United States District Court, S.D. New York
July 12, 2004.
RAUL ACOSTA, Petitioner,
M. GIAMBRUNO, Warden of Wyoming, C.F., Respondent.
The opinion of the court was delivered by: VICTOR MARRERO, District Judge
DECISION AND ORDER
Pro se petitioner Raul Acosta ("Acosta") filed this
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
("§ 2254"). Acosta pled guilty in New York State Supreme Court to
criminal use of a firearm in the first degree in violation of New
York Penal Law § 265.09(1), for which he was sentenced to an
indeterminate term of imprisonment from eight to sixteen years.
As part of his plea agreement, Acosta waived his right to appeal.
In his petition for habeas corpus review, Acosta claims that his
waiver encompassed only his right to appeal his conviction and
not his right to appeal his sentence. Acosta further claims that
his sentence was excessive given his age and the circumstances of
his offense. Respondent M. Giambruno, the warden of New York
State Wyoming Correctional Facility (the "State") where Acosta is
housed, opposes the petition. For the reasons discussed below,
Acosta's petition is denied in its entirety. I. BACKGROUND*fn1
A. FACTUAL SUMMARY AND PROCEDURAL HISTORY
On July 24, 1993, Acosta shot and killed Isaac Lopez ("Lopez")
following an argument that originated from Lopez's refusal to
move his double-parked car, which blocked passage of the vehicle
Acosta was driving. Acosta was subsequently indicted on charges
of murder in the second degree, manslaughter in the first degree,
criminal possession of a firearm in the second and third degrees,
and reckless endangerment in the first degree.
During Acosta's plea hearing on July 21, 2000, he pled guilty
to criminal use of a firearm in the first degree in full
satisfaction of his indictment. In exchange, Acosta consented to
a sentence of eight to sixteen years imprisonment and an
agreement not to appeal. During the plea hearing, Acosta's
counsel made clear that Acosta "would not be appealing his plea
and sentence." (Opp. Ex. 1 at 3.) The state court judge who
presided over the plea hearing reaffirmed the bargain by asking
Acosta whether he understood that he was giving up his "right to
appeal, to challenge this plea and that sentence of eight to
sixteen years." (Opp. Ex. 1 at 7.) Acosta affirmed that this was the promise he had made in
exchange for his plea. (See id.)
On August 17, 2000, the New York Supreme Court, Bronx County
(the "sentencing court") convicted Acosta, pursuant to his guilty
plea. After both the prosecutor and defense counsel asked the
sentencing court to impose the agreed-upon sentence, the court
sentenced Acosta to the indeterminate prison term of eight to
sixteen years. At the end of the sentencing hearing when the
clerk of the court notified Acosta of his right to appeal,
Acosta's counsel stated that "the record should reflect that
[Acosta] waived his right to appeal." (Opp. Ex. 2 at 4.)
On direct appeal to the Supreme Court of New York, Appellate
Division, First Department (the "Appellate Division") Acosta
argued only that his negotiated sentence was excessive. He
claimed that "notwithstanding [his] waiver of his right to
appeal, following the court's cursory inquiry into the waiver,
this Court should consider whether [his] sentence was excessive
in the interest of justice." (Opp. Ex. 3 at 8.) In response, the
state prosecutor invoked 22 N.Y.C.R.R. § 600.16(b)*fn2 and
elected not to address the merits of the excessive sentence claim, but rather urged the Appellate
Division to enforce the waiver.
On February 27, 2003, the Appellate Division affirmed the
sentencing court's judgment without opinion. See People v.
Acosta, 754 N.Y.S.2d 620 (App. Div. 1st Dep't 2003). On June 10,
2003, the New York Court of Appeals denied leave to appeal. See
People v. Acosta, 795 N.E.2d 42 (N.Y. 2003).
B. ACOSTA'S HABEAS CORPUS PETITION
Acosta makes two claims in his petition for habeas corpus.
First, he insists that his guilty plea "was elicited with the
understanding that the conviction could not be appealed, not
[that] the sentence [could not be appealed]." (Petition at 5.) He
asserts that there was an understanding that the sentencing judge
could consider any mitigating factors and potentially reduce the
sentence. Second, Acosta claims that the eight to sixteen year
prison sentence was unduly harsh considering that he is
approximately 47 years old and that the incident was provoked by
the victim, who was angry, high on drugs, and armed with a gun.
The State oppose Acosta's petition on the grounds that: (1)
Acosta's claims are unexhausted; (2) Acosta's excessive sentence
claim is procedurally barred; and (3) Acosta's underlying claim
of excessive sentence is not cognizable on habeas review. II. DISCUSSION
A. STANDARD FOR HABEAS CORPUS REVIEW
1. General Principles
A petitioner in custody pursuant to a judgment of a state court
is entitled to habeas relief only if he can show that his
detention violates the United States Constitution or federal law
or treaties of the United States. See 28 U.S.C. § 2254(a). The
purpose of federal habeas review of state court convictions is to
"assure that when a person is detained unlawfully or in violation
of his constitutional rights he will be afforded an independent
determination by a federal court of the legality of his
detention, even though the issue may already have been decided on
the merits by a state tribunal." United States ex rel. Radich v.
Criminal Court of New York, 459 F.2d 745, 748 (2d Cir. 1972).
2. Standard of Review
Pursuant to the various sub-sections of § 2254, as amended by
the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, this Court's
review is guided by certain restrictions on the nature and extent
of review that a federal court can conduct in considering a
habeas petition. Under § 2254, if a state court adjudicates a
petitioner's federal claim on the merits, a federal court on
habeas corpus review must defer to the state court's determination of that claim unless such adjudication
resulted in a decision that was either "contrary to, or involved
an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States" or was
"based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding."
28 U.S.C. § 2254(d).
A state court adjudicates a petitioner's federal claim "on the
merits," and thus triggers the highly-deferential AEDPA standard
of review, when it: (1) disposes of the claim on the merits; and
(2) reduces its disposition to judgment. See Sellan v.
Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001). In so doing, the
state court need not explicitly refer to either the particular
federal claim or to any federal case law. See id. The only
requirement is that the claim be finally resolved, with res
judicata effect, on substantive rather than procedural grounds.
See id. at 311.
If the state court does not adjudicate a petitioner's federal
claim on the merits, the state court's decision on the federal
claim is entitled to no deference and instead, the federal court
must apply a pre-AEDPA de novo review to the state court's
disposition of the federal claim. See Cotto v. Herbert,
331 F.3d 217, 230 (2d Cir. 2003) (citing Aparicio v. Artuz,
269 F.3d 78, 93 (2d Cir. 2001)). 3. Factual Determinations by the State Court
Under § 2254, factual determinations made by the state court
are presumed to be correct, and the petitioner carries the burden
to rebut this presumption by clear and convincing evidence. See
28 U.S.C. § 2254(e)(1). Consequently, this Court presumes that
the factual findings of the New York courts are correct and will
not set aside those findings unless "the material facts were not
adequately developed" or the factual determinations are not
fairly supported by the record. Smith v. Mann, 173 F.3d 73, 76
(2d Cir. 1999).
4. Exhaustion Doctrine
Generally, a petitioner must have exhausted the remedies
available to him in state court before seeking habeas corpus
relief, unless there is no state corrective process or it
otherwise appears that such process would be ineffective to
protect the petitioner's rights. See 28 U.S.C. § 2554 (b)(1).
The Second Circuit employs a two-prong test to determine whether
a habeas claim is exhausted. See Mercedes v. Herbert, No. 01
Civ. 1359, 2002 WL 826809, at *4 (S.D.N.Y. Apr. 30, 2002). First,
a petitioner must present "the essential factual and legal
premises of his federal constitutional claim to the highest state
court capable of reviewing it." Cotto, 331 F.3d at 237
(citation omitted). Thus, "a state prisoner must normally exhaust
available state judicial remedies before a federal court will entertain his petition for habeas corpus."
Picard v. Connor, 404 U.S. 270, 275 (1971).
Second, a habeas petitioner must have "`fairly presented' to
the state courts the `substance' of his federal habeas corpus
claim." Anderson v. Harless, 459 U.S. 4, 6 (1982). It is not
sufficient that a petitioner merely alleges the facts necessary
for the federal claim or a similar state law claim. See id.
In other words, "[t]he claim presented to the state court . . .
must be the `substantial equivalent' of the claim raised in the
federal habeas petition." Jones v. Keane, 329 F.3d 290, 295 (2d
Cir. 2003) (citations omitted). A state defendant may "fairly
present" his constitutional claim to a state court in a number of
(a) reliance on pertinent federal cases employing
constitutional analysis, (b) reliance on state cases
employing constitutional analysis in like fact
situations, (c) assertion of the claim in terms so
particular as to call to mind a specific right
protected by the Constitution, and (d) allegation of
a pattern of facts that is well within the mainstream
of constitutional litigation.
Daye v. Attorney Gen. of the State of New York, 696 F.2d 186
194 (2d Cir. 1982) (en banc); see also Petrucelli v.
Coombe, 735 F.2d 684
, 688 (2d Cir. 1984).
Notwithstanding this elaborate test, under certain limited
circumstances a federal court retains discretion to entertain the
merits of a petitioner's federal claim even if it is not exhausted in state court. See 28 U.S.C. § 2554(b)(2).
5. Independent and Adequate State Grounds
Under the doctrine of independent and adequate state grounds, a
federal court should not address a petitioner's habeas corpus
claim if the state judgment can be sustained on state law grounds
that are independent of the federal questions raised and that are
adequate to support the judgment. See Lee v. Kemna,
534 U.S. 362, 375 (2002) (citing Coleman v. Thompson, 501 U.S. 722, 729
(1991)); Garcia v. Lewis, 188 F.3d 71, 76-78 (2d Cir. 1999). In
cases where the highest state court that rendered a judgment in
the case "clearly and expressly states that its judgment rests on
a state procedural bar" it will be presumed that such procedural
bar constitutes independent and adequate state grounds to deny
habeas relief. Harris v. Reed, 489 U.S. 255, 263 (1989)
(internal quotations and citations omitted); see also Levine
v. Commissioner of Corr. Servs., 44 F.3d 121, 126 (2d Cir.
1995). The Harris presumption against state courts issuing
judgments based on state procedural bars, however, does "not
apply to affirmances without opinion unless there is `good reason
to question whether there is an independent and adequate state
ground for the decision.'" Quirama v. Michele, 983 F.2d 12, 14
(2d Cir. 1993) (quoting Coleman, 501 U.S. at 739). Accordingly, when a state appellate court affirms without
opinion "in the face of arguments asserting a procedural bar[,]
[it gives rise to the presumption] that the affirmance was on
state procedural grounds." Id.
A procedural default, however, may be excused by a federal
court if the petitioner demonstrates either cause for the default
and actual prejudice from the alleged violation of federal law;
or that the failure to consider the claims will "result in a
fundamental miscarriage of justice." Coleman, 501 U.S. at 750.
In this context, "cause" is defined as "`some objective factor
external to the defense [that] impeded counsel's efforts' to
raise the claim in state court." McCleskey v. Zant,
499 U.S. 467, 493 (1991) (quoting Murray v. Carrier, 477 U.S. 478, 488
(1986)). Moreover, "actual prejudice" requires the petitioner to
prove "actual and substantial disadvantage, infecting his entire
trial with error of constitutional dimensions." United States v.
Frady, 456 U.S. 152, 170 (1982). Where petitioner is unable to
show cause, however, the court need not consider actual
prejudice. See McCleskey, 499 U.S. at 501.
A miscarriage of justice occurs "in an extraordinary case,
where a constitutional violation has probably resulted in the
conviction of one who is actually innocent, . . ." Murray, 477
U.S. at 496; see also Dixon v. Miller, 293 F.3d 74, 81 (2d Cir. 2002). A petitioner establishes actual innocence
by demonstrating that "in light of all the evidence, it is more
likely than not that no reasonable juror would have convicted
him." Dixon, 293 F.3d at 81 (internal quotations and citations
omitted). In this context, "`actual innocence' means factual
innocence, not mere legal insufficiency." Bousley v. United
States, 523 U.S. 614, 623-24 (1998) (citing Sawyer v. Whitley,
505 U.S. 333, 339 (1992)).
At the outset, the Court notes that Acosta raised his excessive
sentence claim to the Appellate Division, though not his scope of
waiver claim. The Appellate Division denied Acosta's excessive
sentence claim without a written opinion, and did not rule on his
scope of waiver claim because he never presented it. Hence,
neither claim was likely decided on the merits, particularly in
light of the presumption that review was not on the merits when
the Appellate Division issues a silent affirmance in the face of
arguments asserting only a procedural bar, as discussed above.
Consequently, this Court applies a pre-AEDPA de novo review
to Acosta's federal claims. Such a result, however, is not
decisive of Acosta's petition because, as discussed below, the
petition can be dismissed in its entirety on both procedural
grounds and upon a de novo review of the merits of his
claims. The Court finds that both of the grounds for habeas relief
Acosta asserts can be summarily denied under the exhaustion
doctrine. First, in addition to the lack of any factual support
in the record whatsoever, the legal premise of Acosta's claim
that he was improperly denied the right to appeal his sentence
was never appealed to the highest New York state court capable of
reviewing his claim. Thus, Acosta has not provided "the State
[with] an initial `opportunity to pass upon and correct' alleged
violations of its prisoners' federal rights." Picard, 404 U.S.
at 275 (quoting Wilwording v. Swenson, 404 U.S. 249, 250
(1971)). More fundamentally, Acosta never even "fairly presented"
this argument to any New York state court at any time during the
appeals process. Acosta appears to have conceived this ground for
relief at some point after the New York Court of Appeals denied
his leave to appeal, and thus, the claim is unexhausted.
Second, although Acosta presented the factual premise and legal
arguments of his excessive sentence claim to the Appellate
Division, it is clear that this claim was grounded solely in
state law and was not one that implicated a federal
constitutional issue. In fact, in Acosta's brief to the Appellate
Division, he failed to cite a single federal or state case
directly employing federal constitutional analysis, as required
for "fair presentation" by the first two factors set forth in Daye.*fn3 Similarly, Acosta neither asserted
his "claim in terms so particular as to call to mind a specific
right protected by the Constitution," nor alleged "a pattern of
facts that is well within the mainstream of constitutional
litigation," as required by the third and fourth Daye factors.
Daye, 696 F.2d at 194.
In addition, Acosta based his excessive sentence argument to
the Appellate Division on the New York State rules of criminal
procedure for sentencing review, thus further reinforcing the
state law basis of his claim. See N.Y. Crim. Proc. Law §
470.15(3). In short, it is plain from the record that Acosta
never presented any constitutional argument, nor was any such
issue considered by the New York State courts on direct appeal.
Consequently, Acosta's Eighth Amendment excessive sentence
argument, like his denial of right to appeal claim, is also
unexhausted under the applicable standard.
New York state law, however, procedurally bars any further
review of such unexhausted claims after a petitioner previously
sought leave to appeal in state court. See N.Y. Ct. Rules §
500.10(a) (stating that only one application for leave to appeal to the New York Court of Appeals is permitted);
see also N.Y. Crim. Proc. Law § 440.10(2)(c) (stating that
collateral review is barred if the claim could have been raised
on direct review). Thus, Acosta "cannot again seek leave to
appeal these claims in the [New York] Court of Appeals because he
has already made the one request for leave to appeal to which he
is entitled." Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991)
(interpreting New York law). Accordingly, the Court may deem his
claim exhausted. See id. Nevertheless, as discussed below,
Acosta's inability to return to state court also provides an
independent and adequate state ground upon which his claims are
Acosta's procedural default arising from his failure to bring
his denial of right to appeal and excessive sentence federal
claims to the state court represents the first independent and
adequate state ground upon which this Court dismisses his claims.
Courts have consistently held that claims deemed exhausted due to
a state procedural bar are effectively procedurally defaulted and
federal courts are normally barred from considering the claims on
the merits under the independent and adequate state grounds doctrine. See
Coleman, 501 U.S. at 731; Engle v. Isaac, 456 U.S. 107,
128-29 (1982); Lebron v. Mann, 40 F.3d 561, 564 (2d Cir. 1994).
Consequently, Acosta can bring his claim in federal court only by
establishing "cause for the default and actual prejudice" or "a
fundamental miscarriage of justice." Coleman, 501 U.S. at 750.
Because neither exception is applicable here, as discussed in
detail below, Acosta's claims are procedurally barred.
In addition to Acosta's procedural default, the Court finds
that his affirmative waiver of his right to appeal also provides
further independent and adequate state grounds to deny habeas
relief. The record is clear that Acosta validly waived his right
to appeal his sentence as a condition to his plea agreement,
which is both independent of the federal question raised and
adequate to support the judgment. The Harris presumption
against state courts issuing judgments based on a state
procedural bar is inapplicable to this case because the State's
brief to the Appellate Division argued only for a procedural bar
on the ground that Acosta validly waived his right to appeal the
sentence, and refrained from addressing the merits of Acosta's
argument. Thus, it can be inferred that the Appellate Division's
affirmance was issued on the State's proffered state procedural
grounds. See Quirama, 983 F.2d at 14 ("New York permits review of the merits
of claims not raised in the trial court only sparingly and it is
thus reasonable to presume that silence in the face of arguments
asserting a procedural bar indicated that the affirmance was on
state procedural grounds."). Thus, Acosta's claims are properly
denied under the independent and adequate state grounds doctrine.
While the Court is mindful that it may excuse Acosta's
defaults, it declines to do so because Acosta has failed to
demonstrate cause for the default and actual prejudice arising
therefrom, or a miscarriage of justice. First, Acosta has not
alleged any cause or actual prejudice for his failure to properly
raise his federal claims in state court or his waiver of his
right to appeal. Acosta has thus failed to show "some objective
factor, external to . . . [his] defense [that] impeded counsel's
efforts" to bring his federal constitutional claims in state
court, nor does the record suggest any such factor. Murray, 477
U.S. at 488. In addition, Acosta has failed to demonstrate
"actual and substantial disadvantage, infecting his entire
trial," and, as discussed below, the merits of his claims are
devoid of any "constitutional dimension" whatsoever. Frady,
456 U.S. at 170.
Second, Acosta has likewise failed to point to any potential
"miscarriage of justice" (suggesting his actual innocence) from the Appellate Division's affirmance of the
sentencing court's judgment. Indeed, Acosta's guilty plea
inherently precludes any inquiry into his factual innocence
because he does not allege that his plea was not knowing and
voluntary. Accordingly, the Court discerns no miscarriage of
justice stemming from the Court's refusal to excuse Acosta's
default. In the end, Acosta can find no refuge from the
procedural barriers to his petition, and thus, the Court
dismisses his claim on these grounds. See White v. Keane,
969 F.2d 1381, 1383 (2d Cir. 1992).
Even considering the merits of Acosta's excessive sentence
claim under the Eighth Amendment, the Court finds no basis to
grant the habeas relief he seeks. Acosta contends that
considering his age and the circumstances of his crime, his
sentence violates the Eighth Amendment prohibition against cruel
and unusual punishment.*fn5 It is well settled, however,
that "[n]o federal constitutional issue is presented where . . .
the sentence is within the range prescribed by state law." Id.
Thus, issues of sentencing rationales and ranges are "generally a
policy choice to be made by state legislatures, not federal
courts." Ewing v. California, 538 U.S. 11, 25 (2003).
Accordingly, "a reviewing court rarely will be required to engage in extended analysis to determine that a
sentence is not constitutionally disproportionate" because "the
decision of a sentencing . . . [court] is entitled to substantial
deference, . . ." United States v. Persico, 853 F.2d 134, 138
(2d Cir. 1988) (citation omitted); see also Hemphill v.
Senkowski, No. 02 Civ. 7093, 2004 WL 943567, at *11 (S.D.N.Y.
May 3, 2004).
In this case, Acosta pled guilty to criminal use of a firearm
in the first degree, which is a Class B violent felony offense.
At the time that Acosta committed his crime, the New York Penal
Code set the sentencing range for a Class B felony at a minimum
of six years and a maximum of twenty-five years.*fn6 See
N.Y. Penal Law § 70.02(3)(a) (McKinney 1993). Acosta's
plea-bargained sentence of an indeterminate eight to sixteen year
term of imprisonment falls squarely within the range prescribed
by New York law and therefore poses no federal constitutional
violation. In addition, the individual circumstances Acosta
presents in his petition, i.e., that he is approximately 47
years old and that the incident was provoked by the victim, who
was angry, high on drugs, and armed with a gun, are simply not
factors that this Court may consider for habeas relief in
accordance with the Eighth Amendment. See Monegro v. Greiner, No. 03 Civ. 2735, 2004 WL
187129, at *7 (S.D.N.Y. Jan. 28, 2004) (stating that individual
circumstances such as age and criminal history "are simply not
factors considered in the federal case law interpreting the
The Court notes that Acosta seeks to challenge his sentence in
the face of his plea and sentencing proceedings, which teem with
reaffirmations by Acosta and his counsel that the indeterminate
eight to sixteen year sentence is that for which Acosta had
bargained. While Acosta does not argue for ineffective assistance
of counsel, he challenges the constitutionality of a sentence he
freely agreed to as part of his plea bargain with his counsel's
presumed effective and vigorous assistance. Under these
circumstances, the Court agrees with the State that Acosta's
Eighth Amendment excessive sentencing claim is not cognizable on
As is the case with Acosta's excessive sentence claim, the
Court need not inquire into the merits of his denial of right to
appeal his sentence because it is procedurally barred on two
independent and adequate state grounds, as discussed above. Even
if Acosta's denial of right to appeal claim were not procedurally
barred, the Court dismisses it because it is wholly lacking in
merit. Acosta claims that in his plea agreement, he agreed that only
his conviction, as opposed to his sentence, could not be
appealed. He further argues that the Appellate Division's
misinterpretation of this fact and its subsequent dismissal of
the case on the procedural ground that he had waived his right to
appeal his sentence, pursuant to New York Criminal Procedure Law
§ 450.10, amounted to a violation of his due process rights.
Although there is no constitutional right to an appeal, a state
must adhere to due process principles under the Fourteenth
Amendment after it does grant a right to appeal. See Evitts v.
Lucey, 469 U.S. 387, 403-04 (1985). Accordingly, issues of due
process are implicated when a defendant is denied an adequate
opportunity to pursue his appeal, fails to receive an
adjudication on the merits, or is treated differently in such a
way as to stifle the pursuit of a meaningful appeal. See id.
In New York, a defendant may appeal as of right to the
Appellate Division. See N.Y. Crim. Proc. Law § 450.10 (McKinney
2004). This right, however, is not absolute. Under New York law,
the right to appeal is exempted where, as here, a petitioner
bases his appeal on an alleged harsh sentence claim after having
negotiated a guilty plea in exchange for an agreed-upon sentence. See N.Y. Crim. Proc. Law §
450.10(1).*fn7 As discussed above, the Appellate Division's
silent affirmance of the lower court gives rise to an inference
that it ruled on the basis of a state procedural bar rather than
on the merits.
Moreover, Acosta's claim that he never waived his right to
appeal is directly contradicted by numerous denials on the record
by both Acosta and his counsel of this very right. (See e.g.,
Opp. Ex. 1 at 3, 7; Opp. Ex. 2 at 4.) Furthermore, Acosta's
petition implicitly asks this Court to find that the Appellate
Division wrongfully interpreted its own state rule of criminal
procedure. Thus, Acosta's claim is ultimately a dispute of fact
and of state law statutory interpretation, not a claim that his
federal due process rights have been violated by being denied a
right to appeal his sentence. This Court can provide Acosta no
relief on such grounds and accordingly, finds no merit to any of
his arguments upon which he bases his petition for writ of habeas
corpus. The petition is denied.
For the reasons set forth above, it is hereby ORDERED that the petition of Raul Acosta ("Acosta") for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DENIED in
Because Acosta has failed to make a substantial showing of a
denial of a constitutional right, the Court declines to issue a
certificate of appealability. See 28 U.S.C. § 2253(c).
The Clerk of Court is directed to close this case.