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United States District Court, S.D. New York

February 6, 2004.

CARLTON WILSON, Petitioner, -against- GLENN S. GOORD, Commissioner of New York State Department of Correction, Respondent

The opinion of the court was delivered by: LAURA TAYLOR SWAIN, District Judge Page 2


Pro se petitioner Carlton Wilson ("Petitioner") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He was convicted on June 19, 1998, in New York State Supreme Court, New York County, following a jury trial, of Criminal Possession of a Controlled Substance in the Third Degree and Bail Jumping in the First Degree. Petitioner was sentenced to two concurrent prison terms of three and one-half to seven years and four and one-half to nine years. The Court has jurisdiction of this matter pursuant to 28 U.S.C. § 2254.

  The Court has considered carefully all submissions relating to this matter. The petition for a writ of habeas corpus is denied for the following reasons.


  Because Petitioner is acting pro se, the Court must "read his supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest" Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). In his Petition and Memorandum of Law, Petitioner sets forth six grounds of his claims for habeas corpus relic! (1) Petitioner's conviction of drug possession with intent to distribute was based on insufficient evidence in violation of his right to due process under the Fourteenth Amendment of the Constitution, (2) Petitioner was denied his statutory right to a speedy trial under New York law when the authorities failed to apprehend him for six months, (3) Petitioner was coerced into a guilty plea by the New York State Supreme Court in violation of his right to due process, (4) Petitioner's indictment for Criminal Possession of a Controlled Substance in the Third Degree was based on an unsigned felony complaint, an inaccurate laboratory report analyzing the seized drugs and testimony that was later recanted, (5) the New York Supreme Court abused its discretion in violation of due process when it refused to authorize funds for a chemical test of the seized drugs by a defense expert and (6) Petitioner was Page 3 denied his right to be free from unreasonable searches and seizures under the Fourth Amendment because the arresting officer approached Petitioner on the street without reasonable suspicion that a crime was afoot.


  The facts material to the issues raised in the petition are as follows.

  Petitioner was arrested on May 17, 1994, after police officers observed crack vials fall from his clothing. Further crack vials were discovered in his clothing during a subsequent search. He was indicted on June 3, 1994, on a charge of Criminal Possession of a Controlled Substance in the Third Degree (i.e., possession with intent to distribute).

  On November 30, 1994, during a Mapp/Dunaway hearing,*fn1 the New York State Supreme Court granted Petitioner's request to have the seized crack cocaine chemically tested by a defense expert. See Mapp/Dunaway Hearing Transcript at 7. However, on January 26, 1995, the court refused to authorize funding for the chemical test because it would cost $7,500 and thus well over the $300 maximum permitted by New York statute.*fn2 See Petitioner's Memorandum of Page 4 Law in Support at 3.*fn3 Also on January 26, 1995, the court denied Petitioner's November 16, 1994, motion to dismiss the indictment on statutory speedy trial grounds, finding that only 100 days of chargeable time had elapsed. See Respondent's Memorandum of Law in Opposition at 13.

  On January 27, 1995, Petitioner was released from custody upon his own recognizance and ordered to appear in the New York Supreme Court on February 23, 1995. When Petitioner failed to appear in court on that day, the judge issued a bench warrant for his arrest. See Tr. at 269, 272. Petitioner was arrested and returned to court on August 31, 1995. See Mem. in Opp'n at 3. On October 4, 1995, Petitioner was indicted for Bail Jumping in the First Degree. See id. On January 18, 1996, the court consolidated the Criminal Possession and Bail Jumping indictments. See id.. On April 10, 1996, Petitioner pleaded guilty to the Bail Jumping charge in exchange for a promised plea sentence of three and one-half to seven years. See id. at 7. On May 16, 1996, the New York Supreme Court denied Petitioner's motion to withdraw his plea on the ground that it was coerced, and it convicted petitioner in accordance with the plea agreement. See id.. However, on December 18, 1997, the New York Appellate Division found that the trial court had coerced Petitioner into pleading guilty, reversed Petitioners conviction, and remanded the case for trial. See People v. Wilson, 246 A.D.2d 161 (1st Dep't 1997). The Appellate Division dismissed Petitioner's claim contesting the Supreme Court's refusal to authorize funds for a chemical drug test. See id. Page 5

  After the case was remanded, Petitioner moved to re-argue his statutory speedy trial claim, alleging that the prosecution had failed to exercise due diligence in locating him after the court issued an arrest warrant on February 23, 1995. The New York Supreme Court denied this motion. See Mem. in Opp'n at 14-15. On June 2, 1998, after a trial, a jury convicted Petitioner of both Criminal Possession of a Controlled Substance in the Third Degree, and Bail Jumping in the First Degree. See Tr. at 800-03.

  The principal trial evidence was as follows. On May 17, 1994, at approximately 10:20 p.m. Police Officers Edwin Moncado and Walter Beatty were on patrol in a marked car when they saw Petitioner and two other individuals standing under a scaffold at the corner of East 106th Street and Lexington Avenue in Manhattan, see Trial Transcript ("Tr.") at 308-09, which at the time was an area of high drug activity, see id. at 315. The officers observed Petitioner, with his back turned to them, extending his arm towards one of the two other individuals, as if he were handing him something. See id. at 314, 431-32. When the officers exited their car and approached Petitioner from behind, the two other individuals walked away briskly. See id. at 316. The officers then saw Petitioner adjust something in his rear waistband. See id. at 316, 433. As Petitioner turned around, ten vials of crack cocaine fell down Petitioner's pant leg and landed on the ground. See id. at 317. The vials had black tops and were stuck together with clear masking tape. See id. at 316-17. Officer Moncado arrested Petitioner and brought him to the police station. See id. at 437. A strip search of Petitioner revealed thirty-five additional black-top vials of crack cocaine in Petitioner's underwear. See id. at 440-41.

  On June 19, 1998, the New York State Supreme Court sentenced Petitioner to concurrent prison terms of three and one-half to seven years and four and one-half to nine years. Page 6 See Tr. at 818. The Appellate Division affirmed Petitioner's conviction, rejecting, inter alia, his insufficiency of evidence and statutory speedy trial claims. See People v. Wilson, 269 A.D.2d 180 (1st Dep't 2000). The New York Court of Appeals denied Petitioner leave to appeal. People v. Wilson, 95 N.Y.2d 806 (2000). On June 2, 2000, Petitioner filed his petition for a writ of habeas corpus.


 Exhaustion of Remedies

  A federal court may not grant a state prisoner's habeas corpus petition unless the applicant has exhausted his state remedies. See 28 U.S.C. § 2254(b)(1); Aparicio v. Artuz, 269 F.3d 78, 89 (2d Cir. 2001). To satisfy this exhaustion requirement, a petitioner must fairly present "the same federal constitutional claim[s] that he now urges upon the federal courts," Turner v. Artuz, 262 F.3d 118, 123 (2d Cir. 2001), "to the highest court of the pertinent state," Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990). However, under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may deny a habeas corpus petition on the merits even if some, but not all, of the petitioner's claims are unexhausted (a so-called "mixed petition"). See 28 U.S.C. § 2254(b)(2); Pratt v. Greiner, 306 F.3d 1190, 1197 (2d Cir. 2002). Although the Second Circuit has yet to enunciate a standard for determining when, in cases of "mixed petitions," unexhausted claims should be denied on the merits, the majority of district court decisions in this Circuit have embraced a "patently frivolous" test for dismissing unexhausted claims. Naranjo v. Filion, No. 02 Civ. 5449, 2003 WL. 1900867, at *8 (S.D.N.Y. April 16, 2003) (Peck, M.J.) (citing numerous cases).

  Petitioner has fully exhausted his state remedies for his insufficiency of evidence Page 7 claim, since he raised it as a constitutional claim in both his direct appeal to the Appellate Division after his conviction and his petition to seek leave to appeal to the Court of Appeals.*fn4 Cf. Brown v. Costello, No. 00 Civ. 4734, 2003 WL 118499 (S.D.N.Y. Jan. 13, 2003) (noting that use of state collateral attack mechanisms is required only when a petitioner has failed to present his claim to the highest state court). While he does not appear to have exhausted his state remedies with respect to his remaining claims, further exhaustion is likely procedurally barred. The Court need not, however, resolve definitively the exhaustion issue because it is clear that Petitioner's insufficiency of evidence claim fails on its merits and that each of his remaining claims is frivolous. See 28 U.S.C.A. § 2254(b)(2) (West Supp. 2003); Rosario v. Bennett, No. 01 Civ. 7142, 2002 WL 31852827, at *17 (S.D.N.Y. Dec. 20, 2002) (Peck, M.J.) ("The Court need not . . . decide the exhaustion issue, because under § 2254(b)(2), the Court has discretion to deny claims `on the merits, notwithstanding the failure . . . to exhaust. . . .'"); Lemus v. Artuz, 131 F. Supp.2d 532, 535 n.1 (S.D.N.Y. 2001) (denying habeas petitions on the merits pursuant to 28 U.S.C. § 2254(b)(2) without deciding whether all of petitioners' claims are exhausted). Thus, for the following reasons, the Court denies the habeas corpus petition on the merits. Page 8

 Petitioner's Claims

  Insufficiency of Evidence Claim

  Petitioner claims that his conviction for Criminal Possession of a Controlled Substance in the Third Degree was based on insufficient evidence and thus violated his right to due process under the Fourteenth Amendment. Specifically, Petitioner argues that the prosecution failed to prove beyond a reasonable doubt that he had possession of the vials of crack cocaine and that he had the intent to distribute them. See Pet. ¶ 12.B; Mem. in Supp. at 5-8. In evaluating this claim, the Court must inquire not whether it believes that the evidence at trial established guilt beyond a reasonable doubt but, rather, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). In so doing, the Court must view the evidence in the light most favorable to the prosecution. Id. at 319.

  With respect to Petitioner's possession of the drugs. Officers Beatty and Moncado testified at trial that they saw ten vials of crack cocaine fall out of Petitioner's pant leg.*fn5 In addition, it is undisputed that thirty-five additional vials of crack cocaine were found in Petitioner's underwear during a strip search at the police station. With respect to the Petitioner's intent to distribute the crack found in his possession, the sheer number of vials of crack cocaine is persuasive evidence of such an intent. Indeed, Petitioner himself admits that forty-five vials "may have been a lot for future personal consumption " See Mem. in Supp. at 8. There was also further trial evidence from which the jury could reasonably have found that Petitioner intended to distribute the crack. Detective Barnes, a fifteen-year veteran of the New York City Police Page 9 Department and an expert in street level narcotic activity, testified at trial that it is common for persons selling vials of crack cocaine to use the same color top on all their vials, to tape some of their vials together, and to store the rest of their vials elsewhere, such as inside their clothing. See Tr. at 520-523, 537. In light of this overwhelming evidence, the jury acted rationally in finding possession with intent to distribute beyond a reasonable doubt. Petitioner's insufficiency of the evidence claim thus fails on its merits.

  The Speedy Trial claim

  Petitioner claims that his speedy trial rights were violated because the government failed to exercise due diligence in locating him during his six-month absence from court in 1995. See Pet ¶ 12 C. Petitioner's Memorandum of Law reveals that this claim rests on New York's Criminal Procedure Law section 30.30, see Mem in Supp. at 9-12, which requires the prosecution to be ready for trial within "six months of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a felony." N.Y. Crim Proc Law § 30.30(1)(a) (McKinney 2003). As noted above, the state court found that 100 days had elapsed on the speedy trial clock as of January 26, 1995, the day before Petitioner was released on bail. Petitioner thereafter failed to make a scheduled court appearance on February 23 1995, and was not rearrested and returned to court until August 31, 1995. Some 188 additional days thus elapsed between the January calculation date and the resumption of proceedings in the ease. However, even if Petitioner's statutory speedy trial right was violated, Petitioner has failed to raise a constitutional claim that is cognizable on federal habeas corpus review. In neither his petition nor his memorandum does Petitioner even allude to his Sixth Amendment right to a speedy trial or cite to a federal case involving this right. Petitioner refers only to his statutory speech trial right under New York's Criminal Procedure Law section 30.30. Page 10

  It is well settled that "federal habeas corpus relief does not he for errors of state law." Estelle v. McGuire, 502 U.S. 62, 67 (1991). "In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Id. at 68. A claim based on section 30.30 does not raise a federal constitutional claim. See, e.g., Gibriano v. Attorney General of the State of New York, 965 F. Supp. 489, 491-92 (S.D.N Y. 1997) (denying habeas relief and noting that "Section 30.30 is a statutory time in which the People of New York must be ready for trial, Section 30.30 is not, as such, a statutory embodiment of the constitutional guarantee to a speedy trial"), Rodriguez v. Miller, No 96 Civ. 4723 (HB), 1997 WL 599388, at *2 (S.D.N.Y. Sept 29, 1997) ("[A] C.P.L. § 30.30 claim has been held not to raise the federal constitutional speedy trial claim for purposes of a federal habeas petition ").

  Moreover, the claim, when weighed in federal constitutional terms, is plainly frivolous. The Supreme Court has identified four factors to be considered in determining whether a defendant has been deprived of his Sixth Amendment right to a speedy trial the length of the delay, the reason for the delay, the defendant's assertion ot his right, and prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530 (1972). Since none of these lour factors is either a necessary or sufficient condition to the finding of a deprivation of the right to a speedy trial, id. at 533, a court must apply a balancing test, in which the conduct of both the prosecution and the defendant are weighed, id. at 530.

  The length of the delay is to some extent a triggering mechanism only if the length of the delay is "presumptively prejudicial" should a court inquire into the other three factors. See id.. The Supreme Court has noted that lower court have generally found a delay approaching one year to be presumptively prejudicial. See Doggett v. United States, Page 11 505 U.S. 647, 652 n.1, 658 (1992), see also United States v. Vassell 970 F.2d 1162, 1164 (2d Cir. 1992) (noting that one commentator discerns a general consensus that a delay of over eight months is presumptively prejudicial). Here, even if the Court were to assume, arguendo, that a delay of 288 days — less than 10 months — is presumptively prejudicial, a consideration of all the Barker factors makes it clear that the delay did not violate Petitioner's constitutional right to a speedy trial.

  First, the delay of 288 days is relatively short. Cf. Flowers v. Warden, 853 F.2d 131, 133 (2d Cir. 1988) (finding a 17-month delay considerably shorter than those in other cases where the Second Circuit found no speedy trial violation), Ravborn v. Scully, 858 F.2d 84 (2d Cir. 1988) (no speedy trial violation where trial was delayed for seven years and the government was directly responsible for eighteen to twenty-three months of delay). Second, Petitioner was not prejudiced by the delay in his case. While the Court recognizes that "consideration of prejudice is not limited to the specifically demonstrable," Doggett 505 U.S. at 655, there is no evidence in the record of, and Petitioner has not alleged, any prejudice resulting from the delay Petitioner did not call any witnesses or present any evidence at trial, and he does not claim that his defense strategy would have differed but for the delay. See Vassell 970 F.2d at 1164 Moreover Petitioner was incarcerated for only 100 of the 288 days, a little more than three months. The Supreme Court has considered even a 10-month period of incarceration to constitute "minimal" prejudice. United States v. Anderson, 902 F.2d 1105, 1110 (2d Cir. 1990) (citing Banker 407 U.S. at 534).

  As for the cause of the delay there is nothing in the record to suggest that the government purposefully delayed bringing Petitioner to trial in order to gain a tactical advantage, practice that would weigh heavily against the government in a speedy trial analysis. See Page 12 Barken 407 U.S. at 531, Rayborn, 858 F.2d at 92. Indeed, Petitioner's own actions led to a penod of delay of 188 days — nearly two-thirds of the total delay — when he failed to appear in court on February 23, 1995. While it is true that the government is under an obligation to exercise due diligence in attempting to locate and apprehend the accused, even if he is a fugitive, Rayborn, 858 F.2d at 90, the government arrested Petitioner within only six months after he failed to appear in court Cf. Doggett, 505 U.S. at 653-54 (government held to be negligent where it did not locate the petitioner for 8 ½ years until it performed a simple credit check). Even if the government was negligent in locating Petitioner only after six months, negligence does not automatically compel a finding of a speedy trial violation, especially where the negligence is not protracted. See id. at 657.

  Therefore, Petitioner's speedy trial claim is patently frivolous. The shortness of the delay, the lack of prejudice, and the cause of the delay leave no doubt that Petitioner's constitutional right to a speedy trial was not violated. Thus, the petition is denied on its merits to the extent it is based on the speedy trial claim.

  Coercion Claim

  Petitioner claims that he was coerced into pleading guilty by the New York Supreme Court on April 10, 1996, in violation of constitutional right to due process. See Pet ¶ 12.A; Mem. in Supp. at 13.

  This claim is moot because Petitioner's current imprisonment is not based on that guilty plea. In Us decision of December 18, 1997, the Appellate Division agreed with Petitioner that his guilty plea had been coerced and granted his motion to vacate the plea. Petitioner's imprisonment is the result only of his subsequent conviction by a jury on June 2, 1998. Therefore, this claim is also patently frivolous and cannot support issuance of the writ. Page 13

  Deficient Indictment Claim

  Petitioner claims that the Grand Jury, in indicting him for Criminal Possession of a Controlled Substance in the Third Degree, relied on an unsigned felony complaint, an inaccurate laboratory report analyzing the seized crack cocaine, and testimony that was later "recanted" by Officer Moncado. See Pet. ¶ 12.D; Mem. in Supp. at 8, 16. However, the Second Circuit has held that where deficiencies in a state grand jury proceeding are rendered harmless by a petit jury's subsequent guilty verdict, a claim alleging such deficiencies cannot support a petition for habeas corpus. See Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989).

  In this case, the alleged deficiencies are in any event minor. Petitioner claims that the laboratory report analyzing the seized drugs erred in stating that the 21 grains of cocaine found in the 45 seized vials equaled 1136 milligrams of cocaine, and that the weight should have been calculated as 1361 milligrams. See Mem. in Supp. at 8; Lab. Report, Petition Exhibit 5. Thus, even if Petitioner's calculations are correct, the report merely understates the amount of seized cocaine by 225 milligrams. Petitioner does not challenge the findings as to the nature of the substance. With respect to the claim of recanted testimony, the record merely reveals that although Police Officer Moncado apparently testified to the Grand Jury that Petitioner looked at him before ten vials of crack cocaine fell out of Petitioner's pant leg, he testified at trial that Petitioner did not look at him before the vials fell and claimed not to recall his Grand Jury testimony. See Tr. at 466-68. Petitioner presumably argues that this inconsistency undermines the credibility of Moncado's Grand Jury testimony, and thus the evidence underlying the indictment. Finally, Petitioner claims that the Grand Jury relied on a felony report by Officer Moncado that was signed by neither Officer Moncado himself or a witness. See Felony Complaint. Pet. Ex. 1. These minor deficiencies in the Grand Jury proceeding, if deficiencies at Page 14 all, were cured when a petit jury found Petitioner guilty beyond a reasonable doubt of drug possession with intent to distribute. See Lopez, 865 F.2d at 33. As a result, Petitioner's claims in this regard do not warrant issuance of the writ.

  Abuse of Discretion Claim

  Petitioner claims that the New York Supreme Court abused its discretion, in violation of his due process rights, by refusing to authorize $7,500 of funding for the chemical testing of the seized drugs. While Petitioner himself acknowledges that New York law allows a court to authorize funding above S300 for expert services only in extraordinary circumstances, see N.Y. County Law § 722-c (Consol 2003), he contends that such extraordinary circumstances were present in his case because he was charged with a serious felony, faced a substantial prison sentence if convicted, and because the test was important to his defense.*fn6 See Mem. in Supp. at 5.

  Petitioner's claim is without merit. First, this Court may not consider the question whether the Supreme Court abused its discretion by refusing to authorize funds above New York's $300 statutory maximum, as it is an alleged error of state law and not of federal law. See Estelle, 502 US at 67. Second, the court's refusal to authorize funds does not warrant habeas relief because the decision is not contrary to clearly established federal law as determined by the Supreme Court of the United States. See 28 U.S.C. § 2254(d)(1)-(2). In supporting his claim, Petitioner relies solely on Ake v. Oklahoma, 470 U.S. 68 (1985), in which the Supreme Court held that, in certain limited situations, the State must assure that a defendant has access to a psychiatrist who will assist in the defense. However Petitioner has not cited, and this Court has Page 15 not found, any authority establishing a defendant's absolute constitutional right to a State-funded chemical test of seized drugs at a cost exceeding the maximum amount allowed by state or federal law.*fn7 This claim is therefore also rejected.

  Fourth Amendment Claim

  Petitioner's final claim is that Officer Moncado approached Petitioner on the street without reasonable suspicion that a crime was afoot and thus violated his Fourth Amendment right against unreasonable searches and seizures under Terry v. Ohio, 392 U.S. 1 (1968). See Mem. in Supp. at 14-16. However, Fourth Amendment claims are barred in federal habeas petitions where criminal defendants have had a full and fair opportunity to litigate such claims. Stone v. Powell, 428 U.S. 465 (1976). There is no evidence in this case that Petitioner did not have a full and fair opportunity to litigate his Fourth Amendment claim. On the contrary, Petitioner was given a Mapp/Dunaway hearing to determine whether any evidence against Petitioner was obtained in violation of his Fourth Amendment rights. Therefore, Petitioner's claim is barred from federal habeas review.

  Moreover, Petitioner's claim has no merit. First, Police Officer Moncado arrested Petitioner only after the ten vials of crack cocaine had fallen out of his pant leg. Thus, Officer Moncado had probable cause for the arrest. Second, Officers Moncado and Beatty had not stopped or restrained Petitioner in any way before the vials fell to the ground. Instead, the officers were merely approaching Petitioner from behind when Petitioner adjusted his waistband and dropped the vials of crack cocaine through his pant leg. Police officers do not need Page 16 reasonable suspicion that a crime is a foot merely to approach a person on street. See Florida v. Bostick, 501 U.S. 429, 434 (1991). As the Supreme Court stated in Terry, 392 U.S. at 19 n.16 (1968): "Obviously, not all personal intercourse between policemen and citizens involves `seizures' of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a `seizure' has occurred." Therefore, Petitioner's final claim is also patently frivolous.

  Because Petitioner's has failed to prove a constitutional violation through his insufficiency of evidence claim, and because Petitioner's five additional claims are patently frivolous, the petition for a writ of habeas corpus is denied on the merits.


  For the reasons set forth above, the petition for a writ of habeas corpus is denied. Petitioner may not appeal this order unless "a circuit justice or judge issues a certificate of appealability." 28 U.S.C.A. § 2253(c)(1). A certificate will be granted "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C.A. § 2253(c)(2); see generally United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997) (discussing the standard for issuing a certificate of appealability). The Court finds that Petitioner will not be able to sustain this burden. Thus, the Court declines to issue a certificate of appealability. Further, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444 (1962).


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