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ROJAS v. FISCHER

United States District Court, S.D. New York


July 7, 2004.

CESAR DANIEL ROJAS, Petitioner,
v.
BRIAN FISCHER, SUPERINTENDENT OF SING SING CORRECTIONAL FACILITY, Respondent.

The opinion of the court was delivered by: DENISE COTE, District Judge

OPINION AND ORDER

On August 27, 2001, pro se petitioner Daniel Rojas ("Rojas") filed this timely petition for a writ of habeas corpus pursuant to Title 28, United States Code, Section 2254, seeking to vacate his 1996 conviction on drug charges following a jury trial. Rojas contends that the evidence presented at trial was legally insufficient to support his conviction. The petition was referred to the Honorable Theodore H. Katz for a report and recommendation ("Report"), which was issued on March 8, 2004. The Report recommends that the petition be denied. Rojas has filed objections to the Report. For the following reasons, the Report is adopted and the petition is denied.

  Background

  The evidence presented at Rojas's trial was collected during a five month investigation by New York City police of an organization selling heroin under the brand name "Good Job" in the area of 136th Street and Amsterdam Avenue. Rojas was tried with five co-defendants, including Enrique Serra ("Serra").

  As described in detail in the Report, an undercover officer made thirteen purchases of heroin that were recorded on video and audiotape. Rojas directly participated in sales on October 10 and December 12. On October 10, the officer complained about the quality of the drugs he had previously purchased. Rojas came over and asked what was wrong. Rojas told the officer that the price was $85 per bundle unless he bought thirty or more. Rojas sold the officer $860 worth of heroin, and gave him his beeper number so that he could order drugs in advance.

  On December 14, the officer asked Rojas about the possibility of getting some heroin on consignment or credit. Rojas told him to speak to Serra, who subsequently indicated that he had to talk to "the man." Serra then spoke with Rojas, and returned to the officer and told him that the sale on credit was approved. Serra and the officer exchanged $4,000 for fifty-five bundles of heroin marked "Good Job". Serra told the officer that if he came back and paid on time, he would extend him more credit. Rojas then approached and told the officer that it was "okay."

  Two co-conspirators testified against Rojas. Both testified that they worked for Rojas selling "Good Job" heroin and that Rojas was the head of the organization. Rojas's sister testified for the defense. She testified that the Rojas had no prior criminal history and that he was a responsible family member. Rojas was convicted of criminal sale of a controlled substance in the third degree, N.Y. Penal Law § 220.39(1), criminal sale of a controlled substance in the second degree, N.Y. Penal Law § 220.41(1), and second degree conspiracy, N.Y. Penal Law § 105.15.

  The petitioner appealed his conviction to the Appellate Division, First Department asserting that there had been insufficient evidence to support the verdict. The Appellate Division unanimously affirmed his conviction, holding that "the verdict was based on legally sufficient evidence and was not against the weight of the evidence." People v. Rojas, 281 A.D.2d 294 (1st Dep't 2001). On May 23, 2001, Rojas was denied leave to appeal to the New York Court of Appeals.

  Discussion

  A reviewing court "may accept, reject or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Title 28, United States Code, Section 636(b)(1)(C). The court shall make a de novo determination of those portions of the report to which objection is made. United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). A federal habeas court must provide a "sufficiently informative" opinion to permit "meaningful appellate review." Rudenko v. Costello, 286 F.3d 51, 64 (2d Cir. 2002).

  A petitioner bears a "very heavy burden" in presenting a petition on the grounds of insufficient evidence. Ponnapula v. Spitzer, 297 F.3d 172, 179 (2d Cir. 2002) (citation omitted). The petitioner must show that a state court's finding that there was sufficient evidence to support a verdict was "an unreasonable application of clearly established federal law." Id. at 180. Determining the credibility of testifying witnesses is the responsibility of the jury. Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996).

  The Report sets out the elements of the crimes on which the petitioner was convicted. Under New York law, a person is guilty of criminal sale of a controlled substance in the second degree when he knowingly sells one-half ounce or more of a narcotic drug. N.Y. Penal Law § 220.41. This is a Class A felony. A person is guilty of criminal sale of a controlled substance in the third degree when he knowingly sells a narcotic drug. N.Y. Penal Law § 220.39(1). A person is guilty of second degree conspiracy when he intends for a Class A felony to be committed, agrees with others to engage in or cause that felony, and one of the conspirators commits overt acts in furtherance of the criminal scheme. N.Y. Penal Law § 105.15.

  Rojas contends that Magistrate Judge Katz did not conduct an independent inquiry into the facts and law of the case. In his fifteen-page Report, Judge Katz describes the facts presented at trial and the applicable law in this Circuit. It is clear that Judge Katz conducted an independent and careful analysis.

  Rojas also argues that there was insufficient evidence before the trial jury to convict him. The Report correctly found that the evidence at trial was sufficient to support the conclusion that Rojas directly participated in the sale of over one-half ounce of heroin and participated in a conspiracy to sell heroin. The conviction is supported by the testimony of an officer who dealt directly with Rojas in heroin transactions on October 10 and December 14. Testimony at trial established that Rojas set the sale price, authorized sales on consignment, and as described in the Report, controlled access to a building where heroin was stored. Furthermore, two co-conspirators testified that they worked for Rojas and that he headed the conspiracy to sell "Good Job" heroin. No more is required to sustain Rojas's conviction.

  Rojas challenges the credibility of the testimony of the two co-conspirators, contending that they faced long prison sentences and colluded to testify against him to obtain leniency. The Report correctly concluded that the determination of a witness's credibility is for the jury. Rojas cites Lilly v. Virginia, 527 U.S. 116 (1999), to support his claim that the evidence at trial was legally insufficient because the testimony of the co-conspirators was not credible. Lilly held that the exception to the hearsay rules that permits receipt of out of court statements against penal interest is not "a firmly rooted exception to the hearsay rule as that concept has been defined in our Confrontation Clause jurisprudence." Id. at 133. The testimony at Rojas' trial from two accomplices was presented by those accomplices and not through an exception to the hearsay rule.

  Rojas contends that the evidence is insufficient because there was no evidence of how he obtained, manufactured or packaged the heroin. Proof of these activities is not necessary to convict the petitioner on any of the three counts.

  Finally, Rojas claims in his objections that he was not a seller of drugs, but only an agent of the buyer. New York Law recognizes that a person purchasing drugs as a favor for a friend may escape liability as a seller of drugs. People v. Lam Lek Chong, 45 N.Y.2d 64, 74-75 (N.Y. 1978). This defense is a factual question for the jury, and was not raised at trial or on appeal (or in the habeas petition). Having failed to assert this defense at trial, Rojas is procedurally barred from asserting it now. In any event, Rojas has not shown that the evidence at trial would have supported such a defense.

  Conclusion

  The recommendation of Magistrate Judge Theodore H. Katz is adopted and the petition is dismissed. In addition, I decline to issue a certificate of appealability. The petitioner has not made a showing of a denial of a federal right, and appellate review is therefore, not warranted. Tankleff v. Senkowski, 135 F.3d 235 (2d Cir. 1998). I also find pursuant to Title 28, United States Code, Section 1915(a)(3), that any appeal from this order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 445 (1962). The Clerk of Court shall dismiss this petition.

 

SO ORDERED.
20040707

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