Opinion
01 Civ. 8967 (JSM)
November 15, 2002
Pro Se Petitioner: Dario Castro #97-A-7332, Napanoch, New York
For the Respondent: Beth Thomas, New York, N.Y.
OPINION AND ORDER
Dario Castro, who was convicted after a jury trial in the New York State Supreme Court, New York County, on three counts of Criminal Sale of a Controlled Substance in the First Degree, brings this action pursuant to 22 U.S.C. § 2254, seeking to vacate his conviction.
Petitioner contends that (1) the trial court erroneously sustained a Batson challenge by the prosecution and (2) his appellate counsel was ineffective.
Before turning to petitioner's specific claims, it must be noted that Congress has limited the jurisdiction of the federal courts to provide relief under 28 U.S.C. § 2254.
(d) 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 with respect to any claim that was adjudicated on the merits in State court proceedings unless 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.See generally Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000).
None of the claims asserted by the petitioner meets this standard.
Petitioner' s complaint that the trial court erred in sustaining a Batson challenge by the prosecutor to his use of a peremptory challenge which required him to sit a white juror fails for two reasons. First, the upholding of a Batson challenge does not give rise to a federal claim since Batson was concerned with the exercise of peremptory challenges which resulted in the exclusion of potential jurors on the basis of race. Hakeem v. Goord, No. 97 Civ. 3719, 2000 U.S. Dist. LEXIS 14927, at *61-62 (S.D.N.Y. September 27, 2000). Here, the judge's decision did not result in the exclusion of a juror because of his race but, at worst, was an erroneous denial of a peremptory challenge. However, as the Second Circuit has held:
The process of empaneling a jury is firmly entrusted to the sound discretion of the trial judge and will not be disturbed absent an abuse of this discretion. See United States v. Maldonado-Rivera, 922 F.2d 934, 970 (2d Cir. 1990), cert. denied, 501 U.S. 1233, 111 S.Ct. 2858, 115 L.Ed.2d 1026 (1991); United States v. Ploof, 464 F.2d 116, 118 n. 4 (2d Cir.), cert. denied, 409 U.S. 952, 93 S.Ct. 298, 34 L.Ed.2d 224 (1972). Moreover, to prevail on his claim, [a defendant] must also establish that the jury that eventually convicted him was not impartial. See United States v. Towne, 870 F.2d 880, 885 (2d Cir.), cert. denied, 490 U.S. 1101, 109 S.Ct. 2456, 104 L.Ed.2d 1010 (1989).United States v. Rubin, 37 F.3d 49, 54 (2d Cir. 1994).
Petitioner has made no showing "that the jury that eventually convicted him was not impartial."
In any event, the factual finding of the trial judge that defense counsel's statement of a nondiscriminatory basis was pretextual was not an "unreasonable determination of the facts in light of the evidence presented in the State court proceeding."
Petitioner' s attack on his appellate counsel is equally without merit. In order to prevail on a claim of ineffective assistance of counsel, a defendant must establish that (1) counsel's performance was deficient, and (2) the deficient performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984). To establish prejudice "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068.
As he did in the state courts, petitioner presents this court with a laundry list of claims that he asserts counsel should have advanced. But petitioner offers no legal or factual support for his contention that the arguments he claims counsel should have advanced had any merit. To the limited extent that petitioner actually makes concrete arguments tied to the trial record, there is no basis for finding that appellate counsel was ineffective in failing to assert them and even less basis for concluding that had they been advanced, petitioner's conviction would have been reversed.
For example, petitioner claims that it was error to admit transcripts containing English translations of Spanish conversations which were prepared by a police officer. However, at trial, petitioner was provided with a court appointed interpreter and there was no claim that the transcripts were inaccurate.
Another example of the arguments that appellate counsel is faulted for not raising is that testimony of a police detective that he learned petitioner's name when he saw him in the police station at the time of his arrest should have been excluded under United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926 (1967). However, the detective did not testify as an eyewitness to any of petitioner's criminal activity but only identified petitioner as a person seen on a videotape that was played for the jury. Thus, his testimony did not raise a Wade issue.
In sum, petitioner failed to present in the state court any rational basis for finding that his appellate counsel was ineffective and the decisions of the state court rejecting that claim did not involve "an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States."
For the foregoing reasons, the petition for relief pursuant to 28 U.S.C. § 2254 is denied "and the action is dismissed. In addition, pursuant to 28 U.S.C. § 1915(a), the Court certifies that an appeal from this case may not be taken in forma pauperis; such an appeal would be frivolous and cannot be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S.Ct. 917, 920-21 (1962). The Court determines that the petition presents no question of substance for appellate review and that Petitioner has failed to make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see Fed.R.App.P. 22(b). Accordingly, a certificate of appealability will not issue.
In view of the foregoing, Petitioner's application for bail is denied as moot.