Opinion
02-CV-6329 (JBW), 03-MISC-0066 (JI3W)
October 16, 2003
MEMORANDUM, JUDGMENT ORDER
The petition for a writ of habeas corpus is denied. No hearing on this matter is necessary, This memorandum briefly addresses petitioner's claims.
I. Facts and Procedural History
Petitioner was tried for possession of stolen property and assault, the latter of which was eventually dismissed by motion of the prosecution, The evidence of petitioner's guilt at trial included the testimony of two police officers, who testified that petitioner was driving a car that crashed into a utility pole. The officers and Emergency Medical Technicians tried to extricate petitioner from the crashed car, which was basically wrapped around the pole, Petitioner, apparently trying to flee, pressed the accelerator and made a U-turn around the pole, crashing into the side of a patrol car. He was eventually extricated from the car and arrested after it was determined that the vehicle he was driving had been stolen.
Before trial, petitioner was told by the court that it would sentence him, if he pled guilty to the possession of stolen property and assault charges, to an indeterminate term of imprisonment of 3-172 to 7 years on the possession charge and a concurrent determinate term of 5 years in prison on the assault charge. He was informed that if he went to trial and were convicted he might face a sentence of 25 years to life in prison, Petitioner rejected the offer.
After a Sandoval hearing at which the court determined that the prosecution could cross-examine petitioner about prior convictions for burglary and criminal mischief if petitioner chose to testify, defense counsel indicated to the court that petitioner had changed his mind and now wished to plead guilty and accept the previously offered terms. Petitioner allocuted to the crime, stating inter alia that he knew the car's value was in excess of $3000 and that it had been stolen,
About seven weeks later, at his sentencing, petitioner told the court that he did not "feel responsible for the assault" and that he wanted to withdraw his plea with respect to that charge. Sentencing Tr. at 4 — 5. The prosecutor stated that if petitioner were to do so, "all offers on both charges" would be withdrawn. Petitioner insisted the wished to withdraw his plea only on the assault charge, but the court reiterated that the plea offer "was a package deal" and "the two went together," Id, at 9, The court then stated, "Now, I have no problem. If you want to withdraw the pica to this assault charge we're going to go to trial on a criminal possession of stolen property," hi Petitioner replied, "I'm going to trial, Tin not taking no assault charge." Id at 10.
Petitioner went to trial and was convicted of third degree possession of stolen property, a "D-felony." He was sentenced persistent felony offender to 17-1/2 years to life in prison.
His conviction was affirmed on direct appeal by the Appellate Division. Leave to appeal to the New York Court of Appeals was denied. No state collateral proceedings were initiated.
In his application for a writ of habeas corpus, petitioner claims that (1) the sentencing court abused its discretion when it sentenced petitioner, punishing him for having insisted on his right to a trial; (2) the trial court improperly withdrew petitioner's guilty plea sua sponta, (3) the trial court's Sandoval ruling allowing the prosecution to impeach petitioner with his past felony convictions in the event he testified was improper; arid (4) the prosecution failed to prove beyond a reasonable doubt that the value of the stolen property exceeded $3000.
II. AEDPA
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may giant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that 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),
An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim," Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1175 (10th Cir. 1999)), Under me "contrary to" clause, "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O' Connor, J, concurring and writing for the majority in this part). Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case," Id at 413. Under this standard, "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, In order to gram the writ there must be "some increment of incorrectness beyond error," although "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) (internal quotation marks omitted).
"[F]ederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright-line rule designed to effectuate such a standard in a particular context," Overton v. Newton, 295 F,3d 270, 278 (2d Cir. 2002); see also Yung v. Walker, No. 01-2299, 2002 U.S. App. LEXIS 28137 (2d Cir. Aug. 1, 2003) (amended opinion) (district court's habeas decision that relied on precedent from the Court of Appeals is remanded for reconsideration in light of "the more general teachings" of Supreme Court decisions), The Court of Appeals for the Second Circuit has also indicated that habeas relief may be granted if a state court's decision was contrary to or an unreasonable application of "a reasonable extension" of Supreme Court jurisprudence. Tones v. Berbary, No, 02-2463, 2003 U.S. App, LEXIS 16167, at *25 (2d Cir. Aug. 7, 2003). 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(c)(1),
III. Exhaustion
In the past, a slate prisoner's federal habeas petition had to be dismissed if the prisoner did not exhaust available state remedies as to any of his federal claims. See Rose v, Lundy, 455 U.S. 509, 522 (1989), "This exhaustion requirement is . . . grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights," Coleman v. Thompson, 501 U.S. 722, 731 (1991). The exhaustion requirement requires the petitioner to have presented to the state court "both the factual and legal premises of the claim he asserts in federal court," Daye v, Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en bane).
Pursuant to AEDPA, a district court may now, in its discretion, deny on the merits habeas petitions containing unexhausted claims — so-called "mixed petitions." See 28 U.S.C, § 2254(b)(2) ("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,"). In addition, the state may waive the exhaustion requirement, but a "State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement," Id. § 2254(b)(3); see also Raines v. Keane, No, 98 CIV. 1604, 2000 U.S. Dist, LEXIS 101, at * 10 (S.D.N.Y, 2000) (state's failure to raise exhaustion requirement does not waive the issue),
IV, Procedural Bar
A federal habeas court may not review a state prisoner's federal claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule, "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750. In determining whether a procedural bar is sufficient to preclude habeas review, a federal court must consider as "guideposts" the following:
(1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had "substantially complied" with the rule given "the realities of trial," and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest,Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (quoting Lee v. Kemna, 534 U.S. 362 (2002)),
If a state court holding contains a plain statement that a claim is procedurally barred then the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alternative. See Harris v. Reed, 489 U.S. 255, 264 n, 10 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedural rule as a separate basis for its decision).
When a state court says that a claim is "not preserved for appellate review" and then rules "in any event" on the merits, such a claim is not preserved. See Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996). When a state court "uses language such as `the defendant's remaining contentions are either impreserved for appellate review or without merit,' the validity of the claim is preserved and is subject to federal review," Fama v. Comm'r of Corr. Svcs., 235 F.3d 804, 810 (2d Cir. 2000). Where "a state court's ruling does not make clear whether a claim was rejected for procedural or substantive reasons and where the record does not otherwise preclude the possibility that the claim was denied on procedural grounds, AEDPA deference is not given, because we cannot say that the state court's decision was on the merits," Su v. Filion, No. 02-2683, 2003 U.S. App. LEXIS 13949 at *15 n. 3 (2d Cir. July 11, 2003) (citing Miranda v, Bennett, 322 F.3d 171, 178 (2d Cir. 2003)), This congeries of holdings leaves it an open question whether there are "situations in which, because of uncertainly as to what the state courts have held, no procedural bar exists and yet no AEDPA deference is requited." Id.
V. Certificate of Appeal ability
A certificate of appealability may be granted with respect to any one of petitioner's claims only if petitioner can make a 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). The court has taken into account the rule of section 2253(c)(3) of Title 28 of the United States Code that a certificate of appealability "shall indicate which specific issue or issues satisfy the [substantial showing of the denial of a constitutional right] required by paragraph (2)," See also Shabazz v, Artuz, No, 02-2320, 2003 U.S. App, LEXIS 14450, at *15 (2d Cir. July 18, 2003),
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"), VI Analysis of Claims
As an initial matter, this court rejects respondent's contention that petitioner' s pro se habeas application should be dismissed because of alleged deficiencies in his pleadings — ie., that petitioner has put the "onus" on respondent to determine what federal claims he is making by staling in his petition that "I am raising the same grounds that were raised on direct Appeal." This court has had no difficulty ascertaining petitioner's claims in reliance on this statement, and respondent in his Memorandum of Law in opposition to the petition seems to have managed to figure out the claims as well. Moreover, a pro se petitioner's legal papers are to be construed liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972). That respondent would ask this court to dismiss the habeas application on the pleadings seems inconsistent with the high ethical standards ordinarily demonstrated by the Suffolk County District Attorney's Office, This court has difficulty believing that it is the intent of respondent or the district attorney's office to have a potentially meritorious petition dismissed on such fatuous grounds.
Petitioner's claims were exhausted in the state courts. Unless otherwise noted below, all claims were rejected on the merits. Review proceeds under the deferential standards of AEDPA,
A
Petitioner first claims that the sentencing court abused its discretion when it sentenced him, punishing him for having insisted on his right to a trial. The Appellate Division concluded that the "sentence imposed was not excessive." People v. Smith, 727 N.Y.S.2d 891 (App, Div, 2001).
The assertion that a sentencing judge abused his or her discretion in sentencing is generally not a federal claim subject to review by a habeas court, See Fielding v. LeFevre, 548 F.2d 1102, 1109 (2d Cir. 1977) (citing Townsend v. Burke, 334 U.S. 736, 741 (1948)), A challenge to the term of a sentence is not a cognizable constitutional issue if the sentence falls within the statutory range. White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992). Federal courts have traditionally deferred to state legislature with respect to sentencing matters. See Ewing v. California, 123 S.Ct. 1179 (2003) (sentence of 25 years to life in prison for stealing three golf clubs by a recidivist not cruel and unusual); Lockyer v. Andrade, 123 S, Ct, 1166 (2003) (sentence of 25 years to life in prison for stealing $150-worth of videotapes not cruel and unusual).
Although petitioner's sentence of 17-1/2 years to life in prison for conviction of a "D-felony" was within the statutory range for a persistent felony offender, there is a somewhat disturbing element to the instant case, As described above, petitioner rejected and then accepted a plea offer, only to appear in court again seeking to withdraw a portion of his guilty plea. The trial court, obviously frustrated and under the impression that petitioner was "playing games," stated to petitioner, "I'm going to tell you now, if you get convicted by a jury, you're going to get the maximum sentence. . . . Did you listen to me? You've been playing games with the Court." Sentencing Proceeding at 9, Taken out of context, this comment could be understood to be coercive and improper, leaving the impression that petitioner would be punished for proceeding to trial.
The trial court soon amplified on his statement, informing petitioner's counsel that he had just "review[ed] the Probation report, which I didn't have, just received it. We've ordered it and the very unfavorable report written by the Probation officer as to this defendant being a professional criminal. . . . It takes your breath away[,] his past record," id. at 12. Under these circumstances, the trial court's remarks to petitioner about the likelihood of receiving a "maximum sentence" have more of a flavor of notice than threat, There is no indication that the trial court, at the sentencing hearing following petitioner's conviction, acted retributively or otherwise abused its discretion. Although the "maximum sentence" statement could have been prudently worded, petitioner was not denied due process or a fair trial by the court's actions or statements. Habeas corpus relief on this ground is not warranted,
B
Petitioner claims that the trial court improperly withdrew petitioner's guilty plea sua sponte. The claim is without merit. Petitioner was informed that any plea offer was contingent on his accepting responsibility for both of the major crimes charged in the indictment. He voluntarily moved to withdraw his plea after he was informed that he would stand trial on both counts if he did so. The trial court did not act sua sponte and did not abuse its discretion in refusing to accept petitioner's plea to one count of the indictment. Habeas corpus relief on this ground is not warranted.C
Petitioner next claims that the trial court erred in its Sandoval decision, in which the court allowed the prosecution to impeach petitioner credibility, if he should choose to testify, with evidence of his past criminal convictions. Because petitioner did not testify at trial, this claim is not cognizable on habeas review, See Luce v. United States, 469 U.S. 38, 43 (1984) ("to raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify"); Grace v. Artuz, No, 00-CV-1441, 2003 U.S. Dist. LEXIS 6969, at *26 (E.D.N.Y, Apr, 22, 2003) ("petitioner's claim as to the impropriety of the Sandoval ruling does not raise a constitutional issue cognizable on habeas review").
D
Finally, petitioner claims that his guilt of criminal possession of stolen property in the third degree was not proven beyond a reasonable doubt, because there was insufficient evidence that the value of the automobile was in excess of $3000. The Appellate Division initially rejected this claim on procedural grounds, holding that the claim was not preserved for appellate review. It is unnecessary to determine whether this procedural bar was adequate in the circumstances of the instant case, because the Appellate Division's alternative holding that the claim is meritless is reasonable.
The relevant question for this court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v, Virginia, 443 U.S. 307, 319 (1979), Petitioner "bears a very heavy burden" when challenging the legal sufficiency of the evidence in a state criminal conviction. Einaugler v. Supreme Court, 109 F.3d 836, 840 (2d Cir. 1997). To the degree petitioner claims the verdict was against the weight of the evidence, such a claim does not present a federal constitutional issue.
Testimony from the legal possessor of the automobile (a car dealer) was that the vehicle was worth between $7500 and $10,000 when he last saw it on May 23, 1997, The car was stolen from his lot by being driven through a chain link fence. Petitioner was not charged with stealing the car. He now contends that absent proof of the value of the car after it had been driven through the chain link fence, his conviction for third degree criminal possession of stolen property cannot stand. The jury, having heard testimony about the value of the automobile before it was stolen and the means by which it was stolen, could reasonably have determined that the car, at the time it was driven by petitioner before the accident, had retained at least $3000 worth of value. Viewing the evidence in the light most favorable to the prosecution, a rational juror could have found this element of the crime beyond a reasonable doubt. Habeas corpus relief on this ground is not warranted.
VII. Conclusion
The petition for a writ of habeas corpus is denied.
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.
SO ORDERED.