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finding that counsel was not ineffective for failing to request charge on lesser included offense because such a charge "would have undermined counsel's strategy of seeking an acquittal"
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02 Civ. 5755 (WHP) (JCF).
July 14, 2003.
REPORT AND RECOMMENDATION
Anthony Smith brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for burglary in the second degree following a jury trial in New York State Supreme Court, New York County. In his pro se petition, Mr. Smith argues that his conviction should be overturned on the grounds that: (1) his trial attorney was ineffective in that she failed to object to prejudicial witness statements, made inflammatory remarks to the jury in her summation, and failed to request a jury charge for a lesser included offense; (2) he was arrested and searched without probable cause; (3) the jury was not instructed on the lesser included offense of criminal trespass; and (4) the trial court erred in reinstating a previously dismissed count of burglary, which resulted in a verdict that was against the weight of the evidence.
For the following reasons, I recommend that the petition be denied.
Background
In the late afternoon of April 26, 1992, a security guard observed a man and a woman entering the President Hotel in midtown Manhattan. (Tr. 123, 125). The man, later identified as the petitioner, was taking the woman, Mary Smith, to prostitute her to two Australian men he had met earlier in the week. (Tr. 165, 171, 173, 180-81). When questioned by the hotel security guard, the petitioner stated he was going to the seventh floor. (Tr. 125, 182). The guard followed the pair on the elevator and when the guard got off at the 12th floor, the couple remained on the elevator. (Tr. 126-27). The guard, suspicious, then started searching for the couple. (Tr. 127-28). When he encountered them again on the fourth floor, Mr. Smith stated he was visiting his sister. (Tr. 128-29). The guard noted that Ms. Smith was wearing a different coat than the one she had been wearing when she entered the hotel. (Tr. 129).
"Tr." refers to trial transcript.
The guard escorted the couple out of the hotel. (Tr. 130-31). Soon thereafter he was notified that two hotel rooms had been burglarized, and he contacted the police. (Tr. 131). The petitioner and Ms. Smith later returned to the hotel and were questioned by police officers William Suarez and Lisa Nazario. (Tr. 197-98). Mr. Smith told the officers he was visiting friends and he gave the police the name of a guest that he later testified he made up "right off the top of my head." (Tr. 197, 234-35). One of the burglary victims, Carlotta Henton, subsequently identified the coat Ms. Smith was wearing as having been stolen from her room. (H. 11, 27, 31-32, 48, 66). Officer Nazario then searched Ms. Smith's bag and found a sum of Czechoslovakian currency which two of the burglary victims, Czech nationals, identified as belonging to them. (H. 69-70). As the police were attempting to arrest him, Mr. Smith fled the scene and was apprehended a few blocks from the hotel. (H. 49-50). When the petitioner was searched pursuant to his arrest, officers recovered a knife and a "do not disturb" sign from his pockets. (H. 32-33, 51, 71).
"H." refers to the transcript of the pretrial suppression hearing.
Once at the precinct, after receiving his Miranda warnings and while officers were processing his paperwork, the petitioner said the officers could not prove that he had been inside the burglarized room. (H. 15-16, 53-55, 73, 75-76). He also inquired if some of the alleged burglary victims were Czech, and speculated that the police would not bring them back to testify. (H. 15-16, 53-55). The officers made no reply to any of the petitioner's statements. (H. 15-17, 53-55, 57, 73, 75-76). The petitioner further stated that the police had no case against him and told Officer Suarez that if he had his gun, he would have shot the officer. (H. 55).
The petitioner and Mary Smith were charged by a New York County Grand Jury with three counts of Burglary in the Second Degree in violation of N.Y. Penal Law § 140.25(2). The first count of the indictment charged them with burglary of Ms. Henton's room and the second with burglary of the Czech tourists' room. Justice Brenda Soloff subsequently dismissed the third count, which charged the petitioner and Ms. Smith with second degree burglary for knowingly entering and remaining unlawfully in the President Hotel. Justice Soloff found that the evidence presented to the grand jury was not legally sufficient to support this charge.
Prior to trial, the petitioner moved to suppress his post-arrest statements and the items seized during his arrest. Justice Charles Tejada denied the motion and ruled that since the police had probable cause to arrest the petitioner, the knife and the "do not disturb" sign seized from him were admissible. (H. 111-12). The judge further determined that the petitioner's remarks at the precinct were admissible since they were not the result of the police interrogation, but rather "spontaneous" and "voluntary" statements that were merely overheard by the police officers. (H. 114).
The case proceeded to trial before Justice Michael Corriero. At trial, the two police officers and the detective testified to the facts described above.
Pursuant to Justice Tejada's ruling, Officer Suarez testified that the petitioner had said, "You know Suarez, if I would have had my .380 I would have popped you." (Tr. 101). Defense counsel moved for a mistrial, stating that she believed that Officer Suarez was prohibited from testifying about this statement because of an agreement with the prior assistant district attorney on the case. (Tr. 113-14). Justice Corriero denied the motion for a mistrial but suggested that defense counsel formulate a curative instruction. (Tr. 116-17). The defense attorney never did so.
Subsequently, defense counsel requested a jury instruction on the lesser included offense of criminal trespass on the second count of the indictment which charged the petitioner with burglary of the Czech tourists' room. (Tr. 256). Justice Corriero denied the motion as moot since he dismissed that count for lack of evidence. (Tr. 261-62). However, after hearing testimony from the prosecution's rebuttal witnesses, Justice Corriero reinstated that count, reserving judgment as to the sufficiency of the evidence until after the jury verdict. (Tr. 276, 279). At that time defense counsel did not renew her request for a criminal trespass charge.
In her summation, defense counsel acknowledged that her client was an admitted pimp but noted that, "[T]he law tells you that you can't find Anthony Smith guilty of burglary, even if you think he's guilty of being a pimp. . . . You can't find Anthony Smith guilty of burglary even if you detest him and he and his conduct makes [sic] you nauseous." (Tr. 288-89).
On March 27, 1995, a jury convicted Mr. Smith of two counts of burglary in the second degree, the first for burglary of Ms. Henton's room, and the second for burglary of the Czech tourists' room. (Tr. 380-81). The petitioner was subsequently sentenced, as a persistent violent felony offender, to concurrent indeterminate terms of from eight years to life imprisonment and is currently incarcerated pursuant to that judgment. (S. 20).
"S." refers to a transcript of the sentencing proceedings.
Mr. Smith appealed his conviction to the Appellate Division, First Department, arguing that: (1) his trial attorney was ineffective in that she (a) failed to object to testimony regarding the petitioner's intention to shoot the police officer, (b) referred to the petitioner as a pimp in her summation, (c) failed to request a jury charge for a lesser included offense with respect to the second count of the indictment, and (d) did not seek a curative jury instruction; (2) the "do not disturb" sign and knife should not have been admitted at trial because the officers lacked probable cause to arrest Mr. Smith; (3) the trial court erred in admitting the Czechoslovakian currency recovered from Ms. Smith; (4) the petitioner's motion for a mistrial, based on the admission of the officer's testimony that the petitioner threatened violence against him, should have been granted; (5) the trial court improperly failed to instruct the jury with regard to the lesser-included offense of criminal trespass; (6) the court's reinstatement of the second count of the indictment was in error; and (7) the verdict was against the weight of the evidence. (Brief for Defendant-Appellant Anthony Smith attached to the Petition for a Writ of Habeas Corpus dated July 23, 2002 ("Petition") at 2-28).
On October 9, 1999, the Appellate Division affirmed the petitioner's conviction. People v. Smith, 265 A.D.2d 175, 697 N.Y.S.2d 5 (1st Dep't 1999). The court held that the officers had probable cause to arrest the petitioner, and the motion to suppress was therefore correctly denied. Id. at 175, 697 N.Y.S.2d at 5. The court further ruled that the petitioner received meaningful representation at trial. Id. at 176, 697 N.Y.S.2d at 5. Moreover, the court also held that the verdict was based on sufficient evidence and that the Czech currency was evidence from which the petitioner's guilt could have been properly inferred. Id. at 175, N.Y.S.2d at 5-6.
The petitioner filed the instant petition for a writ of habeas corpus on July 23, 2002.
Prior to passage of the Antiterrorism and Effective Death Penalty Act (the "AEDPA"), factual findings made by a state court after an evidentiary hearing were presumed correct in a federal habeas proceeding, but federal courts were not required to defer to state court determinations of law and of mixed questions of law and fact. See Thompson v. Keohane, 516 U.S. 99, 107-12 (1995); Brown v. Artuz, 283 F.3d 492, 497 (2d Cir. 2002). Under the AEDPA, however, a writ of habeas corpus may not issue "with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication . . . 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." 28 U.S.C. § 2254(d)(1).
A decision is contrary to clearly established Federal law if it "contradicts the governing law" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from" the Supreme Court. [Williams v. Taylor, 529 U.S. 362, 405-06 (2000).] An unreasonable application of federal law is more than an incorrect application, but the petitioner need not show that all reasonable jurists would agree that a state court determination is incorrect in order for it to be unreasonable. Id. at 409-12. Instead, a federal court should review a state court's interpretation of federal law using a standard of objective reasonableness. Id. at 409. Objective unreasonableness includes an unreasonable refusal "to extend a clearly established, Supreme Court defined, legal principle to situations which that principle should have, in reason, governed." Kennauqh v. Miller, 289 F.3d 36, 45 n. 2 (2d Cir. 2002). The "increment of incorrectness beyond error . . . 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).Yung v. Walker, 296 F.3d 129, 135 (2d Cir. 2002).
The AEDPA standard applies to this case since Mr. Smith filed his petition after the Act's effective date. See Brown, 283 F.3d at 498 n. 2. Nevertheless, since each of the petitioner's claims fails under the less deferential pre-AEDPA standard, there is no need to conduct the AEDPA's more intricate analysis.See Kruelski v. Connecticut Superior Court for the Judicial District of Danbury, 316 F.3d 103, 106-07 n. 3 (2d Cir. 2003) (often appropriate to decide first whether state court determination was erroneous and then, if so, whether it was nevertheless reasonable).
A. Exhaustion
A petitioner in a habeas corpus proceeding must exhaust all available state court remedies for each claim prior to federal review. See 28 U.S.C. § 2254(b), (c); Duckworth v. Serrano, 454 U.S. 1, 3 (1981); Lurie v. Wittner, 228 F.3d 113, 123-24 (2d Cir. 2000). To satisfy the exhaustion requirement, a petitioner must have "fairly presented" his claim in state court by having set forth both the legal and factual basis for the claim. Picard v. Connor, 404 U.S. 270, 275 (1971). Although the petitioner need not have cited "book and verse on the federal constitution," he must have articulated "the substantial equivalent" of the federal habeas claim. Id. at 278 (citations and internal quotation marks omitted). He can accomplish this by: (a) relying on "pertinent federal cases employing constitutional analysis," (b) relying on "state cases employing constitutional analysis in like fact situations," (c) asserting "the claim in terms so particular as to call to mind a specific right protected by the Constitution," or (d) alleging "a pattern of facts that is well within the mainstream of constitutional litigation." Daye v. Attorney General of the State of New York, 696 F.2d 186, 194 (2d Cir. 1982) (en banc); see Ramirez v. Attorney General of the State of New York, 280 F.3d 87, 94 (2d Cir. 2001).
The respondent concedes that petitioner has exhausted his first, second, fifth, and sixth claims because he raised them in federal constitutional terms in his appeal to the Appellate Division and then presented them to the Court of Appeals for review. However, the respondent contends that the petitioner's third and fourth claims are unexhausted.
1. Admissibility of Czechoslovakian Currency
In his brief to the Appellate Division, Mr. Smith argued that the Czechoslovakian currency found on Ms. Smith should not have been allowed into evidence since it was only circumstantial evidence that did not adequately support the claim that he had committed burglary. To support this contention, the petitioner only cited state law and failed to reference federal law or any provision of the United States Constitution. Specifically, Mr. Smith cited to People v. Slaughter, 83 A.D.2d 857, 441 N.Y.S.2d 832 (2d Dep't 1981), and People v. Porter 56 A.D.2d 583, 391 N.Y.S.2d 1002 (2d Dep't 1977). Both of these cases analyze the admissibility of circumstantial evidence under state law and neither decision employs any federal or constitutional analysis. The presentation of this issue as a matter of state law only does not satisfy the exhaustion requirement. Acevedo v. Goord, No. 00 Civ. 8924, 2002 U.S. Dist. LEXIS 3258, at *18 (S.D.N.Y. Feb. 22, 2002). Moreover, the petitioner does not assert a claim "in terms so particular as to call to mind a specific right protected by the Constitution" or allege a fact scenario that is "well within the mainstream of constitutional litigation." Daye, 696 F.2d at 184. Accordingly, this claim is unexhausted.
2. The Petitioner's Motion for a Mistrial
Mr. Smith also claims that the court should not have permitted Officer Suarez to testify about certain statements the petitioner made after his arrest. He now argues that the court's error, including its failure to render a curative jury instruction, was sufficient grounds for a mistrial. However, Mr. Smith failed to present this claim in constitutional terms. Merely "[a]lleging lack of a fair trial does not convert every complaint about evidence . . . into a federal due process claim.Petrucelli v. Coombe, 735 F.2d 684, 688 (2d Cir. 1984) (citation and internal quotation marks omitted) (petitioner's claim that we was deprived of a fair trial and due process did not put appellate court on notice that it was to decide constitutional claim). Moreover, Mr. Smith did not cite any authority in the state courts to support the proposition that the trial court's ruling violated any federal right. In his brief to the Appellate Division, the petitioner cited three state cases to support his mistrial claim, People v. Owens, 214 A.D.2d 480, 625 N.Y.S.2d 524 (1st Dep't 1995), People v. Chambers, 226 A.D.2d 284, 641 N.Y.S.2d 290 (1st Dep't 1996), and People v. Cook, 42 N.Y.2d 204 (1977). All three dealt with curative jury instructions and mistrial issues under the New York Penal Law. Since Mr. Smith failed to properly present this claim as an issue of federal constitutional law at the state level, it is also not properly exhausted.
B. Procedural Default
To the extent that the petitioner's third and fourth claims are unexhausted, they are nevertheless deemed exhausted if it is clear that the state court would find them procedurally barred.Gray v. Netherland, 518 U.S. 152, 162 (1996); Spence v. Superintendent, Great Meadow Correctional Facility, 219 F.3d 162, 170 (2d Cir. 2000); Bossett v. Walker, 41 F.3d 825, 828-29 (2d Cir. 1994). In this case, Mr. Smith is foreclosed from returning to state court to argue these claims based on federal constitutional grounds. This is because New York law provides only a single application for direct review. N.Y. Rules of Court § 500.10(a); see also Spence, 219 F.3d at 170. Moreover, a defendant who fails to press an available claim on direct appeal is also barred from raising it on collateral review. N.Y. Crim. Proc. § 440.10(2)(c); see also Lurie, 228 F.3d at 124; Spence, 219 F.3d at 170.
If a claim is procedurally barred, the federal court may not reach the merits of that claim unless the petitioner is able to demonstrate both cause for the default and actual prejudice as a result of the alleged violation of federal law. Coleman v. Thompson, 501 U.S. 722, 750 (1991); see Epps v. Commissioner of Correctional Services, 13 F.3d 615, 618 n. 1 (2d Cir. 1994). Cause for the default will be found if the petitioner can show that some objective factor external to the defense impeded efforts to comply with the state's procedural rule. McCleskey v. Zant, 499 U.S. 467, 497 (1991); Murray v. Carrier, 477 U.S. 478, 488 (1986). A petitioner suffers actual prejudice if the outcome of the case would likely have been different if the alleged constitutional violation had not occurred. See Reed v. Ross, 468 U.S. 1, 12 (1984); Trottie v. Mantello, No. 98 Civ. 5581, 1999 WL 187202, at *4 (S.D.N.Y. April 6, 1999).
Alternatively, even if a petitioner is unable to meet the cause and prejudice standard, his claim may be heard if he can show that failure to consider the claim will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750. However, it will only be in an "extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent" that "a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default." Murray, 477 U.S. at 496.
Mr. Smith has not suggested any cause for failing to assert these claims on appeal, nor has he demonstrated resulting prejudice. Finally, he has not shown that manifest injustice will result if these grounds are not considered. Accordingly, the third and fourth claims are procedurally defaulted, and only the petitioner's first, second, fifth, sixth, and seventh claims will be reviewed on their merits.
B. Ineffective Assistance of Counsel
In order to obtain a reversal of a conviction for ineffective assistance of counsel, a petitioner must demonstrate that: (1) counsel's performance was deficient and (2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). When reviewing trial counsel's performance, a habeas corpus court must be "highly deferential" and "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance."Id. at 689. The court must not rely upon hindsight and second-guess counsel's unsuccessful trial strategy. Id. Indeed, "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable[.]" Id. at 689-90.
With respect to the first prong of the Strickland test, the petitioner must show that "counsel's representation fell below an objective standard of reasonableness. . . . [T]he performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances." Id. at 688. The "prejudice" prong of the test requires a "showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable," and that there is a reasonable probability that "but for" the claimed errors of counsel, the trial result would have been different. Id. at 687, 694.
Applying these standards, each of the petitioner's ineffective assistance arguments is without merit.
1. Statements of Trial Counsel During Summation
First, Mr. Smith asserts that because trial counsel called him an "admitted pimp" and used other derogatory language in her summation, the jury was prejudiced against him. Derogatory language regarding a client's character, however, does not constitute ineffective assistance of counsel if such statements reflect a strategic choice. Joseph v. Mantello, No. 00 Civ. 8172 2001 U.S. Dist. LEXIS 20918, at *20-21 (S.D.N.Y. Dec. 14, 2001). In this case, trial counsel juxtaposed the derogatory statements with her argument that the jurors must consider the burglary charges independent of their assumptions about the defendant's character. In highlighting the petitioner's checkered past, counsel's strategy was to distinguish the petitioner's promoting of prostitution from the burglary charges and stress that the jury should not find petitioner guilty merely because of conduct unrelated to the pending charges. Thus, as a tactical choice, counsel's statements about the defendant were not professionally unreasonable and do not constitute ineffective assistance of counsel.
2. Failure to Request Curative Jury Instructions
The petitioner next asserts that his counsel was ineffective when she failed to object or, in the alternative, seek a curative jury instruction, when Officer Suarez testified about the petitioner's intention to shoot him. As noted above, counsel's actions cannot constitute ineffective assistance if they are part of a trial strategy. See Robinson v. Keane, No. 92 Civ. 6090, 1999 WL 459811, at *2 (S.D.N.Y. June 29, 1999). Specifically, an attorney's failure to object is not deemed ineffective assistance of counsel if the "`strategy of silence on defense counsel's part [is] quite appropriate.'"Id. at *5 (quoting United States v. Sanchez, 790 F.2d 245, 253 (2d Cir. 1986)).
In this case, following Officer Suarez's statement, defense counsel moved for a mistrial. (Tr. 112-13). The court denied the motion but offered defense counsel the option of submitting a curative instruction, striking the statement from the record, or precluding the prosecution from referring to the testimony. (Tr. 116-17). Defense counsel stated that a curative jury instruction would only serve to highlight the statement in the juror's minds. (Tr. 116-17). Ultimately, both the court and defense counsel agreed that a jury instruction would be detrimental to the petitioner's case. (Tr. 116-17). Since defense counsel's failure to pursue a curative instruction was appropriate trial strategy, her performance was not ineffective.
3. Failure to Seek a Lesser Included Offense Charge
Finally, Mr. Smith asserts that his trial counsel was ineffective because she did not renew a request for a lesser included offense charge of criminal trespass after the trial court reinstated the second count of the indictment.
A defense that denies guilt in all aspects is "a strategy that `practically precludes a request for an instruction on a lesser included offense.'" Franza v. Stinson, 58 F. Supp.2d 124, 150 (S.D.N.Y. 1999) (denying the petitioner's ineffective assistance claim for failure to seek a lesser included offense when, at trial, the petitioner presented an exculpatory defense) (citingYu v. United States, No. 97 Civ. 2736, 1997 WL 423070, at *3 (S.D.N.Y. July 29, 1997)). This is because inclusion of the lesser included offense would have undermined counsel's strategy of seeking an acquittal, and therefore "counsel's decision not to include such a charge falls within the realm of lawyer competence." Van Allen v, Coughlin, No. 90 Civ. 7342, 1991 WL 64175, at *4 (S.D.N.Y. April 16, 1991). Such a strategy enjoys substantial deference on habeas review. Franza, 58 F. Supp.2d at 151.
In his testimony here, Mr. Smith maintained his innocence and argued that he had never entered the Czech tourists' hotel room. (Tr. 208). Under New York law, a person is guilty of trespass in the second degree when he knowingly enters or remains unlawfully in a dwelling. N.Y. Penal Law § 140.05. Thus, if counsel had requested the criminal trespass charge, she would have sabotaged the petitioner's case by undermining his testimony. Accordingly, the attorney's performance was not deficient.
C. Probable Cause
The petitioner next argues that the search at the hotel violated his Fourth Amendment rights because police officers lacked probable cause to arrest him. Most Fourth Amendment claims, however, are not subject to habeas corpus review. See Stone v. Powell, 428 U.S. 465, 494 (1976). In Stone, the Supreme Court held that "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search and seizure was introduced at his trial." Id. at 494-95 (footnotes omitted); see also Davila v. Duncan, No. 00 Civ. 4916, 2001 WL 1029416, at *2 (S.D.N.Y. Sept. 6, 2001). The Second Circuit has noted that Stone requires only that "the state have provided the opportunity to the state prisoner for full and fair litigation of the Fourth Amendment claim." Gates v. Henderson, 568 F.2d 830, 839 (2d Cir. 1977).
Federal habeas review of Fourth Amendment claims is permitted in one of two circumstances: "(1) if the state has provided no corrective procedures at all to redress the alleged Fourth Amendment violations; or (2) if the state has provided a corrective mechanism, but the defendant was precluded from using that mechanism because of an unconscionable breakdown in the underlying process." Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992) (citation omitted). "Such instances are rare in New York. Indeed, `[f]ederal courts have approved New York's procedure for litigating Fourth Amendment claims, embodied in N.Y. Crim. Proc. Law § 710.10 et seq. (McKinney, 1995), as being facially adequate.'" Joyner v. Leonardo, No. 99 Civ. 1275, 1999 WL 608774, at *4 (citing Smith v. Senkowski, No. 97 Civ. 1280, 1999 WL 138903, at *6 (E.D.N.Y. March 10, 1999)). Therefore, for the petitioner's Fourth Amendment claim to be cognizable in this habeas corpus proceeding, it must be based on an assertion that there was a breakdown in the state process.See Capellan, 975 F.2d at 70. Although the Second Circuit has not defined precisely what constitutes an "unconscionable breakdown," it has said that some sort of "disruption or obstruction of a state proceeding" is typical of such a failure.Id. at 70 (quoting Shaw v. Scully, 654 F. Supp. 859, 864 (S.D.N.Y. 1987)).
Mr. Smith does not claim that he was precluded from raising his Fourth Amendment claim. In fact, he availed himself of the state procedures by challenging the probable cause for his arrest and search and by moving to suppress the physical evidence. Therefore, there was no breakdown in the state's procedure, and habeas review of this claim is barred pursuant toStone.
D. Jury Instructions
The petitioner also argues that he is entitled to habeas relief because at trial, after the court reinstated the burglary charge, it failed to charge the jury with the lesser included offense of criminal trespass. Such a claim is not cognizable in a federal habeas review because it does not implicate a federal constitutional right. See Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). Neither the Supreme Court nor the Second Circuit has held that a court's failure to instruct a jury on lesser included offenses in a non-capital case is a constitutional issue that may be considered in a habeas petition. Knapp v. Leonardo, 46 F.3d 170, 179 (2d Cir. 1995); Smithwick v. Walker, 758 F. Supp. 178, 187 (S.D.N.Y. 1991). Thus, the petitioner is not entitled to habeas relief on this claim.
In addition, as discussed above, such a charge would have been inconsistent with the petitioner's own testimony as to his conduct.
E. Sufficiency of Evidence
Finally, Mr. Smith argues that there was insufficient evidence to support reinstatement of the second count of the indictment, which charged him with burglary of the Czech tourists' hotel room. Thus, he also contends that there was insufficient evidence for the subsequent conviction. There is a "very heavy burden placed upon a defendant challenging the sufficiency of the evidence underlying his conviction." Knapp, 46 F.3d at 178 (internal quotation marks and citation omitted). "To succeed, [the petitioner] must demonstrate that viewing the evidence in the light most favorable to the government, . . . no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. (internal quotation marks and citation omitted); see also Jackson v. Virginia, 443 U.S. 307, 324 (1979); Quartararo v. Hanslmaier, 186 F.3d 91, 97 (2d Cir. 1999).
Burglary is defined under New York law as follows:
A person is guilty of burglary in the second degree when he knowingly enters or remains unlawfully in a building with intent to commit a crime therein, and when:
1. In effecting entry or while in the building or immediate flight therefrom, he or another participant in the crime:
(a) Is armed with explosives or a deadly weapon; or
(b) Causes physical injury to any person who is not a participant in the crime; or
(c) Uses or threatens the immediate use of a dangerous instrument; or
(d) Displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; or
2. The building is a dwelling.
N.Y. Penal Law § 140.25. Here, there is sufficient evidence to establish that Mr. Smith and his codefendant, Ms. Smith, knowingly and unlawfully entered the Czech tourists' hotel room, a dwelling, and committed larceny. That the petitioner committed larceny can be inferred from a number of facts. First, shortly after Mr. Smith left the hotel, the security guard testified that he received a complaint from the tourists that their room had been burglarized. When he went to check the room it appeared to be ransacked. (Tr. 260). Later, police found sums of Czechoslovakian currency in Ms. Smith's purse. The Czech tourists subsequently identified the money as their own. Viewing this evidence in the light most favorable to the prosecution, a rational juror could have found Mr. Smith guilty of burglary beyond a reasonable doubt.
Conclusion
For the reasons set forth above, I recommend that Mr. Smith's application for a writ of habeas corpus be denied and the petition be dismissed. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have 10 days to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable William H. Pauley III, Room 2210, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.