United States District Court, S.D. New York
July 2, 2004.
JOSE BIDO A/K/A DAVID BIDO, Petitioner,
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
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
Respondent opposes the petitioner's application. For the
reasons set forth below, I recommend that the petition be denied.
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
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
[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
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
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 ).
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,
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.
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 ). 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 ). 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.
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.
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 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).