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WILSON v. SENKOWSKI

United States District Court, Southern District of New York


May 7, 2003

GARY WILSON, PETITIONER, AGAINST DANIEL A. SENKOWSKI, SUPERINTENDENT, RESPONDENT.

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.

FACTS

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.)

The Defense Case at

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.)

Verdict and Sentencing

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 different conclusion.
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 unlikely to have caused defendant any prejudice, and did not rise to the level of emotional outburst for which curative instructions are required.
We perceive no abuse of sentencing discretion.

People v. Wilson, 276 A.D.2d 274, 274, 713 N.Y.S.2d 866, 866-67 (1st Dep't 2000) (citations omitted).

The New York Court of Appeals denied leave to appeal on November 14, 2000. People v. Wilson, 95 N.Y.2d 940, 721 N.Y.S.2d 616 (2000).

Wilson's Federal Habeas Corpus Petition and Prior Proceedings Herein

Wilson's timely pro se habeas corpus petition (dated November 11, 2001) raises six grounds for relief: (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 (Dkt. No. 2: Pet. ¶ 12(A)); (2) the trial court's failure to grant a mistrial after Detective Natal made 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 was 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)).

In light of Wilson's concession in his petition that claims four (juror misconduct), five (ineffective assistance of counsel) and six (denial of right to appeal) were unexhausted (Pet. ¶ 13), the Court issued an order dated December 13, 2002, outlining what Wilson needed to do to properly exhaust and raise the claims in federal court:

Wilson must either (1) agree to dismiss his unexhausted claims (which will prevent them from being raised in the future in federal court), or (2) go back to state court to exhaust those claims. If Wilson chooses the latter course, he must bring his state collateral proceedings within 30 days of this Order (and supply courtesy copies to this Court immediately thereafter), and then return to this Court within 30 days after the state court's final decision on the collateral proceeding (and any available appeal). If Wilson does not comply with these time limits, the Court will deny these claims as unexhausted and procedurally barred.
The Court will hold the remaining claims in abeyance until Wilson either dismisses the unexhausted claims or returns to this Court after exhausting the claims under the above schedule.
(Dkt. No. 11:12/13/02 Order.)

On January 28, 2003, two weeks after the thirty-day deadline had passed, the Court ordered Wilson to show cause why his unexhausted claims should not be denied as unexhausted and procedurally barred. (Dkt. No. 12.) Wilson responded in a letter dated February 2, 2003, seeking an extension of sixty days to file a C.P.L. § 440.10 motion in state court. (Dkt. No. 13.) On February 14, 2003, the Court denied Wilson's belated extension request. (Dkt. No. 14.)

ANALYSIS

I. THE AEDPA REVIEW STANDARD*fn2

Before the Court can determine whether Wilson is entitled to federal habeas relief, the Court must address the proper habeas corpus review standard under the Antiterrorism and Effective Death Penalty Act ("AEDPA").

In enacting the AEDPA, Congress significantly "modifie[d] the role of federal habeas courts in reviewing petitions filed by state prisoners." Williams v. Taylor, 529 U.S. 362, 403, 120 S.Ct. 1495, 1518 (2000). The AEDPA imposed a more stringent review standard, as follows:

(d) 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) . . . 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, e.g., Eze v. Senkowski, 321 F.3d 110, 120 (2d Cir. 2003) ("AEDPA changed the landscape of federal habeas corpus review by `significantly curtail[ing] the power of federal courts to grant the habeas petitions of state prisoners.'") (quoting Lainfiesta v. Artuz, 253 F.3d 151, 155 (2d Cir. 2001), cert. denied, 535 U.S. 1019, 122 S.Ct. 1611 (2002)).

The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have "independent meaning." Williams v. Taylor, 529 U.S. at 404-05, 120 S.Ct. at 1519.*fn3 Both, however, "restrict[] the source of clearly established law to [the Supreme] Court's jurisprudence." Williams v. Taylor, 529 U.S. at 412, 120 S.Ct. at 1523.*fn4 "That federal law, as defined by the Supreme Court, may either be a generalized standard enunciated in the [Supreme] Court's case law or a bright-line rule designed to effectuate such a standard in a particular context." Kennaugh v. Miller, 289 F.3d at 42. "A petitioner cannot win habeas relief solely by demonstrating that the state court unreasonably applied Second Circuit precedent." Yung v. Walker, 296 F.3d at 135; accord, e.g., DelValle v. Armstrong, 306 F.3d at 1200.

As to the "contrary to" clause:

A state-court decision will certainly be contrary to [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases. . . . A state-court decision will also be contrary to [the Supreme] Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.
Williams v. Taylor, 529 U.S. at 405-06, 120 S.Ct. at 1519-20.*fn5

In Williams, the Supreme Court explained that "[u]nder the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams v. Taylor, 529 U.S. at 413, 120 S.Ct. at 1523. However, "[t]he term `unreasonable' is . . . difficult to define." Id. at 410, 120 S.Ct. at 1522. The Supreme Court made clear that "an unreasonable application of federal law is different from an incorrect application of federal law." Id.*fn6 Rather, the issue is "whether the state court's application of clearly established federal law was objectively unreasonable." Williams v. Taylor, 539 U.S. at 409, 120 S.Ct. at 1521.*fn7 The Second Circuit has explained "that while `[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence.'" Jones v. Stinson, 229 F.3d at 119 (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).*fn8 Moreover, the Second Circuit has held "that a state court determination is reviewable under AEDPA if the state decision unreasonably failed to extend a clearly established, Supreme Court defined, legal principle to situations which that principle should have, in reason, governed." Kennaugh v. Miller, 289 F.3d at 45; accord Yung v. Walker, 296 F.3d at 135. Under the AEDPA, in short, the federal courts "must give the state court's adjudication a high degree of deference." Yung v. Walker, 296 F.3d at 134.

Even where the state court decision does not specifically refer to either the federal claim or to relevant federal case law, the deferential AEDPA review standard applies:

For the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.
Sellan v. Kuhlman, 261 F.3d at 312; accord, e.g., Eze v. Senkowski, 321 F.3d at 121; Ryan v. Miller, 303 F.3d at 245; Aeid v. Bennett, 296 F.3d 58, 62 (2d Cir.), cert. denied, 123 S.Ct. 694 (2002); Jenkins v. Artuz, 294 F.3d 284, 291 (2d Cir. 2002) ("In Sellan, we found that an even more concise Appellate Division disposition — the word `denied' — triggered AEDPA deference."); Norde v. Keane, 294 F.3d 401, 410 (2d Cir. 2002); Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir. 2001).*fn9 "By its terms, § 2254(d) requires such deference only with respect to a state-court `adjudication on the merits,' not to a disposition `on a procedural, or other, ground.' Where it is `impossible to discern the Appellate Division's conclusion on [the relevant] issue,' a federal court should not give AEDPA deference to the state appellate court's ruling." Miranda v. Bennett, 322 F.3d 171, 177-78 (2d Cir. 2003) (citations omitted).*fn10

II. WILSON'S JUROR MISCONDUCT AND INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS SHOULD BE DISMISSED AS UNTIMELY

The Second Circuit in Zarvela v. Artuz instructed the district courts on how to handle a "mixed" petition containing exhausted and unexhausted claims in light of the AEDPA's one year statute of limitations: the district court should "dismiss[] only the unexhausted claims." Zarvela v. Artuz, 254 F.3d 374, 380-82 (2d Cir.), cert. denied, 534 U.S. 1015, 122 S.Ct. 506 (2001). "As to the exhausted claims, we think a district court should exercise discretion either to stay further proceedings on the remaining portion of the petition or to dismiss the petition in its entirety." Zarvela, 254 F.3d at 380. The Second Circuit further instructed that "a stay . . . will be the only appropriate course in cases . . . where an outright dismissal `could jeopardize the timeliness of a collateral attack.'" Id. The Second Circuit also noted that "a stay of the exhausted claims will often be preferable to a dismissal of the entire petition because such a stay will reflect the continued viability of the initially filed exhausted claims." Id. at 381.

Here, because Wilson candidly conceded that his fourth claim (juror misconduct) and fifth claim (ineffective assistance of counsel) were unexhausted (Dkt. No. 2: Pet. ¶ 13), the Court directed Wilson to exhaust the claims within the thirty-day time limits suggested by the Second Circuit in Zarvela. (See Dkt. No. 11:12/13/02 Order, quoted at page 7 above.) The Court expressly warned that "[i]f Wilson does not comply with these time limits, the Court will deny these claims as unexhausted and procedurally barred. (Id.)

Wilson nevertheless failed to timely exhaust his unexhausted claims. (See Dkt. Nos. 13-14, discussed at page 8 above.) The Court therefore should dismiss these unexhausted claims as untimely. See Castillo v. Hodges, 01 Civ. 2172, 2003 WL 359460 at *4 (S.D.N.Y. Feb. 18, 2003) (failure to comply with order to exhaust claims under Zarvela procedures would result in the court's "vacat[ing] the stay nunc pro tunc . . . and the petition may be dismissed in its entirety"); Figueroa v. Greiner, 02 Civ. 2126, 2002 WL 31356512 at *8-9 (S.D.N.Y. Oct. 18, 2002) (Peck, M.J.) (petitioner's habeas "claim should be dismissed for failure to comply with this Court's order to exhaust the claim" under Zarvela); Rodriguez v. Greiner, 99 Civ. 4475, 2002 WL 511555 at *4-5 (S.D.N.Y. Apr. 3, 2002) (dismissing habeas claim because, in violation of order, petitioner failed timely to return to state court to exhaust claim).

III. WILSON'S WEIGHT OF THE EVIDENCE CLAIM IS NOT COGNIZABLE ON FEDERAL HABEAS*fn11

Wilson's first habeas claim is that his conviction is against the weight of the evidence. (Dkt. No. 2: Pet. ¶ 12(A).)

A challenge to a verdict based on the weight of the evidence differs from one based on the sufficiency of the evidence: "[T]he `weight of the evidence' argument is a pure state law claim grounded in New York Criminal Procedure Law § 470.15(5), whereas a legal sufficiency claim is based on federal due process principles." Garbez v. Greiner, 01 Civ. 9865, 2002 WL 1760960 at *8 (S.D.N.Y. July 30, 2002) (citing People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761 (1987)).*fn12

It is well-settled that a weight of the evidence claim is not cognizable on federal habeas review. E.g., Young v. Kemp, 760 F.2d 1097, 1105 (11th Cir. 1985) ("A federal habeas court has no power to grant habeas corpus relief because it finds that the state conviction is against the `weight' of the evidence . . ."), cert. denied, 476 U.S. 1123, 106 S.Ct. 1991 (1986); Ex parte Craig, 282 F. 138, 148 (2d Cir. 1922) ("a writ of habeas corpus cannot be used to review the weight of evidence . . ."), aff'd, 263 U.S. 255, 44 S.Ct. 103 (1923); Garbez v. Greiner, 2002 WL 1760960 at *8 ("by raising a `weight of the evidence' argument, [petitioner] does not present to this Court a federal claim as required by 28 U.S.C. § 2254(a). Instead, [petitioner] raises an error of state law, which is not available for habeas corpus review."); Lemons v. Parrott, 01 Civ. 9366, 2002 WL 850028 at *3 (S.D.N.Y. May 2, 2002) ("[W]e have no authority to review a weight of the evidence argument because it is a state law claim."); McBride v. Senkowski, 98 Civ. 8663, 2002 WL 523275 at *4 n. 2 (S.D.N.Y. Apr. 8, 2002) (weight of evidence is not cognizable on habeas review); Correa v. Duncan, 172 F. Supp.2d 378, 381 (E.D.N.Y. 2001) ("`weight of the evidence' argument is a pure state law claim grounded in New York Criminal Procedure Law § 470.15(5), whereas a legal sufficiency claim is based on federal due process principles. Accordingly, the Court is precluded from considering the [weight of the evidence] claim.") (citations omitted); Peralta v. Bintz, 00 Civ. 8935, 2001 WL 800071 at *5 (S.D.N.Y. July 16, 2001) (Petitioner "raises only the state law issue of whether the weight of the evidence supported his conviction. Because [petitioner] raises no cognizable federal issue, his petition must be denied."); Kearse v. Artuz, 99 Civ. 2428, 2000 WL 1253205 at *1 (S.D.N.Y. Sept. 5, 2000) ("Disagreement with a jury verdict about the weight of the evidence is not grounds for federal habeas corpus relief."); Rodriguez v. O'Keefe, 96 Civ. 2094, 1996 WL 428164 at *4 (S.D.N.Y. July 31, 1996) ("A claim that the verdict was against the weight of the evidence is not cognizable on habeas review."), aff'd, No. 96-2699, 122 F.3d 1057 (table) (2d Cir. Sept. 9, 1997), cert. denied, 522 U.S. 1123, 118 S.Ct. 1068 (1998); see also, e.g., Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996) (dismissing habeas claim; "assessments of the weight of the evidence or the credibility of witnesses are for the jury and not grounds for reversal on appeal; we defer to the jury's assessments of both of these issues").

Accordingly, Wilson's weight of the evidence habeas claim should be denied. However, as explained in Point IV below, the Court broadly interprets Wilson's weight of the evidence claim to also raise a sufficiency of the evidence claim. See, e.g., McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (pro se pleadings should be construed liberally "`to raise the strongest arguments that they suggest'").

IV. WILSON'S SUFFICIENCY OF THE EVIDENCE CLAIM SHOULD BE DENIED

A. Legal Principles Governing Sufficiency of the Evidence Habeas Claims*fn13

"`[T]he Due Process Clause of the Fourteenth Amendment protects a defendant in a criminal case against conviction `except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.'" Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 2787 (1979) (quoting In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073 (1970)). However, "a properly instructed jury may occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. at 317, 99 S.Ct. at 2788. Accordingly, "in a challenge to a state criminal conviction brought under 28 U.S.C. § 2254 — if the settled procedural prerequisites for such a claim have otherwise been satisfied — the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. at 324, 99 S.Ct. at 2791-92.*fn14

Petitioner Wilson bears a very heavy burden:

[T]he standard for appellate review of an insufficiency claim placed a "very heavy burden" on the appellant. Our inquiry is whether the jury, drawing reasonable inferences from the evidence, may fairly and logically have concluded that the defendant was guilty beyond a reasonable doubt. In making this determination, we must view the evidence in the light most favorable to the government, and construe all permissible inferences in its favor.
United States v. Carson, 702 F.2d 351, 361 (2d Cir.) (citations omitted), cert. denied, 462 U.S. 1108, 103 S.Ct. 2456, 2457 (1983).*fn15

The habeas court's review of the jury's findings is limited:

[T]his inquiry does not require a court to "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Instead, the relevant question is whether, 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. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.
Jackson v. Virginia, 443 U.S. at 318-19, 99 S.Ct. at 2789 (citations omitted).*fn16

The Jackson v. Virginia "standard must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law." Jackson v. Virginia, 443 U.S. at 324 n. 16, 99 S.Ct. at 2792 n. 16; accord, e.g., Green v. Abrams, 984 F.2d 41, 44-45 (2d Cir. 1993) ("In considering a petition for a writ of habeas corpus based on insufficient evidence to support a criminal conviction in the state courts, a federal court must look to state law to determine the elements of the crime.").

B. The Evidence Was Legally Sufficient to Support Wilson's Conviction

Wilson was convicted of third degree criminal possession of a controlled substance. (See page 5 above.) "A person is guilty of criminal possession of a controlled substance in the third degree when he knowingly and unlawfully possesses: 1. a narcotic drug with intent to sell it. . . ." Penal Law § 220.16(1). Wilson claims that the element of "intent to sell" is completely lacking here. (Dkt. No. 2: Pet. ¶ 12(A); Ex. A: Wilson 1st Dep't Br. at 15-20.)

Wilson specifically argues: (1) "there was no evidence that [Wilson] was prepared to sell the bag of crack allegedly found in his back pocket"; "if the 0.3 grains of crack in [Wilson's] back pocket were in fact for sale, the only logical inference was that [Wilson] would have simply sold that quantity to Carter then and there"; rather, Wilson "possessed it for his own use" (Wilson 1st Dep't Br. at 18); (2) by acquitting Wilson of the criminal sale charge, the jury clearly rejected the testimony that Wilson had sold drugs or engaged in salesperson-like behavior (Wilson 1st Dep't Br. at 19-20); (3) "the minuscule amount of crack possessed by [Wilson] stands in stark contrast to the amount of narcotics that is typically sufficient to prove possession with intent to sell" (Wilson 1st Dep't Br. at 17); and (4) "the substance from [Wilson's] back pocket was not similar to the substance that [Wilson] had allegedly sold to [Detective] Carter" (id.).

"Because direct proof of an individual's intent [in third degree possession cases] is typically lacking, this [intent] element is generally established circumstantially by evidence of the person's conduct and/or statements." Matter of Anthony L., 226 A.D.2d 101, 101-02, 640 N.Y.S.2d 70, 71 (1st Dep't 1996). Viewing the evidence in the light most favorable to the prosecution, a rational juror could have found Wilson guilty beyond a reasonable doubt of third degree criminal possession of a controlled substance with the intent to sell. Detective Carter testified that Wilson sold him a baggie of crack in exchange for twenty dollars. (See pages 2-3 above.) In addition, even Wilson admitted that he spoke to Detective Carter about selling him crack and looked around for someone or something to complete the transaction, and Detective Natal testified to finding crack on Wilson. (See pages 2-5 above.) Wilson's sale to Detective Carter and his subsequent actions provide sufficient evidence of a drug-selling enterprise and of salesperson-like behavior from which a reasonable juror could infer that Wilson intended to sell crack-cocaine in his possession. See, e.g., Montalvo v. Newton, 98 Civ. 8665, 2001 WL 1399527 at *6 (S.D.N.Y. Mar. 23, 2001) (denying habeas claim re-weight of evidence in third degree criminal possession of narcotics case: "proof of other contemporaneous drug sales may be offered to establish a petitioner's intent to sell the substances that he is accused of having possessed"); People v. Addison, 259 A.D.2d 417, 417, 687 N.Y.S.2d 144, 145 (1st Dep't) ("The totality of the evidence, including the interplay between defendant and the codefendant and defendant's actions in handing a bag to the codefendant, along with the conversation between the undercover officer and the codefendant, provided ample evidence from which the jury could reasonably infer defendant's participation in a drug selling enterprise."), appeal denied, 93 N.Y.2d 965, 695 N.Y.S.2d 51 (1999); People v. Jones, 249 A.D.2d 251, 251, 672 N.Y.S.2d 301, 301 (1st Dep't) ("The evidence, including defendant's salesman-like behavior and his possession upon arrest of a crack bag identical to the type he displayed for sale to the undercover officer minutes earlier, was legally sufficient to establish defendant's intent to sell the bag of crack found in his possession. . . ."), appeal denied, 92 N.Y.2d 900, 680 N.Y.S.2d 64 (1998); People v. Wolfe, 215 A.D.2d 207, 208, 626 N.Y.S.2d 170, 171 (1st Dep't) ("The testimony of the arresting officer that he found five vials containing crack in defendant's possession after he observed defendant . . . engage in three hand-to-hand exchanges . . . was legally sufficient to support the verdict. . . ."), appeal denied, 86 N.Y.2d 805, 632 N.Y.S.2d 519 (1995).

While Wilson points out that intent in third degree possession cases is often proven through larger amounts of drugs (Wilson 1st Dep't Br. at 17), Wilson was charged under Penal Law § 220.16(1), which requires no minimum quantity, but provides only that the defendant "knowingly and unlawfully possess[]: a narcotic drug with intent to sell it." Penal Law § 220.16(1).*fn17 Thus, the amount of crack Wilson possessed — one bag of 0.6 grains (Hanna: Tr. 314) and another bag of 0.3 grains (Chin: Tr. 286) — was sufficient to support his conviction when combined with other evidence of intent to sell. See Garrett v. Garvin, No. 97-CV-2495, 1998 WL 812589 at *4 (E.D.N.Y. Apr. 20, 1998) ("[K]nowledge of the amount of drugs in possession is not an element of the crime. . . . Criminal Possession of a Controlled Substance in the Third Degree (N.Y. Penal Law § 220.16[l]) only requires possession with intent to sell some amount of narcotics."); People v. Ballard, 232 A.D.2d 296, 297, 648 N.Y.S.2d 571, 571 (1st Dep't) (though "defendant did not possess a large quantity of drugs," intent sufficient for third degree possession where "[d]efendant demonstrated clear salesman-like behavior by touting the quality of the drugs and encouraging the prospective buyer to make a purchase"), appeal denied, 89 N.Y.2d 918, 654 N.Y.S.2d 720 (1996).

Here, as in prior cases, "the jury's `decision was largely a matter of choosing whether to believe [the defense's] version of the events or to believe the version offered by the State. The jury chose to believe the State's witnesses. . . . We cannot say that no rational [factfinder] could have found guilt beyond a reasonable doubt on all the evidence.'" Jamison v. Grier, 01 Civ. 6678, 2002 WL 100642 at *12 (S.D.N.Y. Jan. 25, 2002) (Peck, M.J.) (quoting Gruttola v. Hammock, 639 F.2d 922, 928 (2d Cir. 1981)); see cases cited at pages 25-27 & nn. 16-19 above.*fn18

Even if there had been major inconsistencies in the prosecution witnesses' testimony — which there was not — that would not change the result. See, e.g., United States v. Vasquez, 267 F.3d 79, 91 (2d Cir. 2001) ("The jury chose to believe the witnesses' testimony despite any inconsistencies. We will defer to the jury's assessment of credibility."), cert. denied, 534 U.S. 1148, 122 S.Ct. 1111 (2002); Gruttola v. Hammock, 639 F.2d at 928 (rejecting insufficiency claim, holding that jury was entitled to believe prosecution witnesses despite inconsistencies in their testimony); Means v. Barkley, 98 Civ. 7603, 2000 WL 5020 at *4 (S.D.N.Y. Jan. 4, 2000) ("The testimony of a single uncorroborated witness is sufficient to achieve a showing of guilt beyond a reasonable doubt . . . even if that witness's testimony is less than entirely consistent. . . .").*fn19 Indeed, the Second Circuit has held that "the testimony of a single, uncorroborated eyewitness is generally sufficient to support a conviction." United States v. Danzey, 594 F.2d 905, 916 (2d Cir.), cert. denied, 441 U.S. 951, 99 S.Ct. 2179 (1979). Thus, simply based on the testimony of Detectives Carter and Natal, a rational jury could have convicted Wilson of third degree criminal possession of a controlled substance.

Although the jury acquitted Wilson of the criminal sale charge, this does not prove that the jury found that Wilson had no intention to sell or that the jury rejected the detectives' testimony regarding the sale. See, e.g., Billups v. Costello, 91 Civ. 6296, 1992 WL 170650 at *5 (S.D.N.Y. July 6, 1992) ("While petitioner assumes that his acquittal on the sale charge was founded on the jury's determination that he lacked the intent to sell the cocaine, it is just as likely that the jury determined that he possessed the cocaine with the intent to sell it but did not actually sell the cocaine."). The acquittal on the criminal sale charge may have been the result of a compromise verdict, or the jury's determination that Wilson's salesperson-like behavior did not constitute an actual sale, especially since no buy money was found on Wilson. Wilson is essentially arguing that his conviction on the possession charge is repugnant to his acquittal on the sale charge — an argument not cognizable on habeas review.*fn20

Finally, the Court notes that the Antiterrorism and Effective Death Penalty Act has further limited this Court's role in determining sufficiency of the evidence habeas petitions. See 28 U.S.C. § 2254(d). For a discussion of the AEDPA review standard and its applicability to sufficiency of the evidence cases, see, e.g., Cromwell v. Keane, 98 Civ. 0013, 2002 WL 929536 at *12-13 & n. 10, *15 & n. 24 (S.D.N.Y. May 8, 2002) (Peck, M.J.) (& cases cited therein). This Court cannot say that the First Department's decision affirming Wilson's conviction of third degree criminal possession of a controlled substance was contrary to or an unreasonable application of established federal law or was based on an unreasonable determination of facts.

V. WILSON'S MISTRIAL CLAIM SHOULD BE DENIED

Wilson claims the trial court erred by failing to grant his motion for a mistrial when Detective Natal shook his head and made disparaging "faces" upon being asked to name the undercover officer. (Dkt. No. 2: Pet. ¶ 12(B), citing Tr. 282-85.) Wilson claims that "[t]his clear display of disgust . . . denied [his] due process right to a fair trial by . . . signaling to the jury that [Wilson] was a t[h]reat to [Detective Natal's] partner if [Wilson] was found not guilty." (Pet. ¶ 12(B).)

New York law permits a trial court to declare a mistrial at defendant's request when "there occurs during the trial an error or legal defect in the proceedings . . . which is prejudicial to the defendant and deprives him of a fair trial." CPL § 280.10(1). Under New York law, "the decision to grant or deny a motion for a mistrial is within the trial court's discretion" and state appellate courts "will not interfere with this decision unless it amounts to an abuse of discretion." People v. Ortiz, 54 N.Y.2d 288, 292, 445 N.Y.S.2d 116, 118 (1981); see also, e.g., Jones v. Strack, 99 Civ. 1270, 1999 WL 983871 at *4 & n. 3 (S.D.N.Y. Oct. 29, 1999) (Peck, M.J.) (& cases cited therein).

Wilson's claim is comparable to a claim that an erroneous state evidentiary ruling violated his constitutional rights. Such claims merit habeas relief only "`where [the] petitioner can show that the error deprived [him] of a fundamentally fair trial.'" Rosario v. Kuhlman, 839 F.2d 918, 925 (2d Cir. 1988) (emphasis in original).*fn21 The test for "fundamental fairness" is whether the excluded evidence, "`evaluated in the context of the entire record,'"*fn22 "`create[d] a reasonable doubt [regarding petitioner's guilt] that did not otherwise exist.'" Taylor v. Curry, 708 F.2d 886, 891 (2d Cir.) (quoting the materiality standard defined in United States v. Agurs, 427 U.S. 97, 112-13, 96 S.Ct. 2392, 2401-02 (1976)), cert. denied, 464 U.S. 1000, 104 S.Ct. 503 (1983).*fn23 See generally Soto v. Greiner, 02 Civ. 2129, 2002 WL 1678641 at *8-10 (S.D.N.Y. July 24, 2002) (Peck, M.J.) (discussing habeas standard for claim of state evidentiary error) (& cases cited therein).

This Court agrees with the First Department's ruling that Detective Natal's fleeting facial expression "was unlikely to have caused defendant any prejudice." People v. Wilson, 276 A.D.2d 274, 274, 713 N.Y.S.2d 866, 867 (1st Dep't 2000). This Court certainly cannot say that the incident deprived Wilson of a fundamentally fair trial, or that the First Department's holding was an objectively unreasonable application of Supreme Court precedent. See, e.g., Soto v. Greiner, 2002 WL 1678641 at *9-10 (applying AEDPA deferential review standard to claim of state evidentiary error). Wilson's denial of mistrial claim therefore should be denied.

VI. WILSON'S EXCESSIVE SENTENCE CLAIM DOES NOT PROVIDE A BASIS FOR FEDERAL HABEAS RELIEF

Wilson claims that his sentence was excessive:

The 6 to 12 years imposed upon me for possession with intent to sell a minuscule 0.3 grains of crack was unduly harsh and should be reduced. All my prior crimes/felonies occurred over ten years before, during my adolescence stages as a teenager. Moreover, none of my felony convictions involved drugs; and the one prior drug conviction was a misdemeanor for selling "beat" drugs occurred in 1987 — over ten years prior to my trial. Reducing sentences for street-level sales has been done. I ask for at least the minimum sentence of 4 1/2 to 9 years.
(Dkt. No. 2: Pet. ¶ 12(C).)

Wilson's excessive sentence claim does not provide a basis for federal habeas relief, because "[n]o federal constitutional issue is presented where, as here, the sentence is within the range prescribed by state law." White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992).*fn24

Wilson was convicted of third degree criminal possession of a controlled substance, a class B felony. Penal Law § 220.16(1). Wilson was adjudicated a predicate felon by the trial court. (Tr. 563.) Penal Law § 70.06(3)(b) provides, with respect to sentencing of a second felony offender, that "[f]or a class B felony, the term must be at least nine years and must not exceed twenty-five years." Penal Law § 70.06(4)(b) provides that "the minimum period of imprisonment under an indeterminate sentence for a second felony offender must be fixed by the court at one-half of the maximum term imposed and must be specified in the sentence." Accordingly, Wilson's sentence of six to twelve years (see page 5 above) was well within the statutory range of from four and one-half to nine years to a maximum of twelve and one-half to twenty five years, and therefore is not reviewable by this Court. See, e.g., Delfyette v. Senkowski, 97 Civ. 5673, 2002 WL 1359730 at *1 (S.D.N.Y. June 20, 2002) ("Petitioner was convicted of one count of Criminal Sale of a Controlled Substance in the Third Degree pursuant to New York Penal Law § 220.39[1], and one count of Criminal Possession of a Controlled Substance in the Third Degree pursuant to § 220.16[1]. Both counts are class B felonies under New York law. Additionally, the trial judge found petitioner to be a second felony offender within the meaning of Penal Law § 70.06[1]. . . . The maximum indeterminate sentence that can be given to a second felony offender who commits a class B felony is twelve and one-half to twenty-five years. New York Penal Law § 70.06[3][b]; § 70.06[4][b]. Petitioner's sentence is within the statutory range, and therefore presents no constitutional issue."); Gonzalez v. Fischer, 01 Civ. 2177, 2002 WL 31422882 at *7 (S.D.N.Y. Feb. 26, 2002) ("Petitioner was convicted of a class B felony . . . and sentenced as a second felony offender. . . . The statutorily authorized sentence for a second felony-offender convicted of a class B felony is an indeterminate term of imprisonment, the maximum term of which is no less than nine years and no more than 25 years and the minimum term of which is one-half of the maximum term imposed. See N.Y. Penal § 70.06(3)(b) and (4)(b). Here, Petitioner received an indeterminate sentence of eight to 16 years imprisonment[, which] is well within the range set by law."); Bonet v. McGinnis, 98 Civ. 6529, 2001 WL 849454 at *1, 6 (S.D.N.Y. July 27, 2001) (petitioner's claim that sentence of seven and a half to fifteen years for a second felony offender convicted of third degree criminal possession of a controlled substance was not cognizable on federal habeas review, as the "sentence was below the maximum statutory range of imprisonment of nine to twenty-five years," citing Penal Law § 70.06(3)); Walker v. McGinnis, 99 Civ. 3490, 2000 WL 298916 at *5 (S.D.N.Y. Mar. 21, 2000) ("Due to the prior felony convictions, [petitioner] was sentenced as a predicate felon to two concurrent prison terms of from nine to eighteen years. As a predicate felony offender, he could have received a sentence from twelve-and-one-half to twenty-five years. See N.Y. Penal Law § 70.06(3)(b), (4)(b) (McKinney 2000). Accordingly, the sentence falls well within the range prescribed by state statutory law and cannot be reviewed by this Court on a habeas petition.").

Because Wilson's sentence was within the statutory range under New York law, his excessive sentence claim should be denied.

VII. WILSON'S CLAIM THAT HE WAS DENIED THE RIGHT TO APPEAL SHOULD BE DENIED

Wilson claims that he was denied his constitutional right to appeal when the New York Court of Appeals denied leave to appeal from the First Department's decision affirming his conviction. (Dkt. No. 2: Pet. ¶ 12(F).) This claim is frivolous. A defendant can appeal as of right to the Appellate Division; further appeal to the Court of Appeals is discretionary in non-death penalty cases. See, e.g., N.Y. Const. Art. VI, § 3(b); C.P.L. §§ 450.90(2), 460.20(4); Chalk v. Kuhlmann, 311 F.3d 525, 528 (2d Cir. 2002); Silverman v. Edwards, No. 99-CV-7792, 2002 WL 257820 at *11 (E.D.N.Y. Jan. 28, 2002). No federal habeas claim arises from the Court of Appeals' denial of leave to appeal. See Augustine v. Walker, No. 9:98-CV-0771, 2001 WL 1860883 at *5 (N.D.N.Y. June 12, 2001) ("[T]here is no authority that stands for the proposition that an individual is denied a right to a fair appeal merely because the Court of Appeals has exercised its discretion and declined to grant an application for leave to appeal to that court."); Bennet v. Peters, 96 Civ. 3661, 1997 WL 177885 at *4 (S.D.N.Y. Apr. 14, 1997) (By denying leave to appeal, "[t]he Court of Appeals did in fact review [petitioner's] claims and the record. [Petitioner] is entitled to nothing more. Accordingly, [petitioner] was not denied his right to appeal."); Munoz v. Lacy, No. 93-CV-2180, 1996 WL 1086217 at *2 (E.D.N.Y. Sept. 3, 1996) (denying habeas claim that Court of Appeals denial of leave to appeal violated constitution, as "[a] defendant has no constitutional entitlement to an appeal as of right to the Court of Appeals"); United States ex rel. Williams v. Deegan, 279 F. Supp. 53, 58 (S.D.N.Y. 1967).

CONCLUSION

For the reasons discussed above, Wilson's habeas petition should be denied and a certificate of appealability should not be issued.

FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Harold Baer, Jr., 500 Pearl Street, Room 2230, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Baer. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).


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