United States District Court, E.D. New York
April 8, 2005.
ANTHONY HILL, Plaintiff,
DAVID L. MILLER, Superintendent of Eastern New York Correctional Facility Defendant.
The opinion of the court was delivered by: FREDERIC BLOCK, District Judge
MEMORANDUM AND ORDER
Pro se petitioner, Anthony Hill ("Hill"), seeks a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 following his
conviction in New York Supreme Court, Queens County, on one count
each of Criminal Possession of a Weapon in the Third Degree and
Resisting Arrest, and two counts of Assault in the Second Degree.
Hill presents three claims: (1) that the weapons-possession
charge was based on an illegal search and seizure, in violation
of the Fourth Amendment; (2) that the evidence at trial was
legally insufficient to support his convictions for assault and
resisting arrest; and (3) that the trial court improperly
instructed the jury regarding the crimes of assault and resisting
arrest. These claims were presented to the Second Department, which rejected the first two on the
merits and the third as unpreserved, see People v. Hill,
731 N.Y.S.2d 741 (2d Dept. 2001), and became fully exhausted when
Hill's application for leave to appeal to the New York Court of
Appeals was denied. See People v. Hill, 97 N.Y.2d 705 (2002).
For the reasons set forth below, his petition is denied.
Only federal issues may be raised on habeas review. See
28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 68 (1991).
Pursuant to the Antiterrorism and Effective Death Penalty Act of
1996 ("AEDPA"), when a federal claim has been "adjudicated on the
merits" by a state court, the state court's decision is entitled
to substantial deference. See 28 U.S.C. § 2254(d). For such
claims, habeas relief may not be granted unless the state court
decision (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 proceeding." 28 U.S.C. § 2254(d).
A state court decision is "contrary to" clearly established
federal law "if the state court applies a rule that contradicts
the governing law set forth" in Supreme Court precedent or "if
the state court confronts a set of facts that are materially
indistinguishable from a decision of [the Supreme Court] and
nevertheless arrives" at a different conclusion. Williams v.
Taylor, 529 U.S. 362, 405-06 (2000). A state court decision
involves an "unreasonable application" of clearly established
federal law if it unreasonably applies Supreme Court precedent to the particular facts of a case. See
id. at 409. This inquiry requires a court to "ask whether the
state court's application of clearly established federal law was
objectively unreasonable," not whether the application was
erroneous or incorrect. Id. In that respect, the standard to be
applied "falls somewhere between merely erroneous and
unreasonable to all reasonable jurists." Jones v. Stinson,
229 F.3d 112, 119 (2d Cir. 2000) (citations and quotations omitted).
However, "the increment [of incorrectness beyond error] need not
be great; otherwise, habeas relief would be limited to state
court decisions so far off the mark as to suggest judicial
incompetence." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir.
2000) (citations and quotations omitted).
A. Fourth Amendment
In Stone v. Powell, 428 U.S. 465 (1976), the Supreme Court
held that "where the State has provided an opportunity for full
and fair litigation of a Fourth Amendment claim, a state prisoner
may not be granted federal habeas corpus relief on the ground
that evidence obtained in an unconstitutional search or seizure
was introduced at his trial." Id. at 494-95. Thus, Stone bars
habeas review of claims that evidence seized should have been
suppressed as fruit of an illegal arrest. See Pina v. Kuhlmann,
239 F.Supp. 2d 285, 289 (E.D.N.Y. 2003) ("It is well settled that
[Fourth Amendment] claims are not cognizable for habeas corpus
review where a State has provided a full and fair opportunity to
litigate this issue."). Following Stone, review of Fourth
Amendment claims in habeas petitions is permissible only: "(a)
if the state has provided no corrective procedures at all to
redress the alleged fourth amendment violations; or (b) if the
state has provided a corrective mechanism, but the defendant was precluded from using that
mechanism because of an unconscionable breakdown in the
underlying process." Capellan v. Riley, 975 F.2d 67, 70 (2d
New York has a corrective procedure for Fourth Amendment
violations, which is facially adequate. See id. at 70 n. 1.
Indeed, Hill availed himself of that procedure by making a motion
to suppress the gun recovered from him during his arrest, which
the trial court denied after a hearing, and by appealing that
denial. Further, having reviewed the record, the Court concludes
that there was no unconscionable breakdown in the underlying
process. Hill's Fourth Amendment claim for habeas relief is,
therefore, barred by Stone.
B. Sufficiency of the Evidence
With respect to Hill's contention that the evidence supporting
his convictions for assault and resisting arrest was
insufficient, under clearly established Supreme Court precedent,
a conviction is supported by sufficient evidence if, "after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt."
Jackson v. Virginia, 443 U.S. 307, 319 (1979). A habeas
petitioner challenging the sufficiency of the evidence supporting
his conviction "bears a very heavy burden." Ponnapula v.
Spitzer, 297 F.3d 172, 179 (2d Cir. 2002). He must show that the
verdict was so clearly against the weight of the evidence that
"no rational trier of fact could have found proof of guilt beyond
a reasonable doubt.'" Einaugler v. Supreme Court of the State of
New York, 109 F.3d 836, 839 (2d Cir. 1997) (quoting Jackson, 443 U.S. at 324). When considering the petitioner's
claim, the Court "must look to state law to determine the
elements of the crime[,]" Ponnapula, 297 F.3d at 179.
Hill's assault conviction was for violation of New York Penal
Law 120.05(3), under which a person is guilty of Assault in the
Second Degree when "[w]ith intent to prevent a . . . police
officer . . . from performing a lawful duty . . . he causes
physical injury to such . . . police officer[.]" His
resisting-arrest conviction was for violation of New York Penal
Law § 205-30, under which a person is guilty of resisting arrest
"when he intentionally prevents or attempts to prevent a police
officer or peace officer from effecting an authorized arrest of
himself[.]" Hill contends that the evidence in support of the
"lawful duty" element of assaulting a police officer and the
"effecting an authorized arrest" element of resisting arrest was
insufficient to support his convictions.
With respect to those elements, the Second Department
determined that the following evidence presented at trial was
sufficient to support findings that the officers who arrested
Hill were performing their lawful duty and effecting an
Police officers observed that a pocket of the
defendant's down jacket was weighted down with a
gun-shaped object. The officers stopped to inquire of
the defendant, who fled. While chasing the defendant,
the officers saw the defendant draw a gun from his
pocket. Two of the officers were injured while
attempting to arrest the defendant.
Since the initial stop was justified by the
reasonable suspicion that the defendant possessed a
gun, the police were justified in pursuing the
defendant when he fled and then displayed a weapon.
Hill, 731 N.Y.S.2d at 742 (internal citations omitted). This
determination was neither an unreasonable application of clearly established Supreme Court
precedent nor based on an unreasonable application the law to the
facts. Moreover, having reviewed the evidence in the light most
favorable to the prosecution, the Court concludes that the
evidence was more than sufficient to support Hill's convictions
for assault and resisting arrest.
C. Jury Instructions
With respect to Hill's contention that the trial court
improperly instructed the jury, the Second Department rejected
this contention as "unpreserved for appellate review." Hill,
731 N.Y.S.2d at 742. In support of this conclusion, it cited New
York C.P.L. § 470.05(2), New York's contemporaneous-objection
rule, which preserves for appellate review only those questions
of law as to which "a protest . . . was registered, by the party
claiming error, at the time of such ruling or instruction or at
any subsequent time when the court had an opportunity of
effectively changing the same." The Court's review of the record
confirms that, despite being afforded several opportunities by
the trial court to lodge any objections to its jury instructions,
Hill failed to do so.
It is well established that New York C.P.L. § 470.05(2) is an
adequate and independent state procedural rule. See, e.g.,
Bossett v. Walker, 41 F.3d 825, 829 n. 2 (2d Cir. 1994). "In all
cases in which a state prisoner has defaulted his federal claims
in state court pursuant to an independent and adequate state
procedural rule, federal habeas review of the claims is barred
unless the prisoner can demonstrate cause for the default and
actual prejudice as a result of the alleged violation of federal
law[.]" Coleman v. Thompson, 501 U.S. 722, 750 (1991). Hill
offers no justification for his default; nor does he articulate
how he was prejudiced. Accordingly, this claim is procedurally barred.
In any event, even if the claim were not procedurally barred,
it would fail on the merits. "In order to obtain a writ of habeas
corpus in federal court on the ground of error in a state court's
instructions to the jury on matters of state law, 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." Casillas v. Scully, 769 F.2d 60, 63 (2d Cir. 1985). In
reviewing an allegedly improper jury charge, the Court must view
the instruction in its total context; thus, the question is
"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, 147 (1973).
Here, Hill claims that with respect the charge of Second Degree
Assault, the trial court should have instructed the jury that the
government was required to prove that he knew that the
individuals he injured were police officers. See People v.
Pineiro, 497 N.Y.S.2d 460, 461 (2d Dept. 1986) (holding that
trial court erred by "fail[ing] to instruct [the jury] on any of
the elements of the . . . crime of assault with intent to prevent
a police officer from performing his duty. Specifically, there
was no instruction that in order for defendant to be found guilty
of attempt[ed] assault in the second degree, defendant must have
known that [the individual he attempted to assault] was a police
officer[.]"). Here, although the trial court's instruction did
not explicitly reference knowledge, the jurors were instructed
that in order to find Hill guilty of Second Degree Assault, the
prosecution must prove that he "acted with intent to prevent a
police officer from performing a lawful duty," that the officers were police officers, and that Hill caused them physical
injury. Trial Transcript ("Tr.") at 544, 545 (emphasis added).
Knowledge that an individual is a police officer is implicit in
the concept of "intent" to prevent a police officer from
performing a lawful duty. In addition, with respect to the
resisting-arrest charge, the trial court instructed the jury that
the prosecution must prove that, "at the time he fled" the
officers, Hill "knew" that one of them was a police officer. Tr.
550-51. Thus, viewing the instruction in its total context, it is
clear that the jury was informed that the prosecution must prove
that Hill knew the individuals he injured to be police officers.
Accordingly, the Court cannot conclude that his conviction for
assaulting those officers violated due process.
The petition is denied. A certificate of appealability will not
issue because Hill has failed to make a substantial showing of
the denial of a federal right. See 28 U.S.C. § 2253.
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