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Nelson v. Sears


March 28, 2006


The opinion of the court was delivered by: Andrew J. Peck, United States Magistrate Judge


To the Honorable Loretta A. Preska, United States District Judge:

Pro se petitioner Charles Nelson seeks a writ of habeas corpus from his April 10, 2003 conviction in Supreme Court, New York County, of third degree robbery, fourth degree grand larceny, and first degree reckless endangerment and sentence as a second felony offender to sentences totaling five and half to eleven years imprisonment. (Dkt. No. 2: Pet. ¶¶ 1-5.) See People v. Nelson, 17 A.D.3d 276, 276-77, 794 N.Y.S.2d 24, 25 (1st Dep't), appeal denied, 5 N.Y.3d 792, 801 N.Y.S.2d 813 (2005).

Nelson's federal habeas petition raises two claims that his due process rights were violated: (1) because his conviction of reckless endangerment was against the weight of the evidence (Pet. ¶ 13(1)), and (2) because his convictions of third degree robbery and the non-inclusory concurrent count of fourth degree grand larceny violate double jeopardy (Pet. ¶ 13(2)).

For the reasons set forth below, Nelson's habeas petition should be DENIED.


The Purse-Snatching

On October 3, 2002 at 11:30 a.m., seventy-one year old Maria Del Los Santos was coming home to 60 West 109th Street in Manhattan. (Dkt. No. 9: De Los Santos: Trial Transcript ["Tr."] 246-47, 252.) She had purchased two money orders for her rent, and had them in her pocketbook. (De Los Santos: Tr. 247, 252.) A man in a white shirt grabbed her bag from behind, and she screamed "'thief, a thief.'" (De Los Santos: Tr. 247-48, 267, 278.) The man ran past the superintendent of De Los Santos' apartment building, Thadius Quarless, who gave chase. (De Los Santos: Tr. 248-49, 266-67, 278; Quarless: Tr. 284-85.) De Los Santos did not see the face of the person who snatched her bag and was not able to identify him. (De Los Santos: Tr. 247, 251, 274, 277-78.)

Quarless, who was sitting outside 60 West 109th Street, heard De Los Santos yelling in Spanish, "'thief, thief; my money, my money. They just robbed my money.'" (Quarless: Tr. 285, 297-98, 307.) Quarless saw a man -- later identified as Nelson -- running with a black purse, so by "instinct" he chased him. (Quarless: Tr. 285-86, 290, 306.) Quarless tackled Nelson, they struggled (Nelson trying to get away and Quarless trying to hold him), and as Quarless tired, Quarless hit Nelson with his cell phone. (Quarless: Tr. 286-87, 289-90, 308-09.) The struggle lasted five to ten minutes, during which time Quarless clearly saw Nelson's face. (Quarless: Tr. 293, 308.) Nelson dropped the purse and ran toward the subway station. (Quarless: Tr. 287, 289, 309, 315.) Nelson's white T-shirt was torn in the struggle, and he ran off without it. (Quarless: Tr. 287-88.)

Quarless identified Nelson at trial as the man he struggled with. (Quarless: Tr. 290, 292-93.)

De Los Santos came up to Quarless and he picked her pocketbook up from where Nelson had dropped it, and had her verify that her money orders were still in the purse. (De Los Santos: Tr. 249-51, 267-69; Quarless: Tr. 288-89, 291, 306-07, 309-10.)

Quarless called the police. (Quarless: Tr. 291.) An hour to an hour and a half later, the police asked him to come to the subway station at 110th Street and Central Park West. (Quarless: Tr. 291-92, 301; Efthimiou: Tr. 334.) The police took him to the lower level, where they had a suspect. (Quarless: Tr. 292, 313, 335-36.) As soon as he saw the person, he said "'that's the mother-f---er.'" (Quarless: Tr. 292, 313-14.) That person was Nelson. (Quarless: Tr. 292-93.) Nelson's Arrest In The Subway

Officers Steven Sanchez and Jesus Rodriguez were in plain clothes and had gotten off a northbound train at 110th Street when they saw a black man with "no shirt, dirty looking" coming down the platform. (Sanchez: Tr. 382-83, 391; Rodriguez: Tr. 402-03, 415.) Officer Rodriguez identified that man at trial as Nelson. (Rodriguez: Tr. 411-12; see Sanchez: Tr. 388-89, 393.) As the officers were coming upstairs they heard a "commotion," "people were yelling," to the effect that "'the guy with no shirt just went downstairs, just robbed a lady.'" (Sanchez: Tr. 384-85, 392; Rodriguez: Tr. 404, 419.) Officer Sanchez returned to the platform but did not see the man. (Sanchez: Tr. 385-87.) Officer Rodriguez was driven to the next northbound station, 116th Street, and did a "drive through" on the next southbound train. (Rodriguez: Tr. 407-08, 414.) A "drive through" is when an officer rides in the first car of a train and tells the conductor to drive slowly through the tunnel to look for the person that they are searching for. (Rodriguez: Tr. 409; see Efthimiou: Tr. 360-61.) Officer Rodriguez did the drive through down to the 103rd Street station, where he met up with Officer Sanchez and they returned to the 110th Street station. (Rodriguez: Tr. 408-10; Efthimiou: Tr. 360-61.)

Sergeant Peter Efthimiou, who was on plainclothes transit duty, heard a radio report and got out of a northbound train at the 110th Street station. (Efthimiou: Tr. 321-22, 337.) Sgt. Efthimiou saw Quarless running. (Efthimiou: Tr. 321-22, 338.) After Sgt. Efthimiou learned that Quarless was a witness to the purse-snatching, he tried to locate the perpetrator in the station and made radio calls to seal off possible escape routes. (Efthimiou: Tr. 321-22, 325, 339-40.) Sgt. Efthimiou escorted Quarless out of the station, then returned and ordered officers who were certified for track work to conduct a track search for Nelson, going south from 110th Street to 103rd Street. (Efthimiou: Tr. 325-30, 340, 343-44, 359, 376-77; Mosher: Tr. 438-39.)

Officer Don Mosher and five other track-certified officers searched the tunnel south from 110th Street to 103rd Street, on both the uptown and downtown local tracks. (Mosher: Tr. 421-25, 442.) When they started the search, the power was on on all tracks, with uniformed officers stationed at either end of each tunnel to flag down any local trains (while the express trains would not be able to be flagged). (Mosher: Tr. 425-26, 441-43.) After they started the search, the power was turned off on the local tracks but was still on on the express tracks. (Efthimiou: Tr. 327, 365, 368, 375-76; Mosher: Tr. 441, 443.)

About a quarter of the way into the tunnel, the police spotted Nelson, shirtless, "wedged in between some piping and a wall that kind of divided the uptown express train from the downtown express train." (Mosher: Tr. 426-27, 443-44.) Officer Mosher ordered Nelson to come out. (Mosher: Tr. 429, 444.) Nelson began to come out but then "kind of froze up." (Mosher: Tr. 429, 444.) The officers "proceeded to cross over two sets of third rails and physically brought him out and [the officers] tried to get him down to the floor, which [they] were able to do, got him in a prone position and cuffed him." (Mosher: Tr. 429, 444-45.)

They were in the center of the express tracks when they saw a downtown express train entering the 110th Street station and coming toward them "at a fairly rapid rate of speed." (Mosher: Tr. 430.) That area of the tracks is marked a "no clearance area, which means, basically, if a train comes through that area, there's zero clearance for a human being. So, if you're standing there, you're going to die, basically." (Mosher: Tr. 433; id. at 434-35.)

Officer Mosher "grabbed [his] radio" to have police notify the Transit Authority to "have the power shut off forthwith." (Mosher: Tr. 430; see Efthimiou: Tr. 328-29.) Sgt. Efthimiou heard that transmission, saw the train, and jumped onto the tracks and signaled with his flashlight for an emergency stop. (Efthimiou: Tr. 329-30.) Another officer pulled the emergency power switch in the tunnel, shutting off the power and stopping the train. (Mosher: Tr. 431, 450; Efthimiou: Tr. 332-33.) The train stopped "nine subway cars-length" away from Officer Mosher, the other officers and Nelson. (Mosher: Tr. 432.)

Officer Mosher brought Nelson back to the 110th Street station and handed him over to Officers Sanchez and Rodriguez. (Mosher: Tr. 432; Sanchez: Tr. 388-89, 393; Rodriguez: Tr. 411; Efthimiou: Tr. 333.) Officers Sanchez and Rodriguez identified that person as the shirtless person they had seen, and they and Sgt. Efthimiou identified Nelson at trial. (Efthimiou: Tr. 333; Sanchez: Tr. 388-89, 393; Rodriguez: Tr. 411-12.)

Defense Motion at the Close of the Case

At the close of the prosecution's case, the defense moved for a trial order of dismissal. (Tr. 453-54.) With respect to the reckless endangerment count, the prosecution responded that by entering the subway tracks and going into a "no clearance" zone, Nelson set forth a chain of events that could have led to the death of a police officer. (Tr. 455-56.) Defense counsel responded that there was no evidence that when Nelson entered the subway tunnel, he was aware that he was being chased by the police. (Tr. 456.) Nor, according to the defense, was there any way for Nelson to know the police would not shut off the power to stop all the trains. (Tr. 458-60.) The trial judge said she would be "blunt," stating that "[a]ny human being with a-half a pea brain would know if you put yourself in a situation like that, it's extremely dangerous to yourself and others." (Tr. 457-58.) The judge found that it was a jury question, and denied the defense motion. (Tr. 460-61; see also Tr. 472-73, 479-81.)

The defense rested without calling any witnesses. (See Tr. 477-78, 481, 484.) Closing Argument

In closing argument, defense counsel made the same pitch to the jury:

Even if you believe every word from every witness who was here yesterday, there is not one bit of evidence that Charles Nelson knew, when he was down on those tracks, that the police were coming after him.

You got to remember, the police officers saw him. He was not being chased. He walked right by them and onto those tracks.

And there's absolutely no evidence that Charles Nelson was aware that the police officers were going to come and search for him, and not only do that, but that they would do it with the power on and the express trains running. (Defense Closing: Tr. 509-10.)

The prosecution responded that it is reasonably foreseeable that if you commit a crime and then go into a subway tunnel, someone is going to follow you and try to get you out, because the tracks are dangerous. (Prosecution Closing: Tr. 527-32.) The prosecution also told the jury that it did not matter if the police could have done things more safely, such as by shutting off all power; it was the defendant who, by going into the subway tunnel, knew he would be pursued by the police, putting them at grave danger, and that constitutes first degree reckless endangerment. (Tr. 531-32.) The Judge's Jury Charge

The trail judge instructed the jury as to the elements of the crimes with which Nelson was charged. As to robbery, the judge charged that the prosecution had to prove that Nelson wrongfully took another person's property intending to permanently deprive them of the property, and that he used force in the commission of the crime. (Charge: Tr. 554-55.) As to grand larceny, the prosecution had to prove that same first element -- stealing property -- and a different second element, "that the property wrongfully taken by the defendant was taken from the person of the owner; that is, it was in some manner actually on the body or held by the person of the victim." (Charge: Tr. 555-56.) The judge charged that reckless endangerment requires "conduct which creates a substantial, unjustifiable and grave risk of death to another and when he is . . . aware of and consciously disregards that risk." (Charge: Tr. 558; see id. at 559-60.)

There were no objections to the charge. (Tr. 566-67.)

Verdict and Sentence

The jury found Nelson guilty on all three counts: third degree robbery, fourth degree grand larceny and first degree reckless endangerment. (Tr. 578-81.)

On April 10, 2003, the trial judge sentenced Nelson. (Dkt. No. 9: 4/10/03 Sentencing Tr. ["S."].) The judge denied the prosecution's motion to consider Nelson a discretionary persistent felony offender (S. 3), but did find him to be a predicate felon (S. 8-9). The judge sentenced Nelson to two to four years for the grand larceny concurrent with three and a half to seven years for the robbery, and consecutive to two to four years for reckless endangerment. (S. 9-10.) See People v. Nelson, 17 A.D.3d 276, 276, 794 N.Y.S.2d 24, 25 (1st Dep't 2005).

Direct Appeal

Nelson's appeal to the First Department, represented by the Legal Aid Society, raised three claims: (1) the prosecution failed to prove Nelson's reckless endangerment and grand larceny convictions beyond a reasonable doubt, or alternatively, the verdicts were against the weight of the evidence (Dkt. No. 8: Fleischmann Aff. Ex. A: Nelson 1st Dep't Br. at 16-22); (2) the grand larceny conviction should be dismissed as a non-inclusory concurrent offense of robbery because he could not have committed the robbery without also committing the grand larceny (id. at 22-26); and (3) Nelson's sentences are excessive and should be reduced in the interest of justice (id. at 26-28). The First Department affirmed Nelson's conviction, holding:

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. Defendant was properly convicted of reckless endangerment, and we reject his argument that by fleeing onto subway tracks he only endangered himself. The officers' pursuit of defendant, resulting in grave danger to themselves, was a clearly foreseeable consequence of defendant's flight, and the elements of reckless endangerment were satisfied. Moreover, when the police arrived, defendant persisted in remaining in a place from which he could not be easily extricated, even though he knew that by doing so he had placed the officers in a very dangerous situation. We have considered and rejected defendant's remaining arguments on this issue.

We decline to invoke our interest of justice jurisdiction to dismiss the noninclusory concurrent count of grand larceny in the fourth degree. To the extent that defendant is claiming that the prohibition against double jeopardy was violated by his conviction of both third-degree robbery and fourth-degree grand larceny, that claim is without merit because grand larceny committed by taking property from the person of another (Penal Law § 155.30[5]) is not a lesser included offense of robbery.

We perceive no basis for reducing the sentence.

People v. Nelson, 17 A.D.3d 276, 276-77, 794 N.Y.S.2d 24, 25 (1st Dep't 2005) (citations omitted).

The New York Court of Appeals denied leave to appeal on July 6, 2005. People v. Nelson, 5 N.Y.3d 792, 801 N.Y.S.2d 813 (2005).

Nelson's Federal Habeas Petition

Nelson's habeas petition raises claims similar to the first two claims he raised on direct appeal: (1) the reckless endangerment conviction was against the weight of the evidence (Dkt. No. 2: Pet. ¶ 13(1)); and (2) his double jeopardy and due process rights were violated by conviction of robbery and the non-inclusory concurrent count of grand larceny (Pet. ¶ 13(2)).

The State concedes that Nelson's habeas petition is timely and that his claims were exhausted in state court. (Dkt. No. 7: State Br. at 9-11.)



Before the Court can determine whether Nelson is entitled to federal habeas relief, the Court must address the proper habeas corpus review standard under the Antiterrorism and Effective Death Penalty Act ("AEDPA").

In enacting the AEDPA, Congress significantly "modifie[d] the role of federal habeas courts in reviewing petitions filed by state prisoners." Williams v. Taylor, 529 U.S. 362, 403, 120 S. Ct. 1495, 1518 (2000). The AEDPA imposed a more stringent review standard, as follows:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim --

(1) resulted in a decision that 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) . . . was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d)(1)-(2).*fn2

The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have "independent meaning." Williams v. Taylor, 529 U.S. at 404-05, 120 S. Ct. at 1519.*fn3 Both, however, "restrict[] the source of clearly established law to [the Supreme] Court's jurisprudence." Williams v. Taylor, 529 U.S. at 412, 120 S. Ct. at 1523.*fn4 "That federal law, as defined by the Supreme Court, may either be a generalized standard enunciated in the [Supreme] Court's case law or a bright-line rule designed to effectuate such a standard in a particular context." Kennaugh v. Miller, 289 F.3d at 42. "A petitioner cannot win habeas relief solely by demonstrating that the state court unreasonably applied Second Circuit precedent." Yung v. Walker, 341 F.3d at 110; accord, e.g., DelValle v. Armstrong, 306 F.3d at 1200.

As to the "contrary to" clause:

A state-court decision will certainly be contrary to [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases. . . . A state-court decision will also be contrary to [the Supreme] Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.

Williams v. Taylor, 529 U.S. at 405-06, 120 S. Ct. at 1519-20.*fn5

In Williams, the Supreme Court explained that "[u]nder the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams v. Taylor, 529 U.S. at 413, 120 S. Ct. at 1523.*fn6 However, "[t]he term 'unreasonable' is . . . difficult to define." Williams v. Taylor, 529 U.S. at 410, 120 S. Ct. at 1522. The Supreme Court made clear that "an unreasonable application of federal law is different from an incorrect application of federal law." Id.*fn7 Rather, the issue is "whether the state court's application of clearly established federal law was objectively unreasonable." Williams v. Taylor, 529 U.S. at 409, 120 S. Ct. at 1521.*fn8 "Objectively unreasonable" is different from "clear error." Lockyer v. Andrade, 538 U.S. at 75, 123 S. Ct. at 1175 ("The gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness."). However, the Second Circuit has explained "that while '[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence.'" Jones v. Stinson, 229 F.3d at 119 (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).*fn9 "[T]he range of reasonable judgment can depend in part on the nature of the relevant rule." Yarborough v. Alvarado, 124 S. Ct. at 2149.*fn10

Moreover, the Second Circuit has held "that a state court determination is reviewable under AEDPA if the state decision unreasonably failed to extend a clearly established, Supreme Court defined, legal principle to situations which that principle should have, in reason, governed." Kennaugh v. Miller, 289 F.3d at 45.*fn11

Under the AEDPA, in short, the federal courts "must give the state court's adjudication a high degree of deference." Yung v. Walker, 341 F.3d at 109; accord, e.g., Bell v. Cone, 543 U.S. at 455, 125 S. Ct. at 853.

Even where the state court decision does not specifically refer to either the federal claim or to relevant federal case law, the deferential AEDPA review standard applies:

For the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim -- even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.

Sellan v. Kuhlman, 261 F.3d at 312; accord, e.g., Bell v. Cone, 543 U.S. at 455, 125 S. Ct. at 853 ("Federal courts are not free to presume that a state court did not comply with constitutional dictates on the basis of nothing more than a lack of citation."); Early v. Packer, 537 U.S. 3, 8, 123 S. Ct. 362, 365 (2002) (State court not required to cite Supreme Court cases, or even be aware of them, to be entitled to AEDPA deference, "so long as neither the reasoning nor the result of the state-court decision contradicts them."); Howard v. Walker, 406 F.3d at 122; Rosa v. McCray, 396 F.3d at 220: Wade v. Herbert, 391 F.3d 135, 140 (2d Cir. 2004) (Appellate Division held claim was "'without merit.'" "Such a summary determination, even absent citation of federal case law, is a 'determination on the merits' and as such requires the deference specified by § 2254." Moreover, "[I]f any reasonable ground was available [for the state court's decision], we must assume that the [state] court relied on it."); Francolino v. Kuhlman, 365 F.3d 137, 141 (2d Cir.) (Where "the Appellate Division concluded its opinion by stating that it had 'considered and rejected defendants' remaining claims,'" AEDPA deference applies.), cert. denied, 125 S. Ct. 110 (2004); Jenkins v. Artuz, 294 F.3d 284, 291 (2d Cir. 2002) ("In Sellan, we found that an even more concise Appellate Division disposition -- the word 'denied' -- triggered AEDPA deference.").*fn12 "By its terms, § 2254(d) requires such deference only with respect to a state-court 'adjudication on the merits,' not to a disposition 'on a procedural, or other, ground.' Where it is 'impossible to discern the Appellate Division's conclusion on [the relevant] issue,' a federal court should not give AEDPA deference to the state appellate court's ruling." Miranda v. Bennett, 322 F.3d 171, 177-78 (2d Cir. 2003) (citations omitted).*fn13 Of course, "[i]f there is no [state court] adjudication on the merits, then the pre-AEDPA, de novo standard of review applies." Cotto v. Herbert, 331 F.3d at 230.

Finally, "[i]f [the] court finds that the state court engaged in an unreasonable application of established law, resulting in constitutional error, it must next consider whether such error was harmless." Howard v. Walker, 406 F.3d at 122.

In addition to the standard of review of legal issues, the AEDPA provides a deferential review standard for state court factual determinations: "a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1); accord, e.g., Rosa v. McCray, 396 F.3d at 220. "The petitioner bears the burden of 'rebutting the presumption of correctness by clear and convincing evidence.'" Parsad v. Greiner, 337 F.3d at 181 (quoting § 2254(e)(1)).


Nelson claims that his "due process rights were violated when he was convicted of Reckless Endangerment against the weight of the evidence." (Dkt. No. 2: Pet. ¶ 13(1).)

A. A Weight of the Evidence Claim is not Cognizable on Habeas Review *fn14

A challenge to a verdict based on the weight of the evidence differs from one based on the sufficiency of the evidence: "[T]he 'weight of the evidence' argument is a pure state law claim grounded in New York Criminal Procedure Law § 470.15(5), whereas a legal sufficiency claim is based on federal due process principles." Garbez v. Greiner, 01 Civ. 9865, 2002 WL 1760960 at *8 (S.D.N.Y. July 30, 2002) (citing People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761 (1987)).*fn15

It is well-settled that a weight of the evidence claim is not cognizable on federal habeas review. E.g., Young v. Kemp, 760 F.2d 1097, 1105 (11th Cir. 1985) ("A federal habeas court has no power to grant habeas corpus relief because it finds that the state conviction is against the 'weight' of the evidence . . ."), cert. denied, 476 U.S. 1123, 106 S. Ct. 1991 (1986); Ex parte Craig, 282 F. 138, 148 (2d Cir. 1922) ("a writ of habeas corpus cannot be used to review the weight of evidence . . . "), aff'd, 263 U.S. 255, 44 S. Ct. 103 (1923); Garbez v. Greiner, 2002 WL 1760960 at *8 ("by raising a 'weight of the evidence' argument, [petitioner] does not present to this Court a federal claim as required by 28 U.S.C. § 2254(a). Instead, [petitioner] raises an error of state law, which is not available for habeas corpus review."); Lemons v. Parrott, 01 Civ. 9366, 2002 WL 850028 at *3 (S.D.N.Y. May 2, 2002) ("[W]e have no authority to review a weight of the evidence argument because it is a state law claim."); McBride v. Senkowski, 98 Civ. 8663, 2002 WL 523275 at *4 n.2 (S.D.N.Y. Apr. 8, 2002) (weight of evidence is not cognizable on habeas review); Correa v. Duncan, 172 F. Supp. 2d 378, 381 (E.D.N.Y. 2001) ("'weight of the evidence' argument is a pure state law claim grounded in New York Criminal Procedure Law § 470.15(5), whereas a legal sufficiency claim is based on federal due process principles. Accordingly, the Court is precluded from considering the [weight of the evidence] claim.") (citations omitted); Peralta v. Bintz, 00 Civ. 8935, 2001 WL 800071 at *5 (S.D.N.Y. July 16, 2001) (Petitioner "raises only the state law issue of whether the weight of the evidence supported his conviction. Because [petitioner] raises no cognizable federal issue, his petition must be denied."); Kearse v. Artuz, 99 Civ. 2428, 2000 WL 1253205 at *1 (S.D.N.Y. Sept. 5, 2000) ("Disagreement with a jury verdict about the weight of the evidence is not grounds for federal habeas corpus relief."); Rodriguez v. O'Keefe, 96 Civ. 2094, 1996 WL 428164 at *4 (S.D.N.Y. July 31, 1996) ("A claim that the verdict was against the weight of the evidence is not cognizable on habeas review."), aff'd, No. 96-2699, 122 F.3d 1057 (table) (2d Cir. Sept. 9, 1997), cert. denied, 522 U.S. 1123, 118 S. Ct. 1068 (1998); see also, e.g., Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996) (dismissing habeas claim; "assessments of the weight of the evidence or the credibility of witnesses are for the jury and not grounds for reversal on appeal; we defer to the jury's assessments of both of these issues").

Accordingly, Nelson's weight of the evidence habeas claim should be denied.

B. The Evidence Was Sufficient to Convict Nelson of First Degree Reckless Endangerment

Nelson's habeas petition also cites to In re Winship, 397 U.S. 358, 90 S. Ct. 1068 (1970), and Jordan v. Virginia, 443 U.S. 307, 99 S. Ct. 2781 (1979). (Dkt. No. 2: Pet. ¶ 13(1) at p. 4A.) Those cases deal with claims of sufficiency of the evidence (and are discussed below). For this reason, and because Nelson is pro se and his petition should be liberally interpreted, the Court also will review Nelson's first habeas claim under the sufficiency of the evidence standard.

1. Legal Principles Governing Sufficiency of the Evidence Habeas Claims*fn16

'"[T]he Due Process Clause of the Fourteenth Amendment protects a defendant in a criminal case against conviction 'except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.'" Jackson v. Virginia, 443 U.S. 307, 315, 99 S. Ct. 2781, 2787 (1979) (quoting In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1073 (1970)). However, "a properly instructed jury may occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. at 317, 99 S. Ct. at 2788. Accordingly, "in a challenge to a state criminal conviction brought under 28 U.S.C. § 2254 -- if the settled procedural prerequisites for such a claim have otherwise been satisfied -- the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. at 324, 99 S. Ct. at 2791-92.*fn17

The petitioner bears a very heavy burden:

[T]he standard for appellate review of an insufficiency claim placed a "very heavy burden" on the appellant. Our inquiry is whether the jury, drawing reasonable inferences from the evidence, may fairly and logically have concluded that the defendant was guilty beyond a reasonable doubt. In making this determination, we must view the evidence in the light most favorable to the government, and construe all permissible inferences in its favor.

United States v. Carson, 702 F.2d 351, 361 (2d Cir.) (citations omitted), cert. denied, 462 U.S. 1108, 103 S. Ct. 2456, 2457 (1983).*fn18

The habeas court's review of the jury's findings is limited:

[T]his inquiry does not require a court to "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.

Jackson v. Virginia, 443 U.S. at 318-19, 99 S. Ct. at 2789 (citations omitted).*fn19

The Jackson v. Virginia "standard must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law." Jackson v. Virginia, 443 U.S. at 324 n.16, 99 S. Ct. at 2792 n.16; accord, e.g., Green v. Abrams, 984 F.2d 41, 44-45 (2d Cir. 1993) ("In considering a petition for a writ of habeas corpus based on insufficient evidence to support a criminal conviction in the state courts, a federal court must look to state law to determine the elements of the crime.").

2. Application of the Standard to Nelson's Claim

Nelson's sufficiency of the evidence argument is not premised on any dispute as to the testimony, and he correctly states that the evidence must be viewed most favorably to the prosecution. (Dkt. No. 2: Pet. ¶ 13(1) at p. 4A.) Rather, Nelson's argument blames the police for not shutting off the power before they went into the tunnel:

When examining the evidence presented in Petitioner's case most favorably to the prosecution, it shows conclusively that when entering the subway tunnel, Petitioner endangered only himself. The Police then placed themselves in danger by not following their own established procedures when entering the tunnel. In addition, the evidence further established that there was no grave risk of death as the Officer's were trained professionals who knew to avoid the third rail and they successfully stopped the express train by using signals, well in advance of endangering anyone. (Pet. ¶ 13(1) at p. 4B.) Nelson's attempt to shift the blame to the police is unavailing.

Penal Law § 120.25 provides:

A person is guilty of reckless endangerment in the first degree when, under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person.

Penal Law § 120.25. The Penal Law defines recklessly as follows:

A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. . . .

Penal Law § 15.05(3).

It is safe to say that all New Yorkers are aware that going onto the subway tracks presents a grave risk of death, from the third rail and from subway trains. See., e.g., Ibarra v. Burge, 02 Civ. 0825, 2002 WL 1467756 at *6 (S.D.N.Y. July 9, 2002) (Peck, M.J.) ("A jury could have concluded that it is common knowledge among residents of New York City that the subway's electric third rail is inherently dangerous and that serious injury or death may result from contact with it. . . . A reasonable jury could infer from the evidence that [petitioner] was aware that the third rail was located on the subway tracks. . . . The exact location of the third rail had no bearing on the risk of serious injury or death that [petitioner] imposed upon [the victim] by attempting to push him onto the subway tracks."); People v. Godfrey, 140 Misc. 2d 24, 28, 530 N.Y.S.2d 456, 458 (Crim. Ct. Bx. Co. 1998) (noting that "[p]ushing a victim onto subway tracks when defendant was a frequent subway rider and aware of the consequences of his acts" was a "clear example of reckless endangerment in the second degree."); In re Michael G, 117 Misc. 2d 264, 267, 458 N.Y.S.2d 170, 172 (Fam. Ct. Kings Co.) ("A subway commuter standing at or close to the edge of a subway platform is inherently vulnerable to risk of serious injury in the face of an attempted theft from his or her person. This risk . . . is . . . compounded . . . where the victim was . . . carrying a shoulder handbag with a strap that could, if pulled, propel the victim onto the tracks. . . ."), aff'd, 97 A.D.2d 794, 468 N.Y.S.2d 591 (2d Dep't 1983). Nelson does not argue to the contrary, nor does he assert that he personally was not aware of the danger. (See Pet. ¶ 13(1) at p. 4A.)

Rather, Nelson argues that the police could have avoided the danger he created, if they followed "their own established procedures" in shutting off the power. (Pet. ¶ 13(1) at p. 4A.) There are several problems with this argument. First and foremost, there was no evidence that Nelson was aware of police procedures for chasing a suspect on the tracks. Whether subjectively or under a "reasonable person" standard, there is no evidence that Nelson or a reasonable person would know that police (sometimes) shut down power to the system when chasing a suspect on the tracks. Second, the evidence at trial did not establish that there was such a definitive police practice. Rather, the police testified that sometimes power is on on all tracks and officers flag down trains, while other times the power is shut off only on local tracks but not the express (as happened here, and exposed the officers to grave danger), and other times all power is shut off. (See pages 4-5 above.) Taking the evidence most favorably to the police, they did not violate procedure when they shut down power to the local tracks while leaving power on on the express tracks, which resulted in them almost being killed by an express train. (See pages 4-5 above.) The jury rejected Nelson's closing argument that he should not be found guilty because the police should have shut the power off. (See pages 6-7 above.) The Court cannot second guess the jury's verdict, which was supported by the evidence: Nelson's actions in going onto the tracks put the pursuing officers at grave risk of death. See, e.g., People v. Cofield, 197 A.D.2d 451, 452, 605 N.Y.S.2d 619, 619 (1st Dep't) ("[T]he People established beyond a reasonable doubt that defendant evinced a depraved indifference to human life in pursuing the victim onto subway tracks during rush hour."), appeal denied, 82 N.Y.2d 892, 610 N.Y.S.2d 159 (1993).

New York courts have upheld verdicts for first degree reckless endangerment when the defendant's action put pursuing police officers at grave risk. E.g., Rodriguez v. O'Keefe, No. 96-2699, 122 F.3d 1057 (table), 1997 WL 557622 at *2 (2d Cir. Sept. 9,1997) (evidence sufficient on habeas review to support first degree reckless endangerment conviction where defendant led police on a high-speed car chase), cert. denied, 522 U.S. 1123, 118 S. Ct. 1068 (1998); Finger v. Walker, No. 01-CV-0573, 2003 WL 21821823 at *3 (E.D.N.Y. June 16, 2003) (Weinstein, D.J.) (evidence sufficient on habeas review to support first degree reckless endangerment conviction where defendant led police on high speed car chase); People v. Muslim, 23 A.D.3d 319, 319, 805 N.Y.S.2d 308, 309 (1st Dep't 2005) ("[D]efendant led the police on a very dangerous high speed chase, and . . . his conduct established first-degree reckless endangerment."); People v. Shoulars, 291 A.D.2d 238, 239, 738 N.Y.S.2d 307, 307 (1st Dep't) (reckless endangerment proven where defendant led police on a high speed car chase), appeal denied, 98 N.Y.2d 640, 744 N.Y.S.2d 770 (2002); see, e.g., People v. Matos, 83 N.Y.2d 509, 511, 611 N.Y.S.2d 785, 785-86 (1994) (defendant guilty of felony murder where police officer chasing defendant on roof fell down airshaft and was killed); People v. Jersey, 306 A.D.2d 184, 184, 761 N.Y.S.2d 218, 219 (1st Dep't) (reckless endangerment conviction upheld where defendant's baseless report of finding survivors caused firefighters to "hurry down a perilous hole in the [World Trade Center] rubble without the proper equipment"), appeal denied, 100 N.Y.2d 621, 767 N.Y.S.2d 404 (2003).

The First Department's decision upholding Nelson's reckless endangerment conviction is not an unreasonable application of federal precedent, and should be upheld. Nelson's first habeas claim should be DENIED.


Nelson attacks his convictions of third degree robbery and fourth degree grand larceny on double jeopardy grounds:

The Petitioner was convicted at trial of both Robbery in the 3° and Grand Larceny in the 4° which arose out of his allegedly stealing a handbag from an elderly lady. When looking at New York State Penal Law § 155.30, it would be factually impossible for Petitioner not to have committed this crime if he were found guilty of Penal Law § 160.05(5), since, these crimes pertained to his alleged stealing of the same handbag. Therefore not dismissing the grand larceny conviction as noninclusory concurrent count of the robbery count at trial exposed Petitioner to double jeopardy by punishing him multiple times for the same conduct. . . . [E]ven though given concurrent sentences for these crimes, double jeopardy attaches as petitioner is being punished twice for the one action. (Dkt. No. 2: Pet. ¶ 13(2) at p. 4B-C.)

Penal Law § 160.05 provides that a "person is guilty of robbery in the third degree when he forcibly steals property." Penal Law § 155.30 provides that a "person is guilty of grand larceny in the fourth degree when he steals property and when: . . . (5) The property, regardless of its nature and value, is taken from the person of another." Under New York law, these two crimes are non-inclusory concurrent counts. "'Concurrent counts' means two or more counts of an indictment upon which concurrent sentences only may be imposed in case of conviction thereon." C.P.L. § 300.30(3). "Concurrent counts are 'inclusory' when the offense charged in one is greater than any of those charged in the others and when the latter are all lesser offenses included within the greater. All other kinds of concurrent counts are 'non-inclusory.'" C.P.L. § 300.30(4).

Nelson correctly concedes that third degree robbery and fourth degree grand larceny are non-inclusive concurrent counts. (Pet. ¶ 13(2); see also Dkt. No. 8: Fleischmann Aff. Ex. A: Nelson 1st Dep't Br. at 23.) Under New York law: "With respect to non-inclusory concurrent counts, the court may in its discretion submit one or more or all thereof." C.P.L. § 300.40(3)(a). Both the trial court and First Department here exercised its discretion to submit (and uphold the submission of) both counts to the jury. (See pages 7, 9 above.) The sentences for these two counts ran concurrently. (See page 8 above.)

"With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended." Missouri v. Hunter, 459 U.S. 359, 366, 103 S. Ct. 673, 678 (1983). The Supreme Court in Hunter concluded that even where cumulative punishment (as opposed to concurrent) is imposed for the "same" conduct, the only double jeopardy issue is whether the legislature intended that result:

Our analysis and reasoning in Whalen and Albernaz lead inescapably to the conclusion that simply because two criminal statutes may be construed to proscribe the same conduct under the Blockburger test does not mean that the Double Jeopardy Clause precludes the imposition, in a single trial, of cumulative punishments pursuant to those statutes. The rule of statutory construction noted in Whalen is not a constitutional rule requiring courts to negate clearly expressed legislative intent. Thus far, we have utilized that rule only to limit a federal court's power to impose convictions and punishments when the will of Congress is not clear. Here, the [state] Legislature has made its intent crystal clear. Legislatures, not courts, prescribe the scope of punishments.

Where, as here, a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the "same" conduct under Blockburger, a court's task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.

Missouri v. Huner, 459 U.S. at 368-69, 103 S. Ct. at 679 (fn. omitted).

Here, Nelson received concurrent not consecutive sentences on the robbery and grand larceny counts. (See page 8 above.) C.P.L. § 300.40(3)(a) gives the trial court discretion to submit non-inclusory concurrent counts to the jury and thus implicitly authorizes conviction (but concurrent sentences) on non-inclusory concurrent counts. See, e.g., Lopez v. Goord, 03 Civ. 0475, 2004 WL 213727 at *13-14 (S.D.N.Y. Feb. 3, 2004) (no double jeopardy for non-inclusory concurrent convictions of criminal sale of a controlled substance and criminal sale in or near school grounds); People v. McLaurin, ___ N.Y.S.2d ___, 2006 WL 676866 at *1 (4th Dep't Mar. 17, 2006) ("[C]ounts charging sexual abuse in the first degree and sodomy in the first degree are noninclusory concurrent counts, 'and thus both charges and convictions can stand.'"); People v. Thomson, 13 A.D.3d 805, 807, 786 N.Y.S.2d 262, 263-64 (3d Dep't 2004) (Attempted first degree murder and attempted first degree assault are noninclusory concurrent counts "and it was within Supreme Court's discretion to consider both in rendering its verdict. Thus, a conviction on each count was legally permissible, although any sentence imposed thereon had to be concurrent.") (citations omitted), appeal denied, 4 N.Y.3d 836, 796 N.Y.S.2d 591 (2005); People v. Lebron, 305 A.D.2d 799, 801, 759 N.Y.S.2d 575, 577 (3d Dep't) (No double jeopardy for non-inclusory concurrent convictions for first degree murder under different subsections of the Penal Law. "Indeed, the Legislature contemplated multiple convictions on noninclusory concurrent counts when it provided for separate but concurrent sentences on each such count."), appeal denied, 100 N.Y.2d 583, 764 N.Y.S.2d 394 (2003). Indeed, it is common in New York for defendants to be convicted of third degree robbery and fourth degree grand larceny on the same facts and receive concurrent sentences. See, e.g., People v. Brown, 24 A.D.3d 213, 213, 806 N.Y.S.2d 40, 41 (1st Dep't 2005), appeal denied, 6 N.Y.3d 774, 2006 WL 519794 (Jan. 31, 2006); People v. Whitted, 16 A.D.3d 905, 905, 791 N.Y.S.2d 714, 715 (3d Dep't), appeal denied, 4 N.Y.3d 892, 798 N.Y.S.2d 737 (2005); People v. Pena, 309 A.D.2d 687, 687, 766 N.Y.S.2d 196, 197 (1st Dep't 2003), appeal denied, 2 N.Y.3d 744, 778 N.Y.S.2d 469 (2004); People v. Richardson, 300 A.D.2d 13, 13, 751 N.Y.S.2d 14,14 (1st Dep't 2002), appeal denied, 99 N.Y.2d 584, 755 N.Y.S.2d 720 (2003); People v. Schmitz, 289 A.D.2d 1022, 1022, 735 N.Y.S.2d 450, 450 (4th Dep't 2001), appeal denied, 98 N.Y.2d 640, 744 N.Y.S.2d 769 (2002); People v. Trinidad, 289 A.D.2d 97, 97, 735 N.Y.S.2d 26, 26 (1st Dep't 2001), appeal denied, 98 N.Y.2d 656, 745 N.Y.S.2d 515 (2002); People v. Brown, 283 A.D.2d 312, 312, 728 N.Y.S.2d 2, 2 (1st Dep't), appeal denied, 96 N.Y.2d 899, 730 N.Y.S.2d 796 (2001); People v. Booker, 282 A.D.2d 201, 202, 723 N.Y.S.2d 22, 23 (1st Dep't), appeal denied, 96 N.Y.2d 916, 732 N.Y.S.2d 632 (2001).

Nelson relies on the Second Circuit's decision in Jackson v. Leonardo, 162 F.3d 81 (2d Cir. 1998), for the proposition that even though the sentences for the robbery and grand larceny counts run concurrently, the multiple convictions for the same conduct violate his double jeopardy rights. (Pet. ¶ 13(2) at p. 4C; see Nelson 1st Dep't Br. at 24-26.) Judge Weinstein has suggested that any such theoretical double jeopardy claim is not ripe until used at a later date for an enhanced punishment:

Where comity between federal and state courts is involved, the issues are intensely practical. Invocation of imaginative conceptual bases for attacking run-ofthe-mill convictions might be appropriately made by the Supreme Court in its supervisory role over the lower federal courts, but such an approach should not be encouraged where state convictions are at issue. Where two convictions for the "same offense" result in concurrent sentences, the more sensible way of dealing with the problem is not to find a double jeopardy problem immediately, but rather to allow a challenge on double jeopardy grounds if and when the second, improper conviction is conjured by the state to supply grounds for a new or enhanced punishment for the petitioner. Until the petitioner has been doubly punished, the question of whether there has been a violation of the Double Jeopardy Clause has simply not presented itself and cannot be ripe for decision.

Youmans v. Fischer, No. 01-CV-1325, 2003 WL 23278845 at *14 (E.D.N.Y. Dec. 15, 2003) (Weinstein, D.J.) (citations omitted). While Judge Weinstein's approach makes practical sense, it may not be viable in light of AEDPA limitations (time, second petition, etc.), but this Court need not decide that now. Suffice it to say that Jackson is a Second Circuit decision, not a Supreme Court decision. Even if the First Department's decision here were contrary to or an unreasonable application of Jackson, the AEDPA requires affirmance of the state court's decision unless it is contrary to or an unreasonable application of already established federal law as determined by the Supreme Court. (See Point I above.) The First Department's decision is not contrary to or an unreasonable application of Supreme Court precedent.

Nelson's second habeas claim should be DENIED.


For the reasons discussed above, Nelson's habeas petition 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 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 the Court, with courtesy copies delivered to the chambers of the Honorable Loretta A. Preska, 500 Pearl Street, Room 1320, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Preska (with a courtesy copy to my chambers). Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S. Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S. Ct. 825 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); 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); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72, 6(a), 6(e).

Respectfully submitted,

Andrew J. Peck United States Magistrate Judge

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