Opinion
00 Civ. 6683 (MBM)
October 25, 2002
OPINION AND ORDER
Petitioner Devon Williams has challenged his state court drug conviction, and his sentence of five to ten years imprisonment, pursuant to 28 U.S.C. § 2254 (West 1994 Supp. 2000), arguing that he was denied effective assistance of trial counsel because his lawyer allowed a juror with personal knowledge of facts and an articulated b as to be seated without challenge, and failed to request a jury instruction that would have permitted the jury to acquit Williams on the theory that he was acting merely as the agent of the buyer rather than as an accessory to the drug transaction in question. He argues also that the evidence was insufficient to support his conviction and that his sentence was excessive. Petitioner also seek seeks a stay of his deportation on the ground that it is based on the conviction he challenges here.
Apparently, petitioner's true name is Richard Edwards, and he is now jailed under that name and awaiting deportation. however, he filed this petition using the name under which he was convicted, Devon Williams.
The case was referred to Magistrate Judge Michael H. Dolinger, who, in a characteristically thorough and well-reasoned Report and Recommendation filed May 15, 2002 (the "Report"), rejected each of petitioner's claims and recommended that the petition be dismissed. Williams has filed objections to the Report, as described below. For the reasons set forth below, Williams' objections are overruled, the Report is adopted, and the petition is dismissed. The stay is denied.
Williams has explained at some length his principal objection, which is to Magistrate Judge Dolinger's conclusion with respect to the jury instruciton claims, and has objected without explanation to each of Magistrate Judge Dolinger's other legal conclusions, albeit not to his description of the underlying facts of the case. Because Williams has objected to each of the Report's conclusions, it is this court's obligation to review the issues he raises de novo. See 28 U.S.C. § symbol 636(b)(1) (1994); Fed.R.Civ.P. 72(b). However, the court is permitted to adopt those portions of facially erroneous. See Thomas v.Arn, 474 U.S. 140, 149 (1985); Mokone v. Kelly, 680 F. Supp. 679, 680 (S.D.N.Y. 1985); Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985). What is required in reviewing disputed sections of a magistrate judge's report de novo is "a de novo determination" rather than a de novo hearing, and the reviewing district court is free to place "`whatever reliance . . . in the exercise of sound judicial discretion [it chooses] to place on a magistrate's proposed findings and recommendations.'" Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989) (quoting United States v. Raddatz, 447 US. 667, 676 (1980).
The facts underlying Williams' conviction, as described in the Report, are simple and distressingly familiar. On November 4, 1995, an undercover police office approached Williams and asked Williams to let him "get two." Williams then led the officer across the street, told him to wait, signaled to another man, and then told the officer to "go see him." (Report at 2-3) The man to whom Williams had signaled, Keith Bruce, then approached the undercover officer, who was still standing next to Williams, and the officer asked him for "two." Bruce confirmed that it was crack cocaine the officer wanted, placed two bags on top of a telephone booth, and told the officer to take the bags and leave $20. The officer took the bags, left $20 in pre-recorded buy money atop the booth, and left. (Report at 3). He immediately radioed his backup team and described the two men he had just dealt with. Thereafter, another officer proceeded to the corner where the transaction. The undercover officer was then driven slowly past the corner so, they were arrested. When arrested, Bruce had in his possession the pre-recorded buy money as well as $91 in other cash and six bags of marijuana; Williams had four bags, three of which contained crack residue. (Report at 3-4).
II.
As noted, Williams argues that his lawyer failed in two respects to provide effective assistance; he did not challenge a juror who should not have served, and he did not request a charge that would have permitted the jury to find that Williams was an agent of the buyer and therefore not guilty of acting as accessory to a sale of drugs.
The record, as described in the Report, reflects that the juror in question in fact was not seated, and that Williams' claim appears to arise from a misreading of the transcript in which lawyer says that he does not object to excusing the juror for cause rather than not objecting to the juror being seated. (Report at 20 n. 19) Although Magistrate Judge Dolinger also found this claim procedurally barred because Williams did not raise it in state court and cannot do so now (see Report at 17-21), it is plain that the claim is factually baseless. In any event, Williams did not raise that claim in state court and has not shown cause external to himself for his failure to do so or resulting prejudice, nor has he shown that failure to consider his federal claim in this respect would result in a "fundamental miscarriage of justice." See, e.g., Sawyer v.Whitley, 505 U.S. 333, 338-40 (1992); Coleman v. Thompson, 501 U.S. 722, 750 (1991).
Williams' claim that his lawyer should have sought what is referred to as an agency instruction fares no better because on the facts proved at trial, New York law does not permit such an instruction. The leading case is People v. Herring, 83 N.Y.2d 776, 610 N.Y.S.2d 948 (1994), which says in pertinent part as follows:
The entitlement to an agency "barge depends entirely on the relationship between the buyer and the defendant. Unless same reasonable view of the evidence supports the theory that defendant was acting only on behalf of the buyer, the jury need not be instructed on the agency defense.83 N.Y.2d at 782, 610 N.Y.S.2d at 950 (citations omitted). Moreover, [b]efore an agency charge is warranted, the evidence must be indicative of a relationship with the buyer [,] not merely raise ambiguities about the defendant's connection with the seller. 83 N.Y.2d at 783, 610 N.Y.S.2d at 950. Notably, the facts of Herring, as described by the New York Court of Appeals, closely resemble the facts here:
There was no reasonable view of the evidence presented at this trial that defendant agreed to participate in this crime only because he wished to serve as an agent for the buyer, a complete stranger. Defendant had no prior contact with the officer, and when the officer approached and asked defendant if he had "any nickels", defendant instantly understood the inquiry and agreed to assist in the drug purchase. The location of the drug operation, known only to defendant and from which he completed the purchase, was secreted in a storefront only a few feet away. His behavior, both before and during the sale, was consistent with that of a "steerer" in a drug sales operation. The jury could not reasonably conclude from the evidence that defendant was acting solely as an extension of the buyer.83 N.Y.2d at 782-83, 610 N.Y.S.2d at 950. Substitute "two" for "nickels" and "the location of Bruce" for "the location of the drug operation" and you have the facts as proved at Williams' trial. Williams points to no evidence whatever of a prior relationship between him and the undercover officer, and thus there is no reasonable view of the evidence at Williams' trial that would have warranted an agency charge.
As the Report states, in order to show a violation of his constitutional right to effective assistance of counsel, "the petitioner must show that his lawyer's performance was `so defective that "counsel was not functioning as the `counsel'. guaranteed the defendant by he Sixth Amendment" . . . and that counsel's errors were "so serious as to deprive the defendant of fair trial, a trial whose result is reliable."'" (Report at 21-22, (quoting Brown v. Artuz, 124 F.3d 73, 79 (2d Cir. 1997) quoting Strickland v. Washington, 466 U.S. 668, 687 (1984))) Plainly, the failure to request a charge that was unavailable as a matter of New York law cannot meet that standard. See Cabrera-Delgado v. United States, 111 F. Supp.2d 415, 417 (S.D.N.Y. 2000) (counsel could not be considered ineffective for failure to make futile motion to dismiss indictment).
II.
Williams' remaining arguments need be discussed only briefly. On the facts described above, his challenge to the sufficiency of the evidence is unavailing because those facts permitted the jury to conclude that he was a steerer in a drug transaction, particularly when one recalls that a habeas court reviewing the trial record "must credit every inference that could have been drawn in the State's favor, whether the evidence being reviewed is direct or circumstantial" Reddy v. Coombe, 846 F.2d 866, 869 (2d Cir. 1988). It is not for such a court to reassess issues of witness credibility or evidentiary weight. See Herrera v. Collins, 506 U.S. 390, 400-01 (1993); Quartararo v. Hanslmaier, 186 F.3d 91, 97 (2d Cir. 1999),cert. denied, 528 U.S. 1170 (2000)
As the Report notes, Williams' claim as to his sentence may be procedurally barred because he did not raise it in state court (Report at 32), but that claim rain any event meritless Williams was a second felony offender, and his sentence was within statutory limits for a person in that status; indeed, it was barely. above the statutory minimum of four and one-half to nine years. (Report at 34) Williams has adduced no facts that would suggest that the sentencing court relied on constitutionally impermissible considerations, e.q., Alabama v. Smith, 490 U.S. 794, 798-800 (1989), or materially false information, e.q., Townsend v.Burke, 334 U.S. 736, 738-41 (1948), or that the sentence violated either the Ex Post Facto Clause of Article I of the Constitution, as applied to the states through the Fourteenth Amendment, e.g., Stewart v. Scully, 925 F.2d 58, 62-63 (2d Cir. 1991). Although Williams does suggest that his sentence is unduly harsh in view of the small amount of drugs he helped sell in the transaction proved at his trial, a finding of constitutional disproportionality in sentencing is "exceedingly rare."Solem v. Helm, 463 U.S. 277, 288-90 (1983). Here, it bears mention that the Second Circuit has rejected the view that enhanced penalties for sale of crack cocaine are constitutionally suspect. See United States v.Moore, 54 F.3d 92, 98-99 (2d Cir. 1995).
For the above reasons, the Report is adopted and the petition is dismissed. Also for the above reasons, Williams has failed to make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253 (West Supp. 2000). Therefore, no certificate of appealability will issue.
Whatever may be the jurisdiction of this court to stay Williams' deportation, there is no occasion to do so now because his petition has been denied. The application for a stay therefore is denied as well.