United States District Court, S.D. New York
July 1, 2004.
FRANKLIN CAMACHO, Petitioner,
HAROLD McKINNEY, Respondent.
The opinion of the court was delivered by: LEWIS KAPLAN, District Judge
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).