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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


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. Page 2


  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 possession counts.*fn1

  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: Page 3


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 and tactics."
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). Page 4

  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, 1175(2003)).

  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)). Page 5

  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 evidence."
  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 Page 6 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. . . ."). Page 7

  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 688).

  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. Page 8

  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 Page 9 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.

  So Ordered.

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