Garcia, of seven counts relating to the attack on Figueroa and Beltran, including one count of Riot in the First Degree, N.Y. Penal Law § 240.06, two counts of Attempted Murder in the Second Degree, N.Y. Penal Law §§ 110.00, 125.25[1], two counts of Assault in the First Degree, N.Y. Penal Law § 120.10[1], and three counts of Assault in the Second Degree, N.Y. Penal Law § 120.05[2]. On May 28, 1996, after a trial by jury, petitioner was convicted of two counts of Attempted Murder in the Second Degree and one count of Riot in the First Degree. On July 12, 1996, Justice Bernard J. Fried sentenced petitioner to consecutive prison terms of eight and one-third to twenty-five years and from eight to twenty-four years on the two attempted murder counts, and a concurrent prison term of one and one-third to four years on the riot count, for a total sentence of sixteen and one-third to forty-nine years.
In his appeal to the New York State Supreme Court, Appellate Division, First Department, petitioner asserted three grounds for reversal of his conviction, the same ones that he asserts in his Petition for a Writ of Habeas Corpus: (1) the evidence adduced at trial was insufficient to support a verdict of guilty beyond a reasonable doubt; (2) the prosecutor's comments on petitioner's failure to produce certain alibi witnesses in his defense incorrectly shifted the burden of proof to petitioner; and (3) petitioner's sentence of sixteen and one-third to forty-nine years was excessive. By order dated December 8, 1998, the Appellate Division rejected all three grounds and unanimously affirmed petitioner's conviction. People v. Garcia, 256 A.D.2d 77 (1st Dep't 1998).
In a letter dated December 15, 1998, petitioner applied for leave to appeal to the New York State Court of Appeals. In the letter, petitioner asked the Court of Appeals to review the Appellate Division's determination based on all three of the grounds he had advanced below. On March 2, 1999, the Court of Appeals denied petitioner's application.People v. Garcia, 93 N.Y.2d 873 (1999) (table).
On April 19, 2000, petitioner timely filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Because none of the grounds advanced by petitioner merit the requested relief, his Petition is dismissed.
Respondent argues that the instant petition is time-barred under 28 U.S.C. § 2244(d)(1)(A) because it was filed approximately 13 months after petitioner's motion for leave to appeal to the Court of Appeals was denied. However, because the weight federal circuit court authority, including Second Circuit dicta, has held that a conviction does not become final for the purposes of 28 U.S.C. § 2244(d)(1)(A) until the ninety-day window for filing petitions for certiorari to the United States Supreme Court has expired, see, e.g., Smith v. McGinnis, 208 F.3d 13, 15 n. 1 (2d Cir. 2000); Bowen v. Roe, 188 F.3d 1157, 1159-60 (9th Cir. 1999), I decline to dismiss the petition on this ground.
II. Discussion
A. Standard of Review of State Court Determinations
The standard of review under which this Court must review the decisions of the New York courts when considering habeas petitions is set forth in 28 U.S.C. § 2244 (d), which provides that a writ of habeas corpus shall not be granted with respect to any claim that was adjudicated on the merits in the 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. 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 412-13 (2000).
B. Sufficiency of Evidence to Prove Petitioner's Guilt Beyond a Reasonable Doubt
The first ground for relief advanced by petitioner is that the evidence adduced at trial was legally insufficient to support the jury's verdict of guilty beyond a reasonable doubt. Petitioner is entitled to habeas relief on this ground if no rational trier of fact could have found proof of guilt beyond a reasonable doubt when the evidence is viewed in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 324 (1979). This standard of due process does not require the prosecution to rule out every possible hypothesis at trial other than defendant's guilt, id. at 226, but only to present enough evidence to allow a rational jury, accepting the inferences and credibility determinations advocated by the government, to find the defendant guilty beyond a reasonable doubt.
Respondent is correct that to the extent petitioner attempts to reiterate his claim on direct appeal that the verdict was against the weight of the evidence, as opposed to legally insufficient to prove guilt beyond a reasonable doubt, it is purely an issue of state law and does not state a cognizable ground for habeas relief. Rodriguez v. O'Keefe, No. 96 Civ. 2094 (LLS), 1996 WL 428164, at 4 (S.D.N.Y. July 30, 1996).
Petitioner bases his argument of insufficiency upon the alleged lack of credibility of the prosecution's only identification eyewitness at trial, Archie Rivera, the security guard who identified petitioner as one of the two primary assailants. At trial, Rivera described one of the primary attackers on July 2, 1995, as having distinctive features, including a chivita (a small beard or goatee), large hoop earrings in both ears, a "do-rag" (or bandana) covering the top of his head, and a red, white, and green beaded cross hung around his neck. (Rivera: 58-59, 92). Rivera identified petitioner as one of the two who initiated the altercation with Figueroa, and who, with others, chased Figueroa down 86th Street. Rivera testified that he saw Fabian Ortega (the codefendant at trial) pass petitioner an ice pick during the argument in front of Pizzeria Uno, and, after the chase down the block, saw Figueroa pass the ice pick back to Ortega after stabbing Figueroa in the head and after stabbing Beltran several times in the back. (Rivera: 99).
Petitioner argues that the circumstances surrounding the attacks, the violent attacks of a mob of fifteen to twenty strangers, make it unlikely that Rivera could have made an accurate identification of the particular attackers. Petitioner emphasizes that the chaotic situation at the scene made it unlikely that eyewitnesses could accurately identify a primary assailants.
Petitioner also proffers two more specific reasons that a rational jury could not have believed Rivera's identification of petitioner. First, Petitioner argues that Rivera contradicted himself when he answered "yes" to the prosecutor's question whether the man "with chivita, hoop earrings, and the do-rag," a description of petitioner, was one of the two assailants that he identified to Police Officer Ayala at approximately 12:15 a.m. (Rivera: 81). In reality, petitioner was not identified to police and arrested several hours later, at approximately 2:00 a.m. Rivera subsequently testified, however, that he had actually identified petitioner — the man with the chivita, do-rag, and hoop earrings — when Police Officer Ayala arrested him in front of the Pizzeria Uno restaurant at approximate 2:00 a.m. (Rivera: 89-91). This discrepancy was not commented upon in summation by defense counsel or by the prosecution.
Second, Petitioner argues that Rivera misidentified Alberto Bello, who was not indicted, as one of the group of attackers arrested with petitioner at 2:00 a.m. on the morning of July 3, 1995. Petitioner highlights the testimony of Bello's employer, Willis McNamee, that Bello's handwritten time-card indicated that Bello had worked until 12:30 a.m. on the night of the crime. (McNamee: 687, 690). McNamee admitted, however, that he had no first-hand knowledge of Bello's whereabouts on the night of July 3, 1995. Also, Bello's time sheet for July 2, 1995 had originally indicated that Bello left work at 5:00 p.m., but 5:00 p.m. had been crossed out and 12:30 a.m. had been written in its place. (McNamee: 696-97). Thus, the evidence is not so much contradictory, as petitioner argues, but not clear as either corroborative, or contradictory, evidence.
Petitioner also argues that other independent evidence casts doubt upon Rivera's identification of him as one of the two primary attackers. Petitioner argues that his own actions on the night of the attack leading up to his arrest were consistent with innocence. That night, police arrested petitioner as he was sitting on milk crates with companions in front of Pizzeria Uno (the scene of the initial altercation) with his companions at approximately 2:00 a.m., just a few hours after the attacks. Petitioner argues that a guilty man would not have remained there outside the pizzeria in plain view of several uniformed officers still investigating the attack when Rivera emerged and spoke with one of the uniformed officers only 25 feet away from where petitioner was sitting. Petitioner also argues that the prosecution did not rebut his alibi defense, which should have created a reasonable doubt in the jury's mind. Petitioner's alibi was premised upon his cousin Jose Luis Hernandez's testimony that petitioner was with him at home in Queens until 11:30 p.m. on the night of the attack, so that he could not have participated in the attack on Figueroa, which occurred also at approximately 11:30 p.m.
Upon review of the record as a whole, I find that there was adequate evidence adduced at trial to allow a rational jury to conclude that Rivera's eyewitness identification of the petitioner was credible. The alleged inconsistency in Rivera's testimony concerning whether petitioner was one of the men arrested down the block at 12:30 a.m., rather than outside Pizzeria Uno at 2:00 a.m., appears to be an inadvertent misstatement given in a one word answer to a potentially confusing question. Rivera clearly described his identification of petitioner on the night of the attack — as the man with the chivita, do-rag, hoop earrings, and red, white and green beaded cross — and petitioner's subsequent arrest outside of Pizzeria Uno at 2:00 a.m. (Rivera: 89-91). Also, given the flimsiness of Bello's alibi time-sheet and the lack of personal knowledge of Mr. McNamee, it was within the jury's province to conclude either that Rivera correctly identified Bello, or to conclude that, given petitioner's central role in the attack and distinctive identifying features (the hoop earrings, do-rag and chivita), Rivera correctly identified petitioner even if he misidentified Bello. It was also within the province of the jury to infer that petitioner's presence in front of Pizzeria Uno at 2:00 a.m. was not inconsistent with guilt, especially when the red, green, and white beaded cross that Rivera testified that the assailant was wearing during the attack (Rivera: 92) was found on the ground at petitioner's feet at the time of his arrest. (Vargas: 568-69, 571). Finally, the jury's conclusion that the alibi testimony of petitioner's cousin was unreliable was a credibility determination that should be left to the factfinder and is unreviewable by me on habeas.
While petitioner is correct that there was some conflicting evidence in this case, this court may not second-guess the jury's decisions to credit Rivera's identification of petitioner and to disregard the alibi testimony of petitioner's cousin. Indeed, "a federal habeas corpus court faced with a record that supports conflicting inferences must presume . . . that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Jackson, 443 U.S. at 226. In this instance, petitioner's argument focuses on the jury's assessment of witness' credibility at trial, which is precisely the kind of factfinding determination not subject to reversal on habeas review.See Soto v. LeFevre, 651 F. Supp. 588, 592 (S.D.N.Y. 1986). Accordingly, petitioner's first ground of habeas relief is denied.
C. Prosecutor's Commentary on Petitioner's Failure to Call Certain Defense Witnesses
As a second ground allegedly warranting habeas relief, petitioner argues that the prosecutor in summation improperly commented on petitioner's failure to call particular witnesses in his defense, improperly shifting the burden of proof in violation of due process. In considering this allegation of violation of constitutional due process, "[t]he relevant question is whether the prosecutor's comments 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). Accordingly, my evaluation of the propriety of the prosecutor's summation must take the preceding defense summation into account. United States v. Young, 470 U.S. 1, 11 (1985) ("a criminal conviction is not to be lightly overturned on the basis of a prosecutor s comments standing alone, for the statements or conduct must be viewed in context; only by so doing can it be determined whether the prosecutor's conduct affected the fairness of the trial").
Respondent argues that petitioner's claim concerning the prosecutor's summation is unexhausted and cannot be considered by this court because petitioner failed to give notice to the Appellate Division on direct appeal that this argument was based on the United States Constitution. See Blissett v. LeFevre, 924 F.2d 434, 438 (2d Cir. 1991). Petitioner's brief to the Appellate Division, however, cites the United States Constitution as a basis for his claim. I therefore decline to dismiss the claim as unexhausted and consider it on the merits.
Petitioner highlights two instances in the prosecutor's summation as improper burden-shifting. First, the prosecutor, after an overruled defense objection, argued that the jury "had not heard from" the other people allegedly present at petitioner's cousin's house where his cousins had testified that petitioner was until 11:30 on the night of the attack. The prosecutor stated that if the wives and sister of petitioner's cousins "could come in here and corroborate that account . . . you would have seen them come out that back door one after the other." (Govt. Summation: 906-07). The prosecutor went on to suggest that the cousins' sister was not called because "it's hard to get the child to come in and say what's not the truth." (Govt. Summation: 907-08).
Petitioner also takes issue with the prosecutor's comments later in his summation concerning petitioner's failure to call Alberto Bello. The prosecutor speculated that if Bello had been called to testify, "Mr. Bello . . . can offer you as to how [appellant] was dressed that night. And the bandana he wore. . . . Mr. Bello can also offer to you whether or not [petitioner's] cousins were right." (Govt. Summation: 913-14). After having overruled several defense objections concerning the prosecutor's earlier comments, the court sustained petitioner's objection to these remarks. (Govt. Summation: 914). Petitioner argues that by repeatedly speculating about what witnesses the defendant could have called and what they might have testified the prosecutor effectively shifted the burden of proof from the prosecution to defendant in violation of petitioner's due process rights.
Respondent argues that these remarks must be taken in context, along with the summations given by defense counsel both for petitioner and for Fabian Ortega, petitioner's codefendant. Respondent notes that petitioner's counsel characterized witness Rivera as "not truthful" and "a mistrustful person." (Petitioner's Summation: 866, 867). These comments were amplified when Ortega's counsel referred to Rivera as a "liar" in his summation. (Ortega Summation: 887, 893). Petitioner's counsel also stressed the testimony given by petitioner's cousins in support of his alibi defense. (Petitioner's Summation: 873-84). Respondent thus argues that the prosecutor's remarks concerning uncalled witnesses were fair response to the factual theory proffered by petitioner in his summation, as well as petitioner's attack on Rivera's credibility.
While the Fifth Amendment prohibits the prosecutor from commenting on a defendant's failure to testify on his own behalf, it provides no such prohibition on prosecutorial comment about a defendant's failure to call witnesses or present evidence to support the defendant's own factual theory. United States v. Yuzary, 55 F.3d 47 (2d Cir. 1995). Similarly, unless the defendant himself is the only witness who can refute the government's case, it is not a Fifth Amendment violation for the prosecution to comment on the defendant's failure to call witnesses to refute the evidence introduced at trial. United States v. Dioguardi, 492 F.2d 70, 81-82 (2d Cir. 1974). However, prosecutorial remarks in summation may violate a defendant's due process rights if the remarks were so egregious as to render the entire trial unfair. Darden v. Wainwright, 477 U.S. 168, 181 (1986). Under this due process analysis, a court may only reverse a conviction on habeas due to improper prosecutorial argument if the petitioner can show "that he suffered actual prejudice because the prosecutor's comments during summation had a substantial and injurious effect or influence in determining the jury's verdict." Tankleff v. Senkowski, 135 F.3d 235, 252 (2d Cir. 1998) (quoting Bentley v. Scully, 41 F.3d 818, 823 (2d Cir. 1994)). Determining whether petitioner suffered such prejudice requires consideration of "the seriousness of the misconduct, the measures adopted by the trial court to cure the misconduct, and the certainty of the conviction absent the improper statements." United States v. Parker, 903 F.2d 91, 98 (2d cir. 1990).
Here, the prosecutorial remarks that petitioner argues were improper did not violate petitioner's fifth amendment rights because they only concerned the strength or weaknesses of the factual theories proposed by petitioner and his co-defendant. The prosecutor's suggestion that petitioner could have called additional witnesses in support of his alibi was not a veiled suggestion that petitioner himself should take the stand. Similarly, because petitioner's co-defendant impugned the credibility of Archie Rivera's identification by introducing evidence that Bello was at work made it fair for the prosecutor himself to note Bello' s failure to take the stand in support of that alibi.
Similarly, the prosecutor's remarks did not so prejudice petitioner as to require reversal on that ground, or shift any burden to him. The petitioner was also not prejudiced by the prosecutor's argument that testimony from uncalled witnesses could have given would not have supported petitioner's defenses or arguments. The prosecutor's suggestion that petitioner's cousins' seventeen-year-old sister would not have lied on his behalf was perhaps excessive, but petitioner's counsel, in his summation, had injected charges about lying, and this was fair comment. The prosecutor was not misrepresenting the likely testimony of uncalled witnesses who had testified elsewhere favorably to the defendant, see Tankleff, 135 F.3d at 252-53; nor did the prosecutor state that the defense actually had the burden of persuasion, See United States v. Cruz, 797 F.2d 90, 93 n. 1 (2d Cir. 1986); nor did the prosecutor make improper remarks "literally dozens of times throughout her opening and closing summations." Floyd v. Mecham, 907 F.2d 347, 348 (2d Cir. 1990).
In any event, the trial court's charge to the jury eliminated any prejudice that the prosecutor's brief remarks may have caused. Justice Fried, a seasoned and excellent trial judge, carefully instructed the jury that summations and comments by counsel were not evidence and were simply arguments that the jury was free to accept or reject. (Summations: 863, 948). Justice Fried repeatedly stated that it was the prosecution's burden to prove petitioner guilty beyond a reasonable doubt, (Charge: 957, 946-66, 968, 974, 987), and also instructed the jury that petitioner had no burden to produce any evidence. (Charge: 968). See Tankleff, 135 F.3d at 253. My review of the record persuades me that petitioner did not suffer actual prejudice from the prosecutor's remarks, and I deny the second ground of the petition.
D. Excessive Sentence Claim
As a third ground warranting issuance of a writ of habeas corpus, petitioner argues that his sentence of sixteen and one-third to forty-nine years in prison was constitutionally excessive. Respondent correctly notes that this claim was not exhausted in the state courts because it was presented only as a matter of state and not federal law on direct appeal to the Appellate Division, but I deny the claim on the merits. See 28 U.S.C. § 2244(b)(2).
While the Eighth Amendment requires that criminal sentences imposed by state courts and legislatures be proportionate to the offense, federal courts "should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes." Solem v. Helm, 463 U.S. 277, 290 (1983); see Bellavia v. Fogg, 613 F.2d 369, 373 (2d Cir. 1979) (federal Court should defer to state legislature concerning mandatory sentences). Here, petitioner's sentence of sixteen and one-third to forty-nine years in prison is within the guidelines established by New York law for the crimes of attempted murder in the second degree and riot. N.Y. Penal Law §§ 70.00. No Supreme Court precedent or other federal law suggests that an indeterminate sentence of sixteen and one-third years to forty-nine years for two counts of attempted murder in the second degree is disproportionate under the Eighth Amendment, and I therefore deny petitioner's third and final ground for relief.
III. Conclusion
For the reasons stated, the petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 is denied in its entirety. Because petitioner has failed to make a substantial showing of the denial of a constitutional right, see 28 U.S.C. § 2252(c)(2), petitioner is not entitled to a certificate of appealability. There are no issues worthy of appellate review, and no certificate of appealability will be issued.
The Clerk of the Court is directed to mark this matter as closed.