United States District Court, E.D. New York
February 6, 2004.
ALBERTO RAMOS, Petitioner, -against- JOHN SABOURIN, Superintendent, Bare Hill Correctional Facility, Respondent
The opinion of the court was delivered by: JOHN GLEESON, District Judge
MEMORANDUM AND ORDER
Petitioner Alberto Ramos, an inmate at the Bare Hill Correctional
Facility, seeks habeas corpus relief from a judgment of conviction
entered after a jury trial in state court. I held oral argument by
telephone conference on January 30, 2004. For the reasons set forth
below, the petition is denied.
On October 1, 1998, at approximately 9:40 a.m., inside Prospect Park in
Brooklyn, New York, Ramos and his accomplice, Tony White, robbed David
Tucker at knifepoint. White held the knife against Tucker's body while
Ramos removed money and cigarettes from Tucker's pants pockets. White
also took Tucker's New York Yankees jacket, which White was wearing when
police arrested him and Ramos in the park several hours later. As the
police approached the two men, White threw the knife to the ground.
Ramos and White were charged with robbery in the first, second, and
third degrees, grand larceny in the fourth degree, menacing in the second
degree, criminal possession of a weapon in the fourth degree, and petit
larceny. Ramos was convicted by a jury of robbery in the first and second
degrees, grand larceny in the fourth degree, menacing in the second
degree, and criminal possession of a weapon in the fourth degree. On July
19, 1999, he was sentenced to concurrent prison terms of nine years each
for the first- and second-degree robbery counts, three years for the
grand larceny count, and one year each for the menacing and weapon
Ramos appealed from his judgment of conviction, claiming that (1) his
trial lawyer provided ineffective assistance because he failed to object
to the admission of improper evidence of uncharged crimes, and (2) his
sentence was harsh and excessive. The Appellate Division unanimously
affirmed Ramos's conviction, stating:
Contrary to his contention, the defendant received
the effective assistance of counsel. "Mere losing
tactics are not to be confused with
ineffectiveness, and to sustain a claim of
ineffective assistance of trial counsel, proof of
less than meaningful representation is required,
rather than disagreement with counsel's strategies
The sentence imposed was not excessive.
People v. Ramos. 723 N.Y.S.2d 394
(2d Dep't 2001) (citations
omitted) (quoting People v. Sinclair. 698 N.Y.S.2d 876, 876 (2d
Dep't 1999)). Ramos's application for leave to appeal to the New York
Court of Appeals was denied. People v. Ramos. 97 N.Y.2d 642
(2001) (Graffeo, J.).
On April 22, 2002, Ramos filed the instant petition for a writ of
habeas corpus. The claims are the same as those raised on direct appeal.
A. The Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") has
narrowed the scope of federal habeas review of state convictions where
the state court has adjudicated a petitioner's federal claim on the
merits. See 28 U.S.C. § 2254(d). Under the AEDPA standard,
which applies to habeas petitions filed after AEDPA's enactment in 1996,
the reviewing court may grant habeas relief 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." 28 U.S.C. § 2254(d)(1). The Supreme Court has
interpreted the phrase "clearly established Federal law" to mean "the
holdings, as opposed to the dicta, of [the Supreme Court's] decisions as
of the time of the relevant state-court decision." Williams v.
Taylor. 529 U.S. 362, 412 (2000); see also Gilchrist v.
O'Keefe. 260 F.3d 87, 93 (2d Cir. 2001).
A decision is "contrary to" clearly established federal law, as
determined by the Supreme Court, if "the state court arrives at a
conclusion opposite to that reached by [the Supreme Court] on a question
of law or if the state court decides a case differently than [the Supreme
Court] has on a set of materially indistinguishable facts."
Williams. 529 U.S. at 413. A decision is an "unreasonable
application" of clearly established Supreme Court law if a state court
"identifies the correct governing legal principle from [the Supreme
Court's] decisions but unreasonably applies that principle to the facts
of [a] prisoner's case." Id. "In other words, a federal court may grant
relief when a state court has misapplied a `governing legal principle' to
`a set of facts different from those of the case in which the principle
was announced.'" Wiggins v. Smith. 123 S.Ct. 2527, 2535 (2003)
(quoting Lockyer v. Andrade. 538 U.S. 63, 123 S.Ct. 1166,
Under the latter standard, "a federal habeas court may not issue the
writ simply.; because that court concludes in its independent judgment
that the relevant state-court decision applied clearly established
federal law erroneously or incorrectly. Rather, that application must
also be unreasonable." Gilchrist. 260 F.3d at 93 (citing
Williams. 529 U.S. at 411); see also Yarborough v.
Gentry. 124 S.Ct. 1, 4 (2003) (per curiam) ("Where . . . the state
court's application of governing federal law is challenged, it must be
shown to be not only erroneous, but objectively unreasonable.");
Wiggins. 123 S.Ct. at 2535 (same). Interpreting
Williams, the Second Circuit has added that although "[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."
Gilchrist. 260 F.3d at 93 (citing Francis S. v.
Stone. 221 F.3d 100, 111 (2d Cir. 2000)).
This standard of review applies whenever the state court has
adjudicated the federal claim on the merits, regardless of whether it has
alluded to federal law in its decision. As the Second Circuit stated in
Sellan v. Kuhlman:
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.
261 F.3d 303, 312 (2d Cir. 2001).
In addition, a state court's determination of a factual issue is
presumed to be correct, and is unreasonable only where the petitioner
meets the burden of "rebutting the presumption of correctness by clear
and convincing evidence." 28 U.S.C. § 2254(e)(1).
However, "even in the context of federal habeas,
deference does not imply abandonment or abdication
of judicial review. . . . A federal court can
disagree with a state court's credibility
determination and, when guided by AEDPA, conclude
the decision was unreasonable or that the factual
premise was incorrect by clear and convincing
Shabazz v. Artuz. 336 F.3d 154
, 161 (2d Cir. 2003) (ellipsis
in original) (quoting Miller-El v. Cockrell. 537 U.S. 322
123 S.Ct. 1029
, 1041 (2003)).
B. Ramos's Claims
1. The Ineffective Assistance of Counsel Claim
Ramos claims that his attorney at trial was ineffective because he
failed to object to the admission of improper evidence of uncharged
crimes. Specifically, Ramos's attorney failed to object when Tucker, the
victim, testified that (1) White put his hand down the back of Tucker's
pants and squeezed Tucker's buttocks, and (2) Ramos asked him if he
wanted to have
sex with White and Ramos. Ramos claims that he was prejudiced by
his attorney's ineffective assistance because that evidence suggested
that he was a dangerous sexual predator. As discussed above., the
Appellate Division found this claim meritless.
The Supreme Court has established the following standard for
ineffective assistance claims:
First, the defendant must show that counsel's
performance was deficient. This requires showing
that counsel made errors so serious that counsel
was not functioning as the "counsel" guaranteed
the defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance
prejudiced the defense. This requires showing that
counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is
reliable. Unless a defendant makes both showings,
it cannot be said that the conviction . . .
resulted from a breakdown in the adversary process
that renders the result unreliable.
Strickland v. Washington, 466 U.S. 668
, 687 (1984). Thus, to
make out this type of claim, Ramos must demonstrate both (1) that his
attorney's performance "fell below an objective standard of
reasonableness," id. at 688, and (2) that "there is a
reasonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different," id., at 694. In
assessing the reasonableness of counsel's performance, "judicial scrutiny
of counsel's performance must be highly deferential," and the court must
"indulge a strong presumption that counsel's conduct falls within the
wide range of reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy."
Strickland, 466 U.S. at 689 (quotation marks omitted);
Jackson v. Leonardo, 162 F.3d 81
, 85 (2d Cir. 1998): see
also Yarborough v. Gentry. 124 S.Ct. 1
, 4 (2003) (per curiam)
("[C]ounsel has wide latitude in deciding how best to represent a
client. . . .").
In assessing counsel's performance, I "must conduct an objective review
. . . measured for `reasonableness under prevailing professional norms,'
which includes a context-dependent consideration of the challenged
conduct as seen `from counsel's perspective at the time."Wiggins v.
Smith. 123 S.Ct. 2527, 2535 (2003) (citations omitted) (quoting
Strickland. 466 U.S. at 688-89)). The Supreme Court has
"declined to articulate specific guidelines for appropriate attorney
conduct" and has instead emphasized that "'the proper measure of attorney
performance remains simply reasonableness under prevailing professional
norms.'" Id. at 2535 (quoting Strickland. 466 U.S. at
To establish the requisite effect of counsel's performance on the
outcome of the proceeding, it is not sufficient if the petitioner shows
merely that counsel's errors had "some conceivable effect" on the
outcome. Strickland, 466 U.S. at 693. Rather, there must be "a
reasonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different." Id. at
694. A "reasonable probability" is "a probability sufficient to undermine
confidence in the outcome." Id. This determination, unlike the
determination whether counsel's performance fell below an objective
standard of reasonableness, may be made with the benefit of hindsight.
See Lockhart v. Fretwell. 506 U.S. 364, 372 (1993).
Here, Tucker's testimony at trial established that White, while
pressing the knife to Tucker's body, slipped his hand down Tucker's
pants, squeezed his buttocks, and said that Tucker had a "nice sweet
ass." (Tr. at 103-05, 117, 126-27.) Tucker also testified that as White
and Ramos were walking away, Ramos turned to Tucker and asked if he and
White could have sex with Tucker. (Id. at 106, 126-27.) Ramos's
claim that his attorney was ineffective for failing to object to this
evidence is meritless.
Under New York law, evidence of uncharged crimes is inadmissible if its
sole purpose is to establish the propensity of a defendant to commit the
charged crime or crimes. See, e.g. People v. Alvino. 71 N.Y.2d 233,
241 (1987) ("[T]he rule is stated that if the only purpose of the
evidence is to show bad character or propensity towards crime, it is not
admissible."). "Evidence of prior uncharged crimes may be received,
however, if it helps to establish some element of the crime under
consideration or is relevant because of some recognized exception to the
general rule." Id. Here, White's unsolicited sexual contact
with Tucker occurred during the commission of the robbery, as White and
Ramos were taking Tucker's property. Similarly, Ramos's sexual request
was made just after the robbery as he and White were fleeing the scene.
Tucker's testimony was therefore properly admitted because the events
Ramos finds objectionable were "inextricably interwoven" with the charged
offense, and were "admissible to complete the narrative of events."
E.g. People v. Duffy. 697 N.Y.S.2d 645 (2d Dep't 1999);
People v. Williams. 668 N.Y.S.2d 636 (2d Dep't 1998). As the
evidence was admissible under New York law, Ramos's attorney was not
ineffective for failing to object to it. This claim therefore does not
justify issuance of the writ.*fn2
2. The Excessive Sentence Claim
Ramos's nine-year sentence-consisting of concurrent sentences of nine
years each for the first- and second-degree robbery convictions, three
years for the grand larceny conviction, and one year each for the
menacing and weapon possession convictions-fell within
the maximum sentence authorized by New York law for those crimes,
and therefore does not qualify for consideration as excessive under the
Eighth Amendment. See White v. Keane. 969 F.2d 1381, 1383 (2d
Cir. 1992) ("No federal constitutional issue is presented where . . . the
sentence is within the range prescribed by state law."). I note, however,
that Ramos's sentence is not grossly disproportionate and is therefore
not unconstitutional. See Ewing v. California.
538 U.S. 11(2003).
For the foregoing reasons, the petition is denied. Because Ramos has
failed to make a substantial showing of a denial of a constitutional
right, no certificate of appealability shall issue.