United States District Court, E.D. New York
June 4, 2004.
LARRY TOMLIN, Petitioner,
GARY GREENE, Superintendent, Respondent.
The opinion of the court was delivered by: JOHN GLEESON, District Judge
MEMORANDUM AND ORDER
Larry Tomlin petitions for a writ of habeas corpus, challenging
his convictions in state court. On June 4, 2004, I held oral
argument, in which Tomlin participated by telephone conference.
The petition is denied for the reasons set forth below.
The government's evidence at trial established that, on the
morning of July 18, 1998, Larry Tomlin argued with Robin Benjamin
on a street corner in Brooklyn. Tomlin drew a gun and shot Benjamin, killing him. Tomlin then fled the scene
and the state. He was apprehended on November 20, 1998 in
Tomlin was charged with two counts of murder in the second
degree, one count of criminal possession of a weapon in the
second degree, one count of criminal possession of a weapon in
the third degree and one count of criminal possession of a weapon
in the fourth degree. Following trial, a jury found him guilty of
murder in the second degree and he was sentenced to a term of
imprisonment of twenty-five years to life.
Tomlin, through counsel, appealed to the Appellate Division,
Second Department. Appellate counsel argued that Tomlin was
deprived of a fair trial because the trial judge erroneously
permitted a prosecution witness to testify that Tomlin and
Benjamin were involved together in the uncharged crime of selling
marijuana. The Appellate Division rejected this challenge and
affirmed Tomlin's conviction on June 10, 2002. People v.
Tomlin, 743 N.Y.S.2d 310 (2d Dep't 2002). The court ruled as
Contrary to the defendant's contention, the testimony
adduced by the People established his involvement in
the uncharged crime of selling marijuana. This
testimony was properly admitted as it was highly
probative of the defendant's motive for committing
the murder. Accordingly, the trial court properly
denied the defendant's request for a mistrial or to
strike the testimony.
Id. (internal citations omitted). The Court of Appeals denied
Tomlin's application for leave to appeal on October 31, 2002.
People v. Tomlin, 98 N.Y.S.2d 772 (2002).*fn1
On January 15, 2004, Tomlin filed a pro se petition for a
writ of habeas corpus in this Court, advancing the same ground
raised by his appellate counsel on direct appeal.
DISCUSSION 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
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,
539 U.S. 510, 123 S.Ct. 2527, 2535 (2003) (quoting Lockyer v. Andrade,
538 U.S. 63, 76 (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, 4 (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)).
B. Tomlin's Claim: Erroneous Evidentiary Ruling
Kizzy Parker testified at trial that she and her boyfriend,
Patrick Myrie, lived at 29 Thomas Boyland Street in the Bushwick
section of Brooklyn. Tomlin, Benjamin and Myrie sold marijuana
out of the house, which was owned by Tomlin. The marijuana was
sold through a hole in the basement wall; money would be placed
through the hole and the marijuana would be handed out. Sometimes
the sales would occur just inside the gate by the basement door.
Parker saw only Myrie and Benjamin actually selling the
marijuana. However, she overheard Tomlin, the owner of the house,
discussing selling marijuana, and heard him argue with Benjamin
over how much money Benjamin was taking. On July 17, 1998, the
day before the murder, Benjamin slammed the door in Tomlin's face
during one of their confrontations. Tomlin said that Benjamin was
"getting bright," and that Tomlin would "take care of" him. (Tr.
Tomlin argues here, as he did in state court, that the trial
court improperly admitted this testimony of uncharged criminal
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)); see also Ponnapula v. Spitzer,
297 F.3d 172, 182 (not "every error of state law can be
transmogrified by artful argumentation into a constitutional
violation.") (quotation marks omitted). Erroneously admitted
evidence must be "crucial, critical, [and] highly significant."
Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985). In this
regard, 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).
The evidence that Tomlin and Benjamin were involved in a
marijuana business, and that they fought over money, was
obviously relevant and admissible to prove Tomlin's motive to
kill Benjamin. That Parker did not physically observe Tomlin (as
opposed to Myrie and Benjamin) selling marijuana, but rather
overheard him discussing it and arguing about it, may have
affected the weight of her testimony, but it did not render the
As for undue prejudice, I disagree with Tomlin's argument that
the evidence that he and Benjamin had been arguing over the
proceeds of marijuana sales, as opposed to some other form of
business, prejudiced Tomlin. (Tomlin acknowledged in state court
that the trial judge could properly have permitted Parker to
testify that Tomlin and Benjamin had argued over money, as long
as the purported source of the money was not mentioned.) I find
it unlikely that a jury not otherwise convinced beyond a
reasonable doubt of a defendant's guilt of murder would convict him of that offense because it concluded he was involved in
small-time marijuana trafficking.
In short, I agree with the Appellate Division's conclusion that
the challenged evidence was properly admitted as proof of
Tomlin's motive. It follows that I cannot characterize that
conclusion as an unreasonable application of federal law, and
thus no habeas relief is available on this ground.
For the foregoing reasons, the petition is denied. Because
Tomlin has failed to make a substantial showing of a denial of a
constitutional right, no certificate of appealability shall