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Bowers v. Miller

July 10, 2009

KEITH BOWERS, PETITIONER,
v.
DAVID L. MILLER, SUPERINTENDENT, SOUTHPORT CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Michael A. Telesca United States District Judge

DECISION AND ORDER

I. Introduction

Petitioner, Keith Bowers ("Bowers") filed this petition pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("§ 2254") challenging his conviction in New York State County Court, Chemung County, on one count of Assault in the Second Degree (New York Penal Law § 120.05(3)). Bowers was convicted by a jury and was sentenced, as a persistent violent felony offender, to a term of twelve years to life. He is presently incarcerated at the Great Meadow Correctional Facility pursuant to this judgment of conviction. For the reasons set forth below, Bowers' § 2254 petition is dismissed.

II. Factual and Procedural Background

By Chemung County Indictment No. 98-253, Bowers was charged with two counts of Assault in the Second Degree. These charges resulted from an incident that occurred on June 5, 1998, where Bowers allegedly assaulted Correctional Officer ("CO") Richard Augustine and CO Charles Worle, as he was being returned to his cell in the Southport Correctional Facility located in Pine City, New York. On October 19, 1998, Bowers was arraigned and pled not guilty to both charges in the indictment. On October 27, 1998, Bowers moved through counsel to dismiss the indictment claiming that he was not afforded his right to appear and testify before the grand jury. This motion was granted and the indictment was dismissed with leave to re-file on December 14, 1998. In a second indictment, No. 98-326, filed on December 18,1998, Bowers was charged with the same charges as in the original indictment. Bowers was arraigned on the charges set forth in the second indictment and pled not guilty on January 7, 1999. A jury trial commenced on June 15, 1999.

At a jury trial commencing on June 15, 1999 in Chemung County Court (Buckley, J.), Bowers was found guilty of one count of Assault in the Second Degree for the physical injuries inflicted upon CO Richard Augustine. This charge stemmed from an incident on June 5, 1998 in which, Bowers was being taken to the "day room" for one hour of scheduled recreation when he failed to remain still during a mandatory search and was ordered to be escorted back to his cell. Bowers was escorted by CO Augustine and CO Martino and further assisted by CO Worle. At the doorway of Bowers' cell, as the officers were removing Bowers' waist chain, Bowers struck CO Augustine in the head with his handcuffed hands. As Bowers continued to struggle with the officers, the group fell to the floor. Once on the floor, CO Augustine and CO Worle were able to secure Bowers' waist chain while CO Martino placed leg irons on Bowers.

As a result of the incident, CO Augustine testified that his left hand was injured and placed in a splint. Tr.*fn1 at 260. In addition, CO Augustine had a stiff neck for a week, missed one week of work, and was placed on "light duty" for another week. Tr. at 262-63. CO Worle also testified that his right hand was injured in the attack, which caused him to miss one week of work and was placed on light duty for three more weeks. Tr. at 82-4.

The jury returned a verdict convicting Bowers of one count of Assault in the Second Degree for the injuries that Augustine sustained, but acquitted him of the assault count as to Worle. Prior to Bowers' sentencing, Bowers brought a motion to set aside the verdict pursuant to N.Y. C.P.L. § 330.30(1) and (3) and §330.50(1) based on newly discovered evidence because he felt that the verdict was fatally repugnant. However, after holding hearings, Judge Buckley found that the newly discovered evidence, which was testimony from an inmate named William Bonez, was not credible and the verdict was not repugnant. The judge therefore denied both motions to set aside the verdict. Bowers was to be sentenced as a persistent violent felony offender and prior to sentencing sought to challenge the constitutionality of his previous second felony conviction in Wyoming County for Assault in the Second Degree. After holding a hearing, Judge Buckley rejected Bowers' claim and proceeded to sentence him. Bowers was sentenced as a persistent violent felony offender, since he had two prior violent felony convictions within the previous five years, and received a sentence of twelve years to life.

Bowers appealed his conviction to the Appellate Division, Third Department, New York State Supreme Court. On appeal, Bowers' appellate counsel raised nine issues: (1) the prosecution violated New York State's trial readiness statute, and as a result, Bowers was denied his constitutional right to a speedy trial; (2) the evidence was legally insufficient; (3) the verdict was against the weight of the credible evidence; (4) Bowers was denied his constitutional right to effective assistance of counsel; (5) the verdicts were "inconsistent/repugnant;" (6) Bowers was denied his right to a fair trial based on the prosecution withholding a videotape that was potential Brady material; (7) the jury charge was improper; (8) the court erred in denying Bowers' motion for a new trial; and (9) Bowers was improperly adjudicated as a persistent violent felony offender. In addition, Bowers submitted a pro se supplemental brief which argued that his trial counsel was ineffective based on his failure to object to the repugnant verdict. The Appellate Division unanimously affirmed his conviction on February 5, 2004. People v. Bowers, 4 A.D.3d 558 (3d Dept. 2004). The New York Court of Appeals denied leave to appeal on May 28, 2004. People v. Bowers, 2 N.Y.3d 796 (2004). Bowers did not seek a writ of certiorari from the United States Supreme Court.

This federal habeas corpus petition followed on January 25, 2005, in which Bowers renewed all but one of the claims that were made on direct appeal.*fn2

III. Discussion

Exhaustion

Before a federal court may consider an application for habeas corpus relief pursuant to 28 U.S.C. § 2254, the petitioner must have exhausted all the remedies available in the state courts. Picard v. Connor, 404 U.S. 270, 275 (1971); Grey v. Hoke, 933 F.2d 117, 119-21 (2d Cir. 1991). This exhaustion requirement is codified under 28 U.S.C. § 2254(b)(1)(A) and extends to every federal claim asserted by a petitioner. Caballero v. Keane, 42 F.3d 738, 740 (2d Cir. 1994). The exhaustion requirement prohibits a federal court from granting an application for a writ of habeas corpus unless the petitioner has exhausted all of the remedies available in the courts of the state in which he or she was convicted, see 28 U.S.C § 2254(b)(1)(A), although the federal courts now have the discretion to deny a petitioner's unexhausted claims, see 28 U.S.C. § 2254(b). In particular, the exhaustion doctrine "requires... that state prisoners give state courts a fair opportunity to act on their claims." O'Sullivan v. Boerckel, 526 U.S. 838 (1999) (citing 28 U.S.C. § 2254(c)) (additional citations omitted). Thus, a petitioner is not deemed to have exhausted the available state remedies if he or she has the right under state law to raise, by any procedure, the federal question presented in his or her habeas petition. 28 U.S.C. § 2254(c). The Supreme Court has interpreted this as requiring petitioners to invoke "one complete round of the State's established appellate review process," including an application to "a state court of last resort when that court has discretionary control over its docket." O'Sullivan, 526 U.S. at 843, 845.

Furthermore, the exhaustion requirement is not satisfied until the petitioner has "fairly presented" the federal claim to the highest court of the state. See Picard, 404 U.S. at 275 ("We emphasize that [for purposes of exhaustion] the federal claim must be fairly presented to the state courts."). A claim may be "fairly presented" to the state courts if "the legal basis of the claim made in state court was the 'substantial equivalent' of that of the habeas claim." Daye v. Attorney General of State of N.Y., 696 F.2d 186, 192 (2d Cir. 1982) (quoting Picard, 404 U.S. at 278) (additional citations omitted). "This means, in essence, that in state court the nature or presentation of the claim must have been likely to alert the court to the claim's federal nature." Id. In addition, a habeas petitioner may "fairly present" his or her federal claims "even without citing chapter and verse of the Constitution," by the following four methods, first summarized by the Second Circuit in Daye: (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, 696 F.2d at 194.

Respondent acknowledges that Bowers did exhaust four of his eight claims including claims that: (1) he was denied due process via pre-indictment delay,(2) the verdict was not supported by sufficient evidence,(3) he received ineffective counsel, and (4) that the prosecution may have suppressed potentially exculpatory evidence. See Respondent's Answer ("Resp't Ans.") at 11-12. However, Respondent argues that Bowers has not exhausted his claims that: (1) the jury charge was improper, (2) his conviction was against the weight of credible evidence, (3) the court improperly denied Bowers' motion for a new trial, (4) he was denied his statutory right to a speedy trial, (5) he was denied his constitutional right to a speedy trial, and (6) he was wrongly adjudicated as a persistent violent felony offender. See Resp't. Ans. at 11.

With respect to Bowers' claims that his conviction was against the weight of the credible evidence and that his statutory right to a speedy trial was violated, these claims are based on pure state law concerns and therefore are not cognizable for federal habeas review. See 28 U.S.C. § 2254(a). However, Bowers' four remaining claims in his pro se petition can be liberally construed as calling to mind federal constitutional rights. In these claims, Bowers asserts that (1) his right to due process under the Fourteenth Amendment was violated by the improper jury charge, the (2) denial of his motion for a new trial,(3) his right to speedy trial guaranteed by the Sixth and Fourteenth Amendment was violated, and (4) he was wrongfully adjudicated a persistent violent felony offender, on the basis that he was denied effective assistance of counsel guaranteed by the Sixth Amendment. Since Bowers' petition does vaguely call to mind federal constitutional issues for these claims, which can be readily disposed of on the merits, it is in the interest of judicial economy that these four remaining claims be considered on the merits.

Standard of Review

Because the petition, which was filed on January 25, 2005, postdates the enactment of the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), AEDPA's revisions of 28 U.S.C. § 2254 govern this proceeding. See Williams v. Taylor, 529 U.S. 362, 402 (2000). When Congress enacted the AEDPA, it modified the role of federal habeas courts in reviewing petitions filed by state prisoners. Id. Thus, a federal court may not grant a habeas petition on a claim that was adjudicated on the merits in state court unless that adjudication "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." 28 U.S.C. § 2254(d)(1). That was not the case here. The state court's decision on these claims were properly decided by a reasonable application of federal law. See Williams, 529 U.S. at 404. Accordingly, a federal habeas court is "not empowered to grant the writ when, in its independent judgment, it determines that the state court incorrectly applied the relevant federal law." Lainfiesta v. Artuz, 253 F.3d 151, 155 (2d Cir. 2001).

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. Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001); accord, e.g., Ryan v. Miller, 303 F.3d at 246; Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir. 2001).

Petitioner's State Law Claims

A. Bowers' Claim that the Verdict was Against the Weight of the Credible Evidence Does Not Raise a Federal Issue

To the extent that Bowers claims that his conviction was against the weight of the credible evidence based on C.P.L. § 470.15*fn3, this claim does not raise an issue that is cognizable on federal habeas review. In addition, Bowers acknowledges and accepts that this issue is barred from federal habeas review. (Petitioner's Traverse ("Traverse") at 4).

A claim that a verdict was against the weight of the evidence is derived from C.P.L. § 470.15(5), a New York State criminal procedure statute. Bowers' weight-of-the-evidence claim therefore is based on a pure state law concern and is not cognizable on habeas review. See 28 U.S.C. § 2254(a) (permitting federal habeas corpus review only where the petitioner has alleged that he is in state custody in violation of "the Constitution or a federal law or treaty"); Estelle v. McGuire, 502 U.S. 62, 68 (1991) ("In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States."). In sum, Bowers' claim is not a federal constitutional issue that is cognizable for federal habeas review, and is therefore dismissed from this petition.

B. Bowers' Claim of a Violation of his Statutory Right to a Speedy Trial Does Not Provide a Basis for Federal Habeas Relief

Bowers contends that his statutory right to a speedy trial was violated, however his basis for this claim relies solely on C.P.L. §30.30, New York's trial readiness statute.*fn4 Respondent asserts that Bowers' specific claim that his statutory right to a speedy trial was violated is a pure state law claim and is not cognizable on federal habeas review. See Resp't. Ans. at 18. I conclude that this specific claim rests solely on state procedure grounds and is not cognizable on federal habeas review, because in "habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle, 502 U.S. at 68. Accordingly, this claim is dismissed. Petitioner's Remaining Claims

A. Constitutional Right to a Speedy Trial

Bowers contends that his constitutional right to a speedy trial was violated because the incident occurred on June 5, 1998, and his trial did not commence until June 15, 1999. See Pet. at 11-12. However, Respondent argues that while eight months did elapse between Bowers' initial indictment on October 9, 1998 until the commencement of his trial on the second indictment on June 15, 1999, ...


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