UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
December 22, 2005
JOSEPH VELEZ, PETITIONER,
MICHAEL COROCORAN, SUPERINTENDENT, CAYUGA CORRECTIONAL FACILITY, RESPONDENT.
REPORT AND RECOMMENDATION
HONORABLE WILLIAM H. PAULEY III, U.S.D.J.:
Joseph Velez brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for attempted robbery and criminal possession of a weapon following a jury trial in New York State Supreme Court, Bronx County. Mr. Velez argues that his conviction should be overturned on the grounds that:
(1) there was insufficient evidence to support a finding of guilt beyond a reasonable doubt and (2) he was denied his due process right to a fair trial due to prosecutorial misconduct. For the reasons that follow, I recommend that the petition be denied.
Mr. Velez's trial commenced January 9, 2003, before Justice Troy Webber. The evidence presented at trial established that at around midnight on September 17, 2001, Luis Diaz sat with a group of men playing dominoes outside of 100 West 174th Street in the Bronx. (Tr. 59).*fn1 Mr. Velez and a companion appeared, looking for a man named "Dalli," which Mr. Diaz subsequently realized was a nickname for Candito "Odalli" Mendoza. (Tr. 60, 73, 78). When Mr. Mendoza arrived, the two men greeted and put their arms around him, and the three walked away to speak privately. (Tr. 60, 78).
Mr. Diaz then observed Mr. Velez' companion strike Mr. Mendoza in the face, after which Mr. Mendoza ran across the street to where Mr. Diaz was seated. (Tr. 60, 65). Mr. Velez and his companion took out what appeared to Mr. Diaz to be a gun in a black plastic bag. (Tr. 61-62). Mr. Velez pointed the concealed object at the group, told everyone to stand still, and demanded money and "stuff," which Mr. Diaz believed referred to drugs. (Tr. 61, 63, 65,). Mr. Diaz told the two men no one in the group had any money or drugs. (Tr. 63). Mr. Velez responded that if the money and drugs were not produced, he would shoot them. (Tr. 63). Mr. Velez's companion then walked towards the domino players and overturned the table they had been using for their game. (Tr. 64-65). However, when Mr. Velez and his accomplice recognized they could obtain nothing from the group they left. (Tr. 79, 80).
Responding to a radio transmission of a dispute with a firearm, Police Officer Kevin Williams and his partner, Police Officer Greg Manning, drove to the vicinity of 174th Street and Nelson Avenue at approximately 11:40 p.m. At the scene, an "[e]xtremely shaken, nervous" and "scared" Mr. Diaz approached the vehicle and told Officer Williams that he had just been robbed at gunpoint by an Hispanic male and a black male. (Tr. 5, 25, 67). Officer Manning stated that he had just seen two men matching that description while on his way to the location. (Tr. 6-7). Mr. Diaz then joined the officers in the car to backtrack in search of the assailants. (Tr. 6, 7, 68). Mr. Diaz told the officers that the two men had robbed him, although in fact the men had not actually taken any property. (Tr. 76).
While driving on University Avenue, Officer Williams observed an Hispanic male and a black male walking together. (Tr. 8). At the same time, Mr. Diaz spotted the two men and confirmed that they were the individuals who had attempted to rob him. (Tr. 40-41). Officer Williams saw one of the men, later identified as Mr. Velez, drop a plastic bag on the ground in a fenced area. (Tr. 9-10, 20). After the police officers stopped the two individuals and placed them under arrest, Officer Williams retrieved the plastic bag from the fenced area and showed it to Mr. Diaz, who, before the bag was opened, identified it as the "pistol." (Tr. 10, 20, 69). In the bag, Officer Williams found a "hatchet" knife that had been wrapped up in a black handkerchief. (Tr. 22, 24, 25, 69). Neither Mr. Velez nor his companion possessed any money or guns. (Tr. 26, 35).
At the precinct, Officer Williams met Mr. Mendoza who told him, through an interpreter, that he had been a victim of a robbery at gunpoint. (Tr. 31). Officer Williams learned from Mr. Diaz and Mr. Mendoza that the robbery had not been completed. (Tr. 35).
Officer Williams testified that he had listed Mr. Mendoza as the "victim" and Mr. Diaz as the "witness" on his police reports because the reports designated only a single box for "victims," while the remainder of the boxes were for "witnesses." (Tr. 32-33, 36). However, Officer Williams indicated in his narrative reports that Mr. Diaz was also a victim. (Tr. 37).
At the conclusion of the trial, Mr. Velez was convicted of attempted robbery in the third degree and criminal possession of a weapon in the fourth degree. He was sentenced to concurrent prison terms of two to four years and one year respectively.
The petitioner appealed to the Appellate Division, First Department, which affirmed his conviction on June 8, 2004. People v. Velez, 8 A.D.3d 61, 777 N.Y.S.2d 642 (1st Dep't 2004). He then sought leave to appeal to the New York State Court of Appeals, but this application was denied on August 4, 2004. People v. Velez, 3 N.Y.3d 682, 784 N.Y.S.2d 21 (2004).
A. Exhaustion of State Remedies
The doctrine of exhaustion generally requires a petitioner in a habeas corpus proceeding to exhaust all available state court remedies for each claim prior to federal review. See 28 U.S.C. § 2254(b),(c); Duckworth v. Serrano, 454 U.S. 1, 3 (1981); Lurie v. Wittner, 228 F.3d 113, 123-24 (2d Cir. 2000). To satisfy the exhaustion requirement, a petitioner must have "fairly presented" his claim in state court by having set forth both the legal and factual bases for the claim. Picard v. Connor, 404 U.S. 270, 275-77 (1971). Although the petitioner need not have cited "book and verse on the federal constitution," he must have articulated the "substantial equivalent" of the federal habeas claim. Id. at 278 (citations omitted). He can accomplish this by:
(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, [or] (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.
Daye v. Attorney General, 696 F.2d 186, 194 (2d Cir. 1982) (en banc); see Romilez v. Attorney General, 280 F.3d 87, 94-95 (2d Cir. 2001).
Mr. Velez's claim of prosecutorial misconduct was not exhausted because he made no reference to this claim prior to the petition for habeas review, and he failed to meet any of the criteria set forth in Daye, 696 F.2d at 194. Nevertheless, a federal court may deem a claim exhausted where it is clear that the state court would find the claim procedurally barred. Gray v. Netherland, 518 U.S. 152, 161 (1996); Spence v. Superintendent, Great Meadow Correctional Facility, 219 F.3d 162, 170 (2d Cir. 2000); Bossett v. Walker, 41 F.3d 825, 828-29 (2d Cir. 1994). In this case, Mr. Velez is precluded from now returning to state court to argue his claim on federal constitutional grounds, because New York law provides for only a single application for direct review. See Spence, 219 F.3d at 170.*fn2 A defendant who fails to press an available claim on direct appeal is barred from raising it on collateral review. C.P.L. § 440.10 (2)(c); see also Lurie, 228 F.3d at 124; Spence, 219 F.3d at 170. "[P]rocedural default in state court will bar federal habeas review unless the petitioner can either: (1) show cause for the default and actual prejudice as a result of the constitutional violation, or (2) demonstrate that failure to consider the federal claim will result in a fundamental miscarriage of justice, . . . or, in other words, an unjust incarceration." Spence, 219 F.3d at 170 (internal quotations and citations omitted); see also Gray, 518 U.S. at 162; Bossett, 41 F.3d at 829. Mr. Velez has not suggested any cause for failing to assert this claim on appeal, nor has he demonstrated prejudice resulting therefrom. Finally, he has not shown that manifest justice will result if these grounds are not considered. Therefore, Mr. Velez's claim of prosecutorial misconduct will not be reviewed on the merits.
Mr. Velez did, however, exhaust his claim of insufficiency of the evidence. He raised this claim in federal constitutional terms in his appeal to the Appellate Division and presented it to the Court of Appeals for review. Accordingly, that claim may be addressed on the merits.
B. Sufficiency of the Evidence*fn3
Mr. Velez argues that there was insufficient evidence presented at trial to convict him. Specifically, Mr. Velez claims that the prosecution failed to present credible evidence that Mr. Diaz was a victim of an attempted robbery . (Memorandum of Law Submitted in Support of Writ of Habeas Corpus at 1-2).
The standard for a habeas corpus review of the sufficiency of evidence is well-settled. There is a "very heavy burden placed upon a defendant challenging the sufficiency of the evidence underlying his conviction." Knapp v. Leonardo, 46 F.3d 170, 178 (2d Cir. 1995) (citation and internal quotation marks omitted). "To succeed, [the petitioner] must demonstrate that viewing the evidence in the light most favorable to the government, . . . no rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt." Id. at 178 (citations and internal quotation marks omitted); see also Jackson v. Virginia, 443 U.S. 307, 319 (1979).
A federal judge reviewing a sufficiency of evidence claim does not make an independent determination as to whether the evidence demonstrates guilt beyond a reasonable doubt. Id. at 318-19. Rather, the judge must construe the evidence in the light most favorable to the prosecution, and defer to the jury's resolution of conflicts in the testimony and its assessment of witnesses' credibility. Id. at 319; see also Herrera v. Collins, 506 U.S. 390, 401-02 (1993) (inquiry is whether decision to convict was rational, not whether it was correct).
In the instant case, Mr. Velez claims that the prosecution did not present sufficient evidence to prove beyond a reasonable doubt that Mr. Diaz was indeed the victim rather than a witness to the crime. New York law defines robbery as "forcible stealing. A person . . . commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of . . . preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking." N.Y. Penal Law § 160.00. "A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime." N.Y. Penal Law § 110.00. Thus, a person commits an attempted robbery when he engages in conduct that tends to effect the commission of preventing or overcoming resistance to the taking of property. Mr. Diaz argues that no property was taken and, therefore, there was no robbery. The fact that nothing was taken is not disputed. However, crediting Mr. Diaz's testimony, the essential elements of Attempted Robbery in the Third Degree were satisfied when Mr. Velez pointed the "object" at Mr. Diaz and his companions, told them to stand still, and demanded money and "stuff" from them. (Tr. 61-63). Mr. Diaz testified that Mr. Velez stated if they did not turn over any money or drugs, Mr. Velez would shoot them. (Tr. 63). Accepting the substance of Mr. Diaz' testimony, a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could find that the essential elements of attempted robbery in the third degree were proved beyond a reasonable doubt.
For the reasons set forth above, I recommend that Mr. Velez's application for writ of habeas corpus be denied. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of Court, with extra copies delivered to the chambers of the Honorable William H. Pauley III, 500 Pearl Street, Room 2210, New York, New York 10007, and to the undersigned, 500 Pearl Street, Room 1960, New York, New York 10007. Failure to file timely objections will preclude appellate review.
JAMES C. FRANCIS IV UNITED STATES MAGISTRATE JUDGE