United States District Court, S.D. New York
January 30, 2004.
WAVERLY ALLAWAY, Petitioner -against- MICHAEL McGINNIS, Superintendent, Southport Correctional Facility, Respondent
The opinion of the court was delivered by: VICTOR MARRERO, District Judge
DECISION AND ORDER
Pro se petitioner Waverly Allaway ("Allaway") was convicted
of assault in the second degree after a jury trial in the New York State
Supreme Court, Bronx County (the "Trial Court"). The trial judge found
Allaway to be a persistent violent felony offender and sentenced him to
an indeterminate prison term of twenty-five years to life. In this
petition for a writ of habeas corpus, Allaway argues that an evidentiary
ruling at his trial deprived him of his due process right to a fair trial
under the Fourteenth Amendment to the United States Constitution, and
that the length of his sentence is excessive. For the following reasons,
the Court denies Allaway's petition.
I. FACTS AND PRIOR PROCEEDINGS
On August 3, 1998, Allaway stabbed Gregory Pearce ("Pearce") in the
chest inside the Franklin Avenue Men's Shelter (the "Shelter"), a
homeless shelter where both men
Allaway was prosecuted for attempted murder, assault in the first
degree, and assault in the second degree, all stemming from the stabbing.
At trial, Allaway admitted stabbing Pearce but maintained that he did so
Over defense objections, the Trial Court allowed the prosecution to
introduce evidence about an earlier incident on the day of the stabbing,
in which Allaway hit a third resident of the Shelter with a bottle or
pipe. The defense objected that the incident with this other resident was
a prior bad act that was irrelevant and highly prejudicial, and should
not be admitted. In explaining its decision to allow the prosecution to
introduce some evidence regarding the incident, the Trial Court
acknowledged that "specific allegations involving hitting someone with a
bottle" would be more prejudicial than probative "when measured against
the need for this evidence." (Trial Transcript of People v.
Allaway, Ind. No. 6419-98, beginning Oct. 30, 2000, Supreme Court,
Bronx County, Criminal Term: Part 52 ("Transcript"), at p. 89.) But the
Trial Court concluded that some reference to the incident was necessary
to complete the narrative of the day's events for the jury and to provide
an explanation for the behavior of the Shelter's staff members towards
Allaway. The Trial Court concluded that some reference to this incident
would help the jurors understand
why staff members of the Shelter were focused on Allaway and were
able to identify him easily.
During the trial, Pearce testified that he had heard about an incident
earlier on the day of the stabbing in which Allaway had hit another
resident with a bottle or pipe. (See Transcript beginning Oct. 30, 2000,
at 220-21.) The Trial Court then instructed the jury that Pearce's
testimony "regarding his having heard about a separate incident is not
offered for the truth of what this witness says he heard and you are not
to consider it for its truth. Rather, the testimony regarding what the
witness heard is offered as background and to explain the conduct of
people other than the defendant." (Transcript beginning Oct. 30, 2000, at
225.) Later in the trial, Sam Scruggs, a security guard for the Shelter,
testified that earlier on the evening of the stabbing, he had heard that
someone had hit a resident of the Shelter with a pipe. (Transcript
beginning Oct. 30, 2000, at 323.) But Scruggs also testified that he did
not know until after the stabbing that Allaway was the person who had hit
the resident in that earlier incident. (Transcript beginning Oct. 30,
2000, at 341.)
At the conclusion of the trial, the jury acquitted Allaway of attempted
murder and assault in the first degree, and convicted him of assault in
the second degree. The Trial
Court sentenced Allaway as a persistent violent felony offender,
and imposed the maximum authorized sentence of twenty-five years to life
Allaway appealed his conviction and his sentence to the New York
Supreme Court, Appellate Division, First Department (the "Appellate
Division"). He argued that the testimony regarding the incident between
Allaway and a third resident at the Shelter was irrelevant to the crime
charged and was so highly prejudicial to Allaway that it deprived him of
his due process right to a fair trial under the Fourteenth Amendment to
the United States Constitution. Allaway also argued that his sentence was
excessive given that he was convicted of only the least serious of the
several charges against him.
The Appellate Division affirmed his conviction. See People v.
Allaway, 742 N.Y.S.2d 198 (App. Div. 1st Dept. 2002). That court
stated that the testimony regarding the altercation between Allaway and
another resident of the Shelter on the same day as the stabbing "was
relevant to complete the narrative and to explain why shelter employees
would have remembered this particular defendant from among the hundreds
of residents at the shelter." Id. The court also determined
that Allaway "was not unduly prejudiced by the uncharged crime evidence,
particularly in view of the court's strong limiting instructions and its
exclusion of the most
prejudicial aspects of the incident." Id. Finally, the
Appellate Division found no reason to alter Allaway's sentence. See
id. The New York Court of Appeals denied Allaway's application for
leave to appeal. See People v. Allaway, 776 N.E.2d 1 (N.Y.
In his petition for a writ of habeas corpus before this Court, Allaway
raises the same claims he raised before the Appellate Division.
A. STANDARD OF REVIEW FOR HABEAS PETITIONS
A federal district court may issue a writ of habeas corpus to a person
who is in custody as a result of a state court conviction only if that
custody violates the United States Constitution or federal laws or
treaties. See 28 U.S.C. § 2254(a). More specifically, under
28 U.S.C. § 2254 (d)(1), this Court may grant habeas relief to a
state prisoner whose claims were decided on the merits by a state court
only if the state court's decision was "contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States." See Williams
v. Taylor, 529 U.S. 362, 409 (2000); Eze v. Senkowski,
321 F.3d 110, 121 (2d Cir. 2003).
B. DUE PROCESS
Allaway's due process claim centers on a New York State court's
application of New York State evidence law. The United States Supreme
Court has emphasized repeatedly that "it is not the province of a federal
habeas court to reexamine state-court determinations on state-law
questions." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). The
Trial Court and the Appellate Division both determined that the evidence
at issue here was properly admitted as a matter of state law. This Court
will not independently determine the appropriateness of whether or not
that evidence should have been admitted under New York State evidentiary
rules. See Anderson v. Sternes, 243 F.3d 1049 (7th Cir. 2001)
(stating that on habeas review, "it is not [the] court's duty to balance
the probative value against the unfair prejudice because `the Due Process
Clause does not permit federal courts to engage in a finely tuned review
of the wisdom of state evidentiary rules.'" (quoting Morgan v.
Krenke, 232 F.3d 562 (7th Cir. 2000)). Instead, this Court may grant
Allaway habeas relief only if the Trial Court's decision to admit
evidence of Allaway's prior bad act rendered Allaway's trial so
fundamentally unfair that it denied him his right to due process of law
as guaranteed by the Constitution of the United States. See
Estelle, 502 U.S. at 75; Collins v. Scully, 755 F.2d 16,
18 (2d Cir. 1985).
New York State law allows evidence of uncharged crimes to be introduced
at trial "when the evidence is relevant to a pertinent issue in the case
other than a defendant's criminal propensity to commit the crime charged"
and if the probative value of the evidence outweighs any prejudice to the
defendant. People v. Till, 661 N.E.2d 153 (N.Y. 1995). The
Trial Court determined that the evidence was relevant to completing the
narrative of the events of the day and to establish the identity of
Allaway. The Appellate Division agreed with the Trial Court's decision.
See Allaway, 742 N.Y.S.2d at 198. Additionally, in a limiting
instruction after the altercation with the other Shelter resident was
first introduced, the Trial Court told the jury not to consider that
evidence for its truth. The Trial Court revisited the issue in its charge
to the jury, when it repeated its limiting instruction as to the
testimony regarding the incident and stated that jurors were "not to
infer from [that testimony] that defendant had any tendency or propensity
to commit any crime." (Transcript beginning Nov. 6, 2000, at 577.) This
Court must assume that jurors understand and follow limiting
instructions. See Zafiro v. United States, 506 U.S. 534, 540
(1993); Roldan v. Artuz, 78 F. Supp.2d 260, 281 (S.D.N.Y.
There is nothing to indicate that the decisions of the
Trial Court and the Appellate Division were "contrary to, or involved
an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States," as required by
28 U.S.C. § 2254 (d)(1). Moreover, the Supreme Court has not yet
clearly established when the admission of evidence of prior crimes under
state evidentiary laws can constitute a federal due process violation.
See Estelle, 502 U.S. at 67-68.
Given the Trial Court's limiting instruction and jury charge, and the
relatively minimal information that was actually introduced at trial
about the prior incident, this Court cannot conclude that the
introduction of evidence regarding Allaway's involvement in an
altercation unrelated to the crimes for which he was charged rendered his
trial so fundamentally unfair as to deny Allaway due process of law. The
Court recognizes that one can never know what evidence sways the mind of
jurors. But there are procedural safeguards to prevent or mitigate the
unduly prejudicial effect of certain evidence, such as by strong limiting
instructions, proscribing any further unnecessary reference to the
matter, and insuring that there is an independent record of other
admissible evidence sufficient to support a verdict. Here, on the basis
of the Trial Court's strong and repeated limiting instructions, the fact
that the prosecutor did not mention the
incident in her closing argument, and that three eyewitnesses
testified about the events of the stabbing, Allaway cannot establish that
the testimony regarding the incident between him and another Shelter
resident made his trial fundamentally unfair.
The jury acquitted Allaway of attempted murder and assault in the first
degree, and convicted him of assault in the second degree. The trial
court adjudicated Allaway a persistent violent felony offender pursuant
to New York Penal Law § 70.08(1), and imposed a sentence of from 25
years to life in prison, the maximum sentence authorized by New York
State law. See N.Y. Penal L. § 70.08(2), (3)(a). Allaway
argues that because he was convicted of only second degree assault and
was acquitted of the two more serious charges, his sentence is excessive
under New York Criminal Procedure Law § 470.15.
Allaway does not argue that his sentence was imposed in violation of
the United States Constitution, which is the only basis on which a
federal court may grant habeas relief for a state court sentencing
determination. See Mayo v. Burge, No. 02 CV 10192, 2003 WL
21767767 (S.D.N.Y. July 30, 2003). Moreover, even if the Court reads
Allaway's argument as raising a constitutional claim (presumably that the
violates the Eighth Amendment's prohibition against cruel and
unusual punishment), that claim has no merit. The Second Circuit has
stated that "[n]o federal constitutional issue is presented
where . . . the sentence is within the range prescribed by state law."
White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992); see
also, Mayo, 2003 WL 21767767, at *6; Brown v. Goord, No.
02 CV 2122, 2002 WL 31093611, at *5 (S.D.N.Y. Sept. 13, 2002). Allaway's
sentence was within the range allowed under New York Penal Law §
70.08. That the trial court imposed the maximum authorized sentence does
not provide any ground for this Court to reduce Allaway's term of
For the reasons set forth above, it is hereby
ORDERED that petitioner Waverly Allaway's petition for a writ
of habeas corpus is denied.
The Clerk of Court is directed to close this case.
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