Opinion
05 Civ. 3010 (DLC).
July 5, 2007
For Pro Se Petitioner: Andre Thomas, Sing Sing Correctional Facility, Ossining, NY.
For Respondent: Leilani Rodriguez, Esq., Assistant District Attorney, Bronx County District Attorney's Office, Bronx, New York.
OPINION AND ORDER
Andre Thomas ("Thomas") filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on March 21, 2005. Thomas challenges his conviction for assault in the second degree in Bronx County Supreme Court on December 7, 1998. The petition was referred on March 21, 2005 to Magistrate Judge Theodore H. Katz for a report and recommendation ("Report"), which was issued on February 16, 2007. The Report recommends that the petition be denied. Thomas filed objections to the Report on March 22, 2007. For the reasons set forth below, the petitioner's objections to the Report are overruled and his petition is denied.
BACKGROUND
Thomas' conviction for assault arises from an attack on fellow inmate Christopher Alston ("Alston") while both were incarcerated at Riker's Island. His principal claim in his petition concerns the sufficiency of the evidence at trial. The facts relevant to the petition are set forth in the Report and summarized here.
Alston and Thomas agreed that Thomas' girlfriend would bring heroin into prison for Alston to sell to other inmates. On March 17, 1997, Thomas and fellow inmate Keith Smith ("Smith") expressed concern to Alston that Alston had not yet paid Thomas for the narcotics he had received and sold. The argument escalated into a physical altercation. Thomas punched Alston in the mouth. Smith also hit Alston. Alston then felt a "yanking" motion in his neck, looked up and saw Smith running from the scene. Alston returned to his cell where he discovered that his neck was cut. Enraged, he went back and resumed fighting with Thomas. During the fight, he again felt a "yanking" on his neck, and when he turned around, saw Smith nearby. Alston did not see Thomas or Smith use a sharp object during the fight, or see either of them cut his neck. Alston was treated for a ten-centimeter laceration to his neck and cuts on his back.
In addition to hearing Alston's testimony, the jury also heard from Corrections Officer Lisa Thompson ("Thompson"), who was stationed about fifteen feet away from the fight. She only saw the beginning of the fight and could not recall whether Alston had punched Thomas or Smith. Thompson acknowledged that her written report of the incident was inaccurate and based on information received from others. Although Thompson had been asked to identify the inmates involved in the altercation shortly after the incident, before she could make her identification, Alston had pointed out the petitioner and Smith as his assailants.
During the trial, the prosecution argued that the evidence proved that Smith cut Alston on the back of the neck. As a legal matter, however, the defendants were accused of acting in concert. In its charge, the court delivered an instruction on "acting-in-concert" liability. It advised the jury that if it did not find that the defendants acted in concert, to find either defendant guilty, it must find that one or both of the defendants individually committed each and every element of the charge of second degree assault. The jury acquitted Smith but returned a guilty verdict with respect to the petitioner. The elements of assault in the second degree include causing an injury to another with intent to cause physical injury. See N.Y. Penal Law § 120.05.
Prior to sentencing, defense counsel moved, pursuant to N.Y. Crim. Proc. Law § 330.30, to set aside the verdict on the ground that the evidence was insufficient to support the petitioner's conviction. Counsel argued that since the prosecution's theory was that Thomas was merely an accomplice to Smith's infliction of the injury and since Smith was acquitted, the verdict against Thomas was unsupported by the evidence. The motion was denied. Thomas was sentenced as a predicate felon to a determinate term of five years imprisonment, to run consecutive to the sentence that he was serving at the time of the incident.
On direct appeal, the petitioner asserted three claims: (1) his conviction was against the weight of the evidence; and he was deprived of a fair trial due to the trial court's failure (2) to provide meaningful responses to the jury's questions, and (3) to provide defense counsel with notice of the contents of the final jury request and an opportunity to be heard as to an appropriate response. The Appellate Division affirmed the petitioner's conviction, finding that the verdict was not against the weight of the evidence and that the remaining two claims were meritless. It concluded that the jury could have found that Thomas cut Alston or that Thomas was an accomplice in the assault. People v. Thomas, 774 N.Y.S.2d 137, 138-39 (N.Y.App.Div. 2004). On May 28, 2004, the petitioner was denied leave to appeal to the New York Court of Appeals.
In his petition, Thomas raises the second and third claims that he had asserted on his appeal to the Appellate Division. In addition, he argues that the trial evidence was insufficient to establish his guilt beyond a reasonable doubt.
DISCUSSION
The reviewing court "may accept, reject, or modify, in whole or in part, the findings and recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(c). "To accept the report and recommendations of a magistrate, to which no timely objection has been made, a district court need only satisfy itself that there is no clear error on the face of the record." Figueroa v. Riverbay Corp., No. 06 Civ. 5364 (PAC), 2006 WL 3804581, at *1 (S.D.N.Y. Dec. 22, 2006) (citation omitted). The court shall make a de novo determination of the portions of the report to which petitioner objects. United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). The petitioner objects to only one of the Report's recommendations, that is, the recommendation to deny his claim that there was insufficient evidence to support the verdict.
I. Insufficiency of Evidence Claim
Thomas contends that the evidence adduced at trial was insufficient to find him guilty of assault in the second degree beyond a reasonable doubt. He argues that there was no evidence that he caused Alston's injuries or that he acted in concert with his co-defendant, who was acquitted. The Report rejected Thomas' claim on the ground that it was not exhausted since the petitioner failed to raise it on direct appeal to the Appellate Division, but it should be deemed exhausted because it is procedurally forfeited. It recommends denial of the claim since the petitioner does not assert cause for this procedural bar or offer new evidence of his innocence. The Report's analysis is correct.
Prior to raising a claim in a petition for a writ of habeas corpus, a petitioner must have exhausted the claim by fairly presenting it to the state court so that the state has an opportunity to correct any alleged constitutional violation. A claim is "fairly presented" when the petitioner raised before the state court "all of the essential factual allegations" and "essentially the same legal doctrine" asserted in the federal habeas petition. Strogov v. Attorney Gen. of N.Y., 191 F.3d 188, 191 (2d Cir. 1999) (citation omitted). An unexhausted claim is deemed exhausted, however, "if it is clear that the state court would hold the claim procedurally barred." Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) (citation omitted). A claim is procedurally barred when "New York's procedural rules now bar him from raising it in New York courts." St. Helen v. Senkowski, 374 F.3d 181, 183 (2d Cir. 2004).
On direct appeal to the Appellate Division, Thomas argued that the verdict was "against the weight of the evidence," not that there was "insufficient evidence" to sustain his conviction. A "weight-of-evidence" argument is grounded in N.Y. Crim. Proc. Law § 470.15(5). Unlike a "sufficiency-of-evidence claim," a weight-of-evidence claim challenges the jury's assessment that a guilty verdict is supported by the weight of the evidence presented. See Cardena v. Giambruno, No. 03 Civ. 3313 (RWS), 2004 WL 239722, at *4 (S.D.N.Y. Feb. 10, 2004) ("[C]hallenges to the weight of the evidence supporting a conviction, unlike challenges to the sufficiency of the evidence, are not cognizable on federal habeas review.").
In his objection to the Report, Thomas asserts that he properly exhausted his sufficiency-of-evidence claim by raising it in a motion to the trial court to set aside the verdict pursuant to N.Y. Crim. Proc. Law § 330.30. Thomas made this motion prior to being sentenced, and it was denied. Thomas failed, however, to raise this claim again in his appeal to the Appellate Division. Indeed, Thomas conceded in his leave application to the New York Court of Appeals that he had failed to raise a legal sufficiency claim before the Appellate Division.
The trial court asserted that because Thomas and his co-defendant had been charged with acting-in-concert, the jury could have rationally found either one or both of them guilty of assault in the second degree, and thus, the verdict was "supported by sufficient evidence."
Because a sufficiency of the evidence claim rests on the trial record, Thomas was required to raise it in his direct appeal to the Appellate Division in order to preserve the claim. Under well-established state procedural rules, Thomas was procedurally barred from obtaining further review of this claim since he did not present it to the Appellate Division in his direct appeal.See N.Y. Crim. Proc. Law § 440.10(2)(c) (barring review if claim could have been raised on direct review); Dunham v. Travis, 313 F.3d 724, 729 (2d Cir. 2002) ("In New York, a criminal defendant may not raise in a § 440 motion a claim that could have been raised on direct appeal.").
Thomas asserts in his objection that the "weight-of-evidence" claim should be deemed to have presented a sufficiency-of-evidence claim to the Appellate Division since he referred to the Fourteenth Amendment in his brief to the Appellate Division. Neither of the cases on which he relies suggests such a result. See Baldwin v. Reese, 541 U.S. 27, 32 (2004); Gonzalez v. Sullivan, 934 F.2d 419, 423 (2d Cir. 1991). In neither case did the petitioner misidentify the nature of the legal claim. Thomas did not "fairly present" a federal insufficiency claim when he relied on an "against-the-weight-of-the-evidence" claim. The legal standards for assessing the merits of these two claims are not "so similar" that Thomas can be said to have fairly presented the first, a federal claim, when he presented the latter. Jackson v. Edwards, 404 F.3d 612, 621 (2d Cir. 2005). Indeed, in his brief to the Appellate Division, Thomas explicitly distinguished between the two claims.
In any event, Thomas did not raise before the Magistrate Judge the assertion that the sufficiency claim was fairly presented through the briefing on the weight-of-the-evidence claim, and may not make that argument for the first time as an objection to the Report. See Robinson v. Keane, No. 92 Civ. 6090(CSH), 1999 WL 459811, at *4 (S.D.N.Y.) (S.D.N.Y. June 29, 1999) (collecting cases); accord Pan American World Airways, Inc. v. Int'l Bhd. of Teamsters, 894 F.2d 36, 40 n. 3 (2d Cir. 1990).
Because Thomas' sufficiency of evidence claim is procedurally barred, to obtain habeas review of the merits of the claim, Thomas must "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." Messiah v. Duncan, 435 F.3d 186, 195 (2d Cir. 2006) (quoting Coleman v. Thompson, 501 U.S. 722, 750 (1991)). The latter requires a showing that the petitioner "is actually innocent of the crime for which he has been convicted." Dunham, 313 F.3d at 730. To demonstrate actual innocence, the petitioner "must support his allegations of constitutional error with new reliable evidence . . . that was not presented at trial." Schlup v. Delo, 513 U.S. 298, 324 (1995) (emphasis added).
Thomas argues that his conviction constitutes a miscarriage of justice. Relying on Jackson v. Virginia, 443 U.S. 307, 314 (1979), Thomas asserts that no rational trier of fact could have found him guilty of assault in the second degree beyond a reasonable doubt based on the evidence adduced at trial. As the Report observes, the petitioner offers no new evidence in support of his actual innocence, but asks for a re-examination of the verdict based on the record that was before the jury that convicted him. Since the petitioner has failed to establish that a miscarriage of justice would occur if this Court does not consider his procedurally defaulted claim, and because Thomas has not demonstrated cause and prejudice, the Report's recommendation is adopted.
II. Remaining Claims
In his petition, Thomas also claimed that he was deprived of a fair trial due to the trial court's failure (1) to provide meaningful responses to the jury's questions and (2) to provide counsel with notice of the contents of the final jury request and an opportunity to be heard as to an appropriate response. The Appellate Division rejected these claims as unpreserved and on the merits. The Report rejected these two claims on the ground that they are procedurally barred and that the petitioner did not show cause and prejudice or a fundamental miscarriage of justice. Because Petitioner did not object to these portions of the Report and because they are not clearly erroneous, the Report is adopted on these issues as well.
CONCLUSION
Thomas' petition for a writ of habeas corpus is denied. No certificate of appealability shall issue. Petitioner has not made a substantial showing of a denial of a federal right, and appellate review is therefore not warranted. Love v. McCray, 413 F.3d 192, 195 (2d Cir. 2005). Moreover, any appeal from this order would not be taken in good faith. See 28 U.S.C. 1915(a)(3); Coppedge v. United States, 369 U.S. 438, 445 (1962). The Clerk of Court shall dismiss the petition.
SO ORDERED: