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United States District Court, S.D. New York

October 6, 2005.

IVETTE PAGAN, Petitioner,
ANGINELL ANDREWS, Superintendent, Respondent.

The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge



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. Rodriguez").

  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 appeal to the New York Court of Appeals. See People v. Pagan, 96 N.Y.2d 905, 730 N.Y.S.2d 803 (2001). The instant application for writ of habeas corpus followed.


  Exhaustion of State Remedies

  Before a federal court may entertain a habeas corpus petition on behalf of a state prisoner, the petitioner must first exhaust his or her available state remedies. See 28 U.S.C. § 2254(b) and (c); Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 512 (1971); Jones v. Vacco, 126 F.3d 408, 413 (2d Cir. 1997); Dorsey v. Kelly, 112 F.3d 50, 52 (2d Cir. 1997); Daye v. Attorney Gen. New York, 696 F.2d 186, 190 (2d Cir. 1982) (en banc). Premised on the principles of comity, the exhaustion doctrine assures the "respect for our dual judicial system and concern for harmonious relations between the two adjudicatory institutions," Daye, 696 F.2d at 191, and "increas[es] the likelihood that the factual allegations necessary to a resolution of the claim will have been fully developed in state court, making federal habeas review more expeditious." Id. Although the writ of habeas corpus provides a remedy for imprisonment in violation of federal law, id., state courts, as well as federal courts, are charged with protecting a criminal defendant's federal rights, and the exhaustion doctrine requires that state courts "be given the opportunity to consider and correct any violations of federal law." Jones, 126 F.3d at 413.

  To satisfy the exhaustion doctrine, a habeas corpus petitioner must first "fairly present" his or her federal claim to the highest state court from which a decision can be rendered. Daye, 696 F.2d at 191. A claim is not "fairly presented" unless the state court was informed of the factual and legal premises of the claim being asserted in federal court. Id. If material factual allegations or legal doctrines are presented in a federal petition that were not presented to the state court, the state court has not had a fair opportunity to rule on the claim. Id. at 191-92. The Second Circuit has stated:

[T]he ways in which a state defendant may fairly present to the state courts the constitutional nature of his claim, even without citing chapter and verse of the Constitution, include (a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.
Id. at 194. Once a claim is fairly presented, a petitioner must have "utilized all available mechanisms to secure state [appellate review] of the denial of that claim." Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981) (citations omitted).

  The petitioner's application contains two grounds on which she relies in seeking habeas corpus relief. The first ground, that due process was violated when the prosecution failed to present sufficient evidence to support a conviction, was fairly presented to the state courts. In the petitioner's brief to the Appellate Division, she cited provisions of the Constitution and pertinent Supreme Court precedent, e.g., Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979), in support of her insufficient trial evidence claim. Moreover, Pagan sought review of the Appellate Division's determination in the New York Court of Appeals, thus satisfying the second prong of the exhaustion doctrine.

  The second ground under which Pagan seeks relief, that the length of her sentence is excessive, was presented to the Appellate Division. Thereafter, Pagan asked the New York Court of Appeals to consider all issues presented by her to the Appellate Division when determining whether to grant her application for leave to appeal to that court. Consequently, Pagan, also fulfilled the exhaustion requirement with respect to this ground of her petition.*fn2

  Ground One: Sufficiency of Evidence

  Under the Due Process Clause of the Fourteenth Amendment, a criminal defendant may not be convicted "except upon sufficient proof — defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense." Jackson v. Virginia, 443 U.S. at 316, 99 S. Ct. at 2787. Habeas corpus relief based on a claim of insufficient evidence may only be granted if no rational trier of fact could have found proof of guilt beyond a reasonable doubt. Id. at 324, 99 S. Ct. at 2791-92. Moreover, where, as here, a state court has adjudicated the merits of a claim raised in a petitioner's federal habeas corpus petition, the Antiterrorism and Effective Death Penalty Act of 1996 requires that the writ be denied unless the state court's adjudication resulted in a decision that: 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) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. See 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495 (2000); Francis S. v. Stone, 221 F.3d 100 (2d Cir. 2000). A state court's determination of factual issues is presumed correct. An applicant for habeas corpus relief bears the burden of rebutting the presumption of correctness by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).

  Pagan claims that her Fourteenth Amendment right to due process was violated because the evidence presented at her trial was insufficient to establish the elements of accessorial liability under New York law. New York's Penal Law, explains that criminal liability for the conduct of another arises under the following circumstances:

When one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct.
N.Y. Penal Law § 20.00.

  "[I]ntent can . . . `be inferred from the defendant's conduct and the surrounding circumstances.'" People v. Bracey, 41 N.Y.2d 296, 301, 392 N.Y.S.2d 412, 416 (1977) (quoting La Fave & Scott, Criminal Law § 59, at 429, n. 80).

  Pagan contends that the prosecution did not prove beyond a reasonable doubt the elements of New York's accomplice liability statute. Specifically, Pagan contends that the prosecution did not prove that she had the requisite mental state ("intent to cause serious physical injury") necessary to render her criminally culpable for the underlying crime of first degree assault. See N.Y. Penal Law § 120.10 (1). Pagan also maintains that the prosecution failed to prove that she had the requisite mental culpability required by N.Y. Penal Law § 20.00, to establish accomplice liability. According to Pagan, the trial evidence showed only that she was a bystander and not a participant in the Rodriguez attack.

  Pagan is wrong. The trial evidence established that: (a) prior to the Rodriguez attack Pagan had an altercation with Rodriguez during which Pagan threatened Rodriguez; (b) at the time of the Rodriguez attack, Pagan shouted words of encouragement to her friends as they beat Rodriguez and slashed her with a weapon causing an injury that needed in excess of 65 sutures to close it; (c) at the time of the attack, Rodriguez heard Pagan say, inter alia, "cut that bitch;" and (d) absent petitioner's earlier altercation with Rodriguez, Pagan's accomplices would not have had a motive to assault Rodriguez. From this evidence, a rational trier of fact could have found that the prosecution established that Pagan's accomplices had the intent to cause serious bodily injury required by N.Y. Penal Law § 120.10(1) and that Pagan displayed the mental culpability discussed in N.Y. Penal Law § 20.00 as she commanded that her accomplices cut Rodriguez as they pummeled her.

  The Appellate Division's determination that Pagan's conviction was based on legally sufficient evidence was not contrary to, or an unreasonable application of clearly established federal law because, in keeping with the standard set by the Supreme Court in Jackson, supra, the Appellate Division, based on its review of the trial record, concluded that the prosecution had presented evidence respecting Pagan's words and actions from which the jurors reasonably could have inferred that Pagan orchestrated the attack on Rodriguez and exhorted a co-defendant to injure Rodriguez.

  Pagan has not presented any evidence to the Court that clearly and convincingly rebuts the presumption of correctness that attaches to the factual determinations made by the state court. See 28 U.S.C. § 2254(e)(1).

  Based on the above, the Court finds that the petitioner's claim, that she is entitled to habeas corpus relief on the ground that insufficient evidence was presented at her trial to convict her for the charged crime is without merit.

  Ground Two: Petitioner's Sentence is Excessive

  No constitutional claim exists where the sentence imposed falls within the range prescribed by state law. White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992). Petitioner's indeterminate sentence of five to ten years was within the statutory limits set by the state Legislature. At the time the petitioner committed the charged crime, New York's Penal Law authorized the imposition of an indeterminate term of imprisonment for first degree assault, a Class "B" felony. The law provided that upon conviction, a criminal defendant could receive a maximum term of imprisonment of not less than six years and not more than twenty-five years, and a minimum term of imprisonment of not less than half of the maximum term of imprisonment imposed. See New York Penal Law § 70.02(3)(a), 4 (1997).

  The petitioner's sentence was within the statutory limits fixed by the Legislature. Although the petitioner was a first time offender, the court's exercise of its discretion, in imposing a five to ten years sentence rather than the minimum sentence of three to six years imprisonment, that could have been imposed, was permissible under New York law. Pagan has not alleged that the trial court's exercise of its sentencing discretion was either arbitrary or capricious. Furthermore, contrary to Pagan's contention, the Court finds that the trial court did not abuse its discretion in considering the state Legislature's decision to increase the minimum sentence that could be imposed for the crime the petitioner committed, because the sentence imposed on Pagan was in keeping with the sentencing range to which Pagan was exposed at the time she committed the charged crime. Based on the above, the Court finds that Pagan's claim that her sentence is excessive, and, therefore, must be altered through habeas corpus relief, lacks merit.


  For the reasons set forth above, the petitioner's application for a writ of habeas corpus 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 the Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Paul A. Crotty, United States District Judge, 40 Centre St, Room 2102, New York, New York 10007, and to the chambers of the undersigned, 40 Centre St., Room 540, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Crotty. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Candair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1998); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).

  Respectfully submitted.


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