Opinion
00 Civ. 924 (WHP)(KNF)
May 14, 2002
REPORT AND RECOMMENDATION
I. INTRODUCTION
Before the Court is Abdoul Diallo's ("Diallo" or "petitioner") pro se petition for a writ of habeas corpus made pursuant to 28 U.S.C. § 2254. Petitioner, who is not incarcerated, contends that he is entitled to habeas corpus relief because: (1) there was insufficient evidence offered at trial to establish (a) petitioner's guilt beyond a reasonable doubt, and (b) an essential element of the offense for which petitioner was convicted; (2) petitioner's arrest was false and unlawful; and (3) petitioner was subject to law enforcement misconduct.
For the reasons set forth below, I recommend that the petition be denied.
II. BACKGROUND
On the night of June 18, 1994, petitioner, a taxi driver, was driving to his home on West 107th Street, in Manhattan, when he was stopped in traffic at the intersection of Amsterdam Avenue and West 97th Street.See Respondent's Memorandum of Law at 2, 5. Moments later, Police Officers Wilfredo Malave ("Malave") and Howard Sachs ("Sachs") arrived at the Amsterdam Avenue and West 97th Street intersection in response to a report of a two-car collision. The officers exited their vehicle and Malave proceeded to investigate the accident while Sachs began directing traffic on West 97th Street. See id. at 2, 4.
Although trial testimony differed concerning what occurred at this point, both parties agreed that petitioner honked his car horn. Sachs testified that he approached petitioner's vehicle to find out why petitioner was honking. Specifically, Sachs wanted to know whether petitioner was trying to get the officer's attention so that petitioner could provide information about the accident. Sachs testified that, once he ascertained that petitioner had not been trying to summon him, he instructed petitioner to cease honking. However, according to Sachs, as soon as he turned his back, petitioner honked his horn again. See id. at 2.
Sachs testified that he then returned to petitioner's car, instructed petitioner to stop honking and asked for petitioner's driver's license and registration. Petitioner responded that he did not have to provide the documentation because "[t]hat's what unions are for." Upon hearing this, Sachs warned petitioner that he would be arrested if he did not produce the documentation. When petitioner continued to refuse to produce his driver's license and registration, Sachs grabbed petitioner's left arm in an attempt to pull him out of the taxi. According to Sachs, petitioner then reached with his right hand for a knife that was located on the front passenger seat of the car, flicked his wrist in an unsuccessful attempt to open the knife, swung his arm around and hit Sachs in the chest with the unopened knife. See id. at 3.
Sachs testified further that he yelled for his partner to help him, and the two officers struggled with petitioner and attempted to handcuff and subdue him. In the process, Sachs stated, the officers banged petitioner's head against the car to get him to drop the knife. Sachs stated further that, once petitioner was handcuffed, he dropped the knife and was placed in the back seat of the patrol car. As required by police regulations, Sachs got in the back seat of the car with petitioner for the ride to the precinct.
Malave testified that he started to return to the scene of the traffic accident, to inform those involved that he would summon another officer to assist them, when he saw petitioner "head-butt" Sachs by hitting his forehead into the side of Sachs's head. Sachs also testified that he was attacked in this manner by petitioner. Malave and Sachs both testified that Malave pulled Sachs out of the back of the car, that another police officer then arrived at the scene, and that Malave instructed the officer to sit in the back of the car with petitioner. Sachs then drove the officer, petitioner and himself to the precinct. See id. at 4.
According to Sachs, once they arrived at the precinct, petitioner continued to resist. After he was placed in a holding cell, and his handcuffs had been removed, petitioner lunged at Sachs and "head-butted" him again. Sachs testified that he went to a hospital directly from the precinct, where he was examined by a physician, and that a day or two later he visited a Police Department surgeon. Sachs testified further that, as a result of the blows inflicted upon him by petitioner, he was dizzy and light-headed for several days, suffered a strained shoulder, and missed three days of work. See id. at 5.
Petitioner's testimony differed from that of the officers in several respects. Petitioner stated that, when he honked his car horn, his purpose was to alert the car in front of him that there was room to move forward. According to petitioner, although other drivers were honking their car horns, Sachs approached only petitioner and threatened to give him a ticket. Thinking that Sachs was joking, petitioner asked "[w]hat kind of ticket" Sachs intended to give him. Sachs then opened the car door and demanded to see petitioner's driver's license and registration. According to petitioner, when he explained that he had lost his driver's license, Sachs started to pull him from the taxi.
Petitioner testified that, once he was out of the car, Sachs handcuffed him and banged his head against the car, Sachs then searched the car and removed petitioner's jacket, and after finding a knife inside one of the jacket pockets, Sachs removed the knife and then placed petitioner into the back of the police car. According to petitioner, during the ride to the precinct, Sachs hit him on the head and in the groin area with his nightstick. Petitioner protested that he was not "the person [they took him] for," that he was a graduate student and that he had passed the police exam.
According to petitioner, once they arrived at the precinct, he was beaten by another officer and placed in a holding cell. Petitioner stated that Sachs then came to the holding cell and announced that petitioner had passed the police exam and that Sachs was going to do everything he could to prevent petitioner from becoming a police officer. Petitioner stated further that Sachs also told petitioner that he would make sure petitioner lost his taxi driver's license as well.
According to petitioner, he never hit a police officer, including Sachs, and, moreover, his hands were handcuffed behind his back the entire time he was in the precinct.
Petitioner testified that, after the arraignment, he was taken to Bellevue Hospital; although petitioner did not complain of headache, nausea, pain or impairment of his vision, he told doctors that he felt ill and fatigued. He also stated that he had a cut over one eye and experienced swelling on his head and cuts on his hands. After his altercation with police and before the completion of his trial, petitioner filed a claim for damages against the City of New York.
By New York County Indictment Number 5827/94, petitioner was charged with attempted assault in the first degree, assault in the second degree, menacing, and criminal possession of a weapon in the fourth degree. The case proceeded to trial by jury in New York State Supreme Court, New York County, on February 8, 1995. The jury found petitioner guilty of assault in the second degree. On April 6, 1995, petitioner was sentenced to a three-year conditional discharge and 100 hours of community service. Petitioner appealed his conviction to the New York State Supreme Court, Appellate Division, First Department, claiming that the prosecution had failed to prove his guilt beyond a reasonable doubt and that the conviction for assault in the second degree must be vacated because the evidence was insufficient to establish that Sachs had suffered a physical injury. On October 22, 1998, the Appellate Division, First Department, unammously affirmed petitioner's conviction. See People v. Diallo, 254 A.D.2d 179, 679 N.Y.S.2d 300 (App.Div. Dep't 1998). The New York Court of Appeals denied petitioner's application for leave to appeal on February 4, 1999. See People v. Diallo, 93 N.Y.2d 852, 688 N.Y.S.2d 499 (1999).
The instant application for a writ of habeas corpus followed.
III. DISCUSSION
A. Mootness
A federal court "shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254 (a). The requirement of custody in habeas corpus jurisdiction is a threshold issue that must be addressed before a federal court may consider a claim on the merits.
The Supreme Court has interpreted the "in custody" language of the federal habeas corpus statute to mean that "the applicant must be in custody when the application for habeas corpus is filed." Carafas v. LaVallee, 391 U.S. 234, 238, 88 S.Ct. 1556, 1560 (1968). The definition of in custody" for the purposes of habeas review is not limited to incarceration. See Jones v. Cunningham, 371 U.S. 236, 239-40, 83 S.Ct. 373, 375-76 (1963); Hensley v. Municipal Court. San Jose Milpitas Judicial Dist., 411 U.S. 345, 348-5 1, 93 S.Ct. 1571, 1573-75 (1973). However, some measure of restraint on individual liberty is necessary. Thus, courts have found that a person was "in custody" within the meaning of the federal habeas corpus statute where that person was subject to, inter alia, probation or parole, see United States v. Re, 372 F.2d 641, 643 (2d Cir. 1967); Maleng v. Cook, 490 U.S. 488, 491, 109 S.Ct. 1923, 1925 (1989); release on recognizance pending trial, sentencing, or appeal, see Hensley, 411 U.S. at 35 1-52, 93 S.Ct. at 1574-75; and court-ordered community service see Barry v. Bergen County Probation Dep't, 128 F.3d 152, 159-162 (3d Cir. 1997).
Although the meaning of "in custody" in the habeas corpus context is broad, it does not extend to cases in which the restraint on an individual's liberty is neither severe nor immediate. See Hensley, 411 U.S. at 351, 93 S.Ct. at 1575. Moreover, "a habeas petitioner [is not] "in custody' under a conviction when the sentence imposed for that conviction has fully expired at the time his petition is filed." See Maleng, 490 U.S. at 491; 109 S.Ct. at 1925 (emphasis in original). If a petitioner was not "in custody" at the time his habeas corpus petition was filed in federal court, then the petitioner's cause is rendered moot. See Carafas, 391 U.S. at 237-38, 88 S.Ct. at 1559-60.
In this case, Diallo filed his petition for habeas corpus relief on December 27, 1999. Diallo's conditional discharge had expired over one and half years earlier, in April 1998. Although the record does not indicate whether petitioner had completed 100 hours of community service by the time his conditional discharge expired, the period between the expiration of his conditional discharge and the filing of his habeas corpus petition gave petitioner sufficient time to fulfill that term of his sentence. Therefore, since petitioner's sentence had fully expired at the time his petition was filed, petitioner was not in custody for the purposes of 28 U.S.C. § 2254 (a).
The Supreme Court has held that if a habeas corpus petitioner suffers "collateral consequences as a result of a conviction, he may avoid mootness by release from custody as long as he was in custody when his petition was filed. See Carafas, 391 U.S. at 238, 88 S.Ct. at 1559. Collateral consequences which may prevent a case from being moot include inability to vote or to engage in certain businesses and exclusion from public office or jury service. See Maleng, 490 U.S. at 491-92; 109 S.Ct. at 1925-26. However, the "collateral consequences" doctrine applies only in those cases in which petitioner filed his habeas corpus petition while he was in custody. See id.
According to petitioner, as a result of his conviction, he has been denied an opportunity to join the police force and has lost his license to drive a taxi. However, since petitioner filed his habeas corpus petition after his sentence had fully expired, any collateral consequences of his conviction are not themselves sufficient to render petitioner "in custody" for the purposes of his habeas corpus attack upon that conviction. Therefore, since petitioner fails to meet the custody requirement of 28 U.S.C. § 2254 (a), his petition is moot and should be denied. However, even if petitioner's application for habeas corpus relief is not moot, it should be denied on the merits.
B. Sufficiency of the Evidence
When a habeas corpus petitioner claims that there was insufficient evidence to support an underlying conviction, he must demonstrate that, upon "viewing the evidence in the light most favorable to the prosecution," it cannot be said that "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, 3 18-19, 99 S.Ct. 2781, 2789 (1979). A court reviewing such a claim must "avoid usurping the role of the jury." United States v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000). Rather, the court must give "full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact," and must let the jury decide whether gnilt beyond a reasonable doubt has been established. Id.
Furthermore, in a case such as this, where a state court has adjudicated the merits of the claim raised in a federal habeas corpus petition, 28 U.S.C. § 2254 informs that a writ of habeas corpus may issue only if the state court's adjudication resulted in a decision that 1) 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) was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. See 28 U.S.C. § 2254 (d); see also Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000); Francis S. v. Stone, 221 F.3d 100 (2d Cir. 2000). In addition, when considering an application for a writ of habeas corpus by a state prisoner, a federal court must be mindful that any determination of a factual issue made by a state court is to be presumed correct and the habeas corpus applicant has the burden of rebutting the presumption of correctness by clear and convincing evidence. See 28 U.S.C. § 2254 (e)(1).
New York's Penal Law defines assault in the second degree in part as follows:
A person is guilty of assault in the second degree when . . . 3) With intent to prevent a . . . police officer . . . from performing a lawful duty . . . he causes physical injury to such . . . police officer.
N Y Penal Law § 120.05(3). Physical injury is defined as "impairment of physical condition or substantial pain." N.Y. Penal Law § 10.00 (9).
Whether a person has suffered a physical injury within the meaning of New York's Penal Law is a question for the trier of fact. See People v. Guidice, 83 N.Y.2d 630, 636, 612 N.Y.S.2d 350, 352-53 (1994). Although pain is a subjective matter, "it is clear from the inclusion of the word "substantial' in the Penal Law definition that the Legislature did not intend a wholly subjective criterion to govern." Matter of Philip A., 49 N.Y.2d 198, 200, 424 N.Y.S.2d 418, 419 (1980). Proof of an objective level of physical injury is required. See id. Medical testimony is one factor to consider in resolving such issues; however, the trier of fact is entitled to credit the victim's testimony concerning the degree of pain experienced and the physical consequences suffered. See Guidice, 83 N.Y.2d at 636, 612 N.Y.S.2d at 353; People v. Colantonio, 277 A.D.2d 498, 499-500, 715 N.Y.S.2d 764, 766 (App.Div. 3rd Dep't 2000).
Petitioner claims that the evidence offered at his trial was insufficient to support the conviction for assault in the second degree. Specifically, petitioner asserts that the testimony of the two police officers involved in the incident was inconsistent, that petitioner's testimony concerning the events in question was more plausible than that of the police officers, and that the jury considered the prosecution's case "unworthy of belief' because it found petitioner guilty of only one of the four counts with which he was charged. In addition, petitioner claims that Sachs did not sustain a physical injury as is necessary to establish assault in the second degree.
In this case, the trial jury heard testimony from Sachs that, while he was directing traffic at the scene of an accident, he had an altercation with petitioner during which, among other things, petitioner struck him in the chest with an unopened knife. The jurors also heard from Sachs and his partner, Malave, that while Sachs and petitioner were seated in the back of the officers' patrol car, petitioner "head-butted" Sachs three times. Furthermore, the jurors heard that, at the precinct, petitioner struck Sachs again in the same manner and that, as a result of his altercation with petitioner, Sachs suffered from headaches, dizziness, and a strained shoulder, was treated at a hospital, and missed three days of work.
Petitioner's claim that the testimony of Sachs and Malave was inconsistent and, therefore, that petitioner's testimony was more plausible than that of the police officers is without merit. The jury reasonably could have accepted all or part of the testimony of Sachs, Malave, or petitioner regarding the events of the night in question in determining whether petitioner was guilty of the offense of assault in the second degree. In addition, petitioner's claim that, in order for the juiy to find petitioner not guilty of three of the four counts with which he was charged, the jury must have rejected the prosecution's case in its entirety is without substance. A reasonable trier of fact could have determined that the testimony at trial established the elements of assault in the second degree yet failed to establish the elements of the other crimes with which petitioner was charged.
The jury found, based upon the evidence presented at the trial, that petitioner had committed assault in the second degree. The Appellate Division found that there was ample evidence that Sachs suffered "physical injury" within the meaning of Penal Law § 10.00(9) and that there was no reason to disturb the jury's credibility determinations. The Appellate Division concluded that the evidence was legally sufficient to prove petitioner's guilt of second-degree assault and the verdict was not against the weight of the evidence.
Petitioner has not presented clear and convincing evidence to this Court that rebuts the presumption of correctness accorded the jury's finding of facts. Furthermore, the Court finds that the Appellate Division, in reviewing petitioner's conviction, applied the standard set forth in Jackson, in finding that the evidence was sufficient for a reasonable jury to return a verdict of guilty against petitioner with respect to the crime of assault in the second degree.
Since the Appellate Division's determination was neither contrary to nor involved an unreasonable application of clearly established federal law, as determined by the Supreme Court, there is no basis upon which to grant petitioner habeas corpus relief on this claim. Similarly, because the Court finds that the Appellate Division's adjudication did not result in a decision that was premised on an unreasonable determination of the facts in light of the evidence presented in the trial court, petitioner's claim that he is entitled to habeas corpus relief because his conviction for assault in the second degree was based on insufficient evidence is without merit.
C. False Arrest
Petitioner claims that he was subject to false and unlawful arrest because "no crime was committed" by him in this case.
Before a federal court may entertain a habeas corpus petition on behalf of a state prisoner, the petitioner must first exhaust his or her available state remedies. See 28 U.S.C. § 2254 (b) and (c); Jones v. Vacco, 126 F.3d 408, 413 (2d Cir. 1997); Dorsey v. Kelly, 112 F.3d 50, 52 (2d Cir. 1997); Dave v. Attorney General of New York, 696 F.2d 186, 190 (2d Cir. 1982) (en bane). Premised on the principles of comity, the exhaustion doctrine assures the "respect for our judicial system and concern for harmonious relations between the two adjudicatory institutions," Dave, 696 F.2d at 191, and "increase[es] the likelihood that the factual allegations necessary to a resolution of the claim will have been fully developed in state court, making federal habeas review more expeditious." Id. Although the writ of habeas corpus provides a remedy for imprisonment in violation of federal law, id., state courts, as well as federal courts, are charged with protecting a criminal defendant's federal rights, and the exhaustion doctrine requires that state courts "be given the opportunity to consider and correct any violations of federal law." Jones, 126 F.3d at 413.
To satisfy the exhaustion doctrine, a habeas corpus petitioner must meet a two-prong test. First, the petitioner must "fairly present" his or her federal claim to the highest state court from which a decision can be rendered. Daye, 696 F.2d at 190-9 1 n. 3. A claim is "fairly presented" if the state courts are informed of "both the factual and the legal premises of the claim [asserted] in federal court." Daye, 696 F.2d at 191.
Second, "having presented his federal constitutional claim to an appropriate state court, and having been denied relief, the petitioner must have utilized all available mechanisms to secure state a ellate] review of denial of that claim." Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981) (citations omitted). See also Nelson v. Walker, No. CV-94-1702, 1996 WL 148321, at *5 (E.D.N.Y. Mar. 20, 1996) (petitioner must utilize "all available avenues of appellate review within the state court system," either by direct appeal or collateral attack), aff'd 121 F.3d 828 (2d Cir. 1997).
Petitioner did not present his false and unlawful arrest claims to the New York Court of Appeals and, therefore, has failed to exhaust his available state remedies with respect to these claims. A federal court may deny a petition for a writ of habeas corpus on the merits, notwithstanding the failure of the applicant to exhaust the remedies available to him in state courts. See 28 U.S.C. § 2254(b)(2). However, "an unexhausted claim should not be dismissed on the merits unless it is obvious that the claim is not one upon which habeas relief may be granted." Jones v. Senkowski F.3d 2002 WL 246451, at *4 (2d Cir. Oct. 5, 2001). Petitioner's false arrest claim meets this standard; therefore, an analysis of the merits of the claim follows.
Under New York law, an individual claiming false arrest must show, inter alia, that he was intentionally confined without his consent and without justification. See Wevant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (citing Broughton v. State, 37 N.Y.2d 451, 456, 373 N.Y.S.2d 87, 93). The existence of probable cause to arrest constitutes justification and serves as an affirmative defense to an action for false arrest. See id,; Martimez v. City of Schenectady. et al., 97 N.Y.2d 78, 85, 735 N.Y.S.2d 868, 872 (2001). If, following the arrest, an individual is convicted of the charges against him, that conviction is conclusive evidence of probable cause to arrest, provided the conviction survives appeal. See Weyant, 101 F.3d at 852.
In the case at bar, petitioner was convicted, following his arrest, for assault in the second degree. The Appellate Division unammously affirmed the conviction. Since petitioners conviction survived appeal, it constitutes conclusive evidence of the existence of probable cause to arrest. Therefore, petitioner's claim for false arrest is without merit.
D. Law Enforcement Misconduct
Petitioner claims that he was subject to law enforcement misconduct and that his case is one of "police brutality." Petitioner failed to present this claim to the New York Court of Appeals. Therefore, for the reasons set forth earlier in connection with petitioner's false arrest claim, petitioner's law enforcement misconduct claim is unexhausted. However, even viewing the claim on its merits, it must fail.
In the context of a petition for habeas corpus relief, where there is no causal link between a constitutional violation arising from a claim of excessive police force and the evidence offered to convict the petitioner, it cannot be said that the official misconduct affected the reliability of the trial verdict. See Frankos v. Sendowski, 937 F. Supp. 227, 235-36 (S.D.N.Y. 1996) (citing Brown v. Doe, 2 F.3d 1236, 1242-43 [2d Cir. 1993]). Thus, when a defendant is lawfully arrested and convicted on untainted evidence, the proper remedy for official misconduct is not dismissal of the indictment but, inter alia, a civil action under 42 U.S.C. § 1983. See id. Where a claim of excessive force, brought pursuant to § 1983, arises in the context of an arrest or investigatory stop of a person, it is most properly characterized as one involving the protection of the Fourth Amendment. See Graham v. Connor. et al., 490 U.S. 386, 393-94, 109 S.Ct. 1865, 1870-71 (1989).
In the instant case, although petitioner's claim of official misconduct arose in the context of an arrest, since that arrest was lawful, and since petitioner was convicted on untainted evidence, the remedy for his allegation of law enforcement misconduct would be a civil action, rather than a petition for a writ of habeas corpus. Accordingly, petitioner is not entitled to habeas corpus relief on his law enforcement misconduct claim.
IV. RECOMMENDATION
For the reasons set forth above, I recommend that petitioner's application for a writ of habeas corpus be denied.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636 (b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable William H. Pauley Ill, 500 Pearl Street, Room 2210, New York, New York, 10007, and to the chambers of the undersigned, 40 Foley Square, Room 540, New York, New York, 10007. Any request for an extension of time for filing objections must be directed to Judge Pauley. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Am, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992);Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).