United States District Court, S.D. New York
April 8, 2005.
HECTOR SANTOS, Petitioner,
M. ALLARD, Superintendent, Franklin Correctional Facility, Respondent.
The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge
REPORT AND RECOMMENDATION
In this pro se petition submitted pursuant to
28 U.S.C. § 2254, Hector Santos seeks a writ of habeas corpus to set aside a
judgment of conviction issued on May 5, 2000, by the New York
State Supreme Court, Bronx County. Following a jury trial, Santos
was convicted of Criminal Sale of a Controlled Substance in the
Third Degree (New York Penal Law § 220.39(1)) and Criminal
Possession of a Controlled Substance in the Third Degree (New
York Penal Law § 220.16(1)) and sentenced to concurrent terms of
six to twelve years. He is currently incarcerated at the Upstate
Correctional Facility in Malone, New York. For the reasons stated
below, Santos' petition must be denied.
The facts adduced at trial are not relevant to the disposition
of this petition. Nonetheless, a brief summary of the evidence is
provided to give some context for Santos's claims.
A. Trial and Verdict
On March 15, 1999, police officers Victor Lebron, Laura
Greaney, Eusibio Santos ("Eusibio"), and Sergeant Yackle
participated in an undercover buy-and-bust operation in the area of 184th Street and Grand Avenue in the Bronx. See Brief
for Defendant-Appellant, dated August 2002 (reproduced as Ex. 1
to Opposition to Petition, filed Dec. 9, 2004 (Docket #5)
("Opp.")) ("Def. Br."), at 3; Respondent's Brief, dated Mar. 2003
(reproduced as Ex. 2 to Opp.) ("Resp. Br."), at 3.*fn1 Sgt.
Yackle supervised the operation, Lebron acted as the undercover
purchaser, Eusibio was the "ghost," and Greaney was to be the
arresting officer. Def. Br. at 3; Resp. Br. at 3.
While walking on 183rd Street, Lebron approached two women who
were engaged in conversation and asked, "[I]s anything out?" Def.
Br. at 4; Resp. Br. at 3. One of the women, Nydia Rodriguez,
replied affirmatively and suggested walking over to Grand Avenue.
Def. Br. at 4; Resp. Br. at 3. The trio, followed by Eusibio,
walked to Grand Avenue and 184th where they met Santos. Def. Br.
at 4; Resp. Br. at 3-4. Rodriguez spoke to Santos alone, then
came back to Lebron and the second woman, Debra Brown, and said,
"[G]ive me the money, they don't know you." Def. Br. at 4; Resp.
Br. at 4. Lebron handed Rodriguez $20 in pre-recorded buy money.
Def. Br. at 4-5; Resp. Br. at 4.
Rodriguez, followed by Santos, went into the courtyard of a
building located at 2333 Grand Avenue. Def. Br. at 5; Resp. Br.
at 4. Once in the courtyard, Lebron could no longer see either
Santos or Rodriguez. Def. Br. at 5. Eusibio, however, followed
Santos and Rodriguez into the courtyard. Def. Br. at 5; Resp. Br.
at 4. Santos and Rodriguez entered the building and Eusibio peered into the lobby of the building through the front
door, which had a mesh screen over the glass. Def. Br. at 5;
Resp. Br. at 4. Eusibio testified that he saw Rodriguez and
Santos touch hands, Def. Br. at 5-6; Resp. Br. at 4, but did not
see anything exchange hands and did not hear their conversation.
Def. Br. at 5-6.
Rodriguez left the building and walked to the corner of 184th
Street. Id. at 6. She handed four glassine envelopes of heroin
to Brown, who then handed two glassines to Lebron. Id.; Resp.
Br. at 5. The word "Armageddon" was stamped on each of the
glassines in green letters. Def. Br. at 6; Resp. Br. at 5.
Rodriguez walked away and Lebron and Brown walked toward 184th
and Jerome Avenue where Greaney and Yackle were parked. Def. Br.
at 6. Santos remained in the courtyard. Id. at 7; Resp. Br. at
Lebron radioed his team members to confirm that he had made a
successful buy and Santos was arrested. Def. Br. at 7. When the
officer arrested Santos, he was holding 15 glassines of heroin
marked "Armageddon" and $80 dollars in cash including the $20
prerecorded buy money. Id. at 8; Resp. Br. at 6.
The jury found Santos guilty of both sale and possession of
heroin. Def. Br. at 9. Because Santos had a prior felony
conviction for robbery, he was sentenced as a second felony
offender to two concurrent terms of 6 to 12 years. Id. at 10.
B. Direct Appeal
Represented by counsel, Santos raised the following two issues
The convictions should be set aside as against the
weight of the credible evidence where the sole
eyewitness purporting to establish appellant's
identity did not see appellant exchange any drugs or
money with the undercover officer or with the person
who ultimately transacted with the officer, and where
the small quantity of drugs found in appellant's possession did not prove
intent to sell. C.P.L. § 470.15(5).
Appellant's sentence of 6 to 12 years for the
street-level sale and possession of a small quantity
of heroin, where this was appellant's first felony
conviction for a drug sale, was excessive and should
be reduced in the interest of justice.
Id. at 11, 19.
The Appellate Division affirmed Santos' conviction. See
People v. Santos, 305 A.D.2d 121 (1st Dep't 2003). With respect
to the first claim, the Appellate Division held:
The verdict was not against the weight of the
evidence (see People v. Bleakely, 69 NY2d 490).
There is no basis for disturbing the jury's
determinations concerning credibility. The totality
of the credible evidence warranted the conclusion
that defendant, acting through his accomplices, sold
drugs to the undercover officer.
Id. With respect to the sentencing claim, the court stated that
it "perceive[d] no basis for reducing the sentence." Id.
Santos then sought leave to appeal to the New York Court of
Appeals. See Letter to the Hon. Judith Kaye from Lisa Joy
Robertson, dated May 16, 2003 (reproduced as Ex. 4 to Opp.). The
request for leave to appeal was denied. See Certificate Denying
Leave, dated July 15, 2003 (reproduced as Ex. 5 to Opp.).
C. The Instant Petition
Following the denial of leave to appeal, Santos filed this
timely petition for a writ of habeas corpus. See Petition for a
Writ of Habeas Corpus, filed August 9, 2004 (Docket #1)
("Petition"). Santos raises the same two grounds for relief as he
raised in his appellate brief. See "Form A" and "Form B"
(annexed to Petition).
The respondent filed papers opposing Santos' petition, arguing
that neither the weight of the evidence claim nor the excessive
sentence claim is cognizable on habeas review. See Memorandum of Law, dated December 2004 (annexed to Opp.) ("Resp.
Mem."), at 3-7. Santos submitted a reply in further support of
his claims. See Reply Papers, dated January 11, 2005 ("Pet.
II. SCOPE OF REVIEW FOR PETITIONS BROUGHT PURSUANT TO
28 U.S.C. § 2254
The federal habeas corpus statute provides:
[A] district court shall entertain an application for
a writ of habeas corpus in behalf of a person in
custody pursuant to the judgment of a State court
only on the ground that he is in custody in violation
of the Constitution or laws or treaties of the United
28 U.S.C. § 2254(a). Thus, errors of state law are not subject to
federal habeas review. See, e.g., Estelle v. McGuire,
502 U.S. 62, 67-68 (1991) ("[I]t is not the province of a federal
habeas court to reexamine state-court determinations on state-law
questions."). Rather, a petitioner must demonstrate that his
conviction resulted from a state court decision that violated
federal law. See, e.g., id. at 68.
A. Weight and Sufficiency of the Evidence
Santos contends that the jury verdict was against the weight of
the evidence. With respect to the sale of heroin, Santos argues
that the prosecution's case relied entirely on the testimony of
Eusibio, who did not see what, if anything, he and Rodriguez
exchanged, and did not hear their conversation. Def. Br. at 11.
Further, Santos claims the small amount of heroin he was carrying
was insufficient to support a finding of intent to sell, even
when considered in combination with the amount of money he was
also found carrying. Id. Santos also points to inconsistencies in Eusibio's testimony as to the events that
occurred the day of his arrest. See Reply Papers at 1.
Under New York law, a conviction may be reviewed by the
appellate court based on the weight of the credible evidence.
See New York Criminal Procedure Law § 470.15(5); People v.
Bleakley, 69 N.Y.2d 490 (1987). As noted, however, habeas corpus
review is only available for claims presenting violations of
federal law. See 28 U.S.C. § 2254(a); see, e.g., Estelle,
502 U.S. at 68 ("In conducting habeas review, a federal court is
limited to deciding whether a conviction violated the
Constitution, laws, or treaties of the United States.")
(citations omitted). Thus Santos's claim that his conviction was
against the weight of the evidence cannot be heard by this Court.
See, e.g., Howie v. Phillips, 2004 WL 2073276, at *3
(S.D.N.Y. Sept. 17, 2004); Reid v. Phillips, 2004 WL 1920218,
at *7 (S.D.N.Y. Aug. 26, 2004); Brown v. Fischer, 2004 WL
1171277, at *6 (S.D.N.Y. May 27, 2004); Correa v. Duncan,
172 F. Supp. 2d 378, 381 (E.D.N.Y. 2001); Kearse v. Artuz, 2000 WL
1253205, at *1 (S.D.N.Y. Sept. 5, 2000).*fn2 B. Excessive Sentence
Santos' second claim for relief is based on his sentence. In
his appellate brief, Santos observed that the minimum sentence
for each offense was 4½ to 9 years. Def. Br. at 19. He argued
that he should have been given the minimum sentence because his
conviction was his first felony drug conviction, he was only
carrying a small amount of heroin, and that a lighter sentence
would be sufficient to accomplish the aims of the law. Def. Br.
at 19-20; Pet. Reply at 2-3. He also cites to recent amendments
in New York's drug sentencing laws to support the reduction of
his sentence. Pet. Reply at 2.
Because a habeas court must grant considerable deference to
legislatively mandated terms of imprisonment, successful
challenges to sentences are "exceedingly rare." Hutto v. Davis,
454 U.S. 370, 374 (1982) (per curiam) (citation omitted); see
also Solem v. Helm, 463 U.S. 277, 290 (1983) ("Reviewing
courts, of course, should grant substantial deference to the
broad authority that legislatures necessarily possess in
determining the types and limits of punishments for crimes, as
well as to the discretion that trial courts possess in sentencing
convicted criminals."). Indeed, the Second Circuit has broadly
stated that "[n]o federal constitutional issue is presented where
. . . the sentence is within the range prescribed by state law."
White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) (per curiam)
(citation omitted); accord Herrera v. Artuz,
171 F. Supp. 2d 146, 151 (S.D.N.Y. 2001); Sutton v. Herbert,
39 F. Supp. 2d 335, 337 n. 1 (S.D.N.Y. 1999) (citing cases).
Santos was convicted of criminal sale of a controlled substance
in the third degree (Penal Law § 220.39) and criminal possession
of a controlled substance in the third degree (Penal Law §
220.16). At the time of Santos's offense, New York law mandated a
minimum sentence of 4½ to 9 years for a second felony offender convicted of these crimes
and a maximum sentence of 12½ to 25 years. See Penal Law §§
70.06(3)(b) and 70.06(4)(b). Santos was sentenced to concurrent
terms of 6 to 12 years, which was within the range prescribed by
New York law. While recent amendments have changed the sentencing
scheme for drug offenders in New York, this fact alone does not
provide a basis on which to conclude that the sentencing scheme
in effect at the time of Santos's crime was constitutionally
That the sentence is within the limits permitted by New York
law does not entirely resolve the issue. The Eighth Amendment
prohibits sentences that are "disproportionate to the crime
committed" regardless of whether they are within the limits
permitted by state law. Solem, 463 U.S. at 284. While the
Supreme Court has outlined factors that may be considered in
deciding whether a penalty is grossly disproportionate to the
offense, this is not one of the "rare?" cases where the
"reviewing court . . . [is] required to engage in extended
analysis to determine that a sentence is not constitutionally
disproportionate." Id. at 290 n. 16. It is sufficient to state
that concurrent sentences of 6 to 12 years are not
constitutionally disproportionate for convictions for the
possession and sale of heroin.
For the foregoing reasons, Santos's petition should be denied.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal
Rules of Civil Procedure, the parties have ten (10) days from
service of this Report and Recommendation to serve and file any
objections. See also Fed.R.Civ.P. 6(a), (e). Such
objections (and any responses to objections) shall be filed with the Clerk of the Court, with
copies sent to the Hon. Kimba M. Wood, 500 Pearl Street, New
York, New York 10007, and to the undersigned at 40 Centre Street,
New York, New York 10007. Any request for an extension of time to
file objections must be directed to Judge Wood. If a party fails
to file timely objections, that party will not be permitted to
raise any objections to this Report and Recommendation on appeal.
See Thomas v. Arn, 474 U.S. 140