The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge
REPORT AND RECOMMENDATION
Before the Court is the petition of Ivette Pagan ("Pagan") for
a writ of habeas corpus, made pursuant to 28 U.S.C. § 2254. Pagan
alleges that her confinement by the state of New York is unlawful
because: 1) insufficient evidence was presented at her trial to
sustain a conviction for first degree assault; and 2) the
sentence imposed on her by the trial court was excessive.
The respondent opposes the petitioner's application for habeas
corpus relief on the grounds that: 1) the state-court resolution
of the petitioner's claim concerning the sufficiency of the trial
evidence was neither contrary to, nor involved an unreasonable
application of, clearly established federal law as determined by
the United State Supreme Court; and 2) the petitioner's excessive
sentence claim is unexhausted, and in any event, is not
cognizable on federal habeas corpus review. II. BACKGROUND
On November 18, 1997, Yesenia Gonzalez ("Gonzalez") slashed
Yvette Rodriguez ("Rodriguez") across the face with a box cutter
while Pagan, Jessica Cruz ("Cruz") and a small crowd of observers
shouted profanities and egged on the combatants. Rodriguez's
injury required over sixty-five sutures to close it, and resulted
in a permanent scar.
One year before the attack, Pagan and her boyfriend Carlos
Rivera ("Rivera") entered a neighborhood bodega, where Pagan and
Rodriguez exchanged harsh words; Pagan called Rodriguez a
"bitch." A fight between the women erupted, and Pagan was left
with scratches on her face. Pagan warned Rodriguez that "she was
going to get [her]." Rivera ended his relationship with Pagan and
began dating Rodriguez's sister, Marilyn Rodriguez ("M.
During the evening of November 18, 1997, Rodriguez received a
telephone call from M. Rodriguez, who was experiencing
problems.*fn1 As a result, Rodriguez and Georgiana Navarro
("Navarro"), the girlfriend of Rodriguez's brother, traveled via
taxicab to Longfellow Avenue and East 165th Street, Bronx, New
York, to meet M. Rodriguez. When they arrived, Rodriguez and
Navarro observed a crowd in front of the house where M. Rodriguez
was staying and several police vehicles. Pagan, Gonzalez and Cruz
were in the crowd. They yelled and threatened the Rodriguez
sisters and Navarro. Rodriguez recognized Pagan and Cruz, but she
did not recognize Gonzalez. As Rodriguez attempted to get closer
to her sister, she noticed that Gonzalez and Cruz were walking
toward her quickly. The women's behavior made Rodriguez nervous.
At that same time, and just a few car lengths away, Rodriguez
observed that Pagan was being frisked by a police officer.
Police officers suggested that Rodriguez and Nazarro leave the
vicinity. Rodriguez and Navarro then left the scene in a car
operated by Rivera's mother. Rodriguez and Navarro exited the car
around the corner from Rodriguez's home. As the women approached
the building where Rodriguez lived, two cars that Rodriguez
remembered seeing at Longfellow Avenue arrived. Pagan, Gonzalez
and Cruz exited one of the cars. Gonzalez walked toward
Rodriguez, while Cruz and Pagan followed close behind. Pagan,
Gonzalez and Cruz cursed and yelled at Rodriguez. Pagan, Cruz and
passengers from the second vehicle, who had formed a crowd,
yelled to Gonzalez "fuck her up." Rodriguez heard Pagan say,
"fuck that bitch. Cut that bitch."
Cruz attempted to hit Rodriguez. Soon thereafter, a box cutter
was handed to Gonzalez. It is unclear whether Cruz or Pagan
handed the weapon to Gonzalez. However, Gonzalez slashed
Rodriguez's face while Pagan, Cruz, and onlookers shouted at and
cursed Rodriguez. Pagan, Cruz and Gonzalez then left the scene
together. Rodriguez was taken to Lincoln Hospital, where her
wound was treated and sutured.
On December 15, 1997, a Bronx County grand jury returned an
indictment against Pagan charging her with six counts of acting
in concert with co-defendant Gonzalez to commit the crimes of
assault in the first degree (two counts), gang assault in the
first degree, assault in the second degree (two counts), and
criminal possession of a weapon in the fourth degree. Thereafter,
Pagan proceeded to trial.
At the conclusion of the prosecution's presentation of its
case, defense counsel moved for dismissal of the charges. Counsel
argued that insufficient evidence to prove intent to cause
serious injury, an element necessary to find petitioner guilty
for assault in the first degree as an accomplice, had been presented by the prosecution. Furthermore,
defense counsel also argued that the evidence presented by the
prosecution did not support a finding that the defendants acted
in concert. The court denied the motion, holding that these were
issues for the jury to determine.
On July 1, 1999, the jury convicted the petitioner for one
count of assault in the first degree. Thereafter, the trial court
sentenced Pagan to an indeterminate term of five to ten years
imprisonment. The trial court noted that the Legislature had
recently increased the applicable sentence from three to six
years imprisonment to a minium of five to ten years imprisonment.
Pagan appealed from the judgment of conviction to the New York
State Supreme Court, Appellate Division, First Department
("Appellate Division"). The petitioner's appellate brief raised
the following claims: 1) the proof offered by the prosecution to
establish intent to cause serious injury and accomplice liability
was legally insufficient to support the first degree assault
conviction because, inter alia, the evidence showed merely that
the petitioner was a bystander; and 2) Pagan's sentence of five
to ten years imprisonment was excessive, because she received a
more severe sentence than her co-defendant, who pleaded guilty
and because, in violation of the Ex Post Facto Clause of the
Constitution, the trial court took into account recently enacted
sentencing minimums when imposing Pagan's sentence.
The Appellate Division affirmed the petitioner's conviction and
sentence. It determined that the "verdict was based on legally
sufficient evidence" and that no basis for reducing Pagan's
sentence existed. See People v. Pagan, 281 A.D.2d 294,
722 N.Y.S.2d 150 (App.Div. 1st Dep't 2001). Thereafter, Pagan
sought leave to appeal to the New York Court of Appeals. In that
application, petitioner asked the court to consider "all issues"
in her brief to the Appellate Division and, in particular, the
sufficiency of the evidence claim. On July 5, 2001, Judge Carmen Beauchamp Ciparick, denied the
petitioner's application for leave to ...