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CAMACHO v. McKINNEY

United States District Court, S.D. New York


July 1, 2004.

FRANKLIN CAMACHO, Petitioner,
v.
HAROLD McKINNEY, Respondent.

The opinion of the court was delivered by: LEWIS KAPLAN, District Judge

ORDER

On April 22, 2002, petitioner was convicted in New York Supreme Court, Bronx County, of criminal sale of a controlled substance in or near school grounds and sentencing to an indeterminate term of imprisonment of from five and one-half to eleven years. The conviction was affirmed by the Appellate Division on May 15, 2003, and leave to appeal was denied by the New York Court of Appeals on August 20, 2003. People v. Camacho, 305 A.D.2d 229 (1st Dept.), leave to appeal denied, 100 N.Y.2d 593 (2003). Petitioner now seeks a writ of habeas corpus on two grounds, viz. that (1) the verdict was against the weight of the credible evidence, and (2) the sentence was excessive.

Insofar as petitioner's first ground is taken on its face — i.e., insofar as it is regarded as arguing only that the verdict was against the weight of the evidence — it raises no claim cognizable in a federal habeas corpus proceeding. Even if the Court were to construe the petitioner's petition broadly, as raising a claim that the evidence was not legally sufficient, the argument would fail because the claim is unexhausted and forfeited for the reasons stated in the respondent's memorandum of law at pages 5 through 7.*fn1

  Petitioner's second ground also is baseless. The sentence was well within the range set by New York law. Resp. Mem. 9. A federal habeas court may not set aside as excessive a state court sentence within the limits prescribed by state law, at least absent extraordinary circumstances not present here. E.g., White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992).

  The petition is denied. A certificate of appealability is denied, and the Court certifies that any appeal herefrom would not be taken in good faith within the meaning of 28 U.S.C. § 915(a)(3).

  SO ORDERED.


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