Opinion
01 Civ. 4669 (LAK)
August 30, 2001
ORDER
Petitioner was convicted in New York Supreme Court, New York County, of criminal sale of a controlled substance in the first degree (five counts), criminal sale of a controlled substance in the second degree, and conspiracy in the second degree and sentenced to five concurrent terms of 25 years to life to run concurrently with two concurrent terms of 8 1/3 to 25 years. People v. Ramirez, 270 A.D.2d 185, 707 N.Y.S.2d 6 (1st Dept.), leave to appeal denied, 95 N.Y.2d 802, 711 N.Y.S.2d 170 (2000). His conviction was affirmed by the Appellate Division, and the New York Court of Appeals denied leave to appeal. So far as the record reveals, no petition for a writ of certiorari was filed. He now seeks habeas corpus from this Court, claiming that (1) the trial court erred by ruling in limine that petitioner could be cross-examined using physical evidence seized from him at the time of his arrest notwithstanding that the People had stated during discovery that no evidence had been recovered from petitioner, (2) the trial court's instruction to the jury concerning the permissible use of notes taken by jurors during a read back of certain testimony did not comply with a recent New York Court of Appeals ruling and deprived petitioner of due process, and (3) the sentence was excessive and deprived petitioner of due process.
The In Limine Ruling
Prior to trial, the defense made written discovery requests seeking, inter alia, physical evidence recovered from petitioner after his arrest. Jha Aff. Ex. A, ¶ 22. The People responded that "[n]o property was recovered from the defendant subsequent to his arrest." Id. Ex. B, ¶ 22. Before the People's last witness, however, defense counsel noted that vouchers submitted by the prosecutor suggested that a beeper and a calculator in fact had been recovered and moved to prelude the People from using that evidence against petitioner if he chose to testify. Tr. at 550, 619-20. The trial court declined to do so, and petitioner did not take the stand. Significantly, petitioner did not move to suppress the evidence pursuant to N.Y. Crim. Proc. L. art. 710 or contend that the seizure of the evidence violated his rights under the Fourth and Fourteenth Amendments.
Petitioner challenged the in limine ruling on appeal, contending that it deprived him of his rights under the Fourth, Fifth, Sixth and Fourteenth Amendments as well as state law. Jha Aff. Ex. C, at 18-24. The Appellate Division, however, rejected his claim. It construed the People's inaccurate denial of the existence of physical evidence recovered from the defendant as a violation of their discovery obligations under Crim. Proc. L. § 240.20(1)(f), noted that petitioner had not sought suppression of the evidence, and held that the trial court's refusal to sanction the People for the discovery violation was not an abuse of discretion, as there was no bad faith and no non-speculative indication of prejudice to the petitioner. 270 A.D.2d at 185-86, 707 N.Y.S.2d at 7.
Given the absence of any motion to suppress the evidence in question, the Appellate Division committed no error, and surely no error that this Court is entitled to notice, in holding that (1) the real issue with respect to the beeper and calculator was whether the People had violated their discovery obligations and (2) the trial court had not erred in declining to sanction the People by restricting the use of the evidence on cross-examination in the event petitioner took the stand. See Sellan v. Kuhlman, No. 99-2632, 2001 WL 909323, at *5-*8 (2d Cir. Aug. 14, 2001) (deference to state court ruling as dictated by 28 U.S.C. § 2254 required where state court determines constitutional issues on the merits even in the absence of explicit discussion of constitutional arguments). Petitioner has failed to demonstrate that the Appellate Division's decision was contrary to or involved an unreasonable application of clearly established Supreme Court precedent. See id. § 2254(d)(1). Indeed, the Fourth Amendment claim probably was foreclosed by Stone v. Powell, 428 U.S. 465, 481-82 (1976), which held that federal habeas relief is unavailable with respect to an allegedly unconstitutional search where the petitioner failed to take advantage of an opportunity provided by the state court to litigate the merits of the claim. And the Fifth and Sixth Amendment claim, as nearly as it can be understood, is equally unsupported.
Here application of the factors articulated in Sellan leaves no doubt that the Appellate Division rejected petitioner's federal constitutional arguments with respect to this point on their merits. No procedural ground for rejection of this point was relied upon by the Appellate Division.
The Note Taking Instruction
Petitioner claims that the trial court's instruction concerning note taking by jurors during a read-back was erroneous in light of a recent New York Court of Appeals decision, which his Appellate Division brief identifies as People v. Hues, 92 N.Y.2d 413 (1998). This claim was procedurally defaulted in the state courts, as the Appellate Division held. It held also, in the alternative, that the claim was baseless. Petitioner therefore has raised no substantial constitutional question in this regard.
The Sentence
While petitioner claims that the sentence imposed upon him was excessive, there is no contention that it was not permitted by state law.
A federal habeas court's review of a state sentence quite properly is circumscribed, especially when the sentence is within the statutory range. Cf. Dorszynski v. United States, 418 U.S. 424, 431-32 (1974). A state criminal defendant, however, has a protected right to due process at sentencing. Gardner v. Florida, 430 U.S. 349, 358 (1977); United States v. Lee, 818 F.2d 1052, 1055 (2d Cir.), cert. denied, 484 U.S. 956 (1987); People v. Felix, 58 N.Y.2d 156, 165, 460 N.Y.S.2d 1, 6 (1983). Deprivation of that right therefore is not merely a matter of state procedural law but is a deprivation of a constitutionally protected liberty interest. See Hicks v. Oklahoma, 447 U.S. 343, 346 (1980). Nevertheless, a federal court may grant habeas relief setting aside a state court sentence on due process grounds only in the rare case in which "an error of law resulted in the improper exercise of the sentencer's discretion and thereby deprived the petitioner of his liberty." Haynes v. Butler, 825 F.2d 921, 924 (5th Cir. 1987), cert. denied, 484 U.S. 1014 (1988). No such error has been shown here. And while petitioner has not contended that the sentence constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments, any such contention would be doomed. E.g., Solem v. Helm, 463 U.S. 277, 289-90 (1983).
Conclusion
For the foregoing reasons, the petition for a writ of habeas corpus is denied. The Court grants a certificate of probable cause limited to the claim regarding the in limine ruling and denies it in all other respects. The Court certifies that any appeal herefrom with respect to the second and third grounds set forth in the petition would not be taken in good faith within the meaning of 28 U.S.C. § 1915.
SO ORDERED.