GODDARD v. GREINER

JACK WEINSTEIN, Senior District Judge

The petition for a writ of habeas corpus is denied. No hearing on this matter is necessary. This memorandum briefly addresses petitioner's claims.

I. Facts and Procedural History

Petitioner was tried on weapons and narcotics charges. The prosecution presented overwhelming evidence of his guilt at trial, primarily the testimony of two police detectives. The detectives testified that they attempted to stop a livery cab after it went through a red light. The car stopped in the middle of the street instead of pulling over, suggesting to the police that the driver had purposefully violated traffic rules in order to draw the attention of the police. When the detectives approached the car, they saw petitioner in the back seat acting nervously. Petitioner asked if they wanted him to get out of the car, and they answered that they did. Petitioner leapt out of the cab, and in doing so his jacket swung against the hand of one of the detectives, who felt a hard object in it that felt as if it were made of metal. Believing the object was a gun, the detective had petitioner put his hands on top of the car and then felt his pocket, identifying what was in fact a semi-automatic gun.

Petitioner was handcuffed and brought to the police car, He then asked, "Can't we make a deal? You keep the gun, please, I have to home to my wife and kid, I'm going to be in trouble," At the station house, a search of petitioner's jacket revealed a quantity of crack cocaine. Petitioner was put in a holding cell and again asked a detective if they could "make a deal," offering a bribe of $3000 and the proceeds of a potential sale of the crack cocaine, which he estimated at $8000, An audiotape of petitioner speaking to a friend to arrange a payment of $3000 to the detective was introduced into evidence (with the jury hearing only petitioner's side of the conversation).

Petitioner called no witnesses and presented no evidence on his behalf.

He was convicted of criminal possession of a controlled substance in the first degree and criminal possession of a weapon in the third degree. He was sentenced to 20 years to life in prison.

His conviction was affirmed by the Appellate Division on direct appeal. Leave to appeal to the New York Court of Appeals was denied. No state collateral proceedings were initiated.

In his application for a writ of habeas corpus, petitioner raises the same three claims that he raised on direct appeal: (1) his right to be free from unreasonable search and seizure was violated by the police officers' initial stop of the livery cab and by their search and seizure of his jacket; (2) the trial court should have granted a mistrial following the elicitation of testimony from a detective that petitioner stated that the slab recovered from inside his jacket pocket was crack cocaine; and (3) his sentence of 20 years to life in prison was harsh and excessive.

II. AEDPA

Under the An (terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may giant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that the adjudication of the claim "(1) 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; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).

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) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)), 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. 362, 412-13 (2000) (O'Connor, J., concurring and writing for the majority in this part). Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case," Id. at 413, Under this standard, "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." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted).

"[F]ederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright-line rule designed to effectuate such a standard in a particular context." Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002); see also Yung v. Walker, No. 01-2299, 2002 U.S. App. LEXIS 28137 (2d Cir. Aug. 1, 2003) (amended opinion) (district court's habeas decision that relied on precedent from the Court of Appeals is remanded for reconsideration in light of "the more general teachings" of Supreme Court decisions). The Court of Appeals for the Second Circuit has also indicated that habeas relief may be granted if a state court's decision was contrary to or an unreasonable application of "a reasonable extension" of Supreme Court jurisprudence, Torres v. Berbary, No. 02-2463, 2003 U.S. App. LEXIS 16167, at *25 (2d Cir. Aug. 7, 2003). Determination of factual issues made by a state court "shall be presumed to be correct," and the applicant "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).

III. Exhaustion

In the past, a state prisoner's federal habeas petition had to be dismissed if the prisoner did not exhaust available state remedies as to any of his federal claims. See Rose v. Lundy, 455 U.S. 509, 522 (1989). "This exhaustion requirement is . . . grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights." Coleman v. Thompson, 501 U.S. 722, 731 (1991). The exhaustion requirement requires the petitioner to have presented to the state court "both the factual and legal premises of the claim he asserts in federal court." Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc).

Pursuant to AEDPA, a district court may now, in its discretion, deny on the merits habeas petitions containing unexhausted claims-so-called "mixed petitions," See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state."). In addition, the state may waive the exhaustion requirement, but a "State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement." Id. § 2254(b)(3); see also Ramos v. Keane, No. 98 CIV, 1604, 2000 U.S. Dist. LEXIS 101, at *10 (S.D.N.Y. 2000) (state's failure to raise exhaustion requirement does not waive the issue).

IV. Procedural Bar

A federal habeas court may not review a state prisoner's federal claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule, "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice," Coleman, 501 U.S. at 750. In determining whether a procedural bar is sufficient to preclude habeas review, a federal court must consider as "guideposts" the following:

(1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had "substantially complied" with the rule given "the realities of trial," and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest,

Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (quoting Lee v. Kemna, 534 U.S. 362 (2002)).

If a state court holding contains a plain statement that a claim is procedurally barred then the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alternative, See Harris v. Reed, 489 U.S. 255, 264 n, 10 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedural rule as a separate basis for its decision).

When a state court says that a claim is "not preserved for appellate review" and then rules "in any event" on the merits, such a claim is not preserved. See Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996), When a state court "uses language such as `the defendant's remaining contentions are either unpreserved for appellate review or without merit,' the validity of the claim is preserved and is subject to federal review," Fama v. Comm'r of Corr. Svcs., 235 F.3d 804, 810 (2d Cir. 2000), Where "a state court's ruling does not make clear whether a claim was rejected for procedural or substantive reasons and where the record does not otherwise preclude the possibility that the claim was denied on procedural grounds, AEDPA deference is not given, because we cannot say that the state court's decision was on the merits," Su v. Filion, No. 02-2683, 2003 U.S. App. LEXIS 13949 at *15 n. 3 (2d Cir. July 11, 2003) (citing Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir. 2003)), This congeries of holdings leaves it an open question whether there are "situations in which, because of uncertainty as to what the state courts have held, no procedural bar exists and yet no AEDPA deference is required," Id.

V. Certificate of Appeal ability

A certificate of appealability may be granted with respect to any one of petitioner's claims only if petitioner can make a substantial showing of the denial of a constitutional right. Petitioner has a right to seek a certificate of appealability from the Court of Appeals for the Second Circuit. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 123 S.Ct. 1029 (2003). The court has taken into account the rule of section 2253(c)(3) of Title 28 of the United States Code that a certificate of appealability "shall indicate which specific issue or issues satisfy the [substantial showing of the denial of a constitutional right] required by paragraph (2)," See also Shabazz v. Artuz, No. 02-2320, 2003 U.S. App. LEXIS 14450, at *15 (2d Cir. July 18, 2003).

This opinion complies with Miranda v. Bennett, 322 F.3d 171, 175-77 (2d Cir. 2003), and Rule 52 of the Federal Rules of Civil Procedure, No other issue open to consideration by this court has merit. See Sumner v. Mata, 449 U.S. 539, 548 (1981) ("a court need not elaborate or give reasons for rejecting claims which it regards as frivolous or totally without merit").

VI. Analysis of Claims

Petitioner's claims have been exhausted and were denied on the merits in the state courts. Review proceeds under the deferential standards of AEDPA.

A

Petitioner first claims that his right to be free from unreasonable search and seizure was violated by the police officers' initial stop of the livery cab and by their search and seizure of his jacket. Under Stone v. Powell, 428 U.S. 465 (1976), a federal habeas court is barred from reviewing the merits of a Fourth Amendment claim so long as the state has provided petitioner with the opportunity for a full and fair litigation of his claim. Fourth Amendment claims in habeas petitions may be undertaken "in only one of two instances; (a) if the state has provided, no corrective procedures at all to redress the alleged fourth amendment violations; or (b) if the state has provided a corrective mechanism, but the defendant was precluded from using that mechanism because of an unconscionable breakdown in the underlying process," Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992).

A full and fair suppression hearing was held pretrial. Petitioner was also afforded the opportunity on direct appeal to contest the hearing court's Fourth Amendment decision. Further review in this court is precluded.

B

Petitioner next claims that the trial court should have granted a mistrial following the elicitation of testimony from a detective that petitioner stated that the slab recovered from inside his jacket pocket was crack cocaine. Respondent concedes that this testimony was improper because the prosecution did not provide notice to the defense that it intended to use petitioner's statement. See N.Y. Crim. Pro. L. § 710, 30 ("Whenever the people intend to offer at a trial . . . evidence of a statement made by a defendant to a public servant, which statement if involuntarily made would render the evidence thereof suppressible, . . . they must serve upon the defendant a notice of such intention, specifying the evidence intended to be offered,").

For a habeas petitioner to prevail on a claim that an evidentiary error amounted to a deprivation of due process, he must show that the error was so pervasive as to have denied him a fundamentally fair trial. United States v. Agurs, 427 U.S. 97, 108 (1976), The standard is "whether the erroneously admitted evidence, viewed objectively in light of the entire record before the jury, was sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it. In short it must have been `crucial, critical, highly significant.'" Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985) (quoting Nettles v. Wainwright, 677 F.2d 410, 414-15 (5th Cir. 1982). This test applies post-AEDPA, See Wade v. Mantello, No. 02-2359, slip op. at 13 (2d Cir. June 13, 2003).

In the instant case, an objection was made at trial to the improper testimony and a curative instruction was presented to the jury, at the urging and with the consent of the defense. See Trial Tr. at 386-87. "We normally presume that a jury will follow an instruction to disregard inadmissible evidence inadvertently presented to it, unless there is an `overwhelming probability' that the jury will be unable to follow the court's instructions, Richardson v. Marsh, 481 U.S. 200, 208 (1987), and a strong likelihood that the effect of the evidence would be `devastating' to the defendant, Bruton v. United States, 391 U.S. 123, 136 (1968)," Greer v. Miller, 483 U.S. 756, 766 u.8 (1987).

The instruction in the instant case was sufficient to cure any prejudice petitioner might have suffered from the evidentiary error, Moreover, the error itself was of only slight prejudice to petitioner since the prosecution presented other evidence at trial — the testimony of a chemist — demonstrating that the substance found in petitioner's jacket was crack cocaine. Petitioner was not denied a fundamentally fair trial as a result of the evidentiary error. Habeas corpus relief on this ground is not warranted.

C

Petitioner finally claims that his sentence of 20 years to life in prison was harsh and excessive. To the degree petitioner claims that his guilt was not proven beyond a reasonable doubt, the relevant question for this court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). Petitioner "bears a very heavy burden" when challenging the legal sufficiency of the evidence in a state criminal conviction, Einaugler v. Supreme Court, 109 F.3d 836, 840 (2d Cir. 1997). To the degree petitioner claims the verdict was against the weight of the evidence, such a claim does not present a federal constitutional issue,

The sentence imposed upon petitioner was within the prescribed statutory range. It was not cruel and unusual. Habeas corpus relief on this ground is not warranted.

VII. Conclusion

The petition for a writ of habeas corpus is denied.

No certificate of appealability is granted with respect to any of petitioner's claims, petitioner having made no substantial showing of the denial of a constitutional right.

SO ORDERED.