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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. ยง 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 ...

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