The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Pro se petitioner Albert Hartzog ("Hartzog" or "Petitioner") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254*fn1 challenging the constitutionality of his state-custody as a result of a judgment of conviction entered October 17, 2002, in New York State Supreme Court (Monroe County). Hartzog was convicted after a jury trial of one count of Criminal Possession of a Controlled Substance in the Third Degree (New York Penal Law ("P.L.") § 220.16(1)),*fn2 one count of Criminal Possession of a Controlled Substance in the Fifth Degree (P.L. § 220.06(5)),*fn3 and of one count of Loitering in the First Degree (P.L. § 240.36).*fn4
Briefly stated, the proof introduced by the prosecution at trial was that on February 16, 2002 at about 5:00 p.m., police officers were conducting surveillance on a Rochester intersection identified as a known "open drug" area. Petitioner was standing in the same location for a while, as various individuals were coming and going. One officer witnessed Petitioner make a furtive exchange of something for money; he thereafter got into his car, where he stayed for a couple of minutes, and then returned to his station on the street corner. Based upon his training and experience, the narcotics officers concluded that Petitioner was selling drugs. A uniformed officer was directed to arrest him on a charge of loitering. Upon searching his person, the police found over one hundred dollars in small denominations. An inventory of his car revealed fourteen packages of cocaine.
Hartzog was adjudicated a second felony offender and sentenced to indeterminate terms of imprisonment of five to ten years on the third degree possession conviction. He received three and a half to seven years on the criminal possession of a controlled substance in the fifth degree charge, and he received an unconditional discharge for his loitering first degree conviction. All sentences were set to run concurrently.
Hartzog was unconditionally released from Groveland Correctional Facility on September 16, 2005. The notation in the "latest release date/type" field is "9/16/05 SUPPLMNTAL MERIT - OTHER". See http://nysdocslookup.docs.state.ny.us/GCA00P00/WIQ3/WINQ130 (last accessed May 12, 2010). It also appears that Hartzog has been finally discharged from parole supervision, as the notation under "parole discharge date" is "9/19/2007". According to the website, this indicates the parolee has been discharged from parole supervision before the maximum expiration date or the maximum expiration date for parole supervision, and the parolee's sentence is deemed completed as of this date. See http://nysdocslookup.docs.state.ny.us/GCA00P00/WIQ3/WINQ130 (last accessed May 12, 2010).
A. "In Custody" Requirement
"The federal habeas statute gives the United States district courts jurisdiction to entertain petitions for habeas relief only from persons who are 'in custody in violation of the Constitution or laws or treaties of the United States.'" Maleng v. Cook , 490 U.S. 488, 491, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989) (quotation omitted); citing 28 U.S.C. § 2254(a) (emphasis in original); see also Carafas v. LaVallee , 391 U.S. 234, 238, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968) ("The federal habeas federal habeas corpus statute requires that the applicant must be 'in custody' when the application for habeas corpus is filed.").
Once the petitioner has satisfied the "in custody" requirement, jurisdiction is not thereafter defeated by petitioner's subsequent release from custody. See Carafas v. LaValle , 391 U.S. 234, 237-38 (1968) ("[W]e conclude that under the statutory scheme [for federal habeas], once the federal jurisdiction has attached in the District Court, it is not defeated by the release of the petitioner prior to completion of proceedings on such application."). Here, when he filed the present habeas corpus petition, Hartzog was physically in the custody of respondent, as he was incarcerated. Therefore, he met the "in custody" requirement. See id. The fact that, during the pendency of this petition, he was unconditionally released from parole supervision, is of no moment with regard to determining whether the "in custody" requirement of 28 U.S.C. § 2254(a) has been met. Accord , e.g. , Crescenzi v. Supreme Court of the State of New York , 749 F. Supp. 552, 554 (S.D.N.Y. 1990) (citing Carafas , 391 U.S. at 237-38)..
Article III, Section 2 of the United States Constitution establishes the scope of federal courts' jurisdiction, which includes "all Cases . . . arising under this Constitution . . . [and] Controversies to which the Untied States shall be a Party. . . ." U.S. Const. Art. III § 2, cl. 1. The Supreme Court has stated that "[t]the Constitution's case-or-controversy limitation on federal judicial authority . . . underpins . . . our mootness jurisprudence. . . ." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc ., 528 U.S. 167, 180, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (quoted in Burnett v. Lampert , 432 F.3d 996, 999 (9th Cir.2005)). "Mootness is juridictional[,]" which "'means that, throughout the litigation, the plaintiff "must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision." ' " Burnett , 432 F.3d at 999 (quoting Spencer v. Kemna , 523 U.S. 1, 7 (1998) (quoting Lewis v. Continental Bank Corp ., 494 U.S. 472, 477 (1990))). As the Supreme Court has explained, "where the issues presented by a party in an action are no longer 'live,' or the party lacks a legally cognizable interest in the outcome, the federal action is properly dismissed as moot." Spencer , 523 U.S. at 7 (citing City of Erie v. Pap's A.M. , 529 U.S. 277, 287 (2000)). A federal court may consider sua sponte matters that touch upon the court's subject matter jurisdiction. McGinty v. New York , 251 F.3d 84, 90 (2d Cir.2001) (citing Lyndonville Sav. Bank & Trust Co. v. Lussier, 211 F.3d 697, 700 (2d Cir.2000)).
In the context of federal habeas petitions challenging the validity of a state court conviction, the "case-or-controversy" requirement of Article III is typically satisfied because the prisoner's incarceration constitutes a concrete injury, caused by the conviction and redressable by reversal of the conviction. See , e.g ., Maleng v. Cook , 490 U.S. 488, 490-91 (1989) ( per curiam ); Preiser v. Rodriguez , 411 U.S. 475, 484 (1973) ("[T]he essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and . . . the traditional function of the writ is to secure release from illegal custody.") (quoted in Burnett v. Lampert , 432 F.3d at 999). A habeas petition challenging a criminal conviction "is not necessarily mooted when the petitioner is released from prison, as collateral consequences of that conviction may still impinge on the petitioner post-release, and therefore a case or controversy may continue to exist." Perez v. Greiner , 296 F.3d 123, 125 (2d Cir. 2002) (citing Pollard v. United States , 352 U.S. 354, 358 (1957)).
Although collateral consequences can be presumed when challenging a felony criminal conviction, Sibron v. New York , 392 U.S. 40, 54-56 (1968), federal courts have held that no such presumption applies when a defendant contests a different aspect of a proceeding relating to his criminal conviction. See Spencer , 523 U.S. at 13, 118 S.Ct. 978 (declining to presume collateral consequences from the findings of a parole board revoking parole on the basis that the petitioner had committed forcible rape, that he used or possessed drugs, and that he used or possessed a dangerous weapon)). "In the absence of a presumption of collateral consequences, [a habeas petitioner] bears the burden of demonstrating collateral consequences sufficient to meet Article Ill's case-or-controversy requirement." United States v. Probber , 170 F.3d 345, 348 (2d Cir.1999) (citation omitted). Here, Hartzog's habeas petition challenges the constitutionality of his state- court felony conviction, and accordingly he is entitled to the Sibron presumption of collateral consequences. Therefore, his habeas petition still presents a live controversy amenable to review by this Court. See Spencer , 523 U.S. at 7-8 (citing Sibron , 392 U.S. at 55-56). His unconditional release from incarceration and termination of his parole supervision has not mooted his habeas petition.
For the reasons that follow, Hartzog's petition is dismissed.
III. Factual Background and Procedural History
On February 16, 2002 at about 5:00 p.m., Rochester Police Department Officer Joseph Briganti was stationed in an unmarked car conducting a surveillance of the corner of Jefferson Avenue and Champlain Street in the City of Rochester. T.151.*fn5 This particular location was a storefront. T.154. Several individuals were seen coming and going during the thirty minute period of observation, but the officer's attention was drawn to Petitioner, who was clad in an orange jacket. Petitioner stood by himself on the corner during the entire period that Briganti was conducting surveillance. T.153.
Briganti saw a man dressed all in brown approach Petitioner, who was still standing on the corner. T.156. The man in brown appeared to know Petitioner. T.167. According to the officer, the two men hugged each other, and began to walk together on Champlain Street toward the rear of the store, conversing with each other. T.156. At this time, the officer was positioned about twenty feet away from the two men. There were no street lights in the area, and it was starting to get dark outside. T.164-165.
Officer Briganti testified that despite the distance between him and his subjects, and the relatively low light, he was able to observe currency in the right palm of the man in brown as he walked around the corner onto Champlain Street. T.169. The man in brown handed this money to Hartzog, who appeared to hand something back; however, Officer Briganti was unable to see any object in Hartzog's hand. T.157. The officer could not hear what was being said between the two men. T.166. After about one minute, the man in brown left the area. T.158. He was not stopped by any of the police officers assigned to this surveillance team, and thus he was not searched for evidence to support the officer's subsequently stated opinion that he had witnessed a drug transaction between the two men. T.170, 174-175. The police saw Hartzog walk over to a parked car, get into it, stay a couple minutes and then return to his station on the corner.
Officer Briganti testified that he was in radio contact with his surveillance team, and that he was broadcasting his observations of this meeting as it was occurring. T.159. Sergeant McDonald, his supervisor, was listening from a short distance away, but could not see the corner where the defendant stood. T.196, 203. Sergeant McDonald ordered that Hartzog be arrested for loitering by a uniformed officer, and Hartzog was placed under arrest by Officer Jeroy. T.197, 213. The officer found that Hartzog had on him $112 in cash, in small denominations, and a set of car keys. T.214. The police performed a warrantless search of Hartzog's car and found 14 small plastic bags , T.219-20, which ultimately were tested and alleged to contain more than 500 mg. of cocaine, T.237-38.
Officer Briganti was allowed, over objection, to testify as to his opinion that Mr. Hartzog had sold narcotics to the man in brown during their meeting on the street. T.175. His supervising officer, Sergeant McDonald, also was testified that, although he did not see Petitioner or the alleged encounter with the man in brown, he believed Petitioner engaged in a narcotics sale, based on Officer Briganti's radio transmissions describing his observations. T.197. On summation, the prosecutor relied upon the opinion testimony of both Officer Briganti and Sergeant McDonald that Petitioner engaged in a narcotics sale with the man in brown, to argue that she had proved Petitioner's intent to sell cocaine. T.270-72.
On his summation, defense counsel asked the jury to consider the paucity of evidence admitted to prove weight of the alleged cocaine, which was an element of Count Three of the Indictment. T.264-65 (Defense counsel: "The law says it's got to be more than 500. That's what it was. Was it 501? Was it 3000? It seemed like a very vague response to me, from a lab technician, from an expert. The question is, as a juror, does that raise a doubt with you why you weren't furnished with a laboratory reports. Lab technicians prepare reports. Even the sergeant said he sees these reports all the time."). The prosecutor objected to his comments, and the trial court sustained the objection as to "[t]he sergeant." Defense counsel sought clarification, and then the prosecutor further objected on the basis that a "laboratory report would be hearsay" and the chemist "could have been cross-examined by defense counsel." Id. Defense counsel asserted, "I have no obligation to do anything, Judge." Id. Although the trial court agreed that defense counsel's statement was "correct", it nevertheless sustained the prosecutor's original objection.
T.265. Defense counsel did not register a further objection.
B. Sentencing and Appeals
Hartzog was convicted on all counts of the indictment. He was sentenced by the trial court as a second felony offender to a term of five (5) to ten (10) years in the Department of Corrections.
C. The Federal Habeas Petition
In his Petition, Hartzog asserts the following grounds for habeas corpus relief: (1) the trial court erred by allowing two police officers to offer an expert opinion as to whether the exchange between Petitioner and the man and brown constituted a drug sale; (2) the evidence was legally insufficient to support his convictions; and (3) the prosecutor committed misconduct during summation.
Hartzog's petition is governed by 28 U.S.C. § 2254(d), as amended by the Anti-terrorism and Effective Death Penalty Act ("AEDPA") in 1996. To obtain habeas relief under AEDPA, where the state court has adjudicated a petitioner's federal constitutional claim on the merits, a petitioner must demonstrate that the adjudication resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Supreme Court precedent, or resulted in a decision that was based on an unreasonable factual determination in light of the evidence presented in state court. See 28 U.S.C. § 2254(d)(1), (2); Williams v. Taylor, 529 U.S. 362, 375-76 (2000).
An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim." Sellan v. Kuhlman , 261 F.3d 303, 313 (2d Cir. 2001) (quotation omitted). Under the "contrary to" clause, "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. at 412-13 (O'Connor, J., concurring and writing for the majority in this part). The "unreasonable application" clause is applicable when "the state court identifies the correct governing legal principle from this Court" decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. Under AEDPA, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. In order to grant the writ there must be "some increment of incorrectness beyond error," although "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." Matter of Francis S. v. Stone , 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted).
B. Exhaustion and Procedural Default
It is well established that "a state prisoner must present his claims to a state supreme [i.e., the highest] court in a petition for discretionary review in order to satisfy the exhaustion requirement." O'Sullivan v. Boerckel , 526 U.S. 838, 839-40, 119 S.Ct. 1728, 173 (1999); accord , e.g. , Rosa v. McCray , 396 F.3d 210, 217 (2d Cir.), cert. denied , 546 U.S. 889, 126 S.Ct. 215 (2005). In other words, as the ...