United States District Court, Southern District of New York
April 17, 2001
JUAN HERRERA, PETITIONER,
CHRISTOPHER ARTUZ, RESPONDENT.
The opinion of the court was delivered by: Baer, District Judge.
OPINION & ORDER
Pro se petitioner Juan Herrera seeks a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 challenging his April 13, 1993
conviction for murder in the second degree and arson in the
second degree. Herrera raises the following challenges to his
conviction: (1) that the state trial court erred in admitting
evidence of petitioner's threatening gesture to a State's
witness, (2) that the court's erroneous Sandoval ruling
prevented him from testifying at trial, and (3) that the court's
sentence was excessive. For the following reasons, the petition
On February 24, 1992, petitioner was convicted of murder in
the second degree N.Y. Penal Law § 125.25, and arson in the
second degree, N.Y. Penal Law § 150.15. The judge sentenced
petitioner, a second violent felony offender, to consecutive
prison terms of twenty-five years to life imprisonment for the
second degree murder count and twelve and a half to twenty-five
years for the second degree arson count.
Evidence introduced at trial established that petitioner shot
and killed Roberto Carrion, his roommate and brother-in-law, in
their apartment on February 14, 1992. After the murder, Herrera
set the apartment on fire and left the building. When he
returned, he alerted the Housing Police to the fire and allowed
the police to enter the apartment. After the fire department
arrived and extinguished the fire, a firefighter discovered
Carrion's partially burned body in a rear bedroom of the
apartment. An autopsy revealed that the cause of death was three
gunshot wounds, two to the head and one to the left forearm.
While the fire department and the police investigated the
scene, petitioner made several unsolicited statements to various
police officers regarding his whereabouts earlier that morning.
An autopsy conducted on Carrion's body revealed he had been shot
at a time when petitioner claimed he and Carrion had been alone
in the apartment. Other evidence implicated petitioner including
a fresh burn on his arm that he claimed he received a week
earlier while cooking.
Before trial, the court considered whether evidence of
petitioner's prior convictions was admissible for impeachment
purposes. See People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849,
314 N.E.2d 413 (1974). After reading petitioner's rather
extensive criminal history into the record, the trial court
ruled that petitioner's 1998 conviction for arson in the second
degree was admissible for impeachment purposes but the court
forbid any inquiry into the underlying facts and circumstances
of the conviction.
Herrera did not testify at trial but rested his defense on a
challenge to the reliability of the State's witnesses. The jury
found petitioner guilty of murder in the second degree and arson
in the second degree. On appeal, Herrera argued that the trial
court had erred in admitting evidence of an alleged threatening
made to one of the witnesses, had erroneously ruled that
evidence of prior crimes was admissible for impeachment
purposes, and had abused its discretion in sentencing him to
consecutive terms. The Appellate Division rejected Herrera's
arguments and unanimously affirmed his conviction. See People
v. Herrera, 245 A.D.2d 12, 665 N.Y.S.2d 643 (1997). Petitioner
filed an application for leave to appeal to the New York Court
of Appeals, but his application was denied without comment on
June 8, 1998. See People v. Herrera, 92 N.Y.2d 853,
677 N.Y.S.2d 83, 699 N.E.2d 443 (1998). On April 1, 1999, Herrera
filed this petition.
I. Standard of Review
A federal court's review of state proceedings on a habeas
petition is limited. 28 U.S.C. § 2254(d) precludes federal
habeas relief unless a federal court finds that the state
court's adjudication of the merits of the claims either:
(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)(1), (2); see also Williams v. Taylor,
529 U.S. 362, 390, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Mitchell
v. Herbert, No. 97 Civ. 5128, 1998 WL 186766, at*2 (S.D.N.Y.
Apr. 16, 1998). Petitioners bear the burden of proving
violations of federal law by a preponderance of the evidence.
See Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997).
Trial court rulings on evidentiary issues generally "do not
rise to the level of a Constitutional violation" even if the
ruling was erroneous. See Simmons v. Ross, 965 F. Supp. 473,
480 (S.D.N.Y. 1997); see also Estelle v. McGuire, 502 U.S. 62,
6768, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Thus a habeas court
may review a state court's evidentiary ruling "only if it was so
egregious that it rendered the petitioner's trial fundamentally
unfair in violation of due process." See Espinal v. Duncan,
No. 00 Civ 4844, 2000 WL 1774960, at*2 (S.D.N.Y. Dec. 4, 2000).
Moreover, if a petitioner procedurally defaulted in state
court, a federal court may only consider a claim in which the
petitioner can show cause for the default and resulting
prejudice. See Epps v. Commissioner of Correctional Services,
13 F.3d 615, 618 n. 1 (2d Cir. 1994) (citing Coleman v.
Thompson, 501 U.S. 722, 74950, 111 S.Ct. 2546, 115 L.Ed.2d 640
II. Evidence of the Alleged Threatening Gesture
Petitioner argues that the trial court erred in permitting the
State to introduce evidence of an alleged threatening gesture
that petitioner made to a police detective during the
detective's trial testimony. The detective claimed that during a
break in his testimony petitioner pointed in the detective's
direction and "put his finger across his throat in a slicing
motion." See Tr. at 280. After hearing the detective's
allegation outside the presence of the jury, the court ruled
that the testimony was admissible but limited it to a
description of the alleged motion and did not allow the
detective to comment on the defendant's meaning. See Tr.
Courts will admit evidence of a defendant's conduct that
reveals a guilty mind including evidence of coercion and
harassment of a witness. See People v. Bennett, 79 N.Y.2d 464,
583 N.Y.S.2d 825,
593 N.E.2d 279, 283 (1992); People v. Plummer, 36 N.Y.2d 161,
365 N.Y.S.2d 842, 325 N.E.2d 161 (1975) (holding that evidence
of defendant's threatening behavior toward a witness was
admissible); People v. Yazum, 13 N.Y.2d 302, 246 N.Y.S.2d 626,
196 N.E.2d 263 (1963) (holding that evidence of the defendant's
attempted escape was admissible); United States v. Mickens,
926 F.2d 1323 (2d Cir. 1991) (holding that evidence that the
defendant held his hand in the shape of a gun as the witness
entered the courtroom was admissible). Here, it was clearly
within the trial court's discretion to admit limited evidence of
petitioner's gesture as probative of his state of mind.
Petitioner also argues that this evidence should have been
excluded because, as consciousness of guilt evidence, it is
inherently weak. "Even equivocal consciousness-of-guilt evidence
may be admissible so long as it is relevant, meaning that it has
a tendency to establish the fact sought to be proved — that
defendant was aware of guilt." See People v. Bennett, 79
N.Y.2d at 470, 583 N.Y.S.2d 825, 593 N.E.2d 279; see also
People v. Yazum, 13 N.Y.2d at 302, 246 N.Y.S.2d 626,
196 N.E.2d 263 (limited probative force of flight evidence is no reason for
exclusion). Courts, of course, must also consider whether the
probative value of the evidence outweighs the prejudice. See
Bennett, 583 N.Y.S.2d 825, 593 N.E.2d at 283 n. 2.
Numerous courts have held, as the trial court did here, that
evidence of threatening behavior by the defendant was relevant
and admissible. See Bennett, 583 N.Y.S.2d 825, 593 N.E.2d at
283; Plummer, 365 N.Y.S.2d 842, 325 N.E.2d 161; Yazum,
246 N.Y.S.2d 626, 196 N.E.2d 263; Mickens, 926 F.2d 1323. In light
of these decisions, the trial court was well within its
discretion to determine that this evidence was relevant, and
petitioner's claim must be denied.
III. The Trial Court's Sandoval Ruling
Petitioner argues that the trial court's Sandoval ruling to
admit evidence of his prior arson conviction for impeachment
purposes was erroneous and prevented him from testifying at
To determine whether a trial court abused its discretion in
allowing evidence of past crimes for impeachment purposes, a
reviewing court must be able to make a finding that the
probative value of the prior conviction outweighed its
prejudicial effect. See Luce v. United States, 469 U.S. 38,
43, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984). However, it is well
established that when a defendant does not testify, a court does
not have an "adequate non-speculative basis upon which to assess
the merits of that claim," and, therefore, the reviewing court
is procedurally barred from considering a challenge to the trial
court's ruling. See Peterson v. LeFevre, 753 F. Supp. 518, 521
(S.D.N.Y. 1991); see also United States v. Weichert,
783 F.2d 23, 25 (2d Cir. 1986) (holding that defendant who did not
testify failed to raise and preserve impeachment issue on
appeal). Since Herrera did not testify, I am barred from
considering his challenge to the court's Sandoval
ruling.*fn1 See Luce, 469 U.S. at 43, 105 S.Ct. 460 ("We
hold that to
raise and preserve for review the claim of improper impeachment
with a prior conviction, a defendant must testify."); see also
Long v. Andrews, No. 99 Cv. 7553, 2000 WL 1716443, at *4
(E.D.N.Y. November 13, 2000); Stevenson v. Strack, No. 96 Civ.
8429, 1999 WL 294805, at *5 (S.D.N.Y. May 11, 1999) ("It is well
settled that a petitioner's failure to testify at trial is fatal
to any claim of constitutional deprivation arising out of a
Sandoval type ruling."); McEachin v. Ross, 951 F. Supp. 478,
481 (S.D.N.Y. 1997). Thus, Herrera's petition on this ground is
IV. Excessive Sentence
As his final ground for habeas relief, petitioner claims that
the trial court's imposition of a consecutive sentence totaling
thirty-five years to life imprisonment was erroneous due to his
age and the fact that the state's attorney proposed the
imposition of concurrent sentences.*fn2 Petitioner does not
dispute that his sentence with within the range prescribed by
New York state statute nor does he dispute that the trial court
had discretion to sentence him to consecutive terms pursuant to
McKinney's Penal Code § 70.25.
It is well settled that when a sentence is in accord with the
range established by state statutory law there is no
constitutional issue presented for habeas review. See White v.
Keane, 969 F.2d 1381, 1383 (2d Cir. 1992); see also Mitchell
v. Herbert, No. 97 Civ. 5128, 1998 WL 186766, at *7 (S.D.N.Y.
April 20, 1998). Rather, a petitioner must show the trial
court's sentencing decision amounted to an improper, "arbitrary
or capricious abuse of discretion" that deprived the petitioner
of his liberty. See Jones v. Hollins, 884 F. Supp. 758, 761-62
(W.D.N.Y.), aff'd, 89 F.3d 826 (2d Cir. 1995). Accordingly,
the imposition of consecutive sentences is found to run afoul of
the Eighth Amendment "only under extraordinary circumstances."
Salcedo, 107 F. Supp.2d at 414.
In light of this standard, the trial court's imposition of
consecutive sentences was clearly an appropriate exercise of
discretion and does not provide a ground for habeas
review.*fn3 See United States v. Jaramillo-Montoya,
834 F.2d 276, 279 (2d Cir. 1987). Petitioner's extensive criminal
record, the heinous nature of the crime involved, and
petitioner's lack of remorse,*fn4 all support the trial
court's decision. Thus, there are no extraordinary circumstances
that warrant petitioner's claim that his sentence is excessive
and amounts to cruel and unusual punishment. Accordingly, this
claim for habeas relief is also denied.
For the reasons stated above, the petition is denied, and the
clerk is instructed to close the case.
IT IS SO ORDERED.