Opinion
04 Civ. 2254 (LAP) (KNF).
January 24, 2007
REPORT AND RECOMMENDATION
I. INTRODUCTION
Levon Williams ("Williams"), proceeding pro se, brings this petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. The petitioner alleges his confinement by New York State is unlawful because: (1) he was arrested in his home, in violation of the Fourth Amendment; (2) evidence obtained illegally was used against him at his trial, in violation of the Fourth Amendment; (3) the prosecutor failed to produce exculpatory evidence, in violation of the Fourteenth Amendment; (4) he was denied the right to confrontation, in violation of the Sixth and the Fourteenth Amendments; (5) jury instructions given by the trial court were flawed, and violated a right secured to him by the Sixth Amendment; (6) insufficient evidence was produced to secure his conviction, in violation of the Fourteenth Amendment; (7) the indictment was defective and, as a result, it violated the Fourteenth Amendment; (8) his trial and appellate attorneys rendered ineffective assistance to him, in violation of the Sixth Amendment; (9) the indictment was defective and caused the jury to return a repugnant verdict, in violation of the Sixth and Fourteenth Amendments; and (10) the sentence imposed on him was unduly harsh and excessive, in violation of the Eighth Amendment. The respondent opposes the petition for habeas corpus relief contending that: (a) the state court's holding, that the verdict was supported by sufficient evidence, was not contrary to, or an unreasonable application of federal law; (b) the petitioner received effective assistance from his trial and appellate counsel; (c) the petitioner's unduly harsh and excessive sentence claim is not cognizable in a federal habeas corpus proceeding; and (d) all other claims asserted by the petitioner are procedurally barred and meritless.
II. BACKGROUND
On February 16, 2001, sometime after three o'clock in the morning, a man, identified as Williams, fired a shot from a gun, at the front window of the PJ's Cocktail Lounge and Restaurant ("PJ"), which is located in New York County. PJ's owner Patricia Peek ("Peek"), walked toward the establishment's front window after hearing a "pop" and observing that all the patrons were looking in that direction. As Peek approached the window and looked out, she saw Williams standing outside. He made eye contact with Peek, fired another shot through the window and walked away. Although about twenty people were in PJ at that time, no one was injured. Police officers arrived at PJ shortly after the shooting incident. Peek described the shooter to police personnel, as one of her patrons. While Peek did not know the shooter's name, she said she would be able to recognize him. Peek canvassed the neighborhood with officers in an attempt to locate the shooter; they were unable to find him. Upon returning to PJ, police officials recovered two .380 caliber spent shell casings and one .380 caliber bullet from the sidewalk in front of PJ. No weapon was recovered from the scene.
In the early hours of February 17, 2001, Williams returned to PJ, but did not enter. Peek called the police and, when they arrived, identified Williams, who was walking down the street at that time, as the shooter during the February 16, 2001 incident. Peek pursued Williams in her truck, while police officers and a PJ employee followed him in a police vehicle. Williams ran and then entered the basement of a building. After searching the premises, police officers found Williams hiding in an adjacent courtyard behind the building. A struggle ensued; however, police officers were able to subdue the petitioner. Thereafter, a search of the premises was conducted and officers recovered a loaded firearm. The weapon was approximately seven feet from where Williams was found. Officers also recovered a nine millimeter bullet from the petitioner's pocket.
On February 23, 2001, a grand jury indicted Williams. It charged him with attempting to commit assault in the first degree, reckless endangerment in the first degree, two counts of criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree and resisting arrest. Williams proceeded to trial before a jury. At the trial, Williams testified that, although he was at PJ on February 16, 2001, he was not the shooter. The jury convicted him for: (a) reckless endangerment in the first degree; (b) criminal possession of a weapon in the second degree, for the February 16, 2001 shooting incident; and (c) resisting arrest. He was acquitted of the other charges made against him. Williams was sentenced to concurrent terms of imprisonment as follows: 13 years for criminal possession of a weapon in the second degree, 2 1/3-7 years for reckless endangerment in the first degree and 1 year for resisting arrest.
Williams appealed from the judgment of conviction to the New York State Supreme Court, Appellate Division, First Department, asking the court to upset his conviction because: (1) it was against the weight of the evidence; and (2) his sentence was unduly harsh and excessive. The Appellate Division rejected Williams' arguments and found that "[t]he verdict was based on legally sufficient evidence and was not against the weight of the evidence." People v. Williams, 299 A.D.2d 288, 749 N.Y.S.2d 719, 720 (App.Div. 1st Dep't 2002). The court found that the jury considered the issues of credibility and identification properly and discredited Williams' testimony, that another person was responsible for the shooting. The court also found no basis upon which to reduce Williams' sentence existed. Williams sought leave to appeal from the determination of the Appellate Division to the New York Court of Appeals. The application was denied on February 18, 2003, by an associate judge of that court who found no question of law was presented which ought to be reviewed by the New York Court of Appeals.
Thereafter, Williams filed the instant petition for a writ of habeas corpus on March 22, 2004. The Court stayed the matter in order to provide Williams an opportunity to exhaust his state-court remedies with respect to eight of the ten claims raised in the petition. In May 2004, Williams filed a petition for a writ of error coram nobis with the New York State Supreme Court, Appellate Division, First Department, alleging ineffective assistance of appellate counsel. On October 28, 2004, the Appellate Division denied his coram nobis petition. The New York Court of Appeals denied Williams leave to appeal from that determination on January 19, 2005. Thereafter, Williams filed an amended petition for a writ of habeas corpus with this court. The amended petition has seven unexhausted claims. That petition is addressed below.
III. DISCUSSION
Exhaustion of State RemediesBefore seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies. See 28 U.S.C. § 2254(b) and (c). To satisfy the exhaustion requirement, a habeas corpus petitioner must first "fairly present" his or her claim to the highest state court from which a decision can be rendered. See Daye v. Attorney General of New York, 696 F.2d 186, 191 (2d Cir. 1982) (en banc). A claim is fairly presented if the state court was informed of the factual and legal premises of the claim being asserted in federal court. See id. If material factual allegations or legal doctrine are presented in a federal habeas corpus petition that were not presented to the state court, the state court has not had a fair opportunity to rule on the claim. See id. at 191-92. Once a claim is fairly presented, "and having been denied relief, the petitioner must have utilized all available mechanisms to secure appellate review of the denial of that claim." Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981) (citations omitted).
The petitioner's application for a writ of habeas corpus contains ten grounds on which he contends the relief he seeks should be granted. Except for Williams' claims that: (1) the prosecution secured his conviction based on insufficient evidence; (2) he received an unduly harsh and excessive sentence; and (3) his appellate counsel provided ineffective assistance to him, all the claims made by the petitioner remain unexhausted, even though the Court held the petition in abeyance so that Williams could return to state court and exhaust the remedies available to him in that forum.
Typically, a habeas corpus petitioner may not obtain relief from a federal court on an unexhausted claim. See 28 U.S.C. § 2254(b)(1). However, when a claim has not been presented to a state court for adjudication, a federal court reviewing a habeas corpus petition may deem the claim exhausted "if it is clear that the unexhausted claim is procedurally barred by state law and, as such, its presentation in the state forum would be futile." Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001).
New York Criminal Procedure Law ("CPL") § 440.10(2)(c) informs that a state court must deny a motion to vacate a judgment when:
[a]lthough sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him.
The facts and circumstances pertinent to all the petitioner's claims are matters that are found in the trial record. However, Williams failed to present his unexhausted claims to the Appellate Division when he appealed from the judgment of conviction. Williams has not made a motion, in the trial court, to vacate the judgment of conviction, pursuant to CPL § 440.10, premised upon the unexhausted claims. If he were to make such a motion, the trial court would, perforce of CPL § 440.10(2)(c), have to deny that motion based on the petitioner's unjustifiable failure to raise the matters to the Appellate Division, through his direct appeal. Moreover, since Williams has been denied leave to appeal to the New York Court of Appeals previously, he is foreclosed from making any additional applications to that court for relief from the judgment.
Therefore, the petitioner is procedurally barred from seeking state-court review of the unexhausted claims noted above. As a consequence, those claims may be deemed exhausted by the court for the purpose of habeas corpus review. See Harris v. Reed, 489 U.S. 255, 263 n. 9, 109 S. Ct. 1038, 1043 n. 9 (1989); Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991).
A procedural default may be excused by the court if a habeas corpus petitioner can show cause for the default and prejudice resulting from it, or that the court's failure to consider the federal claim will result in a fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722, 750, 111 S. Ct. 2546, 2565 (1991). To establish cause, a petitioner must demonstrate that "some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488, 106 S. Ct. 2639, 2645 (1986). Objective factors that constitute cause include,inter alia, "some interference by officials" that made compliance with the applicable state procedural rule impracticable or "a showing that the factual or legal basis for a claim was not reasonably available to counsel." Id. Additionally, ineffective assistance rendered to a petitioner by counsel constitutes cause for a procedural default. However, generally, such a claim must "be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default." Id. at 489, 106 S. Ct. at 2646. That was not done by Williams. As a consequence, any claim by Williams respecting ineffective assistance form his trial counsel cannot serve as cause for his procedural default.
A procedurally defaulted claim may also be entertained by a federal court when a petitioner can show that the court's failure to review his claim will result in a fundamental miscarriage of justice, because he is actually innocent. See Bousley v. United States, 523 U.S. 614, 623, 118 S. Ct. 1604, 1611 (1998). Here, the petitioner does not allege any facts to demonstrate that he is actually innocent of the charges for which he has been convicted. Therefore, the Court finds that the petitioner's unexhausted claims are procedurally barred. As such, they cannot be reviewed in connection with the instant application for a writ of habeas corpus.
Petitioner's Exhausted Claims
Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus where a state court has adjudicated the merits of a claim raised in a federal habeas corpus petition only if the state court's adjudication resulted in a decision that: (1) 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) was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. See 28 U.S.C. § 2254(d). The Supreme Court has interpreted "the contrary to" and "unreasonable application" clauses of 28 U.S.C. § 2254(d)(1) as having independent meaning. Williams v. Taylor, 529 U.S. 362, 404-05, 120 S. Ct. 1495, 1519 (2000). A state court decision is "contrary to" the Supreme Court's precedent: (1) "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law;" or (2) "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. Id. at 405, 120 S. Ct. at 1519. A decision is an "unreasonable application" of clearly established federal law, as determined by the Supreme Court, if: (1) "the state court identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case;" or (2) "the state court either unreasonably extends a legal principle from [the Supreme Court's] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id. at 407, 120 S. Ct. at 1520.
If a state prisoner's federal claim was adjudicated on the merits, as Williams' three exhausted claims were, a federal court must presume any determination of a factual issue made by a state court to be correct and a habeas corpus petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). A federal claim is adjudicated on the merits when the state court: "(1) disposes of the claim 'on the merits,' and (2) reduces its disposition to judgment." Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001). To determine whether a state court's disposition is on the merits, a federal court considers: "(1) what the state courts have done in similar cases; (2) whether the history of the case suggests that the state court was aware of any ground for not adjudicating the case on the merits; and (3) whether the state court's opinion suggests reliance upon procedural grounds rather than a determination on the merits." Id. at 314 (citing Mercadel v. Cain, 179 F.3d 271, 274 [5th Cir. 1999]).
Applying these factors to the instant case, the Court finds that the Appellate Division affirmed the judgment of the trial court based on substantive grounds. Specifically, the Appellate Division reviewed the trial record and found Williams' claims respecting the sufficiency of the evidence and the harshness of the sentence wanting. In like manner, the Appellate Division also declined to grant the petitioner's application for a writ of error coram nobis on substantive grounds, since it explained that its determination rested upon its analysis of the submissions made in connection with that application. Therefore, the state court's adjudication was on the merits and the deferential standard mandated by 28 U.S.C. § 2254(d) applies to the petitioner's claims concerning the sufficiency of the evidence on which his conviction was based, the length of his sentence and the effectiveness of the assistance his appellate attorney rendered to him.
The petitioner has failed to identify how the determinations reached by the Appellate Division were contrary to or involved an unreasonable application of clearly established Federal law as determined by the Supreme Court. Furthermore, he has failed to demonstrate that the court's decisions were grounded on an unreasonable determination of the facts in light of the evidence presented at his trial. Having failed to meet the burden imposed on him by 28 U.S.C. § 2254(d), the petitioner is not entitled to habeas corpus relief based on his claims of insufficient evidence, ineffective assistance of appellate counsel or his claim that his sentence was too harsh.
IV. RECOMMENDATION
For the reasons set forth above, I recommend that the petitioner's application for a writ of habeas corpus be denied.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Loretta A. Preska, 500 Pearl Street, Room 1320, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Preska, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York, 10007. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 470 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F. 3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).