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Palmer v. Marshall

January 8, 2009

DEVROL PALMER, PETITIONER,
v.
L. MARSHALL, RESPONDENT.



The opinion of the court was delivered by: P. Kevin Castel, District Judge

MEMORANDUM AND ORDER

Petitioner Devrol Palmer, proceeding pro se, seeks a writ of habeas corpus under 28 U.S.C. § 2254, challenging his conviction, following a jury trial, for engaging in a Course of Sexual Conduct Against a Child in the First Degree in violation of New York Penal Law § 130.75. The New York Supreme Court, Bronx County sentenced petitioner to seventeen years imprisonment.

I referred the petition to Magistrate Judge James C. Francis to hear and report. In a thorough Report and Recommendation ("R & R") dated March 18, 2008, he recommended that the petition be denied. (Doc. #20.) At petitioner's request, I extended the time for filing objections to the R & R to May 5, 2008. (Doc. #22.) Petitioner filed his objections on May 13 (Doc. #26) but I deemed them timely. (Doc. #27.) In light of petitioner's objections, I have conducted a de novo review of the underlying record, including the transcripts of petitioner's trial and related proceedings. See 28 U.S.C. § 636(b)(1); Rule 72(b), Fed. R. Civ. P. Having done so, I adopt the R & R, and deny the petition for a writ of habeas corpus.

The relevant facts and procedural history are described in some detail in the R & R, and will not be repeated here except where necessary to explain my analysis.

DISCUSSION OF OBJECTIONS TO THE R & R

1. Proof Beyond a Reasonable Doubt

In his first objection to the R & R, petitioner claims that "[t]he Magistrate Judge failed to apply the standards of reasonable doubt as provided in Jackson v. Virginia, 443 U.S. 307 [1979]." (Obj. 2.) This objection is without merit. Magistrate Judge Francis correctly explained that Jackson held that a federal court undertaking a sufficiency review of a jury verdict on a habeas petition must be deferential, viewing the entire record in the light most favorable to the government, and deciding not whether "it believes that the evidence... established guilt beyond a reasonable doubt," but whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319 (emphases in original) (quotation and citation omitted). Further, "[a]ssessments of the weight of the evidence or the credibility of the witnesses are for the jury and are not grounds for reversal." Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996).

The federal court must look to state law to determine the elements of the offense in issue. See Jackson, 443 U.S. at 324 n.16. "Pursuant to Penal Law § 130.75(a),'a person is guilty of course of sexual conduct against a child in the first degree when, over a period of time not less than three months in duration, he or she engages in two or more acts of sexual conduct, which includes at least one act of sexual intercourse, deviate sexual intercourse or aggravated sexual contact, with a child less than eleven years old.'" People v. Juara, 279 A.D.2d 479, 480 (2d Dep't 2001) (quoting N.Y. P.L. § 130.75(a)). Here, Tiffany, ten years old at the time of trial, testified in detail regarding multiple sexual acts committed by petitioner against her beginning when she was six; both petitioner and Tiffany testified about many occasions on which petitioner and Tiffany were home without her mother present; and Ms. Chapman, a nurse, corroborated Tiffany's testimony with medical evidence that Tiffany had been sexually abused. Thus, I adopt Magistrate Judge Francis' finding that there was more than sufficient evidence to permit a constitutionally sufficient finding of guilt.

2. Failure to Produce a Supplemental Bill of Particulars

Petitioner claims that his rights were violated because although he received an initial bill of particulars, he was forced to go to trial without also receiving a court-ordered supplemental bill of particulars. The Appellate Division held this claim to be procedurally barred because petitioner failed to make a timely objection before going to trial. People v. Palmer, 7 A.D.3d 472, 472-73 (1st Dep't 2004). Magistrate Judge Francis found that "the Appellate Division's application of a procedural bar appears to have been erroneous" because petitioner's counsel "did all he could to prevent the case from proceeding before receiving the supplemental bill of particulars."*fn1 (R & R 16.) Nevertheless, Magistrate Judge Francis concluded that the claim failed on the merits because it was based exclusively on state law and therefore was not cognizable in a federal habeas petition. (Id. at 16-17.) Petitioner objects on the ground that the state court's violation of the state statute resulted in a denial of his federal rights. (Obj. 2-3.)

I need not decide whether the purported procedural bar constitutes an adequate and independent state ground barring federal review, because I find that even if there was no procedural bar, the claim nonetheless fails on the merits.*fn2 "It is well established that a federal habeas court does not sit to correct a misapplication of state law, unless such misapplication violates the Constitution, laws, or treaties of the United States." Ponnapula v. Spitzer, 297 F.3d 172, 182 (2d Cir. 2002). Petitioner's alleged right to a stay of trial pending the production of a supplemental bill of particulars was provided by N.Y. C.P.L. § 200.95(6). Even if the state courts misapplied this statute, that misapplication did not violate federal law because, as discussed below, the indictment, augmented by the initial bill of particulars, was constitutionally sufficient to give petitioner notice of the charges against him and to permit him to present a defense.

Petitioner also asserts the related claim that because a supplemental bill of particulars had not been produced, the trial court lacked subject matter jurisdiction. Magistrate Judge Francis found this claim to be "procedurally defaulted... [and] [i]n any event, the claim is also grounded exclusively in state law and raises no constitutional issue." (R & R 17.) Petitioner objects, arguing that subject matter jurisdiction defects cannot be waived and are not subject to procedural default, and that the state court's finding to the contrary was an unreasonable application of clearly established Supreme Court precedent. (Obj. 5.)

Petitioner's reliance on United States v. Griffin, 303 U.S. 226 (1938), is misplaced. (Obj. at 4-5.) There, the Supreme Court held that the "lack of jurisdiction of a federal court touching the subject matter of the litigation cannot be waived." Griffin, 303 U.S. at 229 (emphasis added). But here, whether the state trial court was deprived of jurisdiction by the prosecution's failure to produce the supplemental bill of particulars, and whether the state ยง 440 court erred in finding that petitioner waived his jurisdictional objection by failing to raise it on direct appeal, are exclusively questions of state law. Even if the state courts decided ...


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