Opinion
00 Civ. 8171 (RWS).
July 25, 2001.
LARRY JOHNSON, Petitioner Pro Se, Green Haven Correctional Facility, Stormville, NY.
HONORABLE ELIOT SPITZER, Attorney General of the State of New York Attorney for Respondent, New York, NY, By: MONA JHA, Assistant Attorney General Of Counsel.
O P I N I O N
Pro se petitioner Larry Johnson ("Johnson") petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and seeks appointment of counsel in this proceeding. Respondent Superintendent Greiner ("Greiner") opposes the petition. For the reasons set forth below, the motion for appointment of counsel and the petition are denied.
The Parties
Johnson is an inmate in State custody at Green Haven Correctional Facility, Stormville, New York ("Green Haven").
Greiner is the Superintendent of Green Haven.
Prior Proceedings And Facts
Johnson was convicted after a jury trial under a New York County indictment of assault in the first degree and criminal possession of a weapon in the third degree. Johnson was arrested after being identified in line-up by three witnesses as the person who stabbed Lyman Reynolds in a Manhattan subway station on November 13, 1994. On February 14, 1996, Johnson was sentenced as a persistent felon to a minimum period of incarceration of 25 years and a maximum of life. Johnson is currently incarcerated pursuant to this sentence.
Prior to trial, the prosecutor made an application pursuant to People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849 (1974), to question petitioner about several of his prior criminal convictions in the event that he testified at trial. The trial judge allowed the prosecutor to elicit testimony on three of Johnson's felony convictions and none with respect to his numerous misdemeanors. Johnson had served 12 years in prison arising from a conviction in 1982 of assault in the first degree. In 1980, he was convicted of attempted burglary in the third degree and in 1979 he was convicted of attempted assault in the first degree and was sentenced to concurrent prison terms of from two to four years for both of those crimes. The fourth felony conviction, which the judge ruled that the prosecutor could not elicit, was for attempted robbery.
The People of the State of New York called as witnesses at trial: Lyman Reynolds, the victim; Michael Walker, a token booth clerk at the subway station who witnessed the stabbing; Tymar Mordiglia, a friend of the victim and an eye-witness; Police Officer Ester Desjardin, who was summoned for help; Detective Joseph Minucci, who investigated the incident; and Dr. Keith Berman, chief surgical resident at St. Luke's Hospital, who treated Reynolds after he was stabbed.
At or about 4:30 a.m. on November 13, 1994, while Reynolds and his friend Mordiglia were walking home, Reynolds saw Johnson's brother, Edward Johnson, and began engaging in a conversation with him. That conversation was interrupted when Johnson, who was across the street, called out to Edward. In response, Edward went over to Johnson. Johnson's interruption of their conversation offended Reynolds. Reynolds complained that Edward should have "excuse[d]" himself. Johnson responded that Edward was his brother, to which Reynolds replied, `I don't care who he is." A verbal altercation between Johnson and Reynolds ensued. Johnson retorted, "I noticed you in the neighborhood" and "[y]ou have been coming through here like a gangster." Reynolds responded, "if you have a grudge against me or you want to get something out of your chest, I am here to accommodate you."
Johnson shot back with, "You must not know who I am" and boasted that, "I just came home from doing twelve years in prison." Reynolds, for his part, also arrogantly declared, "I did six years in prison so your twelve years don't mean anything to me." Reynolds then decided to walk off with Mordiglia.
Reynolds and Mordiglia thereafter encountered a mutual acquaintance, Juan Vasquez, and agreed to accompany him to the nearby subway station. On the way to the station, Reynolds noticed Johnson standing on the stoop with other men. Johnson "locked eyes" with him and called him a "bitch ass nigger." Reynolds laughed at Johnson, saying, "you a joke, man."
Reynolds, Mordiglia and Vasquez continued their walk to the subway and descended the stairs. The three stood by the turnstiles — Vasquez having jumped over it was on the opposite side — chatting with each other.
After about five to ten minutes, Johnson descended the stairs into the station. Johnson was with another man, Lawrence Adams, who was carrying a black baseball bat. Since Reynolds' back was to Johnson, he did not see Johnson standing right next to him until Johnson said, "What you going to do now" or "What's up now." Reynolds shoved Johnson and started walking away from him, but noticed Adams with the bat and walked back toward Johnson. Adams held Mordiglia "at bay" with the bat raised. Vasquez ran down a flight of stairs to a lower level.
Thereafter, Reynolds and Johnson "exchange[d] blows." Reynolds did not have any weapons in his hands. Johnson, however, pulled out a knife and stabbed Reynolds three times. Adams then took a swing at Reynolds with the bat, after which Reynolds rolled over the top of the turnstiles and ran downstairs to the lower platform. Johnson punched Mordiglia in the head, and left the station with Adams. Walker, who had observed this scene, called an emergency number for help.
Police Officer Desjardin arrived at the scene and found three men, one of whom, Reynolds, was "bleeding heavily" from a chest wound. She applied pressure to the wound until the ambulance came to take Reynolds to a hospital.
At the hospital, Dr. Berman observed that Reynolds had three stab wounds, two in his chest and one in his upper back, that he had experienced a substantial amount of internal bleeding, that he was in "shock," and that he required immediate surgery. Had he not been treated quickly, he would have died.
Detective Minucci, who was assigned to investigate the assault, interviewed Vasquez, Walker, Mordiglia, and Adams. None of them reported to him that Reynolds was armed during the attack. He also went to the hospital and spoke to Reynolds, but did not ask him whether he had a knife since none of the other witnesses had indicated to him that Reynolds had one.
Thereafter, Detective Minucci conducted several lineups in November and December of 1994. Mordiglia, who viewed the lineup with Adams in it, identified him as the man who had wielded the bat. In separate lineups involving Johnson, Mordiglia, Walker and Reynolds identified Johnson as the man who stabbed Reynolds. Although Minucci attempted to arrange for Vasquez to view the lineup, Vasquez refused to cooperate.
Johnson's Testimony
Johnson testified as follows:
On November 13, 1994, he went looking for his brother Edward at the request of their mother and saw him surrounded by several people. When he called out to his brother, Reynolds demanded to know, "What the f___ are you getting in my conversation for." Johnson told Reynolds that this was his little brother, to which Reynolds replied, "I don't give a f___ about who he is to you. Why you getting into my conversation?" Johnson then told Reynolds that he had spent twelve years in jail with the objective of persuading him that he was not looking for any trouble. Reynolds said, "I don't care about your twelve years, I did six years." After further verbal altercations in which Johnson referred to Reynolds as a "gangster," Johnson decided to leave with his brother.
On the same night, Johnson observed Reynolds and his friend walking down the block. Johnson took this opportunity to try to settle their differences by saying that they should talk to each other to which Reynolds responded by threatening to kill him and his brother. Johnson also observed Reynolds' friend whisper something in his ear.
Johnson thereafter went to see his friend, Adams ("Slim"), and asked him to accompany him on a search for Reynolds so that they could "straighten this whole thing out." Johnson's intent was to settle his dispute with Reynolds amicably, but he wanted Adams to accompany him for protection. As they walked towards the 103rd Street subway station, Adams picked up a baseball bat from the garbage, which he carried with him on this trip.
Once in the station, Johnson requested Reynolds that they "straighten this out." Reynolds, however, pushed Johnson and began pulling out a shiny object from his jacket pocket, which Johnson believed was a knife. Before Reynolds had a chance to fully retrieve this knife, Johnson opened his knife and stabbed Reynolds to protect himself. Johnson then went up to Mordiglia and "smacked him," telling him, "you could have avoided all this because . . . you were whispering in [Reynolds'] ear and could have talked" Reynolds "out of whatever you all had planned for me the next day." Johnson then ran out of the station.
The Trial
At trial, Johnson admitted that in 1980 he was convicted of attempted assault in the first degree and attempted burglary in the third degree, and was sentenced to concurrent prison terms of from two to four years for those crimes. In 1982, Johnson was convicted to assault in the first degree, a crime for which he served twelve years in prison.
Although the jury convicted Johnson of assault and criminal possession of a weapon, it did not convict him of attempted murder.
Post-Trial
On December 9, 1998, Johnson appealed to the Appellate Division, First Department, arguing that the trial judge's Sandoval and Molineux rulings were improper, that there was insufficient proof of assault, that his grand jury indictment should have been dismissed since the parole officer's testimony before the grand jury was illegal, that the trial court erred in failing to give a missing witness charge with respect to Vasquez, and that Johnson's sentence was excessive.
The People argued in opposition that the trial judge's Sandoval rulings with respect to Johnson's prior crimes, as well as the court's other evidentiary rulings concerning the prior crimes evidence, were correct. Specifically, the prosecutor argued this evidence was properly admitted for the purposes of impeaching Johnson and for the purposes of proving his intent. The People further argued that there was sufficient evidence beyond a reasonable doubt to show that Johnson had attacked Reynolds with the intent to injure him and that his self-defense justification was spurious. With respect to the parole officer's testimony at the grand jury, the People argued that his testimony was relevant for certain identification purposes and that, in any event, Johnson failed to preserve this issue for appeal. The People countered Johnson's argument that the trial judge should have issued a missing witness charge with respect to Vasquez's testimony with the fact that his request was untimely and that Vasquez was available to both parties. And, finally, the People argued that Johnson was fairly sentenced in light of his prior criminal history.
On or about June 29, 1999, the Appellate Division, First Department, affirmed the conviction. People v. Johnson, 262 A.D.2d 243, 692 N.Y.S.2d 364 (1st Dep't 1999). The Appellate Division held that the trial judge's ruling "permitting limited questioning in connection with three of four prior felony convictions, with additional limited questioning if and when defendant's own testimony opened the door thereto, was an appropriate exercise of discretion." The Appellate Division further determined that Johnson's request for a missing witness charge, made after the close of evidence, was untimely and was properly denied by the trial court. Finally, the court rejected Johnson's additional claims of error.
By letter dated October 6, 1999, Johnson sought leave to appeal to the New York Court of Appeals on two of the grounds that he had brought before the Appellate Division. Specifically, he asked the court to review the evidentiary rulings allowing the admission of the uncharged crimes evidence, as well as the denial of his request for a missing witness charge.
On or about March 19, 2000, a judge of the New York Court denied Johnson's application for leave to appeal. People v. Johnson, 94 N.Y.2d 921, 708 N.Y.S.2d 361 (2000).
The Petition Before the Court
Johnson raises the following four claims in his habeas corpus petition:
(a) that he was denied his right to a fair trial when the trial court changed its Sandoval ruling by allowing the prosecutor to question him regarding the underlying facts concerning his previous convictions of assault;
(b) that he was denied his right to a fair trial when the trial court refused to give a charge to the jury that Vasquez was a missing witness;
(c) that his due process rights were violated when his parole officer testified at the grand jury; and
(d) that his due process rights were violated since there was insufficient proof that he had committed the assault.
I. The Motion For Appointment Of Counsel
The Criminal Justice Act provides: "Whenever the United States magistrate or the court determines that the interests of justice so require, representation may be provided for any financially eligible person who . . . is seeking relief under section 2241, 2254, or 2255 of Title 28." 18 U.S.C. § 3006A(a)(2)(B). The factors articulated by the Second Circuit for determining whether to appoint counsel to an indigent civil litigant, pursuant to 28 U.S.C. § 1915(e), and which have been found useful in the habeas context, include: the petitioner's likelihood of success on the merits, the complexity of the legal issues raised by the petition, and the petitioner's ability to investigate and present the case. See Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1985) (discussing factors for 28 U.S.C. § 1915(e) analysis); Jackson v. Moscicki, No. 99 Civ. 2427, 99 Civ. 9746, 2000 WL 511642, at *4 (S.D.N.Y. April 27, 2000) (applying factors to habeas petitioner request for counsel).
In this case, as explained below, Johnson's claim is without substance. Moreover, it may be decided solely on the submissions. Accordingly, appointment of counsel is not warranted in the interests of justice.
II. The Legal Standard for Habeas Corpus Petitions Brought Pursuant to 28 U.S.C. § 2254A. Standard for Reviewing State Court Judgments
Section § 2254 of the 1996 Antiterrorism and Effective Death Penalty Act ("AEDPA") provides a federal remedy for state prisoners if their continued custody is in violation of federal law. Pub.L. No. 104-132, 100 Stat. 1214, codified at 28 U.S.C. § 2254(a); see Chandler v. Florida, 449 U.S. 560, 571 (1981) ("This Court has no supervisory authority over state courts, and, in reviewing a state court judgment, we are confined to evaluating it in relation to the Federal Constitution."). Errors of state law are not cognizable on federal habeas review. Estelle v. McGuire, 502 U.S. 62, 71-72 (1991); Wainwright v. Sykes, 433 U.S. 72, 81 (1977). Petitioners bear the burden of proving violations of federal law by a preponderance of the evidence. See Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997).
Federal habeas courts must presume state courts' factual findings to be correct, 28 U.S.C. § 2254(e)(1), and may not grant relief unless they find that the state court's adjudication of the merits of the claims either:
(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)(1), (2); see Williams v. Taylor, 529 U.S. 362, 375-76 (2000).
III. Johnson's Petition is Denied
The Propriety of the Trial Court's Sandoval and Molineaux Rulings Do Not Present Grounds for Habeas Corpus Relief
Under People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849 (1974), a New York trial court must make a pretrial determination of which prior convictions or bad acts the prosecution can use in cross-examining a defendant who testifies at trial. People v. Molineaux, 168 N.Y. 264 (1901), deals with the prosecutor's use of a defendant's prior crimes to prove an element of the crime for which the defendant is currently on trial. Johnson's claim that his due process rights were violated by the trial court's modification of its Sandoval ruling is, in effect, a claim of an improper Molineaux ruling. The complaint fails since the ruling was not contrary to nor involved an unreasonable interpretation of clearly established federal law, nor resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.
With respect to alleged state evidentiary errors, federal review is only appropriate if the alleged errors are so "prejudicial as to constitute fundamental unfairness" rising to the level of a constitutional violation. See Benitez v. Senkowski, 97 Civ. 7819, 1998 WL 668079, at *7 (S.D.N.Y. Sept. 17, 1998) (citations omitted); Hunter v. Greiner, 99 CIV. 4191, 2000 WL 245864, at *4 (S.D.N.Y. March 3, 2000). The standard for ascertaining whether erroneously admitted evidence is so egregious as to constitute denial of due process is whether properly admitted evidence was sufficiently strong to outweigh the impact that the erroneously admitted evidence had, viewed objectively in light of the entire record before the jury. See, Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985).
A. The Trial Court's Sandoval Ruling is Not in Issue
Johnson does not challenge the trial judge's Sandoval ruling, as such, which allowed the prosecutor to question petitioner about a portion of his criminal record for purposes of impeaching his credibility. Johnson's counsel conceded at the Sandoval hearings that the prosecutor could be permitted to ask Johnson whether he had been convicted of the three felonies the judge ultimately allowed. Johnson's claim attacks only the fact that the prosecutor was allowed to "go into the underlying facts of the [prior] stabbing", and thus modified, improperly, the Sandoval ruling. This claim is, in effect, a challenge to the trial court'sMolineaux ruling.
B. The Molineaux Ruling Was Neither Contrary to Nor an Unreasonable Application of Federal Law
Johnson has not shown, in any case, that the Sandoval ruling was contrary to or an unreasonable interpretation of federal law. The Supreme Court has noted that state court evidentiary issues rarely will constitute a basis for federal habeas corpus review. See Estelle v. McGuire, 502 U.S. 62, 67-68. This is true even if the rulings are erroneous under state law. Underwood v. Kelly, 692 F. Supp. 146, 150-151 (E.D.N.Y. 1988), aff'd. 875 F.2d 57, cert. denied, 498 U.S. 837 (1989). Johnson's claim might be liberally construed to challenge the Sandoval ruling, but then only its propriety under state law. United States v. Acosta, 763 F.2d 671 (5th Cir), cert. denied, 474 U.S. 853 (1985) andUnited Stated v. Cathey, 591 F.2d 268, 274-275 (5th Cir. 1979), which Johnson cites in support, deal with requirements under Federal Rule of Evidence 609(b) and are thus inapposite.
Johnson claims that the trial court improperly altered its Sandoval ruling by allowing the prosecutor to question him on the underlying facts of his prior convictions. Since the trial judge allowed the prosecutor to question petitioner about certain facts regarding some of his prior convictions for the purpose of establishing his intent to commit the crime for which Johnson was charged, his allegations are, in effect, a challenge to the court's Molineaux ruling. Johnson's claim is without merit since that ruling did not constitute an unreasonable application of clearly established federal law, nor did it involve an unreasonable determination of the facts in light of the evidence presented. 28 U.S.C. § 2254(d)(1), (2).
In Estelle v. McGuire, 502 U.S. 62, 70-72 (1991), the Supreme Court rejected the petitioner's claim that admission of evidence of prior injuries to a deceased child for purposes of proving petitioner's intent required the granting of a writ of habeas corpus in a murder prosecution. Given that the prior injury evidence was relevant to an issue in the case, the Court determined that such evidence was not violative of the Due Process Clause. Id. at 70, 72. Similarly, in Lisenba v. California, 314 U.S. 219 (1941), a case involving prosecution of the petitioner for the murder of his second wife, the Court held there was no constitutional violation in the state court's admission of evidence regarding the death of petitioner's first wife, since such evidence was admitted on the "widely recognized principle that similar but disconnected acts may be shown to establish intent, design, and system."Id. at 227-228.
As the discussion of the facts indicates, evidence of the prior assaults in the instant case was not admitted for the purpose of showing Johnson's propensity to commit the crime for which he was charged, but to show his intent. Thus in upholding the admission of this evidence for this purpose, the state courts did not contravene settled Supreme Court law. See Estelle, 502 U.S. at 75 n. 5; see also Mosiurchak v. Senkowski, 839 F. Supp. 1035 (S.D.N.Y. 1993) (petitioner's contention that uncharged crimes evidence was improperly introduced was rejected). The trial judge allowed the prosecutor to question petitioner only with respect to his intent in committing two of the previous crimes, each of which involved stabbings. Furthermore, this ruling was in response to petitioner's own testimony justifying his conduct in the case. As the appellate court noted in upholding the trial court's decision, the petitioner himself "opened the door by placing the issue of his motive and intent into dispute." People v. Johnson, 262 A.D.2d at 243, 692 N.Y.S.2d at 365. To the extent that the judge further allowed the prosecutor to question Johnson about the facts of the previous assaults, he did so because Johnson himself denied his intent in committing them. See, e.g. Barnes v. Jones, 607 F.2d 994, 1979 U.S. App. LEXIS 14766 (2d Cir. 1979) (no denial of due process rights by trial judge in allowing further questioning of underlying circumstances of prior convictions where petitioner had equivocated on direct) (unpublished opinion).
With respect to the 1982 assault, the prosecutor asked Johnson whether he had "taken a knife and lunge[d] at [the victim] several times with the knife stabbing him three times including once in the heart and in the ribs and in the back" only after Johnson had denied his intent to commit an assault in that case.
The trial judge also cautioned the jury that petitioner's prior conviction could not be used to prove "whatsoever that he possessed a propensity or disposition to commit the crimes charged in this indictment." This factor could only be used as "a factor in assessing whether or not the defendant told the truth" at trial and "whether or not the defendant did or did not have the intent to cause serious physical injury to the petitioner when he allegedly stabbed him." Therefore, petitioner was not denied a fundamentally fair trial by the admission of this evidence and there is no basis for habeas corpus relief.
In any event, there was sufficient evidence, even without the evidence of prior convictions or the limited facts pertaining to petitioner's intent in committing two of the prior assaults, for a reasonable fact-finder to be convinced beyond a reasonable doubt that Johnson had stabbed Reynolds with the intent to injure him. Armed with a knife and accompanied by a friend wielding a bat, Johnson did not follow Reynolds to the subway station to "make peace" as he testified. This was corroborated by testimony of two witnesses, the token booth clerk and Reynolds' friend Mordiglia. Also, the fact that Johnson stabbed Reynolds three times refutes his claim of self defense. Given the strong evidence of guilt, it is unlikely that the jurors were all persuaded by evidence of petitioner's intent with respect to the prior crimes, and that evidence was not so material that it provided the basis for conviction or removed a reasonable doubt that would have existed on the record without it. Collins, 755 F.2d at 19; see also United States v. Robinson, 8 F.3d 398, 410-411 (7th Cir. 1993) (prosecutor's conduct in exceeding the permissible scope of his cross-examination by delving into details of a prior conviction held to be harmless).
The Refusal to Give a Missing Witness Charge Does Not Rise to the Level of a Constitutional Violation
In ground two of his petition, Johnson claims that his conviction should be overturned on the ground that he was entitled to a missing witness instruction for Juan Vasquez — a "friend of the complainant, and a witness to the crime". In the "supporting facts" section of the petition, Johnson also asserts that the court compounded the prejudice when it allowed detective Minucci to testify about his conversation with Vasquez. However, Johnson's claim does not rise to the level of a constitutional violation.
The adequacy of a court's instructions to a jury is normally a matter of state law, see Cupp v. Naughton, 414 U.S. 141, 146 (1973), and Johnson's claim must be predicated on a violation of the federal constitution. 28 U.S.C. § 2254(a); Wainright v. Goode, 464 U.S. 78, 83-84 (1983), rehearing denied, 423 U.S. 1092 (1984). In order to obtain federal habeas relief on the basis of a challenge to jury instructions, a petitioner must show that they "violated some right which was guaranteed to the defendant by the Fourteenth Amendment." Id.
Johnson's claim that the court erred in refusing to give a missing witness charge does not present a cognizable federal constitutional claim because it has not been shown that the failure to give this charge rendered the trial fundamentally unfair, in violation of Johnson's due process rights. See Cupp v. Naughten, 414 U.S. at 146; see also Smithwick v. Walker, 758 F. Supp. 178 (S.D.N.Y. 1991), aff'd, 948 F.2d 1278 (2d Cir. 1991) (because witnesses testimony would have been cumulative, failure to give missing witness charge was not cognizable on habeas review).
Here, the prosecutor represented to the court that Vasquez was uncooperative and had left the county, but that he had managed to speak to him and offered to put defense counsel in touch with him, if counsel were to call the prosecutor in the evening. The trial judge determined that Vasquez was not available or within the control of the prosecution so as to justify a missing witness charge. See Reid v. Senkowski, 961 F.2d 374, 377 (2d Cir. 1992). Additionally, the judge determined that Vasquez was equally available to both sides since the prosecutor had offered to put defense counsel in touch with him during the trial. See Smithwick, 758 F. Supp. at 188 (petitioner not entitled to missing witness charge since defense had "as much power and control over [his] appearance as did the prosecution.")
Moreover, the record shows that Vasquez's testimony would have been cumulative to the prosecution's case. Vasquez did not see most of the crime, gave no indication to Detective Minucci after the incident that Reynolds used a weapon, and during his mid-trial conversation with the prosecutor, Vasquez confirmed that Reynolds had not used a knife, although he did possess one. Since it was cumulative, Johnson was not entitled to a jury charge that the jury was entitled to draw a negative inference from the fact that the prosecution failed to call Vasquez as a witness.
Johnson's contention that the trial judge further prejudiced him by admitting Detective Minucci's testimony that Vasquez had indicated to the detective that Reynolds did not have a knife is likewise unavailing. The trial court noted that defense counsel had opened the door to this testimony by attempting to make the detective look incompetent by questioning his failure to have asked the victim during his interview whether he possessed a weapon during the crime. On redirect, the prosecutor elicited from the detective that he had interviewed Mordiglia, Walker, Vasquez and Adams about the stabbing and that none of those men had indicated that Reynolds had used or drawn a knife at any time during the crime. The trial court also instructed the jury that he had allowed the line of questioning only to permit the detective to explain his failure to follow standard procedure and that it was not to be taken as an indication that Reynolds was or was not armed.
The court's ruling was not erroneous and Johnson is not entitled to relief on this ground. Even if erroneous, Johnson is not entitled to relief because the error is harmless. See, e.g. Rosenfeld v. Dunham, 820 F.2d 52, 55-56 (2d Cir. 1987) (failure to give a charge on the operability of a weapon, which was an element of the offense and to which petitioner was entitled, was harmless error.) As previously discussed, there was ample evidence for conviction such that Detective Minucci's statement that Vasquez told him Reynolds did not have a weapon could not be considered grounds for habeas relief.
The Parole Officer's Testimony Before the Grand jury Does Not Raise Federal Constitutional Issues
Johnson also claims that his due process rights were violated since the prosecutor elicited testimony from his parole officer before the grand jury, which implicated petitioner's prior conviction. This claim lacks merit since claims of improprieties in the grand jury do not raise federal constitutional issues. Since there is no constitutional right to a grand jury in a state criminal prosecution, Mirrer v. Smyley, 703 F. Supp. 10, 11-12 (S.D.N.Y.), see also Alexander v. Louisiana, 405 U.S. 625, 633 (1972), claims based on alleged defects in the grand jury proceedings are not reviewable in a petition for habeas corpus relief unless they present an independent federal constitutional claim.See Lopez v. Riley, 865 F.2d 30, 32-33 (2d Cir. 1989) (If federal grand jury rights are not cognizable on direct appeal where rendered harmless by a petit jury [United States v. Mechanik, 475 U.S. 66, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986)], similar claims concerning a state grand jury proceeding are a fortiori foreclosed in a collateral attack brought in a federal court.); but cf. Rideau v. Whitley, 237 F.3d 472 (5th Cir. 2000) (claims of discrimination in the selection of members of the grand jury are cognizable on federal habeas corpus, and will support issuance of a writ setting aside a state conviction and ordering the indictment quashed.) Johnson's claim does not raise the kind of independent constitutional issue raised in Rideau, but merely an alleged evidentiary error in his grand jury indictment.
Accordingly, Johnson's complaints about his parole officer's testimony in the grand jury proceeding provides no basis for habeas corpus review.
Johnson's Claim That There Was Insufficient Evidence for the Finding of Guilt Fails
Johnson finally claims that his conviction violates his due process rights because the jury's finding that he was guilty of first degree assault was not proven beyond a reasonable doubt. An applicant is entitled to habeas corpus relief if it is found that upon the record of evidence adduced at the trial that "no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 324 (1979). Furthermore, "the findings of the state court are presumptively correct and entitled to a high degree of deference as that court was in the best position to view the credibility of the witnesses and all of the facts as they were adduced." Smithwick, 758 F. Supp. at 184 (citing Sumner v. Mata, 455 U.S. 591, 597 (1982)). In assessing the sufficiency of the evidence, the court must look to the state law to determine the essential elements of the crime. Jackson v. Virginia, 443 U.S. at 324 n. 16.
Here, there is sufficient evidence to support a rational trier of fact's determination that the prosecution proved its case beyond a reasonable doubt. The evidence adduced at trial demonstrated that Johnson, with intent to cause Reynolds serious physical injury, stabbed him three times in the chest and in the back. The evidence also disproves beyond a reasonable doubt that Johnson acted in self defense.
It is undisputed that Johnson and Reynolds had quarreled on the street prior to the stabbing. It is also undisputed that Johnson followed Reynolds into the subway station where the stabbing took place. Even without the evidence of Johnson's prior conviction for assault, there was sufficient evidence based on the testimony of Reynolds and corroborated by the testimony of Mordiglia and Walker, the token booth clerk, that petitioner went after Reynolds, armed with a knife, accompanied by a friend wielding a bat, with the purpose of attacking Reynolds.
Walker, who was a disinterested witness, testified that Johnson came down the subway stairs and said in a "loud voice" as he moved towards Reynolds, "What you got to say now?" Such confrontational remarks directly contradict his contention that he had a genuine desire to settle matters amicably.
Furthermore, there is no evidence, other than Johnson's assertions, to indicate that Reynolds provoked the stabbing. At no time did Reynolds have a weapon in his hands or reach for one. This is corroborated by the testimony of Mordiglia and Walker. Johnson claims for the first time that the victim falsely testified that he did not possess a knife at the time of the incident, when in fact he did. However, Reynolds affirmatively acknowledged that he had a ginsu vegetable knife in his pocket, which had been given to him as a gift. He also testified that the knife remained in his pocket at all times and that he did not use it or threaten Johnson with it at any time prior to or during the time that he was assaulted. There was compelling evidence for the jury to believe the testimony of Reynolds, Mordiglia and Walker and reject Johnson's version of events that he was armed and accompanied by his friend carrying a bat, and followed Reynolds into the subway station to make peace.
The new factual allegation asserted in Johnson's habeas petition were not raised at all in his leave application to the New York Court of Appeals, and he has therefore not complied with the requirement under 28 U.S.C. § 2254(b), that petitioners "exhaust the remedies available in the courts of the State." See Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991). In any event, the allegations do not rise to the level of a federal constitutional violation that would entitle him to habeas corpus relief.
The fact that the victim was an inpatient at a drug rehabilitation program, another fact that Johnson raises for the first time here, is not relevant to the question of his credibility. Similarly, Johnson's new attempt to highlight the fact that the victim was "buzzed" prior to the assault does not provide evidence that he provoked the attack.
Viewing the evidence in the light most favorable to the prosecution, there was sufficient evidence at trial to show that Johnson, with intent to cause serious bodily injury to the victim, armed himself with a knife and followed him down into the subway, accompanied by a friend wielding a bat, and repeatedly stabbed the victim three times in the chest and in the back without provocation. The types of arguments presented go to the weight, not the legal sufficiency, of the evidence, and this Court has no power to undertake the kind of credibility assessments Johnson urges here. See Young v. Abrams, 698 F.2d 131, 135 (2d Cir. 1983); Griggs v. Kansas, 814 F. Supp. 60, 62 (D.Kansas), aff'd, 16 F.3d 416 (10th Cir. 1993), cert. denied, 512 U.S. 1208 (1994). Accordingly, the fourth ground raised in the petition also fails.
Conclusion
For the reasons stated, Johnson's petition for relief under 28 U.S.C. § 2254(b)(1) is denied as is his request for counsel.
It is so ordered.