Opinion
04 Civ. 6126 (SAS).
October 31, 2005
Charles Randolph, Clinton Correctional Facility, Dannemora, New York, Petitioner (Pro Se).
Joseph N. Ferdenzi, Christopher J. Blira-Koessler, Assistant District Attorneys, Bronx County, Bronx, New York, for Respondent.
OPINION AND ORDER
I. INTRODUCTION
Pro se petitioner Charles Randolph seeks a writ of habeas corpus vacating his state conviction on the following grounds: (1) legal insufficiency; (2) double jeopardy; and (3) the admission of negative identification evidence in violation of his due process rights. He also asserts the following claims which were not raised in state court: (4) his sentence was excessive; (5) his Miranda rights were violated; (6) he was forced to participate in a line-up; (7) he was not informed by the police that he was the target of an investigation; (8) the trial court should have precluded the testimony of Detective Strangenberg because he could not find his memo book at the time of trial; and (9) ineffective assistance of trial counsel for failing to raise the preceding four claims at trial. For the reasons discussed below, Randolph's petition is denied.
II. BACKGROUND
1. The Offense
A. Factual Background
On April 16, 1999, Percy Scales, Jr. and his girlfriend, Shannel Saul, were walking along 181st and Belmont Avenue in the Bronx when they encountered a group of four or five men standing in front of a grocery store. Randolph was one of those men. After an exchange of angry words, the group followed and attacked the couple. Scales was shot in the stomach. Detective John Strangenberg, a fifteen year veteran of the New York City Police Department assigned to the 48th Detective Squad, was assigned to investigate the Scales shooting. Detective Strangenberg spoke with Scales at Jacobi Hospital as well as with Scales' girlfriend. A photo array of six persons, including Randolph, was prepared and displayed to Scales on April 17, 1999. Scales identified Randolph as the person who had shot him. Randolph was indicted and charged with one count of Attempted Murder in the Second Degree, one count each of Assault in the First and Second Degree, one count of Criminal Possession of a Weapon in the Second Degree, and one count of Assault in the Third Degree.
See 02/03 Respondent's Brief to the N.Y. Supreme Court Appellate Division ("Respondent's Brief"), Ex. 2 to 11/17/04 Affidavit of Assistant District Attorney Christopher J. Blira-Koessler in Opposition to Petition for Habeas Corpus ("Blira-Koessler Aff.") at 3-4.
See id. at 4-5.
See 05/09/00 Decision and Order of Megan Tallmer ("Decision and Order"), Ex. 9 to Blira-Koessler Aff. at 1-2.
See 06/02 Brief for Defendant-Appellant to N.Y. Supreme Court Appellate Division, First Department, ("Defendant's Brief"), Ex. 1 to Blira-Koessler Aff. at 2-3.
2. The Conviction
On June 22, 2001, following a jury trial, judgment was rendered in the New York State Supreme Court, Bronx County, convicting Randolph of Assault in the First Degree, Gang Assault in the First Degree, and Criminal Possession of a Weapon. Randolph was sentenced to concurrent terms of fifteen years imprisonment for each of the assault convictions and a concurrent term of five years imprisonment for the weapon conviction.
See N.Y. Penal Law § 120.10.
See id. § 120.07.
See id. § 265.03.
A. Procedural Background
On or about June, 2002, petitioner, through assigned counsel, submitted an appellate brief to the New York Appellate Division, First Department, asserting claims under the Fourteenth Amendment to the Constitution. In August 2002, Randolph filed a pro se supplemental brief, raising claims of double jeopardy and ineffective assistance of counsel. The claims were premised on the trial counsel's alleged failure to ask the court to instruct the jury that Gang Assault in the First Degree and Assault in the First Degree were charged in the alternative and the jury could only convict on one or the other, but not both. This omission, he argues, resulted in his being subjected to double and multiple jeopardy. On April 15, 2003, the Appellate Division, First Department, unanimously affirmed the petitioner's conviction. In papers dated April 21, 2003 and May 5, 2003, petitioner, through appellate counsel, sought leave to appeal to the New York State Court of Appeals, asking that court to review all issues raised in his brief and his counsel's brief. On July 7, 2003, the Honorable Albert Rosenblatt of the New York State Court of Appeals denied Randolph's leave application. This habeas petition followed.
See 08/02 Supplemental Brief for Defendant-Appellant to the N.Y. Supreme Court, Appellate Division, First Department, ("Supplemental Brief"), Ex. 4 to Blira-Koessler Aff.
See People v. Randolph, 756 N.Y.S.2d 850 (1st Dep't 2003).
See People v. Randolph, 100 N.Y.2d 586 (2003).
III. LEGAL STANDARD
A. Exhaustion of State Remedies
A petitioner must "present his federal constitutional claims to the highest court of the state before a federal court may consider the merits of the petition." Exhaustion can be achieved "either by direct appeal or through collateral post-conviction remedies."
Meatley v. Artuz, 886 F. Supp. 1009, 1013 (E.D.N.Y. 1995).
Id.
The exhaustion rule is satisfied "if the claim has been `fairly presented' to the state courts." This requirement is met if the state courts are aware of "both the factual and the legal premises of the claim [the petitioner] asserts in federal court." And while exhaustion "does not require petitioner to cite `chapter and verse' of hornbook law, the federal constitutional nature of the claims must be `fairly presented' to the state court."
Jones v. Vacco, 126 F.3d 408, 413 (2d Cir. 1997) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971) (citation omitted)).
Id. (quoting Daye v. Attorney General of N.Y., 696 F.2d 186, 191 (2d Cir. 1982) (quotation marks omitted)).
Meatley, 886 F. Supp. at 1013 (citing Abdurrahman v. Henderson, 897 F.2d 7 (2d Cir. 1990)).
By presenting his claims to the First Department on appeal, petitioner has exhausted the following claims: legal insufficiency, double jeopardy, and negative identification. Randolph's also raises allegations that: his sentence was excessive; he was not read his Miranda rights; he was not informed by the police that he was the target of an investigation; the police forced him to take part in a lineup; the trial court should have precluded the testimony of Detective Strangenberg because he could not find his memo book at the time of trial, and his trial counsel was ineffective. However, Randolph never presented the latter claims to any court and they are unexhausted. Thus, Randolph has brought a mixed petition. Prior to the adoption of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), federal courts were required to dismiss habeas petitions that contained both exhausted and unexhausted claims for relief.
See 28 U.S.C. § 2253 (as amended by AEDPA, Pub.L. No. 104-132, 112 Stat. 1214); Rose v. Lundy, 455 U.S. 509, 522 (1982).
Now, a district court presented with a mixed petition "can offer the petitioner, `the choice of returning to state court to exhaust his claim or of amending or resubmitting the habeas petition to present only exhausted claims.'" A district court may also deny a petition on the merits even if it contains unexhausted claims. The AEDPA, as amended, provides, "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."
McKethan v. Mantello, 292 F.3d 119, 122 (2d Cir. 2002) (quoting Rose v. Lundy, 455 U.S. at 510).
It is for this reason that the merits of petitioner's unexhausted claims are considered in Part IV.D, infra.
B. Standard of Review
The AEDPA permits the granting of habeas relief with respect to a state court conviction if the state court's rejection of a petitioner's claim is either "contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the Supreme Court." In Williams v. Taylor, the Supreme Court clarified the key phrases "contrary to" and "unreasonable application." With regard to the former, the Supreme Court held that a state-court decision is contrary to Supreme Court precedent if the state court arrived at a conclusion opposite to that reached by the Supreme Court on a question of law. A state-court decision is also contrary to Supreme Court precedent if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to that reached by the Supreme Court. With regard to the latter, the Supreme Court held that a state-court decision involves an unreasonable application of this Supreme Court precedent if the state court identifies the correct governing legal rule from a Supreme Court case but unreasonably applies it to the facts of the particular state prisoner's case. The Court emphasized that "unreasonable" is different from "incorrect" or "erroneous" stating: "[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. § 2254(d).
529 U.S. 362 (2000).
See id. at 405.
See id. at 406.
Id. at 411.
Thus, following Williams, the power of a federal habeas court to grant a state prisoner's application with respect to claims adjudicated on the merits in state court is sharply circumscribed. The Williams standard prohibits a federal habeas court from substituting its own judgment for that of the state-court judge, requiring a great deal of deference to the state-court judgment.
IV. DISCUSSION
A. Legal Sufficiency
Randolph argues that the prosecution failed to prove beyond a reasonable doubt that the complainant reliably identified him as the shooter, in violation of his right to due process. Randolph argues that the prosecution's case rested solely on the identification testimony of Scales, the victim of the crime.
To succeed on an insufficiency claim, a habeas petitioner must show that "no rational trier of fact, viewing the evidence in the light most favorable to the government, could have found [the petitioner] guilty beyond a reasonable doubt of the essential elements of the crime charged." On habeas review, a court is not free to second guess the jury's credibility judgments. The credibility of a trial witness is entrusted to the factfinder and the testimony of a single uncorroborated witness is generally sufficient to support a conviction.
United States v. Desena, 287 F.3d 170, 176-77 (2d Cir. 2002) (citing Jackson v. Virginia, 443 U.S. 307 (1979)).
See Taylor v. Curry, 708 F.2d 886, 892 (2d Cir. 1983).
See U.S. v. Panzey, 594 F.2d 905, 916 (2d Cir. 1979).
In the instant case, the Appellate Division found that Scales, "had sufficient opportunity to view [Randolph] prior to the shooting and made a convincing and reliable identification." There is no basis for this Court to reject the Appellate Division's findings or the jury's credibility determination. Accordingly, Randolph's conviction based primarily on the testimony of a single uncorroborated eyewitness does not violate the Jackson standard and is therefore not an unreasonable application of clearly established federal law as determined by the United States Supreme Court.
See People v. Randolph, 756 N.Y.S.2d at 850.
B. Negative Identification Evidence
Randolph argues that his due process rights were violated by the admission of negative identification evidence. Negative identification evidence is testimony that an identifying witness was shown photographs of possible perpetrators but was unable to identify any of them. Such testimony is admissible to support the reliability of the witness' subsequent identification. Under New York State law, negative identification evidence is permitted to prove that the identifying witness possessed the ability to distinguish the particular features of the perpetrator assuming there is sufficient similarity between the features of the individuals the eyewitness was unable to identify and the defendant. Randolph contends that Detective Strangenberg merely gathered mug shots of local black youths and created the photo arrays to see if Scales would identify any of the possible suspects. No effort was made to match the mug shots in the photo arrays to Randolph's description. Therefore, Randolph argues, Scales' failure to identify anyone from the first array he viewed has no bearing on the reliability of his subsequent selection of Randolph's photo or his identification of Randolph as the shooter.
See People v. White, 572 N.Y.S.2d 840 (Sup.Ct. N.Y. Co. 1991).
See People v. Wilder, 93 N.Y.2d 352 (1999).
See Defendant's Brief at 21-22.
The relevant question on habeas review is not whether the negative identification evidence was admissible under New York State law but whether the admission of negative identification evidence was an error of such a dimension as to constitute a violation of Randolph's right to due process under the U.S. Constitution. The Supreme Court has often stated that, "`federal habeas corpus relief does not lie for errors of state law.'" "Erroneous evidentiary rulings do not automatically rise to the level of constitutional error sufficient to warrant issuance of a writ of habeas corpus. Instead, the writ would issue only where [the] petitioner can show that the error deprived [him] of a fundamentally fair trial." "Due process requires the state courts in conducting criminal trials to proceed consistently with `that fundamental fairness' which is `essential to the very concept of justice.'" But not all erroneous admissions of evidence are errors of a constitutional dimension. The introduction of improper evidence against a defendant does not amount to a violation of due process unless the evidence "is so extremely unfair that its admission violates fundamental conceptions of justice."
Estelle v. McGuire, 502 U.S. 62, 67 (1991) (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990)).
Taylor, 708 F.2d at 891.
Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998) (quoting Lisenba v. California, 314 U.S. 219, 236 (1941)).
Dowling v. United States, 493 U.S. 342, 352 (1990).
For the erroneous admission of evidence to amount to a denial of due process, the item must have been "sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it." In assessing materiality, a court must review the erroneously admitted evidence "in light of the entire record before the jury." Such evidence must be "`crucial, critical, [and] highly significant.'"
Johnson v. Ross, 955 F.2d 178, 181 (2d Cir. 1992).
Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985).
Id. (quoting Nettles v. Wainwright, 677 F.2d 410, 414-15 (5th Cir. 1982)).
Admission of the negative identification evidence was probative of Scales' ability to distinguish the features of the perpetrator. However, the negative identification evidence used in this case was not crucial, critical or even highly significant. After analyzing the materiality of the disputed evidence in light of the entire record before the jury, it is evident that Randolph was not deprived of a fundamentally fair trial. When Scales was shown a photo array which included Randolph's photograph, he identified Randolph as the person who shot him. The omission of the negative identification evidence would not have created a reasonable doubt that would have nullified or diminished the effect of Scales' identification.
See Respondent's Brief at 12.
C. Double Jeopardy
Randolph asserts that his conviction for Assault in the First Degree and Gang Assault in the First Degree constituted a violation of the Double Jeopardy Clause of the Fifth Amendment. "[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not."
See N.Y. Penal Law § 120.10[1].
See id. § 120.07.
Blockburger v. United States, 284 U.S. 299, 304 (1932).
Gang Assault in the First Degree requires that the prosecution prove that the defendant cause physical injury while, "aided by two or more persons actually present." The latter element is not included in the definition of Assault in the First Degree. Because the offenses have different elements, Randolph's Fifth Amendment right not to be placed in jeopardy twice for the same offense was not violated.
N.Y. Penal Law § 120.07.
See id. § 120.10(1).
D. The Unexhausted Claims
1. Excessive Sentence
Randolph argues that his sentence was excessive and beyond punitive in light of his status as a first time offender and thus violated his rights under the Eighth Amendment. Randolph's argument is meritless because there is no federal constitutional issue presented when the sentence imposed is within the range prescribed by state law. Randolph was convicted of first degree assault and first degree gang assault, both class "B" violent felonies, for which he received concurrent, determinate sentences of fifteen years imprisonment. He was also sentenced to another concurrent term of five years imprisonment for possession of a weapon, which is a class "C" felony. New York State authorizes a minimum of five years and maximum of twenty-five years for class "B" felonies; and a minimum of three and half years and a maximum of fifteen years for class "C" felonies. Randolph's sentence was within the limit prescribed by State law and does not present a constitutional violation.
See White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992).
See N.Y. Penal Law § 70.02 (1)(a).
See id. § 70.02(1)(b).
See id. § 70.02(3)(a).
See id. § 70.02(3)(b).
2. Claims Relating to the Violation of Miranda and the Use of a Coercive Line-up
Randolph next argues that he was not made aware that he was a target of an investigation; that he was not read his Miranda rights before or after the lineup and that the police forced him to participate in a line-up. The police were under no constitutional obligation to advise Randolph that he was the target of an ongoing investigation. The facts as found by the state court do not support Randolph's other arguments. Randolph offered no evidence that he was coerced to participate in the line-up. The state court found that Randolph was given his Miranda warnings, to which he answered "yes" to each Miranda inquiry, prior to the interview and the line-up. There is no basis for this Court to disturb those findings.
See Colorado v. Spring, 479 U.S. 574, 577 (1987); United States v. Amry, No. 02 Civ. 612, 2003 WL 124678 (S.D.N.Y. Jan. 16, 2003).
See Decision and Order at 1-2.
3. Detective Strangenberg's Testimony
Randolph asserts that Detective Strangenberg's testimony should not have been allowed at trial because the Detective could not locate his memo book. Randolph's claim is again meritless because it presents a Rosario issue and the failure to turn over Rosario material is not a basis for habeas relief as the Rosario rule is purely one of state law. Furthermore, any error in permitting Detective Strangenberg to testify without his memo book was harmless given that: (1) the trial court instructed the jury that it could infer that the memo book notes would have contradicted the witnesses' testimony, and (2) the defense had the opportunity to cross-examine the witness about the missing notes.
See People v. Rosario, 9 N.Y.2d 286, 289 (1961) ("[A] right sense of justice entitles the defense to examine a witness' prior statement, whether or not it varies from his testimony on the stand.").
See Flores v. Demskie, 215 F.3d 293 (2d. Cir. 2000); see also U.S. ex rel. Butler v. Schubin, 376 F.Supp. 1241, 1247 (S.D.N.Y. 1974), aff'd, 508 F.2d 837 (2d Cir. 1975).
See Green v. Artuz, 990 F. Supp. 267, 273-74 (S.D.N.Y. 1998) (finding that there was no prejudice in having an officer testify at trial without his missing notes because there was a reasonable explanation and the notes had been used in preparing a report and an adverse inference charge would not have affected the guilty verdict).
4. Ineffective Assistance of Counsel
Randolph has also argued that he received ineffective assistance of counsel because his attorney failed to raise the following claims: his Miranda rights were violated; he was forced to participate in a lineup; he was not informed by the police that he was the target of an investigation; and the trial court should have precluded the testimony of Detective Strangenberg because he could not find his memo book by the time of the trial.
In Strickland v. Washington, the Supreme Court adopted a two-part test to evaluate claims of ineffective assistance of counsel. To meet the first prong of the Strickland test, petitioner must prove that "counsel's representation fell below an objective standard of reasonableness," considering all of the circumstances. The Sixth Amendment does not itself set forth specific guidelines or criteria for evaluating an attorney's performance. Rather, the "objective standard of reasonableness" is derived from "the legal profession's maintenance of standards sufficient to justify the law's presumption that counsel will fulfill the role in the adversary process that the [ Sixth] Amendment envisions." Therefore, "the proper measure of attorney performance remains simply reasonableness under prevailing professional norms."
466 U.S. 668 (1984).
Id. at 687-88.
Id. at 688.
Id.
Randolph cannot overcome the strong presumption that his counsel's conduct was reasonable. The record shows that defense counsel moved to suppress any statements taken from Randolph and that he challenged the line-up. Defense counsel also contested Detective Strangenberg's right to testify in the absence of his notes. Therefore, Randolph's claim of ineffective assistance of counsel must be denied.
See 06/25/99 Omnibus Motion of defense counsel Wendy Short Bartie, Ex. 8 to Blira-Koessler Aff. at 8-9.
V. CONCLUSION
For the foregoing reasons, petitioner's motion for habeas corpus relief is denied. Finally, there is the question of whether to grant a certificate of appealability. For a certificate of appealability to issue, petitioner must make a "substantial showing of the denial of a constitutional right." "A "substantial showing" does not require a petitioner to demonstrate that he would prevail on the merits, but merely "`that reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were `adequate to deserve encouragement to proceed further.'" Petitioner has made no such showing. Accordingly, I decline to grant a certificate of appealability. The Clerk of the Court is directed to close this case.
Middleton v. Attorneys General of the States of New York and Pennsylvania, 396 F.3d 207, 209 (2d Cir. 2005) (per curiam) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotation marks and citation omitted)).
SO ORDERED.