Opinion
97 Civ. 3175 (MGC)
January 23, 2003
BARRINGTON REYNOLDS, Sing Sing Correctional Facility Ossining, Petitioner, pro se.
ROBERT M. MORGENTHAU, District Attorney, Attorney for Respondent, New York, NY., By: Patricia Curran, Esq. Assistant District Attorney.
OPINION
Barrington Reynolds, a state prisoner, petitions pursuant to 28 U.S.C. § 2254 for a writ of habeas corpus on seven grounds: (1) he was deprived of his Sixth Amendment right to a public trial by the trial court's improper closure of the courtroom during the testimony of undercover Police Detective Hall; (2) he was denied the right to a fair trial under the U.S. Constitution when the trial court admitted into evidence an inaudible tape recording of a conversation between Detective Hall and a narcotics suspect, and provided the jury with a written transcript of the tapes, prepared solely by the officer who was the principal prosecution witness; (3) he was denied his constitutional rights to due process and equal protection of the law when Detective Hall testified that petitioner was armed with a gun during the alleged transaction, a crime for which he had not been charged; (4) the failure of the prosecution to independently establish a conspiracy rendered conversations between Detective Hall and petitioner's alleged accomplice hearsay, and the admission of these conversations denied petitioner the right to a fair trial and due process of law; (5) he was denied his constitutional right to effective assistance of trial counsel guaranteed by the Sixth and Fourteenth Amendments primarily because defense counsel failed to object to "countless instances of hearsay" testimony; (6) he was deprived of due 2 process of law because the verdict was not supported by legally sufficient evidence that established beyond a reasonable doubt every fact necessary to constitute the crime; and (7) the sentence imposed was clearly excessive.
For the following reasons, the petition is denied.
PROCEDURAL HISTORY
Petitioner was convicted of Criminal Sale of a Controlled Substance in the first degree and was sentenced to twenty-five years to life imprisonment. The Appellate Division, First Department, unanimously affirmed petitioner's judgment of conviction. The New York Court of Appeals denied petitioner leave to appeal. Petitioner collaterally attacked the judgment pursuant to N.Y. Crim. Proc. Law § 440.10. That motion was denied. Permission to appeal from this collateral order was denied by the Appellate Division.
On May 20, 1996, petitioner filed a petition for a writ of habeas corpus in the Southern District of New York. After discussions with an attorney, but prior to the filing of any responsive papers, petitioner moved to withdraw the petition on the ground that an attorney would be retained to submit comprehensive papers. By order entered September 3, 1996, Judge Kaplan ordered the petition withdrawn "without prejudice to resubmit a habeas petition at a later date." When petitioner was 3 subsequently unable to retain a lawyer, he filed a pro se petition raising the same grounds as the original petition. Respondent moved to dismiss this petition as time barred. I denied the motion to dismiss on the ground that the petition was filed within a reasonable period after the effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA).
Standard for Habeas Review
28 U.S.C. § 2254(d) provides:
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.
In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court held that a state-court decision is "contrary to" Supreme Court precedent "if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of th[e] Court and nevertheless arrives at a result different from [the Court's] precedent." Id. at 405-06 (2000). "When a state-court decision unreasonably applies the law of [the Supreme Court] to the facts of a 4 prisoner's case, a federal court applying § 2254(d)(1) may conclude that the state-court decision falls within that provision's `unreasonable application' clause." Id. at 409.
Courtroom Closure
Petitioner argues that his Sixth Amendment right to a public trial was violated by the trial court's closure of the courtroom during Detective Hall's testimony. Respondent argues that Hall's testimony that his life and his ability to continue as an undercover agent would be jeopardized if petitioner's associates learned of his identity established the requisite overriding state interest for limited courtroom closure. The right to a public trial provided by the Sixth Amendment is not absolute: "[T]he right to an open trial may give way in certain cases to other rights or interests, such as the defendant's right to a fair trial or the government's interest in inhibiting disclosure of sensitive information." Waller v. Georgia, 467 U.S. 39, 45 (1984). The Supreme Court has instructed that the instances in which courtroom closure will be warranted are "rare," cautioning that "the balance of interests must be struck with special care." Id. In Waller, the Supreme Court constructed a four-part test for permissible courtroom closure in criminal proceedings:
[1] the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, [2] the closure must be no broader than necessary to protect that interest, [3] the trial court must consider reasonable alternatives to 5 closing the proceeding, and [4] [the court] must make findings adequate to support the closure. Id. at 48.
The Court of Appeals for the Second Circuit's recent decision in Brown v. Artuz, 283 F.3d 492 (2d Cir. 2002), dealt with facts similar to those in this case. In Brown, the Second Circuit held that the first prong of the Waller test was met because the officer's safety was an overriding interest that would be prejudiced if his identity was revealed since the officer still worked undercover in the neighborhood where the arrest took place. Brown at 501. Second, the Court held that because the state court closed the courtroom only during the officer's testimony, the closure was no broader than necessary. Id. at 502. Third, the Court found that public availability of the transcript was a reasonable alternative to open-court testimony. Id. Finally, as a result of the trial court's Hinton hearing, the trial court made findings adequate to support the closure. Id. Therefore, the Second Circuit held that the closure was neither contrary to nor involved an unreasonable application of the Supreme Court's standard in Waller or any other Supreme Court decision, and therefore it could not grant habeas corpus relief. Id.
The reasoning of Brown applies to the facts of this case. Detective Hall testified that he was engaged in several ongoing investigations in the area in which petitioner sold drugs. Additionally, he testified that petitioner was a member of a 6 dangerous gang that had put a price on Hall's head. The courtroom was closed only during Hall's testimony, and a record of his testimony was available to the public. Finally, here, as in Brown, the trial court made factual findings adequate to support closure. Therefore, the adjudication of this claim by the trial court and the Appellate Division did not "[result] 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." 28 U.S.C. § 2254(d)(1).
Co-Conspirator's Statements
Petitioner argues that he was denied the right to a fair trial as due process of law requires by the hearsay testimony of Detective Hall about Hall's negotiations with an alleged accomplice. Under federal law, "[a] statement is not hearsay if . . . [t]he statement is offered against a party and is . . . a statement by a coconspirator of a party during the course and in furtherance of the conspiracy." Fed.R.Evid. 801(d)(2)(E); see also Bourjaily v. United States, 483 U.S. 171, 183 (1987). Here, the trial court found a prima facie case of conspiracy and correctly admitted the testimony of defendant's co-conspirator. In any event, even had the court erred in concluding that a prima facie case of conspiracy was shown, the admission of this 7 testimony did not have a substantial and injurious effect in determining the jury's verdict. See Brecht v. Abrahamson, 507 U.S. 619 (1993). Therefore, this claim is not cognizable on habeas review. Id.
Evidence pertaining to deadly weapon
Petitioner argues that he was deprived of due process and equal protection of law when Detective Hall testified that petitioner was armed with a gun during the alleged transaction because petitioner was not charged with weapons possession. The trial court interrupted the witness' direct testimony to strike any reference to the gun. The court explicitly instructed the jury to disregard any reference to the gun and not to consider it at any time. This curative instruction was sufficient.
Inaudible Tape Recording
Petitioner argues that he was denied the right to a fair trial when the trial court admitted into evidence an inaudible and incomprehensible tape recording and a written transcript of conversations between Detective Hall and petitioner's alleged accomplice. Detective Hall, who was born in Jamaica, spoke with the accomplice in a Rastafarian dialect in these conversations. The trial court concluded that the dialect was equivalent to a foreign language and admitted the transcripts as translations. The trial court's conclusion that the dialect was equivalent to a foreign language was not "an unreasonable determination of the facts in light of the evidence presented." 28 U.S.C. § 2254(d)(2). Furthermore, the decision to receive the tape and translation as evidence did not involve an "unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). Finally, any claim grounded in the inaccuracy of the transcript is procedurally defaulted because the Appellate Division determined that petitioner never challenged the accuracy of the transcripts at trial. See New York v. Reynolds, 192 A.D.2d 320, 321, 696 N.Y.S.2d 451, 452 (1st Dep't). Absent a showing of "cause" and "prejudice," petitioner's failure to object at trial constitutes "an adequate and independent state ground" for denying habeas review. See Wainwright v. Sykes, 433 U.S. 72, 86 (1977). Petitioner has shown neither cause nor prejudice.
Ineffective Assistance of Counsel
Petitioner asserts that he was denied the effective assistance of counsel, primarily because of his attorney's failure to object to "countless instances of hearsay". In order to prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate both that his attorney's 9 representation was unreasonable under the "prevailing professional norms," and that there is a reasonable probability that, but for his attorney's errors, "the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). Trial counsel is "strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690. An examination of the record shows that counsel for petitioner represented him conscientiously.
Legally Sufficient Evidence
The Due Process Clause of the Fourteenth Amendment protects a defendant in a criminal case against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. Jackson v. Virginia, 443 U.S. 307, 316 (1979). The question raised by claims of insufficient evidence 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." Id. at 319 (emphasis in original). The burden on petitioner is "very heavy" because all inferences are to be drawn in the prosecution's favor, and "a conviction may be based upon circumstantial evidence and 10 inferences based upon the evidence . . . and the jury is exclusively responsible for determining a witness' credibility." United States v. Strauss, 999 F.2d 692, 696 (2d Cir. 1993).
Petitioner was convicted of Criminal Possession and Criminal Sale of a Controlled Substance in the First Degree under Sections 220.21 and 220.43 of the New York Penal Law respectively. To violate either of these sections, an individual must act knowingly. "A person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense where he is aware that his conduct is of such nature or that such circumstance exists." N.Y. Penal Law § 15.05(2). Reynolds contended on direct appeal that the prosecution offered no evidence that he knowingly possessed or sold the drugs to the undercover officers. A review of the record in the light most favorable to the prosecution shows that a rational fact finder could find that petitioner acted with the knowledge required to be shown under Sections 220.21 and 220.43 of New York Penal Law.
Excessive Sentence
Petitioner argues that his sentence was excessive because the trial court did not consider the possibility of rehabilitation when determining his sentence. However, "[n]o federal constitutional issue is presented where, as here, the 11 sentence is within the range prescribed by state law." White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992). Petitioner was convicted of two First Degree A-1 felonies (Criminal Possession of a Controlled Substance in the First Degree, New York Penal Law § 220.21, and Criminal Sale of a Controlled Substance in the First Degree, New York Penal Law § 220.43), each carrying a maximum term of life and a minimum term between fifteen and twenty-five years. See New York Penal Law § 70.00(2), § 70.00(3). Petitioner was sentenced to an indeterminate term of twenty-five years to life imprisonment. Therefore, no federal sentencing issue is presented by this petition.
CONCLUSION
For the foregoing reasons, Reynolds' petition for a writ of habeas corpus is denied.
SO ORDERED.