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OSLAN v. PARROTT

United States District Court, S.D. New York


June 22, 2004.

JOSE OSLAN, Petitioner,
v.
MICHAEL PARROTT, Respondent.

The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge

REPORT AND RECOMMENDATION

I. INTRODUCTION

Before the Court is Jose Oslan's ("Oslan") petition for a writ of habeas corpus made pursuant to 28 U.S.C. § 2254. Oslan contends that his confinement by New York state is unlawful because: (1) the trial court erred by permitting the prosecution to examine petitioner, in the event that he testified, about a prior conviction; (2) the evidence presented at trial was insufficient to permit a jury to return a verdict of guilty for the crime of robbery in the third degree; and (3) the sentence imposed on him by the trial court involved an abuse of discretion.

  Respondent opposes the petitioner's application. For the reasons set forth below, I recommend that the petition be denied.

  II. BACKGROUND

  On May 17, 1997, at 12:23 in the morning, Sezquiel Navarro ("Navarro") was walking in the vicinity of the Grand Concourse in Bronx County, New York, when he was approached by Oslan, who was riding a blue, mountain-style bicycle. Oslan identified himself as a police officer and displayed what appeared to be a police officer's shield. Navarro stated that he was going to call 911. Oslan then struck Navarro in the face, shouted an obscenity at him, and ripped a gold chain from Navarro's neck.

  Navarro's brothers, Saul and Mauricio Navarro, were walking ahead of him on the Grand Concourse. Saul Navarro heard the shouting and, turning around, saw Oslan reaching for Navarro's neck. Saul Navarro ran toward his brother; as he did so, he saw Oslan attempt to flee on his bicycle. Saul Navarro seized Oslan but was unable to hold him.

  At the time of the incident, New York City Police Sergeants Joseph Luongo and Sean Flynn were driving south on the Grand Concourse when they saw several people chasing a man on a bicycle. Sgt. Luongo and Sgt. Flynn seized the petitioner. Thereafter, Navarro informed them that petitioner had pretended to be a police officer and had struck him and stolen his gold chain. Sgt. Luongo observed a rash on Navarro's neck which appeared to have been caused by "someone pulling or grabbing him." Navarro did not seek medical attention for his injuries. A search of petitioner following his arrest yielded a gold chain, a replica of a police shield and a blue, mountain-style bicycle.

  Petitioner was given a pretrial Sandoval*fn1 hearing. At the conclusion of the hearing, the trial court ruled that, should the petitioner testify at trial, the prosecution could ask him whether he had been convicted for the crime of manslaughter in the first degree. The case then proceeded to a trial by jury in New York State Supreme Court, Bronx County. Petitioner did not testify during the trial. On July 30, 1998, the jury found petitioner guilty for robbery in the third degree. See N.Y. Penal Law § 160.05. Petitioner was sentenced, as a second felony offender, to an indeterminate term of imprisonment of three and one-half to seven years.

  Oslan appealed his conviction to the New York State Supreme Court, Appellate Division, First Department. Oslan urged the appellate court to upset his conviction on the grounds that: (1) the trial court, at the Sandoval hearing, abused its discretion and deprived Oslan of his due process right to a fair trial by permitting the prosecution to ask him, should he testify at trial, about his prior conviction for manslaughter in the first degree; (2) his guilt was not proven beyond a reasonable doubt and the verdict was against the weight of the evidence; and (3) his sentence was unduly harsh and excessive and should be reduced. On January 4, 2001, the Appellate Division affirmed petitioner's conviction unanimously. See People v. Oslan, 279 A.D.2d 266, 719 N.Y.S.2d 845 (App. Div. 1st Dep't 2001). Petitioner applied for leave to appeal to the New York Court of Appeals. On May 10, 2001, that application was denied. See People v. Oslan, 96 N.Y.2d 832, 729 N.Y.S.2d 453 (2001).

  The instant application for a writ of habeas corpus followed.

  III. DISCUSSION

  Standard of Review

  Where a state court has adjudicated the merits of a claim raised in a federal habeas corpus petition, 28 U.S.C. § 2254 informs that a writ of habeas corpus may issue only if the state court's adjudication resulted in a decision that: 1) 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) was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. See 28 U.S.C. § 2254(d); see also Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000); Francis S. v. Stone, 221 F.3d 100 (2d Cir. 2000). In addition, when considering an application for a writ of habeas corpus by a state prisoner, a federal court must be mindful that any determination of a factual issue made by a state court is to be presumed correct and the habeas corpus applicant has the burden of rebutting the presumption of correctness by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).

  Petitioner's Sandoval Claim

  Petitioner claims that the trial court erred when it ruled, at a pretrial Sandoval hearing, that petitioner, should he testify at trial, could be cross-examined concerning a prior conviction for manslaughter in the first degree. Petitioner contends that the ruling precluded him from testifying at trial, thereby depriving him of his due process right to a fair trial.

  Courts have consistently held that if a defendant does not testify at trial, a federal court need not review the trial court's allegedly erroneous Sandoval ruling for purposes of habeas corpus relief. See Gilbert v. Superintendent of Collins Correctional Facility, No. 03 Civ. 3866, 2004 WL 287683, at *7 (S.D.N.Y. Feb. 11, 2004); McEachin v. Ross, 951 F. Supp. 478, 481 (S.D.N.Y. 1997); see also Luce v. United States, 469 U.S. 38, 43, 105 S.Ct. 460, 464 (1984). A habeas corpus petitioner's failure to testify at trial is "fatal to any claims of constitutional deprivation arising out of a Sandoval-type ruling." McEachin, 951 F. Supp. at 481. Without such testimony, a court has no "adequate non-speculative basis upon which to assess the merits of that claim." Id. (citations omitted).

  Petitioner chose not to testify at his trial. Therefore, petitioner's claim based on the trial court's Sandoval ruling does not raise a constitutional issue cognizable on habeas corpus review. See Delgado v. Duncan, No. 02 Civ. 4929, 2003 WL 23185682, at *4 (E.D.N.Y. Nov. 4, 2003). Accordingly, petitioner's Sandoval claim should be dismissed.

  Sufficiency of the Evidence

  Petitioner claims that no rational trier of fact could properly have found that he was guilty beyond a reasonable doubt of robbery in the third degree. Petitioner contends that the prosecution's case depended on the testimony of witnesses who, because they had consumed alcohol on the night in question and were not legal residents of the United States, were not credible. By contrast, petitioner argues, credible witnesses who testified on his behalf averred that the gold chain he allegedly stole from Navarro in fact belonged to him.

  A habeas corpus petitioner challenging the lawfulness of his or her incarceration based upon a claim of insufficient evidence is entitled to relief only if a court finds upon the record evidence adduced at the trial that no rational trier of fact could have found proof of guilt beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2791-2792 (1979). A habeas corpus court reviewing such a claim must consider the evidence in the light most favorable to the prosecution and make all inferences in its favor. See id. at 319, 2789.

  New York's Penal Law defines robbery in the third degree in part as follows:

A person is guilty of robbery in the third degree when he forcibly steals property.
N.Y. Penal Law § 160.05.

  In the case at bar, the trial jury heard testimony from Navarro and his brother, Saul Navarro. Both men identified the petitioner as the individual who had approached Navarro on the morning of May 17, 1997, and testified that petitioner had stolen Navarro's gold chain. In addition, both men acknowledged that they had entered the United States illegally and that earlier, during the preceding evening, they had attended a party at which they had been consuming alcohol.

  The jurors also heard Sgt. Luongo and Sgt. Flynn recount how they had been driving on the Grand Concourse on the night in question when they observed several individuals chasing a man on a bicycle, whom they identified as the petitioner. Sgt. Luongo testified that he and Sgt. Flynn apprehended and arrested the petitioner and, during the arrest, recovered a replica of a police shield made from a police cap device, a piece of jewelry and a bicycle. Sgt. Luongo also stated that he had observed what appeared to be a rash on Navarro's neck.

  The jury also heard the testimony of the petitioner's aunt, cousin and former girlfriend. Concepcion Rosado ("Rosado"), the petitioner's aunt, testified that she had seen the petitioner at a party on the evening of May 16, 1997, and that he had arrived at the party at approximately 9:00 p.m. and left at approximately 12:00 a.m. Rosado also testified that petitioner was wearing chains and rings at the party, but stated that she did not know where he had obtained the jewelry.

  Jennifer Rivera ("Rivera"), petitioner's former girlfriend, also testified about the party that took place on the evening of May 16, 1997. Rivera averred that the petitioner arrived at the party at about 8:00 or 9:00 p.m., that he was wearing necklaces and rings, and that he left the party at approximately 12:00 a.m. Rivera also stated that, during the party, petitioner had been wearing the gold chain that he was alleged to have stolen and that was recovered from him by police officers at the time of his arrest. However, Rivera could not describe any of the other chains that, according to her, petitioner had been wearing on the night of the party. Petitioner's cousin, Elvis Rosado, also recalled having seen petitioner wearing the gold chain that was recovered from him during his arrest, both during the party and on other occasions.

  The jury found, based on the evidence presented at the trial, that petitioner was guilty of robbery in the third degree. The Appellate Division, which adjudicated this claim on the merits, concluded that there was no basis upon which to disturb the jury's determinations concerning the credibility of the witnesses who had testified at trial, and that the verdict was based on legally sufficient evidence and was not against the weight of the evidence. Petitioner has not presented clear and convincing evidence to this Court that rebuts the presumption of correctness accorded the jury's findings of facts. Furthermore, the Court finds that the Appellate Division, in reviewing petitioner's conviction, applied the standard set forth in Jackson in finding that the evidence was sufficient for a reasonable jury to return a verdict of guilty against petitioner with respect to the crime of robbery in the third degree.

  Since the Appellate Division's determination was neither contrary to nor involved an unreasonable application of clearly established federal law, as determined by the Supreme Court, there is no basis upon which to grant petitioner habeas corpus relief on this claim. Similarly, because the Court finds that the Appellate Division's adjudication did not result in a decision that was premised on an unreasonable determination of the facts in light of the evidence presented in the trial court, petitioner's claim that he is entitled to habeas corpus relief because his conviction for robbery in the third degree was based upon insufficient evidence is without merit.

  Excessive Sentence

  Oslan claims that the decision of the state court, sentencing him to an indeterminate term of imprisonment of three and one-half to seven years, was an abuse of discretion. He contends that the court failed to take into consideration that no one was injured as a result of petitioner's crime and that, because the gold chain was found and returned to Navarro, the sentence was disproportionate to the severity of the crime.

  "No federal constitutional issue is presented where . . . the sentence [imposed] is within the range prescribed by state law." White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992); see also Dorsey v. Irvin, 56 F.3d 425, 427 (2d Cir 1995).

  In the case at bar, petitioner was sentenced as a second felony offender. The maximum term of an indeterminate sentence for a second felony offender who has committed a class D felony*fn2 must be at least four years and must not exceed seven years. See N.Y. Penal Law § 70.06(3)(d). Petitioner's sentence of three and one-half to seven years imprisonment is thus within New York's sentencing limits for his offense.

  Since the sentence imposed is within the range prescribed by state law, the Court finds that no federal constitutional issue is presented by this claim for which petitioner is entitled to habeas corpus relief. Therefore, the claim should be dismissed.

  IV. RECOMMENDATION

  For the reasons set forth above, I recommend that the petition be denied.

  V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

  Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Michael B. Mukasey, 500 Pearl Street, Room 2240, New York, New York, 10007, and to the chambers of the undersigned, 40 Foley Square, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Mukasey. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Reynoso, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).


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