United States District Court, S.D. New York
June 22, 2004.
JOSE OSLAN, Petitioner,
MICHAEL PARROTT, Respondent.
The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge
REPORT AND RECOMMENDATION
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
Respondent opposes the petitioner's application. For the
reasons set forth below, I recommend that the petition be denied.
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 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.
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
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.
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.
For the reasons set forth above, I recommend that the petition
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).