Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

BIDO v. MILLER

United States District Court, S.D. New York


July 2, 2004.

JOSE BIDO A/K/A DAVID BIDO, Petitioner,
v.
DAVID L. MILLER, SUPERINTENDENT, EASTERN CORRECTIONAL FACILITY, Respondent.

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

REPORT AND RECOMMENDATION

TO THE HONORABLE GEORGE B. DANIELS, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

  Before the Court is Jose Bido's ("Bido") petition for a writ of habeas corpus made pursuant to 28 U.S.C. § 2254. Bido contends that his confinement by New York state is unlawful because: (1) the trial court erred by permitting testimony concerning his involvement in the sale of drugs to be introduced at trial, thereby depriving him of his constitutional right to a fair trial; (2) the trial court deprived him of his right to a fair trial when it advised prospective jurors, during voir dire, that Bido was able, although not obligated, to testify at trial; and (3) the sentence imposed on him by the trial court was harsh and excessive.

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

  II. BACKGROUND

  On the morning of November 10, 1996, Bido and a companion, Hector Castro ("Castro"), knocked on the door of Apartment 41, 75 Cabrini Boulevard, New York, New York. Bido lived next door, in Apartment 42. The door to Apartment 41 was opened by Bido's neighbor, Mark Luna ("Luna"). Bido and Castro drew guns and forced Luna into the apartment; they then accused him of stealing money from them and threatened to kill him. When Luna denied having stolen any money, Castro assaulted him with his hand and his gun, a .375-caliber revolver. Luna's mother and sister, who also were in the apartment at the time, were prevented by Castro and Bido from leaving the premises or seeking assistance. During the incident, which occurred over a period of approximately 45 minutes, Castro punched and kicked Luna repeatedly and hit him with his gun. Castro then fired a shot at Luna and wounded him in the foot. Castro and Bido then fled from the apartment. Luna sought treatment for his gunshot wound immediately at a nearby hospital.

  Bido and Castro were arrested later the same day. Police obtained statements from both men. On the following day, November 11, 1996, in separate line-up proceedings conducted at the 34th police precinct, Luna's mother and sister identified Bido and Castro as the individuals who had assaulted Luna.

  By New York County Indictment Number 10071/96, Bido and Castro each were charged with three counts of burglary in the first degree, two counts of assault in the first degree and three counts of unlawful imprisonment in the first degree.*fn1 At a pretrial hearing held on May 15, 1997, the trial judge ruled that testimonial evidence concerning petitioner's involvement in the sale of drugs was admissible at trial because it contributed in an essential way to an understanding of the events that took place in Luna's apartment on November 10, 1996.

  After the hearing, the trial judge adjourned the proceedings so that petitioner and Castro might consult with their respective attorneys regarding a plea offer. At some point during the consultation period, both men absconded. The trial judge, determining that Bido and Castro had forfeited their right to appear at trial, directed that the trial proceed in their absence.

  At the beginning of the jury selection process, on May 16, 1997, the trial judge advised the jury panel as follows: "The defendants are not here. No inference may be drawn from that just as no inference may be drawn from their not testifying." Thereafter, a prospective juror, responding to an inquiry concerning his ability to be fair and impartial in the event he was selected to serve on the jury, stated that he "ha[d] a problem" with "the defendant[s] not being able to speak or testify." The trial judge responded that the defendants were "able to" testify. Subsequently, another prospective juror stated that he, too, "ha[d] a problem" with the defendants' absence from the courtroom during trial. Following further discussion, both prospective jurors were excused from serving on the jury. After jury selection was completed, counsel to the petitioner moved for a mistrial based on the trial judge's statement that the defendants were "able to" testify. Counsel to the petitioner argued that the statement was prejudicial to his client. The motion was denied.

  The case proceeded to a trial by jury in New York State Supreme Court, New York County. The petitioner and Castro were tried in absentia. At the trial, the following exchange took place during the prosecution's direct examination of Luna:

[Prosecutor]: And what did he say to you at this time? [Luna]: He told me that I better get the money or else he's going to kill me. [Prosecutor]: What did he say — did David Bido say anything about whose money this was or where the money came from? [Counsel]: Objection, Judge. The Court: You may answer the question [Luna]: He said the money came from a lot of drugs that he sells. [Counsel]: Objection, Judge. The Court: Overruled. [Prosecutor]: Sorry, continue. What were you saying? [Luna]: He said the money came from a lot of drugs that he sells.
  On June 27, 1997, the jury found petitioner guilty for assault in the first degree, see N.Y. Penal Law § 120.10, and three counts of unlawful imprisonment in the first degree, see N.Y. Penal Law § 135.10. Petitioner was sentenced to an indeterminate term of imprisonment of ten to twenty years for the assault conviction, to be served concurrently with three consecutive terms of imprisonment of one year each for the convictions for unlawful imprisonment.

  Bido appealed his conviction to the New York State Supreme Court, Appellate Division, First Department. Bido urged the appellate court to upset his conviction on the grounds that: (1) his due process right to a fair trial was violated when the trial court ruled, at a pretrial evidentiary hearing, that evidence of his involvement in drug dealing was admissible at trial; (2) his due process right to a fair trial was violated when the trial court informed prospective jurors, during the jury selection process, that petitioner was "able to" testify at trial; and (3) his sentence was unduly harsh and excessive. On May 25, 2000, the Appellate Division affirmed petitioner's conviction unanimously. See People v. Bido, 272 A.D.2d 249, 709 N.Y.S.2d 172 (App. Div. 1st Dep't 2000). Petitioner applied for leave to appeal to the New York Court of Appeals. On September 22, 2000, that application was denied. See People v. Bido, 95 N.Y.2d 888, 715 N.Y.S.2d 380 (2000).

  The instant application for a writ of habeas corpus followed. III. DISCUSSION

  Standard of Review

  In a case such as this, where a state court has adjudicated the merits of the claims 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).

  Evidentiary Ruling Claim

  Petitioner claims that the trial court erred when it ruled, at a pretrial evidentiary hearing, that testimonial evidence concerning petitioner's involvement in the sale of drugs was admissible at trial. Petitioner contends that the ruling was "highly prejudicial" and deprived him of his constitutional right to a fair trial.

  A federal court is limited on habeas corpus review to a determination of whether a challenged trial court ruling involves an error of constitutional magnitude. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 480 (1991). "Erroneous evidentiary rulings do not automatically rise to the level of constitutional error sufficient to warrant issuance of a writ of habeas corpus." Taylor v. Curry, 708 F.2d 886, 891 (2d Cir. 1983). Rather, a writ of habeas corpus will issue only where a petitioner can show that an evidentiary error deprived him or her of a fundamentally fair trial. See id. (quoting Chambers v. Mississippi, 410 U.S. 284, 302-03, 93 S.Ct. 1038, 1049 [1973]). Where a petitioner claims that evidence was erroneously admitted, the test for determining whether the petitioner was denied a fundamentally fair trial is whether the evidence, "viewed objectively in light of the entire record before the jury, was sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it." Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985). Furthermore, establishing constitutional error is a heavy burden because "generally, rulings by state trial courts on evidentiary issues, even if erroneous, do not rise to the level of a constitutional violation." James v. Goord, No. 02 Civ. 1174, 2004 WL 1207906, at *8 (S.D.N.Y. June 1, 2004) (quoting Bonet v. McGinnis, 98 Civ. 6529, 2001 WL 849454, at *2 [S.D.N.Y. July 27, 2001]).

  The trial court did not commit any error by admitting testimonial evidence concerning Bido's involvement in drug selling. As noted above, during direct examination, Luna testified concerning Bido that: "He said the money [he was seeking to recover] came from a lot of drugs that he sells." Luna's statement, which he uttered twice during his testimony, was the only reference at trial to the petitioner's association with illicit activity involving drugs. Viewed in context, the statement contributes in an essential way to an understanding of the defendants' behavior on the date in question, specifically, their attempt to recover, by unlawful and violent means, the money they claimed was stolen from them by Luna. As the Appellate Division stated in its decision affirming the conviction, Bido's statement was admissible "as inextricably interwoven with the crimes charged, as well as to explain why defendant and his codefendant engaged in violent self-help measures rather than reporting the theft to the police." Bido, 272 A.D.2d at 249, 709 N.Y.S.2d at 173 (internal citation omitted). Thus, although Luna's statement may have been damaging to Bido, its relevance was not outweighed by its potential for prejudice to him.

  Moreover, even if the decision to admit Luna's statement was error, in light of the other evidence adduced at trial, petitioner's constitutional right to a fair trial was not violated. The evidence established that Bido and Castro entered Luna's apartment by force, subjected him to a violent attack, threatened his life and wounded him in the foot, and, in addition, held members of his family prisoner for nearly one hour. Furthermore, both men were identified at a line-up. Thus, there is no reason to believe that Luna's statement, even if erroneously admitted, was a sufficiently substantial factor to have removed a reasonable doubt that would have existed on the record without it.

  Since the trial court's evidentiary ruling, even if erroneous, did not rise to the level of constitutional error, petitioner's claim does not present an issue that is cognizable on habeas corpus review. Accordingly, the claim should be dismissed.

  Jury Instruction

  The adequacy of a jury instruction in a state proceeding is a matter of state law. See Gilmore v. Taylor, 508 U.S. 333, 342, 113 S.Ct. 2112, 2117 (1993). Therefore, a claim of error involving a state trial jury instruction is "not reviewable on a petition for a writ of habeas corpus absent a showing that a jury charge deprived the defendant of a federal constitutional right." Llaca v. Duncan, No. 01 Civ. 9367, 2004 WL 964113, at *27 (S.D.N.Y. May 4, 2004) (citing Blazic v. Henderson, 900 F.2d 534, 540 [2d Cir. 1990]). Additionally, to obtain habeas corpus relief, "the petitioner must show not only that the instruction misstated state law but also that the error violated a right guaranteed to him by federal law." Blazic, 900 F.2d at 540 (quoting Casillas v. Scully, 769 F.2d 60, 63 [2d Cir. 1985]).

  The Supreme Court has articulated general principles concerning claims of improper jury instruction, holding that a state prisoner making such a claim faces a substantial burden. See DelValle v. Armstrong, 306 F.3d 1197, 1200-1201 (2d Cir. 2002) (citing Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1737 [1977]). Specifically, the standard of review of state jury instructions in a habeas corpus petition is not whether "the instruction is undesirable, erroneous, or even universally condemned," but, rather, whether "the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400 [1973]). The Supreme Court has also held that, in determining whether the trial court's instructions were fair, the challenged portion of the charge must be considered in the context of the overall charge. See id. at 146-47, 400.

  The trial court did not err in correcting a prospective juror's mistaken impression that the petitioner, who was not present at trial, was not "able to" testify. As noted above, at the beginning of the jury selection process, the trial judge advised the jury panel that no inference was to be drawn from the defendants' absence from the courtroom or from their decision not to testify at trial. Moreover, the two prospective jurors who indicated that they believed petitioner's absence from the courtroom during trial meant that he was not "able to" testify were excused from serving on the jury. Therefore, the petitioner has not shown that the trial court's instructions to the jury concerning this matter deprived him of his right to a fair trial, so as to amount to a denial of due process.

  Furthermore, the Court finds that the Appellate Division, in reviewing petitioner's conviction, applied the general principles concerning improper jury instructions set forth in Henderson and Cupp. 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. In like manner, 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 the trial court advised prospective jurors during voir dire that Bido was "able to" testify at trial is without merit. Accordingly, the claim should be dismissed.

  Excessive Sentence

  Bido claims that his sentence of ten to twenty years imprisonment for his conviction for assault was excessive and unduly harsh. He contends that the trial court failed to take into consideration the fact that he was a "first time felony offender" and that he had a stable family life and work history.

  "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's sentence was within the statutory range. The maximum term of an indeterminate sentence for a felony offender who has committed a class B violent felony offense*fn2 must be at least five years and must not exceed twenty-five years. See N.Y. Penal Law § 70.02(3)(a). Petitioner's sentence of ten to twenty 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 George B. Daniels, 40 Centre Street, Room 410, New York, New York, 10007, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Daniels. 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).


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.