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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


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 5.

  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 on appeal:

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. Reply").


  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 States.
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 infirm.

  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.


  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 (1985).

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