The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Pro se petitioner Robert Wilson this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the constitutionality of his conviction, after a jury trial, of Promoting Prison Contraband in the First Degree, for which he received a persistent felony offender sentence of 20 years to life.
Wilson claims (1) the evidence was legally insufficient to prove beyond a reasonable doubt that petitioner possessed "dangerous contraband," a required element of the crime of promoting prison contraband in the first degree (Penal Law §§ 205.25(2); 200.5(4)); (2) the verdict was against the weight of the evidence; (3) he was denied the effective assistance of trial counsel; (4) he was penalized for rejecting the pre-trial plea offers and exercising his constitutional right to a jury trial and vindictively sentenced; (5)(a) the sentence was excessive; (5)(b) the sentence was disproportionate to the crime, in violation of the Eighth Amendment's prohibition against cruel and unusual punishment; (6) his sentence as a persistent felony offender pursuant to Penal Law §§ 70.10 was in violation of the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000); and (7) the sentencing court failed to comply with the procedural requirements, as set forth in the discretionary persistent felony offender statue, N.Y. Penal Law § 70.10.
For the reasons that follow, the petition is dismissed. In addition, Wilson's motion to stay the petition is denied with prejudice.
II. Claims That Are Not Cognizable on Federal Habeas Review
A. Verdict Against the Weight of the Evidence (Claim 2)
Wilson's "weight of the evidence" claim derives from New York Criminal Procedure Law ("C.P.L.") § 470.15(5), which permits an appellate court in New York to reverse or modify a conviction where it determines "that a verdict of conviction resulting in a judgment was, in whole or in part, against the weight of the evidence." N.Y. Crim. Proc. Law § 470.15(5). Thus, a "weight of the evidence" argument is a pure state law claim grounded in the criminal procedure statute, whereas a legal sufficiency claim is based on federal due process principles. People v. Bleakley, 69 N.Y.2d 490, 495 (N.Y. 1987).
Since a "weight of the evidence claim" is purely a matter of state law, it 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.").
B. Harsh and Excessive Sentence (Claim 5)
A federal habeas court has no power to reduce a sentence that falls within the range authorized by state law because it does not present a federal constitutional question. See White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) (citing Underwood v. Kelly, 692 F. Supp. 156 (E.D.N.Y. 1988), aff'd mem., 875 F.2d 857 (2d Cir. 1989)); see also Bellavia v. Fogg, 613 F.2d 369, 373-74 & n. 7 (2d Cir. 1979) (declining to hold that a mandatory sentence imposed pursuant to statute constituted cruel and unusual punishment as sentencing statue is properly the province of the state legislature).
Here, Petitioner does not and cannot contend that his sentence falls outside of the prescribed statutory range. See N.Y. Penal Law § 70.10(2). Because the sentence was within the statutory range allowed under state law, Petitioner's excessive sentence claim fails to present a federal constitutional issue that may be decided by this Court. See White, 969 F.2d at 1383.
Before a federal court may consider the merits of a habeas claim, a petitioner is first required to exhaust his available state court remedies. See 28 U.S.C. § 2254(b)(1) ("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 unless it appears that . . . the applicant has exhausted the remedies available in the ...