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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.

Prior Proceedings

  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. Page 3 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. Page 4

  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 Page 5 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. Page 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 Page 7 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) (quotations omitted).

  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 Page 8 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. Page 9 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 evidence" claim.

 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 Page 10 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 insufficient.

  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 Cardena guilty. Page 11

  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 Page 12 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 denied.

 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 closing.

  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. Page 13 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 requires that:

(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 Page 14 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 Page 15 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

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