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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


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. Page 2


  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). Page 3

  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 Page 4 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, 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, 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 Page 5 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. Exhaustion

  The government argues that Lall has failed to exhaust his claims of ineffective assistance of trial counsel and insufficiency of the evidence.

  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 Page 6 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. Page 7 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. Page 8

  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, Page 9 124 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 Page 10 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 the Page 11 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 drug dealers.

  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 Page 12 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. Page 13


  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.

  So Ordered.

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