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United States District Court, Southern District of New York

April 22, 2003


The opinion of the court was delivered by: Robert W. Sweet, United States District Judge


Petitioner Albert Brown pro se ("Petitioner" or "Brown"), currently incarcerated at Lyon Mountain Correctional Facility, Lyon Mountain, New York, has brought this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 against the Superintendent (the "State") challenging his conviction in the Supreme Court of the State of New York, New York County, for Criminal Sale of a Controlled Substance in the Third Degree (N.Y. Penal Law § 220.39[1]) and two counts of Criminal Possession of a Controlled Substance in the Third Degree (Penal Law § 220.16[1]). Petitioner claims that (1) his conviction was against the weight of the evidence, and (2) the comments of the trial court during voir dire deprived him of a fair trial. For the reasons set forth below, the petition is denied.

Prior Proceedings

The petition was filed on June 21, 2002, the State filed its opposition and the matter was marked fully submitted on November 26, 2002.

State Court Proceedings

By New York County Indictment Number 1783/98, filed on March 27, 1998, Petitioner was charged with one count of Criminal Sale of a Controlled Substance in the Third Degree (Penal Law § 220.39[1]) and two counts of Criminal Possession of a Controlled Substance in the Third Degree (Penal Law § 220.16[1]). After a suppression hearing, the results of which are not at issue, Petitioner's trial began on September 2, 1998 before the Honorable Edward McLaughlin and a jury.

The presiding judge made the following remarks during voir dire:

Now, that is the outline of a criminal case [and] the law that controls it. It's not the only way to resolve criminal cases but it's the way you folks [] for hundreds of years have decided it best is done. Other countries, some sophisticated places, some not so sophisticated places [do] it differently. Some have judges deciding cases, some have military officers, some have civilians, some have different combinations. You folks have decided this is the way to do it. If you happen to win the lottery and you win a huge . . . [sum] of money enough to buy an island some place, you could create your own little kingdom o[r] [] empire. You can run your criminal justice [system] by the rules you want . . . so here you have the rules you have created say presumption of innocence, burden of proof. Unanimity is required. Anyone think that's ridiculous? You want to buy your island somewhere and you want to set up your own system but you'll be damned if you're going to follow these rules? Okay.
In return for the ability to decide cases and make the accuracy and credibility factual decisions as part of the process that you've created you've given up every opportunity, every right, every privilege of questioning what the law is. You have to follow what the law is. Let me allow that to register. Yes. In this one wonderful city, somebody has just told a group of New Yorkers that you have to do something. You did it to yourselves. You have created the system that says you will follow the law whether you understand why it's the law or not . . .
Do not worry about not understanding what the law is. I can communicate the meaning of the law to you easily. You have to follow it whether you understand it or not, whether you understand why it's the law or not, whether or not you have a flat out hundred percent disagreement about it. You've done that to yourself you created it.
You can see I don't want this misunderstood because I believe in the jury system. But I'm down here for the length of my term until I get hit by a truck or something happens to me. I'm here everyday. I guarantee you — I hope it doesn't sound presumptuous — I guarantee you I could get the verdict in this case correctly as in any trial as you folks could be home at work, retired, on vacation, looking for a job, looking for a better job or just hanging out but you have created the jury trial system.
(T: 64).

After giving the preliminary instructions which are at issue here, and while the prospective jurors were out of the courtroom, defense counsel objected, saying that the trial court's remarks may have incorrectly conveyed to the jury that "there should be a certain result" and that the "jury system is unnecessary." Trial counsel asked for a curative instruction in the event the court would not agree to a new panel of jurors.

Justice McLaughlin responded:

I don't think there is anything wrong or erroneous with what I said. The comments [are] in the general context of the jury trial system [and] the necessity of having jurors and how they have created a system that they basically can't get out. I specifically told them that I didn't want my comment to be misunderstood because I am in fact in favor of the jury system.
Undercover officers testified at trial that on the evening of February 13, 1998 they were engaged in a buy-and-bust operation on West 137th Street, between Fifth and Lenox Avenues in Manhattan and described the conduct of Brown. Three individuals approached Brown, who was wearing a blue and black bubble coat, blue jeans and white sneakers, and asked for "pinks, pinks," and gave him money in exchange for an object the officer could not identify. After completing two of these transactions, Brown walked about five feet away and reached into a window ledge to remove a paper cup, removed several items from the cup, and placed them in his pockets before returning the cup to the same window ledge.

Over the next forty-five minutes, Brown gave objects to an additional four individuals in exchange for money. A woman, later identified as Ruby Pool, handed money to Petitioner in exchange for an object and placed the object in her right front pants pocked. When she was apprehended, a pink vial was recovered from her right front pants pocket. When Brown was arrested the arresting officer testified that he recovered four pink-topped vials from his waistband and seventy-five dollars from his right front pants pocket.

After the arrest, the undercover officer returned to the area where he had seen Brown secreting the paper cup and recovered a paper cup with thirty-five pink-topped vials contained in a large ziplock bag which were the same color as those recovered from Ruby Pool. A chemist testified that the vials contained cocaine.

On September 8, 1998, Petitioner was convicted on both counts. On October 5, 1998, Petitioner was sentenced as a second felony offender to concurrent terms from six to twelve years on each count.

In February 2000, Brown filed an appeal with the Appellate Division, First Department, claiming that his conviction was against the weight of the evidence and that the trial court's comments during voir dire denigrated the jury system and deprived Petitioner of his right to due process by implying that he should be found guilty before any evidence was heard.

On October 3, 2000, the Appellate Division affirmed Brown's judgment of conviction. The court determined that the jury's verdict was not against the weight of the evidence and there was no reason to disturb the jury's findings concerning credibility and that while the voir dire jury instructions were expressed in an "inappropriate" manner, they did not convey the court's opinion regarding Petitioner's guilt or innocence and also did not minimize the importance of careful deliberation so as to deprive Petitioner of a fair trial.

On or about October 5, 2000, Petitioner moved for leave to appeal the affirmance of his conviction to the New York State Court of Appeals, raising the same issues. The Court of Appeals denied Petitioner's application on December 19, 2000.


A federal court may not consider the merits of a claim raised in a habeas corpus petition unless the claim was fairly presented to the "highest state court from which a decision can be had." Daye v. Attorney Gen., 696 F.2d 186, 191 (2d Cir. 1982) (en banc), cert. denied, 464 U.S. 1048 (1984); see also Picard v. Connor, 404 U.S. 270, 275 (1971) ("It has been settled . . . that a state prisoner must normally exhaust available state judicial remedies before a court will entertain his petition for habeas corpus."). Every claim in a petition must be exhausted and petitioner must have informed the state courts of both the factual and legal basis for his federal claims. Id.

Brown failed to raise his claim that his conviction was against the weight of the evidence in federal constitutional terms in either the Appellate Division or the Court of Appeals, and it is thus unexhausted. In these circumstances, Brown cannot be said to have alerted the state courts to his current claim that his due process rights were violated because his guilt was not proven beyond a reasonable doubt. See United States ex rel. v. Varner, No. Civ. 81-3512, 1982 U.S. Dist. LEXIS 15533 (E.D.N.Y. Nov. 2, 1982); United States ex rel. Williams v. Scully, No. 83 Civ. 0572, 1984 U.S. Dist. LEXIS 16213 (S.D.N.Y. June 1, 1984). Petitioner's weight of the evidence claim should nevertheless be deemed constructively exhausted and dismissed since it is procedurally forfeited.

"A petitioner must return to state court if he has not exhausted his state remedies." Bell v. Albaugh, 2000 U.S. Dist. LEXIS 18515, at *12 (S.D.N.Y. Dec. 26, 2000) (citing Engle v. Isaac, 456 U.S. 107 (1982)); Cadilla v. Johnson, 119 F. Supp.2d 366, 374 n. 7 (S.D.N.Y. 2000). However, if there is no available state forum to pursue a remedy because petitioner is procedurally barred from doing so, the claim may be deemed unexhausted, yet forfeited. Id. (citing Teague v. Lane, 489 U.S. 288 (1989)).

New York law permits the filing of only one direct appeal and one application for leave to appeal to the Court of Appeals. Bell, 2000 U.S. Dist. LEXIS 18515, at *13 (citing N.Y. Court Rules § 500.10(a)); Lurie v. Wittner, 228 F.3d 113, 124 (2d Cir. 2000); Strogov v. Attorney General of N.Y., 191 F.3d 188, 193 (2d Cir. 1999). Here, Brown failed to raise his claim relating to the weight of the evidence and is therefore barred from seeking further direct review from the Court of Appeals. The second claim regarding the trial court's voir dire comments was exhausted and fairly presented to the highest state court. See Davis v. Strack, 270 F.3d 111, 122 (2d Cir. 2001).

Standard of Review

Brown's habeas corpus petition post-dates the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). His case is therefore governed by 28 U.S.C. § 2254 as revised by AEDPA. Williams v. Taylor, 529 U.S. 362, 402 (2000). Under the standards of amended § 2254(d)(1), where a petitioner's claims were adjudicated on the merits in state court, habeas corpus relief may not be granted unless the state court decision (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 in the state court proceeding." 28 U.S.C. § 2254(d)(1); see Williams, 529 U.S. at 402-411.

Under 28 U.S.C. § 2254(e)(1), a state court determination of a factual issue is presumed to be correct. The determination can be rejected only if the petitioner meets his or her "burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). Overall, a petitioner bears the burden of proving violations of federal law by a preponderance of the evidence. Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997).

The Weight of the Evidence Precludes the Petition

Challenges to the weight of the evidence supporting a conviction, unlike challenges to the sufficiency of the evidence, are not cognizable on federal habeas review. Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996); McBride v. Senkowski, No. 99 Civ. 8663, 2002 U.S. Dist. LEXIS 5929, at *13 n. 2 (S.D.N.Y. Apr. 3, 2002). However, construing Brown's claim liberally, the Appellate Division clearly resolved this question upon consideration of the merits, in finding that the verdict was not against the weight of the evidence and there was no basis on which to disturb the jury's determinations concerning credibility. Since Petitioner's evidentiary sufficiency claim was adjudicated on the merits in state court, the deferential review provisions of 28 U.S.C. § 2254 apply. See Aparacio v. Artuz, 269 F.3d 78, 93 (2d Cir. 2001) (quoting Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001)) (for purposes of AEDPA, a state court "adjudicates a petitioner's federal constitutional claims `on the merits' whenever it (1) disposes of the claim `on the merits,' and (2) reduces its disposition to judgment.").

A habeas petitioner challenging his conviction on grounds of legal insufficiency bears a "very heavy burden." Knapp v. Leonardo, 46 F.3d 170, 178 (2d Cir. 1995); Black v. McGinnis, No. 99 Civ. 5743, 2001 U.S. Dist. LEXIS 19689, at *13 (S.D.N.Y. Nov. 29, 2001). The petitioner must show that no rational trier of fact could have found the essential elements of the crime to be established beyond a reasonable doubt, and the respondent need only establish that, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also Einaugler v. Supreme Court of the State of New York, 109 F.3d 836, 840 (2d Cir. 1997).

To determine the essential elements of a crime, this Court looks to state law, and evidence is reviewed as a whole. Maldonado, 86 F.3d at 35.

Although only four vials of cocaine were recovered from Brown, the evidence testimony connected him to the recovered stash and established his control over the other thirty-five vials. The undercover identified Brown in court and recognized him from a picture that was taken at the time of the arrest as the same person he had observed making the sales. His identity as the seller was further confirmed by the evidence that when Pool was arrested she was in possession of a pink-topped vial which was identical to the thirty-five found in the coffee cup, and the four recovered from Petitioner, all of which were found to contain cocaine.

This evidence, taken as a whole, was more than sufficient to establish Petitioner's guilt and the Appellate Division did not depart from any governing federal principle in affirming his conviction. 28 U.S.C. § 2254(d)(1). Habeas relief is thus unavailable to petitioner.

The Trial Court's Comments During Voir Dire Did Not Deprive Petitioner Of A Fair Trial

As the second ground of the petition, Brown claims that the trial court's comments during voir dire deprived him of a fair trial by denigrating the jury system and discouraging the jury from undertaking due deliberation by suggesting that the court had already determined, ab initio, what the outcome of the trial should be.

In adjudicating Petitioner's due process claim relating to the trial judge's comments during voir dire, the Appellate Division found that "[w]hile the court's general comments on the jury system and its own ability to determine guilt or innocence would better have remained unsaid and were expressed in an inappropriate manner, they cannot be said to have conveyed the court's opinion as to the defendant's guilt, to have minimized the importance of careful deliberations, or to have deprived defendant of a fair trial."

In order to prevail on a habeas petition in federal court on the ground of error in a state court's instructions to the jury, a petitioner must demonstrate that the instruction misstated the law and that the error was so serious that it deprived him of a fair trial. Sams v. Walker, 18 F.3d 167, 171 (2d Cir. 1994) (citing Casillas v. Scully, 769 F.2d 60, 63 (2d Cir. 1985)). Thus, an erroneous state jury instruction is grounds for federal habeas relief only if it "so infected the entire trial that the resulting conviction violates due process." Estelle v. McGuire, 502 U.S. 62, 72 (1991) (quoting Cupp v. Naughton, 414 U.S. 141, 147 (1973)); Blazic v. Henderson, 900 F.2d 534, 541 (2d Cir. 1990). In deciding whether a jury instruction violates due process, the court on habeas review must evaluate the instruction not in "artificial isolation" but in the context of the overall charge. Estelle, 502 U.S. at 72 (quoting Cupp, 414 U.S. at 147); Mullings v. Meachum, 864 F.2d 13, 16 (2d Cir. 1988).

A fair reading of the remarks reflects that the judge, while using colorful language, felt that he was simply conveying the concept that jurors were bound to follow the precepts of the jury system, whether or not they personally agreed or disagreed with the system. More importantly, in each of the pertinent areas mentioned by the Appellate Division — the question of Petitioner's guilt or innocence and the necessity of due deliberation — the trial judge clearly communicated the applicable standards in his charge as set forth in the State's memorandum in opposition.

The challenge to comments made by the trial court during voir dire is without merit.


The petition is dismissed for the reasons set forth above.

As petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253(c)(2); Lucidore v. New York State Div. of Parole, 209 F.3d 107, 111-13 (2d Cir. 2000).

It is so ordered.


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