United States District Court, S.D. New York
November 7, 2005.
JOHN FERGUSON, Petitioner,
M. McGINNIS, Respondent.
The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge
REPORT AND RECOMMENDATION
TO THE HONORABLE KENNETH M. KARAS, UNITED STATES DISTRICT JUDGE
John Ferguson ("Ferguson") has made an application for a writ
of habeas corpus. He contends that his confinement by the state
of New York is unconstitutional because: (1) the trial court
erred when it gave preliminary instructions to prospective jurors
that described the elements of the charged crimes but did not
caution the prospective jurors against deliberating on
petitioner's guilt prematurely; and (2) insufficient evidence was
presented to the jury from which it could find him guilty beyond
a reasonable doubt.
The respondent opposes the petitioner's application for a writ
of habeas corpus. He contends that the petitioner's claim
concerning the preliminary instructions given by the trial court
to prospective jurors is precluded from review by this court
because the claim was resolved in the state court on independent
and adequate state-law grounds and not upon Federal law. The
respondent also contends that, in any event, the claim lacks
merit. In like manner, the respondent maintains that the
petitioner's allegation concerning the sufficiency of the
evidence presented at his trial also lacks merit and, thus, provides no basis upon
which to grant Ferguson habeas corpus relief.
In the early morning hours on June 15, 1998, after spending
several hours at the Tunnel, a Manhattan night club, Brian
Conklin ("Conklin") and Earl Evans ("Evans") were approached by
three young men, as Conklin and Evans attempted to enter their
parked automobile. Ferguson was among the three young men who
approached Conklin and Evans, and he had a gun. Conklin recalled
that the area near his automobile was well-lighted at the time
the three young men approached him because a streetlight and the
lights attached to an adjacent housing development were
illuminated. Conklin watched the three young men as they
approached him and, in particular, he looked at Ferguson's face
because Ferguson was pointing a gun at Conklin's head. As
Ferguson later trained the gun on Conklin and Evans, one of his
accomplices, subsequently identified as Kevin McCray
("McCray"),*fn1 searched Evans. However, McCray did not
remove any property from Evans. Petitioner and another of his
accomplices searched Conklin. A gold chain that was around
Conklin's neck, a watch, and between $30 and $40 were taken from
Conklin. As he was being searched and his property was being
taken, Conklin recalled that he continued to stare at Ferguson's
face. According to Conklin, the robbery was completed in
approximately two to four minutes.
Ferguson and his accomplices fled together on foot after
Conklin was relieved of his property; however, the three robbers
soon split up. Conklin and Evans determined to follow McCray,
whom they knew was not the robber who had the gun, using the
automobile they were attempting to enter at the time of the robbery. As Conklin and
Evans trailed McCray, they encountered police officers in a
police vehicle. Evans alighted from the car in which he was
traveling with Conklin and pursued McCray on foot. He caught him
and began to "tussle" with him. At the same time, Conklin
approached the police officers and reported that he had been
robbed at gunpoint. One of the officers summoned additional
police officers to the scene for assistance, and a description of
the two robbers who had separated from McCray was transmitted by
radio to other police officers. Conklin recalled that the gunman
was a dark-skinned black male, between 20 and 22 years of age,
who had a corn row hairstyle, and slight facial hair near his
ears. Conklin also recalled that the gunman was taller than he
Conklin is 5 feet, 9 inches tall and that the gunman's build
was stockier than Conklin's 160-pound frame. Furthermore,
according to Conklin, the gunman wore a red hoodie, and red and
black "Jordan" style sneakers.
Police Officer Brian Heffernan, one of the officers who
responded to the location where McCray had been apprehended,
after hearing the radio broadcast for assistance, observed two
pedestrians waiving and pointing toward West 23rd Street.
Officer Heffernan drove to West 23rd Street and traveled
eastbound on that street. As he did so, he observed a black male
who fit the general height, race and clothing description of one
of the two robbery suspects, who were still at large, that had
been broadcast over the police radio. The pertinent description
was of a six-feet-four-inches-tall male wearing red clothing.
However, at the time the petitioner was arrested, he was wearing
a gray shirt or sweater.
Officer Heffernan recalled that Ferguson ducked behind a row of
U-Haul trucks that were parked on West 23rd Street, after he
spotted Officer Heffernan's police vehicle. Officer Heffernan
stopped Ferguson, who is six feet, one inch tall, and began to
frisk him. As he did so, other officers joined him on West 23rd Street. Officer
Heffernan advised the other officers that Ferguson had ducked
behind a U-Haul truck that was approximately ten feet from where
Officer Heffernan was standing with Ferguson. An officer searched
the vicinity of that truck and recovered a .357 Black Hawk
revolver. The revolver was dusted for fingerprints at the
location where it was found. However, no fingerprints were
recovered from the gun.
Ferguson was placed under arrest. Shortly thereafter, Conklin
was brought to the location of Ferguson's arrest. Conklin
identified Ferguson as the gunman who had robbed him, even though
Ferguson was no longer wearing the red garment Conklin had
recalled the gunman had been wearing earlier. Ferguson was
wearing a gray sweatshirt, black jeans and red and black "Jordan"
style sneakers. Ferguson was taken to the Tenth Police Precinct
and searched. Conklin's gold chain and $18 were recovered from
Ferguson as a result of that search.
Ferguson was indicted by a New York County grand jury. It
charged him with two counts each of robbery in the first degree
and attempted robbery in the first degree and one count each of
robbery in the second degree, attempted robbery in the second
degree, criminal possession of a weapon in the second degree and
criminal possession of stolen property in the fifth degree.
Ferguson proceeded to trial before a petit jury. Prior to
commencing the voir dire proceeding with the prospective jurors,
the trial court described to them the charges contained in the
indictment and the various elements of those crimes that had to
be proven by the state. The court also discussed briefly with the
prospective jurors legal precepts, such as proof beyond a
reasonable doubt and the presumption of innocence, that are
pertinent to a criminal trial. The jury found Ferguson guilty for all charges made against him
in the indictment.*fn2 Ferguson was sentenced to 15 years
imprisonment on one count of robbery in the first degree, and 8
years imprisonment on one count of attempted robbery in the first
degree. The trial judge determined that those sentences should be
served consecutively to each other. Ferguson was also sentenced
to 15 years imprisonment on the second count of robbery in the
first degree, 8 years imprisonment on the second count of
attempted robbery in the first degree, 8 years imprisonment for
robbery in the second degree, 5 years imprisonment for attempted
robbery in the second degree, 7 years imprisonment for possessing
a weapon and one year imprisonment for possessing stolen
property. The trial court directed that these sentences be served
concurrently with the sentences it imposed for Ferguson's
convictions for first degree robbery and attempted first degree
robbery that the trial court required Ferguson to serve
Ferguson appealed from the judgment of conviction to the New
York State Supreme Court, Appellate Division, First Department.
He urged that court to upset his conviction because the
preliminary instructions the trial court gave to the prospective
jurors, prior to commencing the voir dire proceeding, detailed
the elements of the charged crimes, but failed to caution the
prospective jurors against deliberating prematurely on Ferguson's
guilt. According to Ferguson, by failing to admonish the
prospective jurors against premature deliberations, the trial
court violated the New York Constitution and the 14th
Amendment to the United States Constitution. Ferguson also
alleged that since: (a) he did not match the description of the
gunman broadcast by the police, shortly before his arrest; and (b) no fingerprint or
other evidence linking him to the handgun that was recovered from
the vicinity where he was arrested, was presented to the jury,
the evidence adduced at his trial was insufficient to prove his
guilt of the charged crimes beyond a reasonable doubt. Therefore,
Ferguson maintained that his conviction violated the New York
Constitution and the 14th Amendment to the United States
The Appellate Division affirmed Ferguson's conviction
unanimously. It determined that the verdict rendered by the jury
was based on legally sufficient evidence and was not against the
weight of the evidence. In addition, the Appellate Division
explained that issues of credibility and identification were
properly presented to the jury; therefore, the court found no
reason to disturb the jury's determinations on those issues.
Furthermore, the Appellate Division found that Ferguson's
challenge to the trial court's pre-voir dire instructions to the
prospective jurors was unpreserved for appellate review, and the
court declined to review that matter, in the exercise of its
discretion, in the interest of justice. However, the court noted
that, were it to review the claim made by Ferguson concerning the
trial court's pre-voir dire instructions, it would find that the
trial court's outline of the charges that Ferguson faced and its
brief description of the applicable principles of law did not
invite premature analysis of the evidence by the prospective
jurors or prejudice Ferguson. See People v. Fergerson,
289 A.D.2d 17, 733 N.Y.S.2d 604 (App.Div. 1th Dep't 2001).
Ferguson sought leave to appeal to the New York Court of
Appeals from the Appellate Division's determination. His
application for leave to appeal to that court was denied. See
People v. Fergerson, 97 N.Y.2d 754, 742 N.Y.S.2d 614 (2002).
The instant petition for a writ of habeas corpus followed. III. DISCUSSION
Trial Court's Jury Instructions
A federal court may not review a question of federal law
decided by a state court if the state court's decision rested on
a state-law ground, be it substantive or procedural, that is
independent of the federal question and adequate to support the
judgment. See Coleman v. Thompson, 501 U.S. 722, 729,
111 S. Ct. 2546, 2553-54 (1991). In most cases, a state procedural bar
constitutes an adequate and independent state-law ground that is
sufficient to preclude federal habeas corpus review. "In
exceptional cases, however, an exorbitant application of a
generally sound rule may affect the adequacy and independence of
the state procedural ground, and allow the United States district
court to consider the merits of a constitutional claim." Rosa v.
Herbert, 277 F. Supp. 2d 342, 351 (S.D.N.Y. 2003) (quoting Lee
v. Kemna, 534 U.S. 362, 376, 122 S. Ct. 877, 885 ); see
also Bell v. Poole, No. 00 Civ. 5214, 2003 WL 21244625, at *9
(E.D.N.Y. Apr. 10, 2003) ("The mere invocation of a procedural
bar does not . . . automatically preclude review in this
The Second Circuit Court of Appeals has stated that a
procedural bar is adequate to support a state-court judgment only
if it is based on a rule that is "firmly established and
regularly followed" by the state in question. Cotto v. Herbert,
331 F.3d 217, 239-41 (2d Cir. 2003). Thus, the parties to an
action must have notice of the state procedural rule and the rule
must be applied consistently in similar circumstances. See
Bell, 2003 WL 21244625, at *9. Furthermore, a state procedural
rule must serve a legitimate state interest. See Rosa,
277 F. Supp. 2d at 351; Smart v. Scully, 787 F.2d 816, 820 (2d Cir.
1986). However, "the adequacy of a state procedural bar is
determined with reference to the particular application of the
rule; it is not enough that the rule generally serves a legitimate state
interest." Cotto, 331 F.3d at 240 (quoting Lee,
534 U.S. at 387, 122 S. Ct. at 891) (internal quotation marks omitted).
Therefore, an inquiry into whether the application of a
procedural rule is "firmly established and regularly followed" in
the specific circumstances presented in a case includes "an
evaluation of the asserted state interest in applying the
procedural rule in such circumstances." Id.
The Appellate Division did not dispose of Ferguson's claim
concerning the trial court's preliminary instructions to the
prospective jurors on the merits. Rather, the court found that
this claim was not preserved for appellate review.
CPL § 470.05, in its most pertinent part, provides that:
For purposes of appeal, a question of law with
respect to a ruling or instruction of a criminal
court during a trial or proceeding is presented when
a protest thereto was registered, by the party
claiming error, at the time of such ruling or
instruction or at any subsequent time when the court
had an opportunity of effectively changing the same.
Such protest need not be in the form of an
"exception" but is sufficient if the party made his
position with respect to the ruling or instruction
known to the court. . . .
CPL § 470.05(2).
The purpose of the rule is "to fairly apprise the court and the
opposing party of the nature and scope of the matter contested."
People v. Jones, 81 A.D.2d 22, 41-42, 440 N.Y.S.2d 248, 261
(App.Div. 2d Dep't 1981).
New York's contemporaneous objection rule is firmly established
and has, for many years, been applied to claims of error
involving federal constitutional rights. See People v.
lannelli, 69 N.Y.2d 684, 512 N.Y.S.2d 16 (1986); People v.
Thomas, 50 N.Y.2d 467, 429 N.Y.S.2d 584 (1980). It has been
applied routinely in circumstances, such as those in the case at bar, in which a defendant did not register a timely protest to a
trial court's preliminary jury instructions. See, e.g.,
People v. Cooper, 300 A.D.2d 4, 749 N.Y.S.2d 873 (App.Div.
1st Dep't 2002); People v. Walton, 220 A.D.2d 548,
632 N.Y.S.2d 212 (App.Div. 2d Dep't 1995); People v. McPherson,
182 A.D.2d 714, 582 N.Y.S.2d 480 (App.Div. 2d Dep't 1992);
People v. Wilkins, 176 A.D.2d 976, 575 N.Y.S.2d 580 (App.Div.
2d Dep't 1991). Ferguson has not identified any respect in which
the Appellate Division's application of this rule to the case at
bar might have departed from the regular application of the rule
to similar cases in New York appellate courts.
A habeas corpus petitioner may bypass the independent and
adequate state-law ground by showing cause for the default and
prejudice attributable thereto or by demonstrating that a
fundamental miscarriage of justice will attend, that is, that the
petitioner is actually innocent of the crime for which he was
convicted, if the claim is not reviewed by the habeas court.
See Harris v. Reed, 489 U.S. 255, 262, 109 S. Ct. 1038, 1043
(1989). Therefore, in order to overcome the procedural bar
imposed by the Appellate Division's determination that this claim
is unpreserved, Ferguson must show cause for his default and
prejudice attributable thereto or demonstrate that the failure to
consider his federal claims will result in a fundamental
miscarriage of justice. However, Ferguson has shown neither cause
for his procedural default nor prejudice. Moreover, he has not
proffered any new evidence that he is actually innocent.
In light of the foregoing, the petitioner may not obtain habeas
corpus relief on this claim.
Sufficiency of Evidence
Under the Due Process Clause of the 14th 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. 307, 316,
99 S. Ct. 2781, 2787 (1979). 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, 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).
Ferguson claims that his 14th Amendment right to due process
was violated because the evidence presented at his trial was
insufficient to establish the elements of the various crimes for
which he was convicted. More specifically, he contends that
because he did not match the height and clothing descriptions of
the robbery suspect that had been broadcast by the police and,
furthermore, since no fingerprint or other evidence linking him
to the gun recovered from the vicinity of his arrest was
presented to the jury, no rational trier of fact could have found
proof of his guilt beyond a reasonable doubt. However, Ferguson has not identified how the Appellate
Division's determination was contrary to or involved an
unreasonable application of clearly established Federal law.
Moreover, he has not shown how that court's decision on his
appeal was grounded on an unreasonable determination of the facts
in light of the evidence presented at his trial. While it is true
that Ferguson's clothing did not match exactly the clothing
description of the robbery suspect that Officer Heffernan
received, and his fingerprints were not recovered from the gun
received in evidence at his trial, Ferguson ignores other
evidence in the trial record upon which the jury could have
relied reasonably in returning a verdict of guilt against him.
For example: Conklin testified that throughout the two to four
minutes that the robbery lasted, his gaze never left Ferguson's
face; both Conklin and Evans identified Ferguson as the gunman at
his trial; Ferguson possessed Conklin's gold chain shortly after
the robbery; and Ferguson made a furtive move, by ducking down
near the U-Haul vehicle where the handgun was found, after he
spotted Officer Heffernan's police vehicle approaching him.
In any event, as noted above, 28 U.S.C. § 2254(d) places
certain burdens on a petitioner for habeas corpus relief when, as
in the instant case, his claim(s) has been adjudicated on the
merits by a state court. Ferguson has not met his burden.
Therefore, he is not entitled to the habeas corpus relief he
seeks based on his claim that insufficient evidence was presented
at his trial to sustain a guilty verdict.
For the reasons set forth above, the petitioner's application
for a writ of habeas corpus should be denied. V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal
Rules of Civil Procedure, the parties shall have ten (10) days
from service of this 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 Kenneth M.
Karas, 500 Pearl Street, Room 920, New York, New York, 10007, and
to the chambers of the undersigned, 40 Foley Square, Room 540,
New York, New York, 10007. Any requests for an extension of time
for filing objections must be directed to Judge Karas. 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. Canadair Ltd.,
838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson,
714 F.2d 234, 237-38 (2d Cir. 1983).
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