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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


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 Richmond, Virginia.

  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 follows:

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 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, 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. 161-62.)

  Tomlin argues here, as he did in state court, that the trial court improperly admitted this testimony of uncharged criminal activity.

  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 testimony inadmissible.

  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 issue.

  So Ordered.

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