The opinion of the court was delivered by: Andrew J. Peck, United States Magistrate Judge
REPORT AND RECOMMENDATION
To the Honorable Harold Baer, Jr., United States District Judge: Pro se petitioner Gary Wilson seeks a writ of habeas corpus from his 1999 conviction in Supreme Court, New York County, of third degree criminal possession of a controlled substance, and sentence of six to twelve years imprisonment. (Dkt. No. 2: Pet. ¶¶ 1-4.) Wilson's habeas corpus petition alleges that: (1) his conviction for criminal possession of a controlled substance with intent to sell must be set aside as against the weight of the evidence (Pet. ¶ 12(A)); (2) the trial court's failure to grant a mistrial after a detective made disparaging "faces" to the jury during his testimony deprived Wilson of his due process right to a fair trial (Pet. ¶ 12(B)); (3) his sentence of six to twelve years is unduly harsh (Pet. ¶ 12(C)); (4) his conviction was tainted by juror misconduct (Pet. ¶ 12(D)); (5) he was denied his right to effective assistance of counsel (Pet. ¶ 12(E)); and (6) he was denied the right to appeal by the New York Court of Appeals' denial of leave to appeal (Pet. ¶ 12(F)).
For the reasons set forth below, Wilson's petition should be DENIED.
The Prosecution Case at Trial
On December 1, 1998, police officers of the Manhattan South Narcotics District, including Detectives Steven Natal and Leroy Carter, were conducting a "buy and bust" operation near West Fourth Street and Sixth Avenue in Manhattan. (Natal: Trial Transcript ["Tr."] 217-18, 225, 232-34, 253; Carter: Tr. 325-26, 328.) Detective Natal was acting "as the arresting officer, detective investigator and backup to the undercover officer." (Natal: Tr. 218-19, 225, 234.) Detective Carter was acting as the undercover officer who would make the drug purchase with prerecorded buy money. (Carter: Tr. 321-24, 326; see also Natal: Tr. 218-20.)
At approximately 6:20 p.m., Detective Carter approached Wilson and another individual, Edward Perry. (Carter: Tr. 328; see also Natal: Tr. 233.) Detective Carter asked them "`are you working?,'" Wilson asked Detective Carter "`what are you looking for?,'" and Detective Carter responded "`do you have crack?'" (Carter: Tr. 328, 334.) Wilson replied "yeah" and "asked [Carter] how many." (Carter: Tr. 328, 334.) Detective Carter replied that he wanted two bags. (Carter: Tr. 328, 334.)
Wilson spit from his mouth a piece of crack packaged in a "twisted ziplock thing" and handed it to Detective Carter, who gave Wilson twenty dollars. (Carter: Tr. 328, 334-35, 340, 388.) When Detective Carter asked for the second bag, Wilson replied "wait a minute" and walked into a store. (Carter: Tr. 328-29, 334-35, 384, 390-91.) Wilson left the store and walked down the street with Perry. (Carter: Tr. 329, 392.) When Wilson and Perry turned the corner, Detective Carter "radioed [the] field team that [he] just made a buy" and described the two men. (Carter: Tr. 329, 394; see also Natal: Tr. 234-35.) Detective Natal arrested Wilson and Perry at 6:25 p.m. (Natal: Tr. 235-38, 260-62.) Detective Carter identified them as the people who sold him the crack cocaine. (Carter: Tr. 329-30, 402-09.)
Detective Natal searched Wilson and Perry and "recovered one yellow ziplock bag of alleged crack/cocaine from Mr. Wilson's right rear pants pocket." (Natal: Tr. 238.) Detective Natal's "field test" was "positive for cocaine." (Natal: Tr. 221, 239-40, 276-77.) A police chemist testified that chemical analysis later determined that this substance weighed "0.3 grains" and confirmed that "[c]ocaine [was] present in the substance." (Hanna: Tr. 313-15.)
Detective Carter's field-test of the substance he purchased from Wilson (as opposed to the drugs obtained from searching Wilson) was negative for cocaine. (Carter: Tr. 341-43; see also Natal: Tr. 258, 271; Chin: Tr. 290.) A police chemist testified that subsequent chemical analysis of the purchased substance determined that it weighed "0.6 grains" and, contrary to the negative field test result, "[t]hat cocaine [was] present." (Chin: Tr. 286, 288, 295-97, 302; see also Natal: Tr. 272-73.) The police, however, did not recover prerecorded buy money from either Wilson or Perry. (Natal: Tr. 239, 267; Carter: Tr. 377-78.)
At the close of the prosecution case, defense counsel moved for a trial order of dismissal, which the trial judge denied. (Tr. 407.)
Trial Wilson testified that on December 1, 1998, undercover Detective Carter approached him and asked if he was working. (Wilson: Tr. 418.) Wilson replied "`wait a minute'" and "went into the store." (Id.) He did not "see the guy that [would] normally be out there selling drugs" inside the store, so Wilson went back outside and told Detective Carter to "`wait a minute'" as he walked down the street. (Id.) Wilson explained that "there were dealers that be around in this vicinity and they sometimes go into the store" and "I told him to hang on because I'm not working and I don't have drugs." (Wilson: Tr. 420.)
Wilson testified that he did not receive the twenty dollars of pre-recorded buy money. (Wilson: Tr. 418, 424, 450-51.) In fact, he testified that if he "got $20 that easy, [he] would have been gone." (Wilson: Tr. 418.) However, Wilson conceded that he wanted to get the undercover officer's money. (Wilson: Tr. 424-26.)
Wilson testified that he sells only "beat," meaning a non-drug substance that resembles drugs and is sold to unsuspecting drug buyers, "not drugs, not cocaine, no crack, heroin or anything else." (Wilson: Tr. 411, 417, 464.) Wilson described his method of selling "beat" as follows:
What I do is I pick up a bag off the grounds that's
been used, because . . . there are empty crack bags
all over the streets of New York. . . . Wherever you
find an empty bag, you pick up a little Sheetrock or a
piece of paint, anything, you pick it up and put it in
a bag and people buy these. . . . [T]hey think they
are buying the drugs when you know in fact you are not
selling them what they think they are buying. . . .
(Wilson: Tr. 411-12.) When asked, "[t]he day you were arrested, you were selling this beat stuff?," Wilson answered, "Right." (Wilson: Tr. 413-15.)
Wilson also testified that earlier on December 1, 1998, he sold beat drugs (which he got from Edward Perry) to a police officer for seventy dollars, after which he went "uptown." (Wilson: Tr. 416, 419, 431-33, 464-66.) At around six o'clock he returned downtown "to sell some beat stuff." (Wilson: Tr. 416-17.)
Wilson described the substance recovered in the search of his pocket as "a crumb" and stated "I never keep drugs in my back pocket. I never keep drugs in my pocket, because I know I have a habit." (Wilson: Tr. 428.) While disclaiming possession of this bag, Wilson did admit that it was the type of bag that he would sell. (Wilson: Tr. 428-29, 449-50.)
Wilson's Motion for Mistrial
On direct examination, when the prosecutor asked Detective Natal to confirm the identity of the undercover officer as Officer Lee Carter, the record reflects that Detective Natal paused before replying in the affirmative. (Natal: Tr. 225.) According to defense counsel, Detective Natal "hesitated, shook his head" (Tr. 226), and "made a sour puss face" as though "disgusted" (Tr. 228). Wilson's counsel moved for a mistrial, arguing that Detective Natal's conduct suggested to the jury that the prosecutor "blew his brother's cover, and it is all his fault or the Court's fault. . . ." (Tr. 226.) The trial judge denied the motion, opining that Detective Natal made the faces because "[h]e was a little taken by surprise that we were using the undercover's name at the outset." (Tr. 228-29.)
On June 8, 1999, the jury found Wilson guilty of third degree criminal possession of a controlled substance, and not guilty of third degree criminal sale of a controlled substance. (Verdict: Tr. 558.) Wilson admitted to a prior felony conviction, and the trial court adjudicated him a predicate felon for purposes of sentencing. (Verdict: Tr. 562-63.) On June 22, 1999, Wilson was sentenced to six to twelve years imprisonment. See People v. Wilson, 276 A.D.2d 274, 274, 713 N.Y.S.2d 866, 866 (1st Dep't), appeal denied, 95 N.Y.2d 940, 721 N.Y.S.2d 616 (2000).
Wilson's Direct State Appeal
Represented by different counsel, Wilson appealed to the First Department, claiming that: (1) the weight of the evidence was insufficient to prove the requisite intent for third degree criminal possession of a controlled substance; (2) the faces Detective Natal made while testifying deprived Wilson of his due process right to a fair trial; and (3) his sentence was unduly harsh. (Ex. A: Wilson 1st Dep't Br. at 15-28.)*fn1
On October 24, 2000, the First Department affirmed Wilson's conviction, holding:
The verdict was not against the weight of the
evidence. There is no basis upon which to disturb the
jury's determinations concerning credibility. There
was ample evidence of intent to sell, and defendant's
acquittal of the sale charge does not warrant a
The court properly exercised its discretion in denying
defendant's mistrial motion after a testifying officer
shook his head and made a facial expression of
disgust, in the jury's presence, upon being compelled
to reveal the name of an undercover officer.
Defendant's claim that the court should have delivered
a curative instruction is unpreserved and we decline
to review it in the interest of justice. Were we to
review this claim, we would find that the officer's
reaction was directed at counsel and was ...