United States District Court, S.D. New York
February 10, 2004.
JUAN CARDENA, Petitioner -against- MICHAEL GIAMBRUNO, Warden, Respondent
The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge Page 2
Juan Cardena ("Cardena"), currently incarcerated at the Wyoming
Correctional Facility, petitions for a writ of habeas corpus pursuant to
28 U.S.C. § 2254, alleging that his New York State Court conviction
on September 13, 2002 violated his rights under the U.S. Constitution.
For the reasons set forth below, the petition is denied.
Cardena's conviction arose from the sale of crack cocaine to an
undercover police officer on the afternoon of April 11, 2000. Following a
jury trial, a judgment of conviction was entered on September 13, 2000,
by Judge Carol Berkman of New York Supreme Court, New York County, for
criminal sale of a controlled substance in the third degree and criminal
possession of a controlled substance in the seventh degree. As a second
felony offender, Cardena was sentenced to concurrent terms of 5 to 10
years and one year.
Cardena's conviction was affirmed on April 18, 2002 by the Appellate
Division, First Department. People v. Cardena, 293 A.D.2d 355,
742 N.Y.S.2d 3 (1st Dep't 2002). On June 28, 2002, the Court of Appeals
denied leave to appeal that affirmance. People v.
Cardena, 98 N.Y.2d 673, 746 N.Y.S.2d 462 (2002). Cardena did not
seek review of the conviction by the United States Supreme Court.
Cardena timely filed the present habeas petition, pro se, on May 9,
2003, for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 after
first exhausting his remedies in state court.
At trial, the prosecution presented evidence showing that Cardena, his
co-defendant, Ronald Kelly ("Kelly"), and an un-apprehended third man
sold the drugs on the afternoon of April 11, 2000. Two undercover police
officers testified that they conducted the operation where one made the
purchase and one observed the transaction from about a half a block away.
The undercover officer directly involved in the sale approached Kelly and
asked where he could buy some crack. Kelly took the officer to stand
underneath a nearby awning and called Cardena over to them. Kelly told
the officer that it would cost fifteen dollars for three bags and the
officer gave the money to Kelly who in turn gave the money to Cardena.
Cardena left the two men to wait and the officer observed Cardena
approach an unidentified man on a corner and make a hand-to-hand exchange
and then return to a corner on the street he had previously been
standing. Kelly walked over to Cardena and then returned to the officer
and indicated that his partners suspected he was a cop.
The officer testified that about twenty to twenty-five minutes had
elapsed by this time, and he told Kelly to either give him his drugs or
return his money. Kelly returned to Cardena and the officer observed the
two make a hand-to-hand exchange before Kelly returned to the officer and
told him to follow him. Kelly led the officer to the vestibule of an
apartment building a few blocks away and Kelly told the officer that he
thought he was a cop and that they should go inside and smoke the crack
together. The officer refused and asked for his drugs. Kelly gave only
one bag of crack to the officer before shutting the inner doors of the
building. The officer did not pursue Kelly because he could no longer see
his partner and was concerned for his safety.
The officer further testified that he returned to the street and found
his partner. They returned to their unmarked vehicle and radioed to their
field team that a purchase had been made and gave a description of Kelly
and Cardena as well as their last known locations. The officers also
canvassed the area in their unmarked vehicle but did not find Kelly or
Cardena that day. Four days later the officers spotted Kelly walking down
the street in the vicinity of the purchase and radioed in his description
for a field team to arrest him. The officers proceeded to the same corner
the purchase was made and spotted Cardena standing in the same location
he had been four days earlier. The officers radioed in his location and
described Cardena as a black male wearing the same baseball cap and
glasses from the day of the purchase. After
Cardena was apprehended, the officer discovered that Cardena was
actually Hispanic. Cardena was arrested with a bag of crack cocaine in
his pants pocket.
During a Hinton hearing prior to the start of the jury trial (see
People v. Hinton, 31 N.Y.2d 71, 334 N.Y.S.2d 885, 286 N.E.2d 265 (1972),
cert. denied 410 U.S. 911, 93 S.Ct. 970, 35 L.Ed.2d 273 (1973)), the
People presented evidence that the judge found sufficient to warrant
closing the courtroom to all persons but Cardena's family during the
undercover officers' testimony. In the hearing, the court found that the
officers were still actively engaged in ongoing undercover operations in
the specific area of the instant arrest. In addition, the officers had
previously been threatened in the area of the arrest by drug dealers and
other persons and the officers had taken precautions to protect their
identity while at the courthouse.
Cardena argues that the trial evidence was insufficient because there
was no physical evidence and because the undercover officer who
identified him gave an incorrect description. He claims that his guilty
verdict for third degree criminal sale of a controlled substance was
against the weight of the evidence, thus depriving him of due process
under the Fourteenth Amendment of the U.S. Constitution and the New York
Constitution Art. 1, § 6.
Cardena also claims that because the trial court closed the courtroom
during the testimony of the undercover officers without sufficient
evidence to do so, the petitioner was deprived of his right to a public
trial under the sixth and Fourteenth Amendments, New York Civil Rights
Law § 12, and New York Judicial Law § 4.
The Appellate Division found that the trial court's verdict was based
on legally sufficient evidence and was not against the weight of the
evidence. The court did not find a reason to disturb the jury's
credibility determinations as to the officer's identification of the
defendant. The court also found that the People made a sufficient showing
as to warrant closing the courtroom during the officer's testimony. See
People v. Cardena, 293 A.D.2d 355, 742 N.Y.S.2d 3 (1st Dep't 2002).
Standard of Review
In addressing the present motion, the Court is mindful that the
plaintiff is proceeding pro se and that his submissions should be held
"`to less stringent standards than formal pleadings drafted by lawyers.
. . . ` " Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 176, 66 L.Ed.2d
163 (1980) (per curiam) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92
S.Ct. 594, 595, 30 L.Ed.2d 652 (1972)); see also Ferran v. Town of
Nassau, 11 F.3d 21, 22 (2d Cir. 1993). Indeed, district courts should
"`read the pleadings of a pro se plaintiff liberally and interpret them
to raise the
strongest arguments they suggest.'" McPherson v. Coombe, 174 F.3d 276,
280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.
1994)). Nevertheless, the Court is also aware that pro se status "does
not exempt a party from compliance with relevant rules of procedural and
substantive law." Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)
Cardena has submitted as his habeas petition the exact brief which he
had submitted on his behalf on direct appeal to the Appellate Division
and which was rejected by that court. In determining whether the
Appellate Division properly rejected Cardena's arguments,*fn1 this Court
is constrained by the Anti-Terrorism and Effective Death Penalty Act of
1996 ("AEDPA").*fn2 Under AEDPA, this Court must presume the state
court's factual findings to be correct and may overturn those findings
only if the petitioner offers clear and convincing evidence of their
incorrectness. 28 U.S.C. § 2254(e). A state court adjudication may be
overturned only if it:
(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) resulted in a decision that 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).
"Clearly established Federal law" includes only holdings of Supreme Court
decisions and does not include dicta. Williams v. Taylor, 529 U.S. 362,
412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A decision is contrary to
clearly established Federal law if it "contradicts the governing law" or
"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" the Supreme Court. Williams, 529
U.S. at 405-06. An unreasonable application of federal law is more than
an incorrect application, but the petitioner need not show that all
reasonable jurists would agree that a state court determination is
incorrect in order for it to be unreasonable. Id. at 409-12. Instead, a
federal court should review a state court's interpretation of federal law
using a standard of objective reasonableness. Id. at 409. Objective
unreasonableness includes an unreasonable refusal "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 36, 45 (2d Cir. 2002).
The Due Process Claim as to the Weight of the Evidence
Cardena has based his first claim both upon legal sufficiency of the
evidence and the weight of the evidence.
However, challenges to the weight of the evidence supporting a
conviction, unlike challenges to the sufficiency of the evidence, are not
cognizable on federal habeas review. Maldonado v. Scully, 86 F.3d 32, 35
(2d Cir. 1996); 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); 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); see also 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 (1986). Unlike the intermediate appellate court in
New York State, the federal courts may not independently "weigh the
relative probative force of conflicting testimony and the relative
strength of conflicting inferences that may be drawn from the testimony,
" People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672
(1987). Therefore, this Court may not consider the "weight of the
The Due Process Claim as to the Sufficiency of the Evidence
Cardena's first claim also asserts that the trial evidence was
insufficient to prove his guilt beyond a reasonable doubt and thus
deprived him of his due process rights under the Fourteenth Amendment of
the U.S. Constitution and the New York
Constitution Article 1, § 6. Cardena claims that, because there was no
physical evidence linking him to the crime and because the undercover
officer gave an incorrect description of his clothing and originally
guessed that he was black instead of Hispanic, the trial evidence was
The Appellate Division's determination was not contrary to, nor an
unreasonable application of, Supreme Court precedent. A "state prisoner
`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.'" Einaugler v. Supreme Court of
the State of New York, 109 F.3d 836, 839 (2d Cir. 1997) (quoting Jackson
v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)); accord
Farrington v. Senkowski, 214 F.3d 237, 240-241 (2d Cir. 2000); Rukaj v.
Fischer, No. 02 Civ. 3529, 2003 WL 194201, at *3 (S.D.N.Y. Jan. 28,
2003). Moreover, the Court must consider "the evidence in the light most
favorable to the prosecution." Ponnapula v. Spitzer, 297 F.3d 172, 176
(2d Cir. 2002). Thus, on the matter of the sufficiency of the evidence,
Cardena has a heavy burden and must "rebut  the presumption that all
factual determinations made by the state court were correct." Id.; see
also 28 U.S.C. § 2254 (e). Bearing these principles in mind, it is
apparent that the state court's decision involved a reasonable application
of the Jackson standard in reviewing whether the jury could have found
As to Cardena's claim that the evidence was insufficient because of the
undercover officer's alleged incorrect testimony, a habeas court may not
revisit the fact-finder's credibility determinations. Marshall v.
Lonberger, 459 U.S. 422, 432-35, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983);
United States v. Strauss, 999 F.2d 692, 696 (2d Cir. 1993); Vera v.
Hanslmaier, 928 F. Supp. 278, 284 (S.D.N.Y. 1996). One of the inviolable
rules of jury trials is that determinations of witness credibility "are
within the sole province of the jury." Haves v. New York City Dept. of
Corr., 84 F.3d 614, 619 (2d Cir. 1996); see also Maldonado v. Scully,
86 F.3d 32, 35 (2d Cir. 1996) (" [A]ssessments of the weight of the
evidence or the credibility of witnesses are for the jury and [are] not
grounds for reversal on appeal"). For this reason, "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. 1979).
See also Edwards v. Jones. 720 F.2d 751, 755 (2d Cir. 1983) (following
Danzey even though the testimony and character of the sole witness who
directly implicated the petitioner was "less than inspiring").
Even were such deference to the trial court's finding not required, the
jury's verdict was a reasonable one. The experienced undercover officer
made the purchase from Cardena and Kelly in a transaction that occurred
over a 25 minute time period, and during part of that period, the officer
could observe Cardena for subsequent identification. The jury knew that
prior to petitioner's
arrest, the officer originally identified petitioner as a black man
although Cardena was Hispanic. Nonetheless, it considered the officer's
unequivocal identification of Cardena at his arrest and at trial and
determined that his identification was credible.
In sum, the Appellate Division's refusal to disturb the trial court's
evidence and credibility determination was entirely reasonable and was
rendered in compliance with clearly established federal law. See
Jackson, 443 U.S. at 318-19. Cardena's Due Process claim is therefore
The Public Trial Claim
The second claim in petitioner's habeas petition alleges that the trial
court violated his sixth Amendment right to a public trial by improperly
closing the courtroom to all but the defendant's family during the
testimony of the two undercover officers. Cardena claims that
insufficient evidence was presented in a Hinton hearing to warrant the
The right to a public trial is recognized as a guarantee created for
the benefit of the accused, with the belief that the presence of
spectators enhances the judge's and the prosecutor's senses of
responsibility, encourages witnesses to come forward and discourages
perjury. Waller v. Georgia, 467 U.S. 39, 46, 104 S.Ct.
2210, 81 L.Ed.2d 31 (1984) (citations omitted). The Supreme Court has
stated that the instances in which courtroom closure will* be warranted
are "rare," but that the "right to an open trial may give way in certain
cases to other rights or interests, such as . . . the government's
interest in inhibiting disclosure of sensitive information." Id. at 45.
In such cases, the Court has instructed that the closure of a courtroom
(1) the party seeking to close `the hearing must
advance an overriding interest that is likely to
be prejudiced, (2) the closure must be no broader
than necessary to protect that interest, (3) the
trial court must consider reasonable alternatives
to closing the proceeding, and (4) it must make
findings adequate to support the closure.
Id. at 48.
In Brown v. Artuz, 283 F.3d 492 (2d Cir. 2002), the Second Circuit
considered the propriety of closing the courtroom during the testimony of
an undercover officer whose safety would otherwise be threatened. The
Second Circuit held that the officer's safety was an overriding interest
that would be prejudiced if his identity was revealed because the officer
still worked undercover in the neighborhood where the arrest took place,
meeting the first prong of the Waller test. Id. at 501. Second, because
the state court closed the courtroom only during the officer's
testimony, the closure was no broader than necessary. Id. at 502. Third,
the Court found that public availability of the transcript
was a reasonable alternative to open-court testimony. Id. Finally, as a
result of the trial court's Hinton hearing, the trial court made findings
adequate to support the closure. Id. Accordingly, the Second Circuit held
that the closure of the courtroom was neither contrary to nor involved an
unreasonable application of the Supreme Court's standard in Waller or any
other Supreme Court decision, and therefore upheld the denial of habeas
corpus relief. Id. at 501-02.
The instant case involved an even narrower closure than that in Brown,
as members of Cardena's family were allowed access. As in Brown, the
officers' safety was at issue, the transcript of the officers' testimony
was available to the public, and a Hinton hearing allowed the trial court
to make findings adequate to support the closure. Accordingly, the
partial closure of the courtroom at petitioner's trial was not in
violation of the sixth Amendment. Habeas corpus relief is therefore not
warranted on this basis.
Petitioner's claims have been considered and dismissed as lacking merit
as he has shown no violation of his constitutional rights in his
conviction. His petition for a writ of habeas corpus
is therefore denied.*fn3 As petitioner has not made a substantial
showing of the denial of a constitutional right, a certificate of
appealability will not issue. See 28 U.S.C. § 2253 (c) (2); Lucidore v.
N.Y.S. Div. of Parole, 209 F.3d 107, 111-113 (2d Cir. 2000).
It is so ordered