Opinion
No. 02 Civ. 7633 (HB).
November 30, 2004
OPINION ORDER
Ernest Williams petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(d)(1) and (d)(2) on the basis that (1) the state court incorrectly rejected his claim on procedural grounds, and (2) the evidence upon which he was convicted was insufficient as a matter of law because the state failed to prove beyond a reasonable doubt that the victim suffered "substantial pain." For the following reasons, Petitioner's claim is DENIED.
I. BACKGROUND
A. Factual History
The facts in this case are undisputed and well set out in Magistrate Judge Kevin Nathaniel Fox's July 19, 2004 Report and Recommendation ("RR"). They do not need to be repeated but for those that specifically bear on Petitioner's objections. On May 25, 1999, Ernest Williams ("Petitioner") entered the office of Richard Green, an octogenarian, and handed him a piece of paper with a phone number written thereon. Mr. Green requested Petitioner leave, and Petitioner responded by placing Green in a "choke hold," rendering him unconscious. Green awoke to find his money missing. He dialed the phone number on the piece of paper and instructed Robin Ross, the woman who answered and an acquaintance of Petitioner, to call the police. Green complained he was sore and achy, but he did not seek medical attention.
B. Procedural History
On May 1, 2000, a jury in New York State Supreme Court, New York County, found Petitioner guilty of robbery in the second degree. N.Y. Penal Law § 160.10(2)(a). On June 27, 2000, Judge Charles Solomon sentenced Williams to 20 years to life. The following month, Williams filed a pro se motion, pursuant to N.Y. Crim. Proc. Law ("CPL") § 440.10, to vacate his conviction as the evidence was insufficient to establish the victim sustained physical injury and that Petitioner was erroneously sentenced as a persistent felony offender. Judge Solomon denied the motion. Decision and Order, People v. Williams (Ind. No. 5204-99) (Oct. 10, 2000).
Williams appealed his conviction to the Supreme Court, Appellate Division, First Department. The Appellate Division affirmed the conviction. People v. Williams, 742 N.Y.S.2d 544 (1st Dep't 2000). The court concluded that Petitioner's
[c]hallenge to the sufficiency of the evidence supporting the element of physical injury is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that by choking the victim and causing him to lose consciousness, [petitioner] inflicted physical injury.Id. Leave to appeal was denied by the New York Court of Appeals. People v. Williams, 98 N.Y.2d 703 (2002). On July 22, 2002, Williams filed a pro se motion to vacate his sentence pursuant to § 440.20, alleging ineffective assistance of counsel. Judge Solomon denied this motion on December 17, 2002. Decision and Order, People v. Williams (Ind. No. 5204-99) (Dec. 17, 2002).
Williams filed the instant habeas petition on August 29, 2002 in the United States District Court for the Southern District of New York. The case was referred to Magistrate Judge Kevin Nathaniel Fox, who issued a Report and Recommendation.
II. EXHAUSTION OF STATE REMEDIES
Federal habeas relief will be unavailable unless the petitioner has "exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). Specifically, a petitioner must have "fairly presented" the claims raised in the petition in state court by offering both the factual and legal premises of his claims to the highest court of the state. United States v. Picard, 404 U.S. 270, 275 (1971). Additionally, the petitioner must present to the state court the constitutional nature of all such claims so that the state court is fairly alerted to the particular constitutional concerns involved. See Daye v. Attorney Gen. of New York, 696 F.2d 186, 194 (2d Cir. 1982) ( en banc).
Petitioner's brief to the Appellate Division made an indirect reference to the present constitutional issues. (Dec. Opp. to Pet. Ex. C.). Although the brief cast the legal insufficiency of his claim in terms of New York state law, and failed to cite the federal constitutional standard under Jackson v. Virginia, 443 U.S. 307 (1979), Petitioner's authority for the standard was a case that directly drew upon the Jackson standard. See, e.g., Hawkins v. West, 706 F.2d 437, 440 (2d Cir. 1982) (for exhaustion purposes, New York courts apply legal sufficiency standard "functionally identical" to Jackson standard). Additionally, Petitioner's letter and appellate briefs accompanying his leave application to the New York Court of Appeals apprised the court of the pertinent constitutional issues. The letter stated that he enclosed the appellate briefs, but did not state the basis for seeking leave. (Dec. Opp. to Pet. Ex. F.). References to attached briefs without more will preserve issues only if the Court of Appeals is clearly informed that the reference asserts the issues in those briefs as bases for granting leave to appeal. Ramirez v. Attorney Gen. of the State of New York, 280 F.3d 87, 97 (2d Cir. 2002). Here, as Petitioner posed only one issue in his brief, and not multiple issues, the simplicity of the documents sufficed to clearly inform the Court of Appeals that the issue raised in the brief was also the basis for the application for granting leave. Concepcion v. Portuondo, No. 97 Civ. 3183, 1999 WL 604951, at *3 (S.D.N.Y. Aug. 10, 1999). Accordingly, Petitioner has satisfied the requirement that the remedies available in state court be exhausted.
A petitioner may "fairly present a constitutional claim, even without citing chapter and verse of the Constitution. . . . by. . . . reliance on state cases employing constitutional analysis in like fact situations. . . . or assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution. . . ." Cox v. Miller, 296 F.3d 89, 99 (2d Cir. 2002) (internal citations omitted).
See, e.g., Wilson v. Goord, No. 00 Civ. 4849, 2004 WL 226149, at *3 n. 4 (S.D.N.Y. Feb. 6, 2004) (exhaustion satisfied with reference to Jackson).
The demand for specific reference avoids imposing upon the Court of Appeals the burden to "comb through. . . . the brief to seek and find arguments not expressly pointed out in the application for leave." Jordan v. Lefevre, 206 F.3d 196, 199 (2d Cir. 2000). Compare id. at 198-99 (arguing one claim in letter while attaching an appellate brief without explicitly alerting court to each claim raised does not "fairly present" such claims), and Morgan v. Bennett, 204 F.3d 360, 369-71 (2d Cir. 2000) (claims fairly presented where petitioner explained in letter he was pressing all claims in his attached briefs and subsequently discussed specific issues in follow-up letter).
III. STANDARD OF REVIEW
Section 2254(d) of Title 28 of the United States Code, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), provides:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless 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). A federal court deciding a habeas claim must presume a state court's factual findings to be correct, unless the petitioner rebuts the factual findings by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
The habeas court, reviewing a § 2254(d)(1) claim must find that the trial court's application of the law was "objectively unreasonable." Williams v. Taylor, 529 U.S. 362, 410-11 (2000). It is not sufficient that the decision was merely "incorrect." Id. The Supreme Court has also recognized that the Williams standard of "objectively unreasonable" applies with equal force to a § 2254(d)(2) action. Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
Contrary to Petitioner's assertion, Petitioner's claim was adjudicated on the merits by the Appellate Division. 28 U.S.C. § 2254(d). Subsequent to its decision that Petitioner's claim was unpreserved, the court alternatively ruled, with brief reasoning, that the claim was without merit. Accordingly, the pre-AEDPA standard is inapplicable to this claim. See Sellan v. Kuhlman, 262 F.3d 303, 311-12 (2d Cir. 2001) (adjudication of the merits, which triggers current AEDPA "unreasonable application" standard, does not require the state court explain its reasoning).
Since Petitioner objects to the RR in its entirety, I will review his claims de novo. 28 U.S.C. § 636(b)(1).
IV. DISCUSSION
Williams presents two arguments in the instant habeas petition. He contends (1) the state court incorrectly rejected his claim on procedural grounds, and (2) the evidence upon which he was convicted was insufficient as a matter of law because the state failed to prove beyond a reasonable doubt that the victim suffered "substantial pain."
A. This Court Is Not Procedurally Barred From Hearing Petitioner's Claim Because The State Law Ground Was Inadequate To Support The Judgment.
Under the independent and adequate state grounds doctrine, the Supreme Court "will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Coleman v. Thompson, 501 U.S. 722, 729 (1991). "This rule applies whether the state law ground is substantive or procedural." Id. It also applies "in deciding whether federal district courts should address the claims of state prisoners in habeas corpus actions." Lee v. Kemna, 534 U.S. 362, 375 (2002) (quoting Coleman, 501 U.S. at 729).
1. Independent Prong
The Appellate Division held that Petitioner's insufficiency of the evidence claim was "unpreserved." Thus, the Appellate Division's decision to affirm Petitioner's conviction rested on a procedural state law ground independent of the claim he raises in the instant habeas petition. A brief statement by the state court that an issue is "unpreserved" is sufficient to indicate it was relying on a procedural bar. See, e.g., Harris, 489 U.S. at 265 n. 12; see also Ledesma v. Cunningham, No. 03 Civ. 6322, 2004 WL 1775677, at *20 (S.D.N.Y. Aug. 10, 2004). This is true even if the state court proceeds to address the merits of the issue in an alternative ruling. Harris, 489 U.S. at 264 n. 10. Here, the Appellate Division stated that Petitioner's challenge was "unpreserved," but continued by stating that were it to review the claim, it would fail. Williams, 742 N.Y.S.2d at 544. This use of an alternative ruling is sufficient to demonstrate its decision rested on a procedural bar, and accordingly, an independent ground to preclude federal habeas review.
Additionally, a summary denial of leave to appeal by the New York Court of Appeals will not unfasten the procedural bar to habeas review. See Levine v. Comm'r of Corr. Servs., 44 F.3d 121, 126 (2d Cir. 1995) (federal habeas court looks to Appellate Division's reliance on procedural bar where Court of Appeals issues summary denial of leave to appeal). Accordingly, the independent portion of the independent and adequate state grounds doctrine was satisfied.
This is so because where "the last reasoned opinion on the claim explicitly imposes a procedural default," a federal habeas court "will presume that a later decision rejecting the claim did not silently disregard that bar and consider the merits." Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).
2. Adequate Prong
Usually, a violation of "firmly established and regularly followed" state procedural rules forecloses review of a federal claim. Lee v. Kemna, 534 U.S. 362, 376 (2002) (citations omitted). However, there is a small window where, under certain circumstances, the "asserted state grounds are inadequate to block adjudication of the federal claim" or "in which the exorbitant application of a generally sound rule renders the state ground inadequate" to bar consideration of the federal constitutional claim. Cotto v. Herbert, 331 F.3d 217, 239 (2d Cir. 2003) (citing Lee, 534 U.S. at 376, 381). To determine whether Petitioner's claim falls within this narrow category of cases, the Second Circuit mandates we look at three factors:
(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, 331 F.3d at 240 (citing Lee, 534 U.S. at 376).
The Court emphasized that in Lee the adequacy of a state procedural bar is determined with reference to the "particular application" of the rule. Cotto, 331 F.3d at 240 (citing Lee, 534 U.S. at 387). That is, "the question is whether application of the procedural rule is 'firmly established and regularly followed' in the specific circumstances, an inquiry that includes an evaluation of the asserted state interest in applying the procedural rule in such circumstances." Cotto, 331 F.3d at 240 (citing Lee, 534 U.S. at 386-87).
Here, the alleged procedural violation was Petitioner's failure to abide by New York's contemporaneous objection rule. In particular, Petitioner failed to adequately present the grounds for his motion to dismiss for (1) insufficiency of the evidence, and (2) the People's failure to prove its case beyond a reasonable doubt. See People v. Gray, 86 N.Y.2d 10, 19 (1995); CPL § 470.05(2).
First, the trial court did not rely on Petitioner's alleged procedural violation and perfect compliance with the state procedural rule would not have altered the trial court's decision to deny defense counsel's motion to dismiss for insufficiency of the evidence. Specifically, when defense counsel presented his motion to dismiss for the People's failure to prove the case beyond a reasonable doubt and for the insufficiency of the evidence, the trial court rendered a brief opinion as to the sufficiency of the evidence and noted the plans to charge a lesser included offense. (Tr: 351:6-12.) Assuming there was a violation of the state procedural rule, it was not actually relied upon because the judge was able to understand and assess the merits of counsel's motion. It cannot be said that "through argument, or perhaps a request for an opportunity to brief the issue, the trial court may well have come to a different conclusion." Cotto, 331 F.3d at 243.
Second, state case law demands, in specific circumstances, compliance with the contemporaneous objection rule. This procedural rule states, in pertinent part:
For purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same.
CPL § 470.05(2). New York law dictates where a motion to dismiss for insufficient evidence is made, "the preservation requirement compels that the argument be 'specifically directed' at the alleged error." Gray, 86 N.Y.2d at 19 (internal citation omitted). Here, upon defense counsel's motion to dismiss, New York law demanded compliance with the contemporaneous objection rule.
Third, Petitioner substantially complied with the state procedural rule. A motion to dismiss for insufficient evidence must be 'specifically directed' at the alleged error. Gray, 86 N.Y.2d at 19 (internal citation omitted). Trial counsel's objection was not a general motion to dismiss. Rather, counsel made a motion to dismiss for the People's failure to prove the case beyond a reasonable doubt and for the insufficiency of the evidence. (Tr. 350:16-24.) This motion came in the context of challenging the elements of the single charge of robbery in the second degree. Although some cases have held that a motion to dismiss based on the failure to prove a prima facie case is not sufficiently specific to preserve a claim, they have dealt with the issue of identity. See People v. James, 678 N.Y.S.2d 731 (2d Dep't 1998); People v. Neptune, 652 N.Y.S.2d 991 (2d Dep't 1997). Objections at trial are calculated to bring the claim to the trial court's attention. Gray, 86 N.Y.2d at 20. Counsel's objection was did just that and prompted the trial court to charge, in addition to robbery in the second degree, a lesser included offense — robbery in the third degree — which omitted "physical injury" as an element.
A person is guilty of robbery in the third degree when he forcibly steals property. N.Y. Penal Law § 160.05.
B. The Evidence At Trial Was Sufficient For A Jury To Reasonably Conclude Petitioner Was Guilty Beyond A Reasonable Doubt.
Petitioner claims the evidence produced at trial was legally insufficient to prove his guilt beyond a reasonable doubt. The habeas petitioner is entitled to habeas relief "only if no rational trier of fact could find proof of guilt beyond a reasonable doubt based on the evidence adduced at trial." Ponnapula v. Spitzer, 297 F.3d 172, 179 (2d Cir. 2002) (citing Jackson v. Virginia, 443 U.S. at 317). The petitioner bears a "very heavy burden" in a case grounded upon an insufficiency of the evidence claim. Ponnapula, 297 F.3d at 179 (citations omitted).
Section 160.10 of the New York Penal Law provides, in pertinent part, that:
[A] person is guilty of robbery in the second degree when he forcibly steals property and when . . . [i]n the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime . . . [c]auses physical injury to any person who is not a participant in the crime.
N.Y. Penal Law § 160.10(2)(a).
Petitioner claims the People failed to prove beyond a reasonable doubt the "physical injury" element of robbery in the second degree. "Physical injury" is defined as "impairment of physical condition or substantial pain." N.Y. Penal Law § 10.00(9). The victim was placed in a choke hold and rendered unconsciousness. (Tr: 48-49.) Dr. James Gill testified that when one is choked, there is "injury to the muscles around the voice box and maybe even into the bones of the neck, which can cause either fractures of injuries of the muscle cells themselves. Usually, that would be evidenced by bleeding into the muscles, but that's going to cause pain." (Tr: 158: 7-12.) The victim testified that after he regained consciousness, his throat was "sore" and "was aching," and his wrist was "a little sore" as well. (Tr: 54:10-16.) The combination of these factors satisfy the elements.
See, e.g., People v. Bogan, 70 N.Y.2d 860, 862-63 (1987) (sufficient evidence for the jury to have found element of "physical injury" where defendant grabbed and choked victim and caused victim to lose consciousness, be taken to hospital and suffer pain and difficulty swallowing in days thereafter); People v. Delph, 704 N.Y.S.2d 209, 210 (1st Dep't 2000) (sufficient where two minute choke and compression of windpipe rendered victim nearly unable to hear or see); People v. Brown, 662 N.Y.S.2d 934, 935 (3d Dep't 1997) (jury could reasonably conclude victim suffered "physical injury" where defendant slammed her into couch, choked her to the point of almost passing out, left marks on neck and caused soreness and difficulty in swallowing); see also People v. Azadian, 600 N.Y.S.2d 278, 279 (2d Dep't 1993) (sufficient evidence for jury to find physical injury where choking victim momentarily lost consciousness, suffered aches and bruises, and was treated by doctor); People v. Daniels, 553 N.Y.S.2d 30, 30-31 (2d Dep't 1990) (sufficient evidence for jury to find element of "physical injury" where defendant choked victim until he felt dizzy, scratched his neck and face and caused him to be treated at the emergency room and suffer soreness and difficulty swallowing).
That the victim did not seek any medical attention after the incident (Tr: 65:21-23.) is not dispositive of the matter. Lack of medical treatment does not mean a person did not sustain a "physical injury." People v. Pope, 571 N.Y.S.2d 205, 207 (1st Dep't 1991); accord People v. Guidice, 83 N.Y.2d 630, 636 (1994). The victim may have been sore and achy but may have nonetheless rejected medical attention. One's reaction to or perception of pain may be considered in determining whether victim suffered "physical injury" "for pain is subjective and different persons tolerate it differently." People v. Bernier, 719 N.Y.S.2d 186, 187 (3d Dep't 2001) (quoting Guidice, 83 N.Y.2d at 636 (internal citation omitted)).
Accordingly, it was not "objectively unreasonable" to have found that the victim sustained "physical injury" and, accordingly, that the jury could find Petitioner guilty of robbery in the second degree. See Smith v. Duncan, No. 03 Civ. 910, 2004 WL 1857570, at *5 (S.D.N.Y. Aug. 18, 2004).
IV. CONCLUSION
As a result of the foregoing, William's petition for habeas corpus relief is denied. Because Petitioner failed to demonstrate a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253(c)(2). The Clerk of the Court is instructed to close this case and any pending motions and remove this case from my docket.
IT IS SO ORDERED.