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Quan v. Potter

October 29, 2007

VICTOR QUAN, PETITIONER,
v.
RICHARD POTTER, SUPERINTENDENT, GREAT MEADOW CORRECTIONAL FACILITY RESPONDENT.



The opinion of the court was delivered by: John Gleeson, United States District Judge

ONLINE PUBLICATION ONLY

MEMORANDUM AND ORDER

Victor Quan, a prisoner incarcerated in the Upstate Correctional Facility pursuant to a judgment of the New York State Supreme Court, Queens County, petitions for a writ of habeas corpus under 28 U.S.C. § 2254. Quan challenges his conviction following a jury trial of one count of burglary in the second degree, in violation of N.Y. Penal Law § 140.25. He seeks habeas relief on eleven grounds discussed below. For the reasons set forth below, I deny the petition.

BACKGROUND

A. The Offense Conduct

The government's evidence at trial established that sometime between July 13, 2001 and July 15, 2001, Quan burglarized Sharif Eladawy's Bayside, Queens apartment while Eladawy and his wife were out of town for the weekend. Before the Eladawys left the apartment, the doors were locked, the windows were closed, and the lights were off. But when they returned, their apartment had been ransacked: The entry doors and windows were open, the lights were on, drawers were pulled out of the dressers, the mattress was flipped over, and a plastic container for loose change had been capsized. A laptop computer and Eladawy's wife's jewelry were nowhere to be found. Eladawy called the police immediately.

When the police responded to Eladawy's 911 call, the officers dusted the house for fingerprints, finding one on the overturned plastic coin box. The Eladawys had purchased the plastic box at Staples five to six years before the burglary. Fingerprint experts examined and compared the print to those on the Statewide Automated Fingerprint Identification System. They matched the print to the right-hand pinky fingerprint of Victor Bernard, another name used by petitioner. Quan was arrested on October 18, 2002. Eladawy had never met Quan, nor had he given Quan permission to enter the apartment.

B. The Procedural History

1. The Trial Court Proceedings

Quan was charged in an indictment with one count of burglary in the second degree and one count of petit larceny. On April 28, 2004, the jury found Quan guilty of the burglary count and not guilty of petit larceny. Quan was sentenced as a persistent violent felony offender in light of two prior felonies: one on December 9, 1993 for second-degree robbery, and the second on November 24, 1982 for attempted assault in the first degree. He was sentenced to an indeterminate term of 18 years to life in prison as a persistent violent felony offender.

2. The Direct Appeal

On appeal to the Appellate Division, Second Department, Quan argued that the prosecution's evidence did not prove his guilt beyond a reasonable doubt and that the jury's verdict was not supported by the weight of the evidence. He also argued that certain comments in the prosecution's summation deprived him of a fair trial and that the sentencing court's persistent violent offender adjudication violated Apprendi v. New Jersey, 530 U.S. 466 (2000). On February 7, 2006, the Appellate Division affirmed the convictions, holding that the evidence was legally sufficient to establish Quan's guilt beyond a reasonable doubt and that the verdict was supported by the weight of the evidence. People v. Quan, 809 N.Y.S.2d 914 (App. Div. 2006). Citing the contemporaneous objection provision in N.Y. Crim. Proc. Law 470.05[2], the appellate court declined to review the other claims because Quan had failed to preserve those issues for appellate review. Id. at 914. Quan sought leave to appeal, and the New York Court of Appeals denied that application on April 26, 2006. People v. Quan, 6 N.Y.3d 837 (2006) (Kaye, J.).

3. The State Post-Conviction Motion

On July 16, 2004, Quan filed a pro se motion in the New York Supreme Court to vacate his judgment of conviction pursuant to N.Y. Crim. Proc. Law § 440.10. Quan raised the following eight claims: (1) the evidence presented to the grand jury was legally insufficient; (2) defense counsel had provided ineffective assistance at trial; (3) the trial evidence was legally insufficient; (4) the trial court erred by failing to dismiss the burglary charge; (5) the jury's verdict was based on matters not entered into evidence; (6) the trial court erred by failing to instruct the jury about circumstantial evidence; (7) the prosecutor improperly revealed Quan's alias to the jury; and (8) the cumulative effect of all of the alleged errors deprived Quan of a fair trial. On November 9, 2004, the trial court denied Quan's § 440 motion under N.Y. Crim. Proc. Law § 440.10(2)(b) because all of his claims had appeared on the record and could be raised on Quan's direct appeal, which was not yet perfected at the time. Quan's application for leave to appeal from the denial of his § 440 motion to the Appellate Division was denied.

4. The Instant Petition

In the instant petition, dated August 29, 2006, Quan seeks relief on the following grounds: (1) the evidence presented at trial did not establish his guilt beyond a reasonable doubt; (2) he was deprived of a fair trial due to an allegedly burden shifting comment in the prosecutor's summation; (3) his persistent felony offender adjudication violated the holding of Apprendi v. New Jersey, 530 U.S. 466 (2000); (4) the evidence presented to the grand jury was legally insufficient; (5) his trial counsel provided ineffective assistance; (6) the trial court's failure to vacate the jury's verdict and replace it with a verdict of guilty for trespassing deprived him of due process of law; (7) the jury's alleged consideration of matters outside of evidence deprived him of due process; (8) the trial court's alleged failure to instruct the jury on the law concerning circumstantial evidence deprived him of due process; (9) he was deprived of a fair trial because the prosecutor allegedly vouched for the credibility of a government witness; (10) the prosecutor allegedly improperly disclosed Quan's alias to the jury, thus violating his due process rights and his privilege against self-incrimination; and (11) the cumulative effect of all of the alleged errors deprived him of a fair trial and due process.

Ten of Quan's eleven claims are in procedural default because Quan either failed to preserve the grounds for appeal or failed to even raise them on appeal. Quan does not show cause for the default or prejudice resulting therefrom. He also fails to show that a miscarriage of justice would result if I do not review his claims. In any event, these procedurally defaulted claims are without merit. The only claim that is not procedurally barred -- that the evidence at trial failed to establish guilt beyond a reasonable doubt -- is also without merit, as the trial court's decision to uphold the conviction is not contrary to or an unreasonable application of clearly established federal law.

DISCUSSION

A. The Standard of Review

1. Procedural Default

Where there has been actual and explicit reliance upon procedural default to dispose of a claim in state court, there is an "adequate and independent state ground" for the judgment, prohibiting federal habeas review. Harris v. Reed, 489 U.S. 255, 261 (1989); Levine v. Comm'r of Corr. Servs., 44 F.3d 121, 126 (2d Cir. 1995); see also Coleman v. Thompson, 501 U.S. 722, 744, 750 (1991) (noting the state's interest in "channeling the resolution of claims to the most appropriate forum, in finality, and in having the opportunity to correct [their] own errors"); Lee v. Kemna, 534 U.S. 362, 376, 381 (2002) (noting the existence of a "small ...


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