Opinion
01 Civ. 7191 (LAP) (KNF)
December 9, 2002
MEMORANDUM and ORDER
Herbert Harris ("Harris") has filed a motion seeking to be released on bail pending a decision on the merits of his petition for a writ of habeas corpus. Harris has also moved for a default judgment against the respondent. The respondent opposes petitioner's motions. For the reasons set forth below, the motions are denied.
BACKGROUND
On September 15, 1997, following a jury trial in New York State Supreme Court, New York County, petitioner was found guilty for robbery in the first degree, see N.Y. Penal Law § 160.15, and robbery in the second degree see N.Y. Penal Law § 160.10. By motion dated October 8, 1997, petitioner moved to set aside the verdict on the ground that it was against the weight of the evidence and legally insufficient to prove beyond a reasonable doubt that petitioner had acted in concert with his co-defendant, Robert Lee ("Lee"), to commit robbery. Following oral argument, the trial court set aside the jury verdict and dismissed the indictment against petitioner. The trial court found that there was insufficient evidence to establish that petitioner had intentionally aided Lee to commit robbery. The prosecution appealed the vacatur of the jury's verdict to the New York State Supreme Court, Appellate Division, First Department. On April 11, 2000, the Appellate Division unanimously reversed the trial court's order and reinstated the verdict convicting petitioner of robbery in the first and second degrees. See People v. Harris, 271 A.D.2d 258, 706 N.Y.S.2d 392 (App.Div. 1st Dep't 2000). After the Appellate Division rendered its decision, petitioner applied for leave to appeal to the New York Court of Appeals. His application was denied on July 21, 2000. See People v. Harris, 95 N.Y.2d 853, 714 N.Y.S.2d 4 (2000).
On remand, petitioner was sentenced to concurrent terms of three to six years' imprisonment for first-degree robbery, and two and one-quarter to four and one-half years' imprisonment for second-degree robbery. Petitioner appealed from the judgment of conviction to the Appellate Division. Petitioner's conviction was affirmed unanimously on November 1, 2001. See People v. Harris, 288 A.D.2d 20, 732 N.Y.S.2d 219 (App. Div. 1St Dep't 2001).
On August 2, 2001, Harris petitioned this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Harris contends that his confinement by New York State is unlawful because the evidence presented at his trial was insufficient to permit a jury to return a verdict of guilty for the crimes of robbery in the first and second degrees.
DISCUSSION
Federal courts have the "inherent power" to release habeas corpus petitioners on bail while the merits of their claims are being considered. Cary v. Ricks, No. 00 Civ. 8926, 2001 WL 314654, at *2 (S.D.N.Y. Mar. 30, 2001) (quoting Mapp v. Reno, 241 F.3d 221, 226 [2d Cir. 2001]). However, "[t]he standard for bail pending habeas litigation is a difficult one to meet." Grune v. Coughlin, 913 F.2d 41, 44 (2d Cir. 1990); see also Jackson v. Bennett, No. 01 Civ 8971, 2002 WL 126679, at *1 (S.D.N.Y. Jan. 30, 2002); Word v. Lord, No. 00 Civ. 5510, 2001 WL 1150345, at *1 (S.D.N.Y. Sept. 27, 2001). Bail should be granted to a habeas corpus petitioner "only in unusual cases . . . or when extraordinary or exceptional circumstances exist." Cary, 2001 WL 314654, at *2 (quoting Ostrer v. United States, 584 F.2d 594, 596 n. 1 [2d Cir. 1978]).
In determining whether the standard for bail has been met, courts have considered three factors: (1) Are substantial claims set forth in the habeas corpus petition? (2) Is there a demonstrated likelihood the petition will prevail? (3) Are there extraordinary circumstances attending the petitioner's situation which would require the grant in order to make the writ of habeas corpus effective, presumably if granted? In short, is this case distinguishable from other habeas corpus cases? See Jackson, 2002 WL 126679, at *1 (citing Richard v. Abrams, 732 F. Supp. 24, 25 (S.D.N.Y. 1990); Word, 2001 WL 1150345, at *1.
In his application for a writ of habeas corpus, petitioner asserts that he is entitled to relief because his conviction for robbery in the first and second degrees was based upon insufficient evidence. When a habeas corpus petitioner claims that there was insufficient evidence to support an underlying conviction, he faces a "heavy burden." United States v. Glenn, No. 01 Civ. 1602, 2002 WL 31520529, at *4 (2d Cir. Nov. 14, 2002) (quoting United States v. Matthews, 20 F.3d 538, 548 [2d Cir. 1994]). A petitioner seeking to overturn a conviction on the basis of a claim of insufficient evidence 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, 318-19, 99 S.Ct. 2781, 2789 (1979). In addition, "when reviewing the sufficiency of the evidence, [the court] `defer[s] to the jury's assessment of witness credibility and the jury's resolution of conflicting testimony.'" Glenn, 2002 WL 31520529, at *4 (quoting United States v. Bala, 236 F.3d 87, 93-94 [2d Cir. 2000]).
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, 1497 (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).
Under New York's Penal Law, a person is guilty for robbery in the first degree when, inter alia "he forcibly steals property and when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime . . . displays what appears to be a pistol . . . or other firearm . . . ." N.Y. Penal Law § 160.15(4). A person is guilty for robbery in the second degree under New York's Penal Law when, inter alia "he forcibly steals property and when . . . he is aided by another person actually present . . . ." N.Y. Penal Law § 160.10(1). Further, N.Y. Penal Law § 20.00 provides the following definition of criminal liability for the conduct of another:
When one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof he solicits, requests, commands, importunes or intentionally aids such person to engage in such conduct.
Without deciding the merits of the petition, it does not appear likely that Harris' claim will succeed. At trial, the jury heard testimony from Alpha Omar Sysavne ("Sysavne"), the person who claimed to be the victim of the robbery. Sysavne, a cab driver, testified that at about 4:30 a.m., on June 1, 1996, as he was driving his cab to Manhattan from the Bronx, he was hailed by petitioner. Sysavne testified further that, before entering the cab, petitioner called to Lee, who was standing nearby. According to Sysavne, after petitioner and Lee entered the cab, one of the two men stated that they wanted to go to West 148th Street and Seventh Avenue in Manhattan; however, when they reached that location, one of the two men changed the destination to West 147th Street and Seventh Avenue. Sysavne testified that when he brought the cab to a stop, Harris exited the vehicle. Sysavne also recalled that petitioner stood directly in front of the cab, although later Sysavne testified that petitioner stood about thirty feet away from the cab.
According to Sysavne, while petitioner was outside the cab, Lee robbed him at gunpoint, and then exited the cab, whereupon Sysavne drove his car toward petitioner. Sysavne stated that petitioner jumped out of the way, picked up a rock and threw it at the cab, shattering the vehicle's front windshield, then fled the scene and, together with Lee, entered a building on West 147th Street. Sysavne testified that he drove to a police station and reported the robbery, and that two officers accompanied him to the scene of the robbery where Sysavne observed and identified petitioner and Lee. According to Sysavne, petitioner had by then changed his clothes. Petitioner and Lee were arrested and searched by a police officer, who testified that he did not recover any property from them at the time. In addition, police officers who searched the area testified that the gun allegedly used in the robbery was never recovered.
The jury found, based upon the evidence presented at the trial, that petitioner was guilty for robbery in the first degree and robbery in the second degree. In setting aside the jury's verdict, the trial court ruled that, viewing the evidence in the light most favorable to the prosecution, there was insufficient evidence to establish petitioner's guilt beyond a reasonable doubt. Specifically, the trial court found that the prosecution had failed to prove either that Harris intentionally aided Lee or that Harris had acted with the requisite mental culpability for the crime. Therefore, the trial court concluded, the prosecution failed to establish that Harris had acted in concert with Lee.
In reversing the trial court's ruling, the Appellate Division stated:
Viewing the evidence in a light most favorable to the People and giving them all reasonable inferences that could be drawn in their favor, a "community of purpose, ' as well as Harris's full knowledge of Lee's intentions, were evidenced by Harris's action of entering the cab with Lee after Lee called him over, standing nearby as the crime took place, throwing a rock at the cab's window, fleeing into the same location as Lee and then walking with him after the crime, whereupon defendants were arrested by the police.
As petitioner notes in his letter application for leave to appeal to the New York Court of Appeals, which is attached to his petition for a writ of habeas corpus, the Appellate Division mistakenly found that Lee had hailed the cab and then called Harris over, whereas the record indicates that it was Harris who hailed the cab. As petitioner acknowledged, however, this was an "error of minor significance."
Harris, 271 A.D.2d at 258-59, 706 N.Y.S.2d 392, 394 (citations omitted). The court also found that Harris' change of clothing prior to his arrest "evidenced a consciousness of guilt," and that "[s]ince the evidence provided a basis from which to infer that Harris acted as a lookout, in addition to proving that Harris acted in concert with Lee, it also proved that Harris was "actually present, ' supporting his conviction of robbery in the second degree . . . ." Id. at 259, 394.
In support of his petition for a writ of habeas corpus, Harris submitted his letter application for leave to appeal to the New York Court of Appeals from the decision of the Appellate Division referenced above. The application asserts, inter alia that few, if any, of the findings set forth by the Appellate Division are supported by Sysavne's testimony and that on appeal the prosecution had presented "an alarmingly distorted and inaccurate description of the trial evidence."
It appears, however, that the Appellate Division, in reviewing the trial court's ruling on the motion to set aside the verdict, applied the standard set forth in Jackson v. Virginia in finding that the evidence was sufficient for a reasonable jury to return a verdict of guilty against petitioner with respect to the crimes of robbery in the first and second degrees. Consequently, it appears unlikely that Harris will succeed in establishing that the Appellate Division's decision was either contrary to or involved an unreasonable application of clearly established federal law, as determined by the Supreme Court, or that it was premised on an unreasonable determination of the facts in light of the evidence presented at trial.
In addition, Harris has not shown that his release on bail is necessary to make the writ of habeas corpus, if granted, effective. Harris notes that he has served more than his minimum term of imprisonment of three years, and that his conditional release date is May 4, 2003. However, in the absence of a substantial habeas corpus claim, the fact that Harris has completed more than the minimum term of his sentence and will be eligible for release in May 2003 does not constitute an extraordinary circumstance warranting his release on bail in order to preserve the effectiveness of the habeas corpus remedy. See Cary, 2001 WL 314654, at *3 ("[T]he mere fact that [petitioner] has almost completed his sentence is not sufficient foundation for granting bail absent a substantial claim. If it were, every prisoner nearing the end of a term could bring a successful bail motion in connection with a habeas petition."); see also Jackson, 2002 WL 126679, at *1.
Harris contends that, while incarcerated, he has earned two treatment certificates and three vocational certificates and that, if he is granted release, he will seek employment, reside with his stepfather, and "remain in touch with the Court, with regard to any Court appearance." Although these considerations may be relevant to a parole application in the future, they do not constitute extraordinary circumstances such that this case is distinguishable from other habeas corpus cases. Accordingly, petitioner's motion for release on bail is denied.
Petitioner also moves for a default judgment in light of the respondent's untimely answer to petitioner's application for release on bail. By order dated October 7, 2002, the respondent was directed to file a response to petitioner's bail motion on or before October 22, 2002. In her memorandum of law in opposition to petitioner's motion, respondent's counsel avers that her office has no record of having received the Court's October 7, 2002 order, and that a response was filed "as expeditiously as possible" upon receipt of petitioner's motion for a default judgment.
Under the circumstances, the Court has determined to entertain the submission made by respondent in opposition to petitioner's application for release on bail. See Harris v. Hollins, No. 95 Civ. 4376, 1997 WL 5909, at *3 (S.D.N.Y. Jan. 7, 1997) (conditionally denying habeas corpus petitioner's motion for a default judgment); Andrews v. Kelly, No. 86 Civ. 0908, 1987 WL 16157, at *2-*3 (S.D.N.Y. Aug. 11, 1987) (noting that it is well within the discretion of a federal district court to disregard a delay in answering a habeas corpus petition). Accordingly, petitioner's motion for a default judgment is denied.
CONCLUSION
For the reasons set forth above, petitioner's application for bail, pending a decision on the merits of his petition for a writ of habeas corpus, is denied. Petitioner's motion for a default judgment is also denied.