United States District Court, E.D. New York
March 12, 2004.
RAM LALL, a/k/a BAHADAR BOODRAM, Petitioner, -against- JOHN BURGE, Superintendent, Auburn Correctional facility Respondent
The opinion of the court was delivered by: JOHN GLEESON, District Judge
MEMORANDUM AND ORDER
Petitioner Ram Lall, an inmate at the Auburn Correctional Facility,
seeks habeas relief from a judgment of conviction entered after a jury
trial in state court. I held oral argument on March 12, 2004. For the
reasons set forth below, the petition is denied.
On the afternoon of November 29, 1996, undercover police officers
observed Lall selling crack cocaine to two men in South Jamaica, Queens.
The first sale occurred in front of an apartment building at 88-09 148th
Street. The second sale occurred fifteen to twenty minutes later in the
lobby of the same building. Both buyers were arrested by a backup team of
police officers, and both were in possession of crack cocaine. Lall, who
matched the description of the seller provided by the undercover officer,
was arrested in the lobby of the building. No drugs were recovered from
Lall. Lall was charged with two counts of criminal sale of a controlled
substance in the third degree. A jury convicted him of both counts on
October 30, 1997. Lall was sentenced, as a second felony offender, to
concurrent prisons terms of from five to ten years.
Lall appealed his conviction to the Appellate Division, Second
Department, claiming that the trial court improperly qualified Detective
Dennis Wilson, a police officer who was a member of the arresting backup
team, as an expert and allowed him to explain to the jury why no drugs
were recovered from Lall when he was arrested. Lall argued that this
error deprived him of his right to a fair trial and suggested that he had
employed a "stash." On May 21, 2001, the Appellate Division affirmed
Lall's judgment of conviction, holding, in full: "Contrary to the
defendant's contention, the Supreme Court properly admitted limited
expert testimony concerning the general practices of drug dealers."
People v. Lall, 726 N.Y.S.2d 868, 868 (2d Dep't 2001)
(citations omitted). The New York Court of Appeals denied leave to appeal
on August 24, 2001. People v. Lall, 96 N.Y.2d 920 (2001);
People v. Boodram, 96 N.Y.2d 916 (2001).
In the instant petition, Lall claims that (1) the evidence presented at
trial was insufficient to sustain his conviction; (2) his trial attorney
provided ineffective assistance; and (3) Detective Wilson was improperly
qualified as an expert.
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) f
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, 157 L.Ed.2d 1, 7 (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)).
The government argues that Lall has failed to exhaust his claims of
ineffective assistance of trial counsel and insufficiency of the
Before a federal court may consider a state prisoner's petition for a
writ of habeas corpus, the petitioner must have exhausted all available
state judicial remedies. 28 U.S.C. § 2254(b); Picard v.
Connor, 404 U.S. 270, 275 (1971). In order to exhaust his state
remedies, Lall must have fairly presented his federal constitutional
claims to the highest state court. Dave v. Attorney Gen.,
696 F.2d 186, 191 (2d Cir. 1982) (in banc). A petitioner has fairly presented
a claim if he or she apprised the state courts of "both the factual and
the legal premises of the claim [the petitioner] asserts in federal
court." Id. Even if Lall raised precisely the same legal claims
in state and federal proceedings, reliance in the two proceedings upon
different factual grounds
that fundamentally alter the legal claim will foreclose a
conclusion that the claim is exhausted. Vasquez v. Hillery,
474 U.S. 254, 260 (1986). "However, the basic requirement remains that `the
nature or presentation of the claim must have been likely to alert the
court to the claim's federal nature.'" Jones v. Vacco,
126 F.3d 408, 413 (2d Cir. 1997) (quoting Dave, 696 F.2d at 192).*fn1
I agree that Lall has failed to exhaust his ineffective assistance and
insufficiency claims in state court. However, for the reasons set forth
below, I dismiss these claims on the merits. See
28 U.S.C. § 2254(b)(2).
C. Lall's Claims
1. Sufficiency of the Evidence
A petitioner "challenging the sufficiency of the evidence bears a very
heavy burden." Einaugler v. Supreme Court, 109 F.3d 836, 840
(2d Cir. 1997) (quotation marks omitted). A state criminal conviction
will be upheld if, "after viewing the evidence in the light most
favorable to the prosecution, 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, 319 (1979). In making this
assessment, a court may neither "disturb the jury's findings with respect
to the witnesses' credibility," United States v. Roman,
870 F.2d 65, 71 (2d Cir. 1989), nor "make credibility judgments about the
testimony presented at petitioner's trial or . . . weigh conflicting
testimony." Fagon v. Bara, 717 F. Supp. 976, 979
(E.D.N.Y. 1989) (citing United States v.
Zabare, 871 F.2d 282, 286 (2d Cir. 1989)). Thus, under
this "rigorous standard," a "federal habeas court faced with a record of
historical facts that supports conflicting inferences must presume
even if it does not affirmatively appear in the record
that the trier of fact resolved any such conflicts in favor of the
prosecution, and must defer to that resolution.'" Wheel v.
Robinson, 34 F.3d 60, 66 (2d Cir. 1994) (quoting Jackson,
443 U.S. at 326).
Here, although no drugs were found on Lall, the evidence was sufficient
to sustain his conviction. An undercover officer testified at trial that
he had witnessed a hand-to-hand exchange of a ziploc bag for money
between Lall and two separate buyers. (Tr. at 255-57, 262, 282-83.) A
detective and an officer testified that they participated in the arrest
of Lall, who matched the description of the person whom an undercover
officer had, moments before, observed making the sale. (Id. at
336, 405-07.) These two arresting officers also testified that they had
arrested both buyers immediately after the buyers' transactions with
Lall, and had discovered ziploc bags of crack cocaine*fn2 on their
persons. (Id. at 328-35, 398-404.) Just after the second
transaction, Lall was taken into custody in the lobby of the building
where the second sale had occurred, and was at that time identified by
the undercover officer as the person he had witnessed selling drugs.*fn3
(Id. at 264-65.) As the evidence presented at trial was
sufficient to sustain Lall's conviction, this claim does not justify
issuance of the writ.
2. Ineffective Assistance of Trial Counsel
Lall claims that his lawyer at trial provided ineffective assistance by
failing to call as witnesses the two men whom police officers witnessed
buying drugs from Lall and subsequently arrested.
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, Lall 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 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).
The trial transcript demonstrates that defense counsel pursued a
strategy premised on mistaken identity and alibi. To that end, counsel
put three witnesses on the stand-Lall's
mother and father, and the superintendent of their apartment
building*fn4 in an attempt to establish that Lall could not have
been in the building lobby at the time the police officers observed the
sales. To rebut the government's suggestion that Lall was a professional
drug dealer, counsel called Lall's boss to establish that Lall held down
a steady job. (Tr. at 456.) Counsel made timely hearsay objections to
descriptions by the police officers of the subjects prior to the arrests.
(Id. at 23-30.) During the cross-examinations of the undercover
officer who had witnessed the sales and the arresting officers, counsel
elicited that none had been aware that the building where the drug sales
took place had a back door. (Id. at 295-96, 367, 448.) Counsel
also impeached the undercover officer who had witnessed the sale with
that officer's grand jury testimony, in which the officer had testified
that the drug sales occurred on the street outside the building, not
inside the building, as he testified at trial. (Id. at
305-09.) Finally, counsel put questions to the officers designed to
suggest that the police witnesses were seeking to coordinate their
stories. (Id. at 352-53, 428-32.)
In light of these efforts, defense counsel was not ineffective under
Strickland, The decision whether to call a witness is tactical
see United States v. Smith, 198 F.3d 377, 386 (2d Cir. 1999),
and generally should not be disturbed, Pavel v. Hollins,
261 F.3d 210, 217 (2d Cir. 2001). Lall offers no basis for his claim that the
arrested buyers would have testified at all,*fn5 let alone testified to
facts that would have helped Lall's case. At bottom, Lall's argument that
buyers' testimony would have aided his defense is pure speculation.
For that reason, and in light of his attorney's competent defense at
trial, this claim does not justify issuance of the writ.
3. The Expert Testimony
Finally, Lall claims that the trial court improperly permitted
Detective Wilson to give expert testimony about the general practices of
Erroneous evidentiary rulings by a state trial court generally do not
rise to the level of constitutional violations upon which a federal court
may issue a writ of habeas corpus. See Jenkins v. Bara,
663 F. Supp. 891, 899 (E.D.N.Y. 1987) (citing Lipinski v. New York,
557 F.2d 289, 292 (2d Cir. 1977)). Erroneously admitted evidence must be
"crucial, critical, [and] highly significant." Collins v.
Scully, 755 F.2d 16, 19 (2d Cir. 1985). In this regard, a petitioner
bears a "heavy burden." Roberts v. Scully, 875 F. Supp. 182,
189 (S.D.N.Y. 1993), aff'd, 71 F.3d 406 (2d Cir. 1995)
(unpublished table decision). However, the Due Process Clause of the
Fourteenth Amendment is violated where "the evidence in question `was
sufficiently material to provide the basis for conviction or to remove
reasonable doubt that would have existed on the record without it.'"
Johnson v. Ross, 955 F.2d 178, 181 (2d Cir. 1992) (quoting
Collins, 755 F.2d at 19). This test applies post-AEDPA.
See Wade v. Mantello, 333 F.3d 51 (2d Cir. 2003).
At trial, the government requested that the court certify Detective
Wilson as an expert to testify about the practices of drug dealers. In
support of this certification, the government established that Wilson had
worked as an undercover investigator in the Queens Narcotics Division for
three-and-a-half years and as a narcotics investigator for almost three
years. (Tr. at 320-21.) The government also established that Wilson had
received specialized training in the identification and packaging of
narcotics, street drug terminology, pricing, and
subject identification. (Id. at 321 22.) Wilson
testified that he had been qualified to testify as an expert in other
drug cases. (Id. at 322.)
Over Lall's objection., the court certified Wilson as an expert in the
field of street-level narcotics operations. (Id. at 323.)
Wilson then testified that, based on his training and experience, drug
dealers, in an effort to avoid detection and prevent theft of their
drugs, often do not keep a drug supply on their person. (Id. at
338.) Instead, Wilson testified, dealers keep a "stash" of drugs in a
safe place from which they resupply themselves when the need arises.
(Id. at 337-38.) Wilson's expert testimony covered the general
practices of drug dealers, and he did not offer a specific opinion about
why no drugs were found on Lall. He testified to matters that were beyond
the knowledge of the average juror. At the conclusion of the evidence,
the judge properly instructed the jury on expert testimony. The charge
included instructions that the jury could consider the qualifications and
credibility of the expert, and that the jury was free to accept or reject
the expert testimony as they saw fit. (Id. at 623-24.)
In affirming Lall's judgment of conviction, the Appellate Division
held, as noted above, "Contrary to the defendant's contention, the
Supreme Court properly admitted limited expert testimony concerning the
general practices of drug dealers." Lall, 726 N.Y.S.2d at 868.
In light of the considerations discussed above, this decision was
reasonable. Therefore, this claim does not justify issuance of the writ.
For the foregoing reasons, the petition is denied. Because Lall has
failed to make a substantial showing of a denial of a constitutional
right, no certificate of appealability shall issue.