United States District Court, S.D. New York
May 5, 2005.
ROBERT CISNEROS, Petitioner,
GARY GREENE, Respondent.
The opinion of the court was delivered by: GERARD E. LYNCH, District Judge
OPINION AND ORDER
Robert Cisneros, a New York State prisoner, petitions for
habeas corpus to challenge his conviction on July 17, 2002 for
the murder of Rafael Vargas in the course of a botched robbery,
and his resulting sentence to an indeterminate prison term of 25
years to life. Castillo argues that the guilty verdict was
against the weight of the credible evidence, in view of
weaknesses in the testimony of the principal prosecution
witnesses, who identified him more than a decade after the crime.
For the reasons that follow, the petition will be denied.
The sole ground offered by Cisneros for attacking his
conviction is that "the guilty verdict was against the weight of
the credible evidence." (Pet. 3a.) As respondent correctly points
out, "[a] `weight of the evidence' argument is a pure state law
claim grounded in New York Criminal Procedure Law § 470.15(5),"
as opposed to a "legal sufficiency claim," which "is based on
federal due process principles." Answer ¶ 28, citing Correa v.
Duncan, 172 F. Supp. 2d 378, 381 (E.D.N.Y. 2001). As such, it is
not cognizable on habeas corpus. Correa,
172 F. Supp. 2d at 381; Douglas v. Portuondo, 232 F. Supp. 2d 106, 116 (S.D.N.Y.
2002); Lemons v. Parrott, No. 01 Civ. 9366 (LBS), 2002 WL
850028, at *3 (S.D.N.Y. May 2, 2002); McBride v. Senkowski, No. 98 Civ. 8663 (MBM), 2002 WL 523275, at *4 n. 2 (S.D.N.Y. Apr.
However, Cisneros's pro se petition incorporates the argument
made on his behalf in the Appellate Division, which cites
Jackson v. Virginia, 443 U.S. 307 (1979), and argues, at least
in passing, that his conviction was supported by constitutionally
insufficient evidence in violation of the Due Process Clause of
the Fourteenth Amendment. Such a claim may be made on habeas
corpus. See, e.g., Maldonado v. Scully, 86 F.3d 32, 35 (2d
Cir. 1996) (reviewing a habeas claim of insufficient evidence).
Therefore, like the district courts in the cases cited above,
this Court will construe Cisneros's petition liberally as making
Such an argument bears a heavy burden. Evidence is
constitutionally sufficient 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, 443 U.S. at 319 (emphasis
omitted). All possible inferences that may be drawn from the
evidence must be construed in the prosecution's favor. United
States v. Rosa, 11 F.3d 315, 337 (2d Cir. 1993). The evidence
here was more than sufficient to meet that standard.
Cisneros's conviction was supported by the testimony of two
eyewitnesses, victims in the robbery, who identified him as the
man who shot Vargas. Cisneros essentially repeats arguments
properly made to the jury concerning the witnesses' credibility
and accuracy. However, as the Appellate Division noted in
unanimously affirming his conviction, such issues are for the
jury to resolve. People v. Cisneros, 780 N.Y.S.2d 321, 321 (1st
Dept. 2004). Moreover, while denying that he was the shooter,
Cisneros himself made statements to the police which "admitted
facts establishing his guilt of felony murder," id.,
specifically, that he had knowingly participated in the robbery
by surveilling the intended victim and driving two other robbers
to the scene of the crime. Cisneros does not challenge the admissibility of these
statements. Cisneros's unpersuasive claim that this confession
was a failed effort to ingratiate himself to the police by
identifying other criminals based on hearsay information (Pet.
App. Div. Br. 29) was made to the jury and rejected.
Since Cisneros's argument was presented to the state courts and
rejected on the merits, in order to grant the writ this Court
would need to conclude that the Appellate Division's conclusion
that the evidence was sufficient was not merely wrong, but was an
"unreasonable application" of Jackson v. Virginia.
28 U.S.C. § 2254(d)(1). See Williams v. Taylor, 529 U.S. 362 (2000)
(holding that habeas corpus can be granted only if the state
court decision was based on an unreasonable application of
clearly established federal law). The Appellate Division's
conclusion was not only reasonable, but plainly correct.
For the reasons set forth above, Cisneros's petition for a writ
of habeas corpus is denied. Because petitioner has not made a
substantial showing of the denial of a constitutional right, a
certificate of appealability will not issue. See
28 U.S.C. § 2253(c)(2) ("A certificate of appealability may issue . . . only
if the applicant has made a substantial showing of the denial of
a constitutional right.").
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