Opinion
00 Civ. 4924 (MBM) (JCF).
October 26, 2001
REPORT AND RECOMMENDATION
TO THE HONORABLE CHIEF JUDGE MICHAEL B. MUKASEY, U.S.D.J.:
Raymond Sanabria brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction in New York State Supreme Court, Bronx County, for robbery and related crimes. In his amended petition, Mr. Sanabria alleges that: (1) there was insufficient evidence to support his conviction; (2) identification evidence should have been suppressed because it resulted from an arrest without probable cause and was impermissibly suggestive; (3) he was denied a fair trial because a juror was inattentive; (4) the court failed to inquire into his capacity to stand trial; (5) the consolidation of separate incidents for trial was prejudicial; and (6) the sentence imposed was excessive. For the reasons set forth below, I recommend that the petition be denied.
Background
A. Trial Testimony
On August 26, 1992, a man entered the College Grocery, located on East 167th Street in the Bronx, with a police shield, gun, and radio and identified himself as a police officer. (Tr. 564-66). He accused Luis Feliz Gonzalez, who was working in the store, of selling numbers and then pointed a gun at Mr. Gonzalez's back, searched his pockets, and took money from his wallet. (Tr. 566-68).
Tr. refers to the trial transcript.
That same day Angel Veras and Jose Munoz were working at the Fernando Grocery Store on 166th Street in the Bronx, when a man came into the store, identified himself as a police officer, and pulled out a badge. (Tr. 643, 647, 708-09). He told them that he had received reports that drugs were being sold at the store and asked if he could search the premises. (Tr. 643, 708). Mr. Munoz acquiesced and directed Mr. Veras to accompany the putative policeman who then pulled out a gun, pressed it against Mr. Veras' back, and directed him to walk upstairs and into an office area. (Tr. 643-44, 646). The assailant then returned downstairs, made his way to the front of the store by the cash register, and pulled out a cigar box and another small bag, each containing money. (Tr. 648-50). He also found a bottle of Dominican rum, informed Mr. Veras and Mr. Munoz that it was contraband, and instructed Mr. Veras to dispose of it. Mr. Veras left to discard the rum and Mr. Munoz attended to a customer. (Tr. 650-51, 716-17). When they returned to the area by the cash register, the man had fled, taking with him $950.00. (Tr. 650-51, 716-18).
On September 4, 1992, a man entered the Sweet Shop located on 156th Street in the Bronx. (Tr. 42-43). He identified himself as a police officer to the two men working in the store, Antonio Cortez and Balbino Tavares. (Tr. 42, 131). He presented a police badge, gun, and radio and stated that he had received a call that there were drugs on the premises. (Tr. 46-47, 131-32). He then removed approximately $89.00 from the register and went into a back room. (Tr. 44, 52, 89, 132, 141). Police Officer Juan Perez, who had been alerted that someone was "posing as a cop," entered the store. (Supp. Tr. 7; Tr. 56, 243-44). When the man emerged from the back room, Officer Perez searched him but found nothing. (Tr. 57, 245-46). Officer Perez then went to the back of the store and found a walkie-talkie on the floor and a holster and gun in a box. (Tr. 246). Mr. Tavares retrieved the money, which he found on a table in the back room. (Tr. 133, 174, 176-77). Meanwhile the suspect walked out of the shop. (Tr. 247, 390). When Officer Perez realized that the suspect was fleeing, he directed two officers who had arrived on the scene, Kevin O'Keefe and Raymond Sanchez, to detain him. At this point the suspect began running away and the two officers gave chase. (Tr. 247, 389-90). Officer Perez then resumed his search and found what appeared to be a police shield. (Tr. 248, 254).
"Supp. Tr." refers to the transcript from the Huntley/Wade/Dunaway/Mapp hearing. This hearing was held to determine whether there was probable cause to arrest the defendant, Dunaway v. New York, 442 U.S. 200 (1979), and to assess the admissibility of any confession, People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838 (1965), identification testimony, United States v. Wade, 388 U.S. 218 (1967), custodial statements, Dunaway, and seized evidence, Mapp v. Ohio, 367 U.S. 643 (1961).
Approximately ten to fifteen minutes elapsed between the time Officers O'Keefe and Sanchez apprehended the suspect, Mr. Sanabria, and when they brought him back to the store. (Tr. 254, 392, 399). They displayed the petitioner to four witnesses including the Sweet Shop store workers, Mr. Cortez and Mr. Tavares. The witnesses were each called over individually to observe Mr. Sanabria and were approximately six to twelve feet away from each other during the identification process. (Supp. Tr. 73, 75; Tr. 255-56, 345). All of the witnesses positively identified Mr. Sanabria as the man who claimed to be a policeman at the store. (Supp. Tr. 71, 74-75; Tr. 58, 155-56). It appears that Mr. Tavares was not present when the other three witnesses made their identification, because he went home after Mr. Sanabria fled the scene. When he returned to make the identification, the other witnesses were not present and Mr. Tavares was shown Mr. Sanabria seated in a police car. (Tr. 154-56, 189-90).
After he was taken into custody, the petitioner was placed in two lineups on September 4, 1992. In one, Mr. Gonzalez identified him as the suspect from the College Grocery, and in the other, Mr. Munoz and Mr. Veras identified him as the perpetrator of the Fernando Grocery robbery. (Tr. 579-81, 660-64, 721-23, 769-70).
At trial, all of the store worker witnesses identified the petitioner as the robber. (Tr. 45-46, 134-35, 570-71, 642-43, 709-10).
B. Pretrial Motions
Mr. Sanabria was charged in one indictment with armed robbery and related crimes for the events at the College Grocery and the Fernando Grocery and in another indictment with armed robbery and related crimes for what transpired at the Sweet Shop and two other groceries. (Decision dated May 13, 1994 ("May 1994 Decision"), at 1-2, attached as Exh. 13 to Affidavit of Kimberly Morgan dated Dec. 12, 2000 ("Morgan Aff.")). Prior to trial, the prosecutor moved to consolidate both indictments for trial. The petitioner opposed consolidation and cross-moved to sever the different incidents. (May 1994 Decision at 2). In a ruling dated May 13, 1994, Justice Efrain Alvarado consolidated the charges arising from the College Grocery, Fernando Grocery, and Sweet Shop incidents, and severed the charges relating to the other locations. (May 1994 Decision at 3-4).
C. Closing Arguments and Jury Verdict
After closing arguments, the petitioner moved to discharge juror number five, arguing that she appeared to be sleeping or inattentive during defense counsel's summation but had paid close attention during the prosecution's closing argument. (Tr. 988-89). Justice Alvarado denied the motion without a hearing, stating that the juror had previously said that she occasionally shut her eyes because she had trouble with the courtroom lights. (Tr. 989). Mr. Sanabria renewed his application following the jury charge, and the court again denied the request. (Tr. 1080-81).
On January 25, 1995, the jury found Mr. Sanabria guilty of robbery in the first degree, criminal possession of a weapon in the second degree, grand larceny in the fourth degree, and criminal impersonation in the first degree. (Tr. 1135-36).
D. Posttrial Proceedings and Sentencing
Prior to sentencing, Mr. Sanabria moved to vacate the judgment alleging that he had not been competent to stand trial. (First Comp. Tr. 2). Approximately one year after the jury returned its guilty verdict, a hearing was held to determine whether there were any issues requiring a full competency hearing. (First Comp. Tr. 2).
"First Comp. Tr." refers to the transcript from the posttrial hearing held on December 20 and 21, 1995, to determine whether a competency hearing would be needed.
Two doctors from Rikers Island, Ricardo Goldamez and Adrien Nelson, testified about the treatment the petitioner received while incarcerated there. (First Comp. Tr. 3, 9-14; Second Comp. Tr. 2, 5-8). Dr. Goldamez, a medical doctor specializing in internal medicine but not a licensed psychiatrist, testified that in January 1995, he re-prescribed Thorazine and Prozac for the petitioner, continuing the dosage he had been given in the past, because the facility's psychiatrist was on vacation. (First Comp. Tr. 4-6, 8). He stated that these psychotropic drugs could affect a person's ability to reason. (First Comp. Tr. 14). Dr. Goldamez concluded that Mr. Sanabria was able to understand him, but sometimes acted "a little irrational." (First Comp. Tr. 16-17).
"Second Comp. Tr." refers to the transcript from the continuation of the posttrial hearing held on January 3 and 17, 1996, and the sentencing on January 17, 1996.
Dr. Nelson, a medical doctor specializing in psychiatry but not board-certified, testified that he treated the petitioner for a "schizo effective disorder." (Second Comp. Tr. 2-3, 5). He first met the petitioner in January 1995, when the trial began, and found him to be very depressed. Mr. Sanabria told Dr. Nelson that he heard voices and wanted to hurt himself. (Second Comp. Tr. 5-6). The doctor confirmed that Mr. Sanabria was taking Prozac and Thorazine under his supervision. (Second Comp. Tr. 6). He also stated that Thorazine may cause "drowsiness, sedation, [or] autostatic hypertension" if an improper dosage is prescribed. (Second Comp. Tr. 8). Although not familiar with the standard for competency under New York's Criminal Procedure Law § 730 (Second Comp. Tr. 36), Dr. Nelson testified that it would not have been advisable for Mr. Sanabria to have attended any proceeding in January 1995, because "he was complaining of hallucinations, so he was psychotic and he was very depressed." (Second Comp. Tr. 36-37). Dr. Nelson further stated that Mr. Sanabria had progressively responded to the medications and that his psychotic symptoms had subsided. (Second Comp. Tr. 37).
The transcript incorrectly cites to "Section 3030" of the New York Criminal Procedure Law.
The assistant district attorney prosecuting the case placed several observations on the record, all indicating that Mr. Sanabria was fully competent throughout the trial. He noted that the petitioner stopped talking when instructed (Second Comp. Tr. 47), conversed with defense counsel about the case (Second Comp. Tr. 47-48), and actively participated in plea negotiations (Second Comp. Tr. 49-50), in negotiations with other District Attorneys' Offices about providing information (Second Comp. Tr. 54), and in many phases of the trial. (Second Comp. Tr. 48, 52). Furthermore, Mr. Sanabria was always alert and responsive and exhibited no signs of misunderstanding. (Second Comp. Tr. 52, 54-56).
Justice Alvarado declined to hold a full competency hearing, reasoning that, "we would be asking someone to determine Mr. Sanabria's condition at a point in time that is one year earlier." (Second Comp. Tr. 64). He then went on to deny the motion in its entirety, finding that the petitioner's "actions during the trial, immediately prior to the trial and after the trial are all consistent with an individual who understood both the charges, the nature of the proceedings and the consequences of those proceedings." (Second Comp. Tr. 85-86).
After concluding the hearing on January 17, 1996, Justice Alvarado sentenced the petitioner as a second felony offender to consecutive terms of ten to twenty years for robbery, six to twelve years for possession of a weapon, and two to four years for grand larceny, to run concurrently with a term of one and one-half to three years for criminal impersonation. (Second Comp. Tr. 105-06; People v. Sanabria, 266 A.D.2d 41, 41, 698 N.Y.S.2d 622, 623 (1st Dep't 1999)). In December of 1998, the petitioner filed an appeal, arguing that: (1) there was insufficient evidence to support his conviction; (2) identification evidence should have been suppressed because it resulted from an arrest without probable cause, and the identifications made following the show-up should have been suppressed as the product of an impermissibly suggestive procedure; (3) he was denied a fair trial because a juror was inattentive; (4) the court improperly failed to inquire into his capacity to stand trial; (5) the consolidation of separate incidents for trial was prejudicial; and (6) the sentence imposed was excessive. (Brief for Defendant-Appellant ("Pet. Br.") at 19, 23, 30, 32, 38, 41, attached as Exh. 1 to Morgan Aff.). On November 9, 1999, the Appellate Division affirmed the conviction, Sanabria, 266 A.D.2d 41, 698 N.Y.S.2d 622, and the Court of Appeals denied leave to appeal on January 18, 2000. People v. Sanabria, 94 N.Y.2d 884, 705 N.Y.S.2d 17 (2000).
Mr. Sanabria filed the instant petition on July 6, 2000, alleging various grounds for relief, all of which were unexhausted. He subsequently requested leave to amend his petition to substitute the claims raised in his state appellate brief, and I granted leave to amend on October 23, 2000.
Discussion
A. Sufficiency of the Evidence
In his first claim, the petitioner argues that there was insufficient evidence presented at trial to sustain his conviction for first degree robbery in the Fernando Grocery incident. Specifically, Mr. Sanabria asserts that there was no evidence of forcible stealing. This claim is without merit.
The standard for habeas corpus review of the sufficiency of the evidence is well-settled. There is a "very heavy burden placed upon a defendant challenging the sufficiency of the evidence underlying his conviction." Knapp v. Leonardo, 46 F.3d 170, 178 (2d Cir. 1995) (internal quotations and citation omitted). "To 9 succeed, [the petitioner] must demonstrate that viewing the evidence in the light most favorable to the government, . . . no rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt." Id. (internal quotations and citations omitted); see also Jackson v. Virginia, 443 U.S. 307, 319 (1979).
A federal court reviewing a sufficiency of evidence claim does not make an independent determination as to whether the evidence demonstrates guilt beyond a reasonable doubt. Id. at 318-19. Rather, the judge must construe the evidence in the light most favorable to the prosecution, and defer to the jury's resolution of any conflicts in the testimony and its assessment of witness credibility. Id. at 319; see also Herrera v. Collins, 506 U.S. 390, 402 (1993) (Jackson inquiry asks only whether decision to convict was rational, not whether it was correct). "As long as any competent evidence went to the fact-finders from which they could infer guilt beyond a reasonable doubt, the conviction will stand." Martin v. Scully, 748 F. Supp. 159, 164 (S.D.N.Y. 1990) (quoting McShall v. Henderson, 526 F. Supp. 158, 161 (S.D.N.Y. 1981)).
New York Penal Law defines forcible stealing as the use or threatened immediate use of physical force upon another person for the purpose of:
1. Preventing or overcoming resistance to the taking of he property or to the retention thereof immediately after the taking; or
2. Compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.
N Y Penal Law § 160.00. Mr. Sanabria maintains that evidence indicating that he pointed a gun at the back of Mr. Veras, a store employee, and directed him to walk through a door to the stairwell did not provide the requisite element of force, because it neither occurred "in the commission of the larceny" nor was it used to prevent or overcome any resistance. He further claims that the store workers willingly complied with him as they believed him to be a police officer. Nevertheless, a rational juror could have found that the display of the weapon was intended to threaten Mr. Veras, not simply contribute to the petitioner's disguise. As the Appellate Division pointed out,
Although the crime began with a ruse in which defendant pretended to be a police officer, the jury could have reasonably concluded that when defendant thrust a gun into the back of one of the employees, this act was not merely part of the ruse but constituted the statutorily required threat of physical force.
Sanabria, 266 A.D.2d at 42, 698 N.Y.S.2d at 623. Accordingly, the petitioner's claim that there was insufficient evidence to support the Fernando Grocery robbery conviction is without merit.
B. Admissibility of Identification Evidence
The petitioner next argues that the identification evidence from the Sweet Shop incident should be suppressed because it resulted from an arrest without probable cause and because the on-the-scene identifications were impermissibly suggestive. The respondent maintains that the first part of the claim is barred and that the second part is meritless. I concur and recommend dismissal of both claims.
1. Fourth Amendment
With regard to the first part of the petitioner's claim, the Supreme Court has held that "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Stone v. Powell, 428 U.S. 465, 494 (1976); see also Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992).
Though Stone involved physical evidence seized in a search, the Supreme Court has since held that the Stone doctrine applies to a Fourth Amendment challenge to the introduction of a confession made after an unlawful arrest. Cardwell v. Taylor, 461 U.S. 571, 572-73 (1983). Accordingly, habeas review is unavailable where the claim is based on an unlawful arrest in violation of the Fourth Amendment.
Torrez v. Sabourin, No. 00 Civ. 3286, 2001 WL 401444, at *4 (S.D.N.Y. April 19, 2001); see, e.g., Gantt v. Artuz, No. 97 Civ. 3032, 1999 WL 1206733, at *3 (S.D.N.Y. Dec. 16, 1999) (review of claim that police did not have probable cause to arrest petitioner precluded by Stone); Joyner v. Leonardo, No. 99 Civ. 1275, 1999 WL 608774, at *3-4 (S.D.N.Y. Aug. 12, 1999) (no habeas review of search and seizure claim where probable cause to arrest was questioned); Quinones v. Keane, No. 97 Civ. 3173, 1998 WL 851583, at *4 (S.D.N.Y. Dec. 7, 1998) (no review permitted of search and seizure issues). Therefore, the Stone doctrine clearly applies to Mr. Sanabria's claim.
Under this standard, there are only two instances in which review of a Fourth Amendment claim will be granted: (1) where the state has provided no corrective procedures at all to redress the alleged Fourth Amendment violations; or (2) where the state has provided a corrective mechanism, but the defendant was unable to use it because of an "unconscionable breakdown in the underlying process." Capellan, 975 F.2d at 70 (citing Gates v. Henderson, 568 F.2d 830, 840 (2d Cir. 1977)).
It is clear that New York has provided the requisite corrective procedures. See N.Y. Crim. Proc. Law § 710; Capellan, 975 F.2d at 70 n. 1 (the "federal courts have approved New York's procedure for litigating Fourth Amendment claims, embodied in N Y Crim. Proc. Law § 710.10 et seq. . . . as being facially adequate") (citation omitted). Therefore, for the petitioner's Fourth Amendment claim to be cognizable in this habeas corpus proceeding, it must be based on a claim that there was a breakdown in the state process. See Capellan, 975 F.2d at 70. Although the Second Circuit has not defined precisely what constitutes an "unconscionable breakdown," it has said that some sort of "disruption or obstruction of a state proceeding" is required. Id.
Mr. Sanabria has not argued that such a failure occurred, nor does the record support such a contention. The petitioner availed himself of New York's suppression procedures, and a Huntley/Wade/Dunaway/Mapp hearing was held on August 29, 1994, and continued on September 9 and October 21, 1994. (Supp. Tr. 1-200a). At the hearing Mr. Sanabria had a full opportunity to cross-examine witnesses and present his own version of the events. The trial court denied his motion to suppress, and the Appellate Division 13 subsequently affirmed the trial court's ruling on the merits, stating:
Defendant matched the limited description provided by a named citizen informant and was the only person, other than employees, found inside the store where other individuals on the street had told the officer the perpetrator would be. Moreover, the employees failed to corroborate defendant's assertion that they knew him and the officer found a gun and walkie-talkie, items the citizen informant had described the perpetrator as possessing, near the place where defendant had been standing. Based on all these factors, the officer clearly had reasonable suspicion warranting defendant's forcible seizure.
Sanabria, 266 A.D.2d at 41, 698 N.Y.S.2d at 623. This constituted a reasoned inquiry into Mr. Sanabria's contentions, and his Fourth Amendment claim is therefore not reviewable.
2. Identification Procedures
Mr. Sanabria also argues that the show-up identification procedures at the Sweet Shop were impermissibly suggestive and that as a result the identification testimony of Mr. Cortez and Mr. Tavares should have been suppressed. This claim fails on the merits.
The constitutional validity of identification testimony is analyzed according to a two-part test. First, the court must determine whether the suspect's guilt was suggested by the identification process. See United States v. Wong, 40 F.3d 1347, 1359 (2d Cir. 1994); Bond v. Walker, 68 F. Supp.2d 287, 301-02 (S.D.N.Y. 1999), aff'd, 242 F.3d 364 (2d Cir. 2000). Where the process was suggestive, the admission of the evidence will nevertheless satisfy constitutional standards if the court determines that the identification was independently reliable. See Manson v. Brathwaite, 432 U.S. 98, 114 (1977); Neil v. Biggers, 409 U.S. 188, 199 (1972); Wong, 40 F.3d at 1359.
The petitioner first claims that the show-up procedures at the Sweet Shop were improper because Mr. Sanabria was displayed while handcuffed and in the presence of police officers. Several courts, however, have found similar procedures not to be unnecessarily suggestive. See, e.g., United States v. Bautista, 23 F.3d 726, 730 (2d Cir. 1994) (identification of handcuffed defendant illuminated by flashlights of officers not "unnecessarily suggestive"); United States v. Ortiz, No. 99 Cr. 532, 2000 WL 37998, at *1 (S.D.N Y Jan. 18, 2000) (not unduly suggestive where "defendants in handcuffs, standing beside a marked police car, and accompanied by uniformed police officers"); Jones v. Strack, No. 99 Civ. 1270, 1999 WL 983871, at *11-12 (S.D.N.Y. Oct. 29, 1999) (show-up identification with defendant "surrounded by police, with lights flashing, within a few blocks of the incident" not impermissibly suggestive). Therefore, neither the presence of police officers nor indications that Mr. Sanabria was in police custody rendered the identification procedure improper.
The petitioner next argues that the proximity of the four witnesses to each other at the show-up held in front of the Sweet Shop "was tantamount to a group identification." (Pet. Br. at 28). However, there is no indication in the record that the witnesses overheard each other or had conversations about the identification of Mr. Sanabria. Indeed, Officer Perez testified that he called each witness over individually to view Mr. Sanabria at least six to twelve feet away from the remaining witnesses. (Supp. Tr. 73, 75; Tr. 345). The petitioner has, therefore, failed to demonstrate that the show-up procedures were unduly suggestive. Compare Byas v. Keane, No. 97 Civ. 2789, 1999 WL 608787, at *14 (S.D.N.Y. Aug. 12, 1999) (not suggestive where record does not substantiate claim that witnesses spoke to each other before making identification), with Styers v. Smith, 659 F.2d 293, 297 (2d Cir. 1981) (identification procedure unduly suggestive where witness had been informed prior to making identification that another witness had picked out suspects). Since the show-up procedures were proper, it is unnecessary to address the reliability of Mr. Cortez's identification. See United States v. Wong, 40 F.3d 1347, 1359 (2d Cir. 1994).
The circumstances surrounding Mr. Tavares' identification of the petitioner, however, raise additional concerns. The record reflects that Mr. Cortez communicated with Mr. Tavares about the identification of Mr. Sanabria. Mr. Tavares was not present at the scene of the crime when the other witnesses made their identifications. He had gone home immediately after the crime occurred and came back after being contacted by Mr. Cortez.
PROSECUTOR: Now you say you were called to come downstairs [from your apartment]. Who called you to come downstairs?
MR. TAVARES: The other one, my co-worker Cortez called to [sic] come down.
. . .
PROSECUTOR: Cortez called you over the phone?
MR. TAVARES: Yes.
PROSECUTOR: What did Cortez tell you on the phone?
. . .
MR. TAVARES: Cortez told me to come down to identify the one that was robing [sic] over there.
PROSECUTOR: Did he tell you somebody was caught?
MR. TAVARES: Yes.
(Tr. 189). Although it is unclear whether Mr. Cortez had already identified the petitioner as the robber and was instructing Mr. Tavares to do the same, there is a sufficient possibility that this exchange rendered the identification procedures unduly suggestive such that the reliability of the identification made by Mr. Tavares should be examined. See Styers, 659 F.2d at 297.
To determine the independent reliability of an identification, a court examines factors including: "the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation." Biggers, 409 U.S. at 199-200; see Brathwaite, 432 U.S. at 114 (applying Biggers factors to both in-court and out-of-court identifications); United States v. Concepcion, 983 F.2d 369, 377 (2d Cir. 1992).
In this case, Mr. Tavares was able to view the assailant under good lighting conditions throughout the entire incident, which lasted several minutes. (Tr. 134, 139, 171-73). He was also able to get a good look at the perpetrator's face. (Tr. 139). As to his degree of attention, there is nothing in the record to suggest 17 that Mr. Tavares' ability to pay attention was impaired in any way or that he was concentrating on anything other than the alleged "policeman." Although Mr. Tavares did not give a description of the assailant prior to identifying Mr. Sanabria, he did not hesitate in identifying the petitioner at the scene of the crime. (Tr. 191). Finally, the crime and the identification were in close temporal proximity; only 20-25 minutes elapsed between the incident and the identification. (Tr. 187-88, 208). See United States v. Butler, 970 F.2d 1017, 1021 (2d Cir. 1992) (30 minutes). Thus, the identification was sufficiently reliable to pass constitutional muster.
C. Failure to Dismiss Juror
The petitioner maintains in his third claim that he was denied his due process right to a fair trial and his right to a trial by jury because a juror was sleeping or inattentive during defense counsel's closing argument but alert during the prosecution's summation. The respondent counters that this claim is procedurally forfeited because the Appellate Division clearly and expressly declined to review it based on a state procedural bar. However, the petitioner's argument involves two claims: that the trial court violated his rights by not questioning the allegedly inattentive juror and that the court improperly failed to excuse this juror. The doctrine of adequate and independent state grounds bars habeas review of the first part of the claim while the second fails on the merits.
1. Adequate and Independent State Grounds
A federal court may not reach a federal question on habeas review if "the state court's opinion contains a plain statement that [its] decision rests upon adequate and independent grounds." Harris v. Reed, 489 U.S. 255, 261 (1989) (citations and quotations omitted). The state court must have "clearly and expressly" rejected the claim based on state law for the doctrine to be applicable. Levine v. Commissioner of Correctional Services, 44 F.3d 121, 126 (2d Cir. 1995) (citation omitted).
In this case, the Appellate Division dismissed the petitioner's claim that the trial court improperly failed to question the inattentive juror, reasoning that the issue "ha[d] not been preserved for appellate review since he failed to request such inquiry." Sanabria, 266 A.D.2d at 42, 698 N.Y.S.2d at 624 (citation omitted). This holding satisfies the plain statement rule set forth in Harris. The omission of any reference to state statute is of no relevance: "a state court that wishes to rely on a procedural bar rule in a one-line pro forma order easily can write that `relief is denied for reasons of procedural default.'" Harris, 489 U.S. at 265 n. 12. Here, the court went further, reiterating the substance of N Y Crim. Proc. Law § 470.05(2), which prohibits appeals based on claims that have not been preserved. Accordingly, the petitioner's claim that the trial court failed to question the juror in violation of his right to a fair trial is procedurally defaulted. The petitioner can surmount this bar by demonstrating either cause and prejudice or miscarriage of justice. Harris, 489 U.S. at 262. Because he has demonstrated neither, this claim should be dismissed.
1. Failure to Dismiss Juror
The second part of the claim, that the trial court improperly retained the allegedly inattentive juror on the panel, is not procedurally defaulted. This issue was raised at trial and on appeal, and the Appellate Division concluded that the trial court "properly exercised its discretion in denying [the petitioner's] request that it replace a juror whom defense counsel had identified as sleeping during his summation." Sanabria, 266 A.D.2d at 42, 698 N YS.2d at 624. The court did not rest its decision on a state procedural bar, and the doctrine of independent and adequate state grounds therefore does not prohibit federal review of this claim.
Whether to retain or substitute a juror is subject to the discretion of the trial court. The judge must have reasonable cause to excuse a juror, and consent from the parties is not necessary. See United States v. Millar, 79 F.3d 338, 342 (2d Cir. 1996); see also Shepard v. Artuz, No. 99 Civ. 1912, 2000 WL 423519, at *5 (S.D.N.Y. April 19, 2000); Edmonds v. McGinnis, 11 F. Supp.2d 427, 432 (S.D.N.Y. 1998). In this case, Justice Alvarado's determination not to discharge the juror was reasonable. He found that she was not inattentive, but, as she had previously stated, she occasionally closed her eyes because she was bothered by the lighting in the courtroom. (Tr. 989). This finding is entitled to substantial deference. In general in a habeas corpus proceeding, "a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1). Furthermore, the finding that a juror is capable of rendering an impartial verdict is a factual determination involving credibility and is therefore granted particular deference. See Patton v. Yount, 467 U.S. 1025, 1036-38 (1984).
D. Capacity to Stand Trial
The petitioner next argues that the trial court violated his right to a fair trial by failing to either vacate the conviction or order a psychiatric determination of his capacity to stand trial. This claim fails in both respects.
1. Failure to Vacate the Conviction
"Subjecting an incompetent person to trial is a violation of that person's constitutional right to due process." Johnson v. Keane, 974 F. Supp. 225, 229 (S.D.N.Y. 1997) (citing Pate v. Robinson, 383 U.S. 375 (1966)). Habeas relief is warranted where a trial court fails to hold a competency hearing when there is "reasonable ground" for believing that the petitioner is incompetent to stand trial. Silverstein v. Henderson, 706 F.2d 361, 368 (2d Cir. 1983) (citation omitted); see also United States ex rel. Roth v. Zelker, 455 F.2d 1105, 1108 (2d Cir. 1972) (only when evidence provides reasonable basis for believing that defendant is incompetent should the court order further examination). In evaluating whether there was a "reasonable ground" at trial, a court should examine evidence of any irrational behavior by the defendant, his demeanor at trial, medical opinions, and the opinion of defense counsel. See Drope v. Missouri, 420 U.S. 162, 180 (1975).
In this case, there was no basis for believing that the defendant was incompetent such that the conviction should be overturned. To support his claim, the petitioner, in his appellate brief, cited to a "facially irrational" outburst during trial. (Pet. Br. at 35). The petitioner's trial counsel had questioned one of the store workers from the Fernando Grocery about the color of the robber's hair, and objections to these questions were sustained. After this witness stepped down from the stand, the following exchange occurred in front of the jury:
THE DEFENDANT: Your Honor, can I ask something?
THE COURT: Mr. Sanabria, I will excuse the jury to give you an opportunity to consult with your attorney.
THE DEFENDANT: You're sustaining in front of the jury whatever is relevant to my case. You're trying to discourage my evidence.
THE COURT: Mr. Sanabria, you will have an opportunity.
THE DEFENDANT: How can you sustain the color of the hair? I was in Rikers Island two and a half years.
THE COURT: Ladies and gentlemen, there are certain legal issues must be done at this time. We will take a short break.
(Tr. 776-77). While not beneficial to his case, Mr. Luna's remarks were not clearly irrational; rather, they portray a defendant who is attentive to the testimony being given and engaged in his defense. The petitioner also argued on appeal that his vacillation about pleading guilty reflected irrational behavior. The petitioner does not cite to the transcript, so one can only assume that these discussions did not occur on the record and therefore may not be considered by this Court. See Nicks v. United States, 955 F.2d 161, 168 (2d Cir. 1992) (court may consider "only the evidence before the [trial] court at the time its decision was made").
The petitioner next claims that the testimony given by the doctors from Rikers Island demonstrate that his conviction is invalid. Mr. Sanabria first relies on Dr. Nelson's suggestion that he was unfit to stand trial because "he was complaining of hallucinations, so he was psychotic and he was very depressed." (Second Comp. Tr. 37). However, Dr. Nelson was not a licensed psychiatrist nor was he familiar with the state standard for competency. Therefore, his opinion is not dispositive.
Finally, the petitioner maintains that his diagnosis of "schizo effective disorder" and treatment with psychotropic drugs also demonstrated his incompetency. Nevertheless, diagnosis of a mental disorder and receipt of medication do not render the defendant incompetent. See Rollins v. Leonardo, 733 F. Supp. 763, 768 (S.D.N.Y. 1990), aff'd 938 F.2d 380 (2d Cir. 1991). There is no doubt that "[a] defendant may not be put to trial unless he `has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and a rational as well as factual understanding of the proceedings against him.'" Cooper v. Oklahoma, 517 U.S. 348, 354 (1996) (quoting Dusky v. United States, 362 U.S. 402, 402 (1960) (per curiam)) (alterations omitted). However, the petitioner has failed to demonstrate that his ability to understand and participate in his trial was compromised such that he was incompetent under this standard.
Under New York State law a person cannot stand trial if "as a result of mental disease or defect [he] lacks capacity to understand the proceedings against him or to assist in his own defense". N.Y. Crim. Proc. Law § 730.10(1).
Mr. Sanabria argues that he was over-medicated at the time of trial. However, he misconstrues the transcript. Dr. Goldamez, who is not a psychiatrist, testified that he re-prescribed 400 milligrams of Thorazine for Mr. Sanabria when the treating psychiatrist was on vacation. While Dr. Goldamez stated that patients beginning treatment are initially given 100 milligrams of Thorazine, he also acknowledged that a psychiatrist could increase or decrease the dosage, depending on the patient. He did not state that Mr. Sanabria was being overprescribed Thorazine. Furthermore, he went on to disavow any knowledge of ideal doses for patients (First Comp. Tr. 14, 19), and there is no evidence that this medication affected the petitioner's ability to understand or participate in his trial.
Because Mr. Sanabria has failed to present sufficient evidence in support of his claim that he was incompetent to stand trial, it should be dismissed.
2. Failure to Order Psychiatric Determination
The petitioner maintains that even if the conviction should not be vacated based on his incapacity to stand trial, he is entitled to habeas relief because the trial court should have ordered a psychiatric evaluation.
Courts have found that if the competency of a defendant is raised at a time well after the conclusion of the trial, an evaluation or hearing is no longer necessary as it would not be "sufficiently reliable" due to the passage of time. Collazo v. United States, No. 98 Civ. 7059, 1999 WL 335146, at *4 (S.D.N.Y. May 26, 1999) (one year later); see also Silverstein v. Henderson, 706 F.2d 361, 369 (2d Cir. 1983) (competency hearing more than six years after trial would be "wholly inadequate substitute for concurrent hearing into competency"). In this case, the trial judge found that it would be meaningless to conduct a hearing one year after the trial had concluded. Indeed, defense counsel, when making his request for a psychiatric evaluation, acknowledged the futility of such an endeavor. (Second Comp. Tr. 63-64). Therefore, the trial court acted properly in denying defense counsel's request for an evaluation.
E. Consolidation
In his next claim, the petitioner argues that the consolidation of the three separate incidents was unduly prejudicial, thus violating his right to a fair trial. The respondent maintains that this claim is unexhausted, procedurally barred, and meritless.
The doctrine of exhaustion generally requires a petitioner in a habeas corpus proceeding to exhaust all available state court remedies for each claim prior to federal review. 28 U.S.C. § 2254(b), (c); Duckworth v. Serrano, 454 U.S. 1, 3 (1981); Lurie v. Wittner, 228 F.3d 113, 123-24 (2d Cir. 2000), cert. denied, U.S., 121 S.Ct. 1404 (2001). To satisfy the exhaustion requirement, a petitioner must have "fairly presented" his federal constitutional claims in state court. Picard v. Connor, 404 U.S. 270, 275 (1971); see also Gonzalez v. Sullivan, 934 F.2d 419, 422 (2d Cir. 1991). Although the petitioner need not have cited "book and verse on the federal constitution," he must have articulated "the substantial equivalent" of the federal habeas claim. Picard, 404 U.S. at 278. He can accomplish this by:
(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, [or] (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.
Daye v. Attorney General of the State of New York, 696 F.2d 186, 194 (2d Cir. 1982) (en banc).
In his appellate brief, the petitioner cited to sections 200.20(2)(c), 200.20(3)(a), and 200.20(4) of the New York Criminal Procedure Law as well as one state court decision, People v. Shapiro, 50 N.Y.2d 747, 431 N.Y.S.2d 422 (1980), construing these provisions. (Pet. Br. at 38-40). There was not one citation to a federal case or mention of a federal constitutional provision. Moreover, the state case cited in the brief makes only one reference to a federal case in connection with the issue of consolidation, and it is offered merely to support a general proposition not specifically pertaining to federal law. Shapiro, 50 N.Y.2d at 757, 431 N.Y.S.2d at 427.
Whether the fact pattern involved here is well within the mainstream of constitutional litigation or whether it brings to mind a specific constitutional violation is a closer call. Nevertheless, this issue need not be resolved because the claim is ultimately without merit. See 28 U.S.C. § 2554(d) (unexhausted claims may be dismissed on the merits); see also Davis v. Kelly, 2 F. Supp.2d 362, 365 (W.D.N.Y. 1998).
To make out a constitutional claim of improper consolidation, the petitioner must show that "actual prejudice" rendered the "trial fundamentally unfair and hence, violative of due process." Herring v. Meachum, 11 F.3d 374, 377-78 (2d Cir. 1993) (citation and alterations omitted); see also Matthews v. Artuz, No. 97 Civ. 3334, 1999 WL 349694, at *3 (S.D.N.Y. May 27, 1999); Davis, 2 F. Supp. 2d at 366; Pacyon v. New York State Parole, No. 90-CV-0796E, 1996 WL 528812, at *1 (W.D.N.Y. Sept. 3, 1996). Actual prejudice may be demonstrated by showing that there was "an overwhelming probability of jury confusion" due to joinder of the offenses. Herring, 11 F.3d at 378.
Mr. Sanabria has not alleged any facts indicating that he suffered actual prejudice; rather, he argues that "joinder of the offenses allowed the People to reap a windfall from the cumulative effect of the identification testimony in each offense, and created the substantial likelihood that the jury would be unable to segregate the proof as to identification." (Pet. Br. at 39) (emphasis added). However, a "likelihood" of jury confusion does not rise to the level of a constitutional violation. See Herring, 11 F.3d at 379 ("potential for prejudice" does not amount to constitutional violation). Moreover, the record reflects that the jury carefully considered each crime separately. During deliberations, it asked the court to clarify the names of each of the stores involved and the witnesses who testified with respect to each store. (Tr. 1118). That the jury was able to follow the court's instructions and segregate the evidence is demonstrated by the fact that it acquitted the petitioner on two counts of first degree robbery for the incidents at the Sweet Shop and the College Grocery and convicted him of the same charge for events at the Fernando Grocery. (Tr. 1118, 1135-36). See Herring, 11 F.3d at 378. Accordingly, the petitioner has failed to demonstrate that the consolidation of the crimes resulted in an unreliable verdict, and his claim should be dismissed. See id. (verdict reliable where "evidence adduced to prove each crime related to a different time [and] place").
F. Excessive Sentence
Finally, Mr. Sanabria has not demonstrated that his excessive sentence claim was "fairly presented" in accordance with Daye. In his appellate brief, he argued that in light of the nature of the armed robbery, which did not involve threats or force, his psychiatric history, and his cooperation with another District Attorney's Office with respect to other pending investigations, the 28 imposition of the 18 to 36 year sentence was unduly harsh. (Pet. Br. at 42). To support his argument Mr. Sanabria cited four state cases and failed to mention any federal constitutional provision. (Pet. Br. at 41-42). Only one of the four state cases refers to federal law, People v. Cox, 122 A.D.2d 487, 488, 505 N.Y.S.2d 247, 249 (3d Dep't 1986), but it merely cites to Corbitt v. New Jersey, 439 U.S. 212 (1978), for the proposition that sentencing decisions cannot be retaliatory or vindictive. Cox, 122 A.D.2d at 488, 505 N YS.2d at 249. The court in Cox does not engage in any federal constitutional analysis and its fact pattern is different from the case at bar.
This assertion presupposes the validity of the petitioner's claim that there was insufficient evidence to convict him of armed robbery.
Furthermore, the petitioner's claim neither presents a specific right under the federal Constitution nor alleges a pattern of facts well within the mainstream of constitutional litigation. Indeed, evaluation of state sentencing decisions are usually not within the province of federal courts because, if the sentence is within the appropriate range prescribed by state law, no federal constitutional issue generally arises. See White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992); Thomas v. Greiner, 111 F. Supp.2d 271, 278 n. 8 (S.D.N.Y. 2000) (citing cases). But see Solem v. Helm, 463 U.S. 277 (1983) (sentence of life without possibility of parole disproportionate to crime of uttering a "no account" check for $100, although within prescribed range). In his state appeal, Mr. Sanabria argued neither that the sentence was unauthorized by the state sentencing statute nor that it was disproportionate to the crimes committed. Therefore he did not "fairly present" any 29 constitutional claim to the state court, and, as a consequence, has failed to exhaust his state court remedies.
Although unexhausted, this claim will be deemed exhausted if it is clear that the state court would find it procedurally barred. See Gray v. Netherland, 518 U.S. 152, 162 (1996); Spence v. Superintendent, Great Meadow Correctional Facility, 219 F.3d 162, 170 (2d Cir. 2000); Bossett v. Walker, 41 F.3d 825, 828-29 (2d Cir. 1994). That same procedural bar, however, precludes the habeas corpus court in most instances from reviewing the defaulted claim on the merits. Id. Substantive review will only be available if the petitioner is able to show cause for the default and resulting prejudice, or "demonstrate that failure to consider the federal claim will result in a fundamental miscarriage of justice, or, in other words, an unjust incarceration." Spence, 219 F.3d at 170 (internal quotations and citations omitted). See also Gray, 518 U.S. at 162; Bossett, 41 F.3d at 829.
In this case, the petitioner is now procedurally barred from returning to state court to argue the sentencing claim on federal constitutional grounds. This is because New York law provides for only a single application for direct review. N.Y. Rules of Court § 500.10(a); see also Spence, 219 F.3d at 170. A defendant who fails to press an available claim on direct appeal is barred from raising it on collateral review. N.Y. Crim. Proc. Law § 440.10(2)(c); see also Lurie, 228 F.3d at 124; Spence, 219 F.3d at 170. Mr. Sanabria has not suggested any cause for failing to assert this claim on appeal, nor has he demonstrated resulting prejudice. Finally, he has not shown that manifest injustice will result if this ground is not considered. Accordingly, the excessive sentence claim is procedurally barred and may not be reviewed on the merits.
Conclusion
For the reasons set forth above, I recommend that Mr. Sanabria's petition for a writ of habeas corpus be denied. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Chief Judge Michael B. Mukasey, Room 2240, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.