Opinion
No. 00-CV-5625 (JG)
November 6, 2002
CHARLES J. HYNES, District Attorney Kings County, Brooklyn, New York, Howard A. Getzler, Assistant District Attorney, for Respondent.
MEMORANDUM AND ORDER
Julio Serrata brings this petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his conviction by a Kings County jury in 1996 for criminal possession of a controlled substance in the second degree. For the reasons set forth below, the petition is denied.
BACKGROUND
A. The Facts
At approximately 6:45 p.m. on February 2, 1995, members of the Emergency Service Unit of the New York City Police Department executed a search warrant at the basement apartment at 221 Etna Street in Brooklyn, New York. The apartment had been occupied by Serrata for approximately ten years. The search warrant was based on information obtained from Luis Gonzalez. Gonzalez also resided in the apartment and had been arrested on drug charges on January 31, 1995. Gonzalez provided information regarding the presence of narcotics and other contraband in the apartment.
After Serrata was discovered sleeping in one of the bedrooms, he was apprehended and the apartment was secured. Detectives then searched the apartment and discovered on the kitchen stove and counter the tools for cooking powder cocaine into crack: two pots, a strainer, a knife, a spoon and a scale. All of these items bore traces of a fine white powder that contained cocaine residue. Two bottles of procaine, a substance used to dilute cocaine, were also found on the kitchen stove and counter. A bulletproof vest was discovered hanging in a closet, and a magazine, bullets, and silencer were located in a hole in the ceiling of the boiler room. The detectives also discovered an open detergent box on the floor of a "shed" or "pantry" adjacent to the kitchen. The box contained a bag of crack cocaine, weighing over two and one-quarter ounces, as well as plastic vials, caps, and glassine envelopes. The cocaine in the detergent box had a value of approximately $2,200. The police also recovered $4,151 in cash from Serrata's bedroom.
B. The Procedural History
Serrata was charged with criminal possession of a controlled substance in the second degree, criminal possession of a controlled substance in the third degree, criminally using drug paraphernalia in the second degree (two counts), criminal possession of a weapon in the third degree, and criminal possession of a controlled substance in the seventh degree (five counts).
Only the first two of those charges were submitted to the jury, which, on January 10, 1996, found Serrata guilty of criminal possession of a controlled substance in the second degree. Serrata's defense at trial was that the drugs and drug paraphernalia in the apartment belonging to Gonzalez.
On February 5, 1996, Serrata filed a motion pursuant to N.Y. Crim. Proc. Law § 330.30(3), to set aside the verdict on the basis of newly discovered evidence. The new evidence was a purported recantation by Gonzalez. On February 6, 1996, the state trial court denied Serrata's motion, stating that (a) the recantation would not be admissible at trial; (b) it constituted hearsay; and (c) Gonzalez was unavailable to testify with respect to the motion. The court thereupon sentenced Serrata as a second felony offender, see N.Y. Penal Law § 70.06(1), to an indeterminate term of imprisonment of eight and one-half years to life.
On July 24, 1997, Serrata filed a motion to vacate his judgment of conviction pursuant to N.Y. Crim. Proc. Law § 440.10(1)(h), claiming that he was deprived of effective assistance of trial counsel based on his trial counsel's failure to: (1) make a speedy trial motion pursuant to N.Y. Crim. Proc. Law § 30.30; (2) controvert the search warrant on the basis of the informant's reliability; (3) object to the introduction of evidence concerning the silencer, bulletproof vest, pistol magazine, and bullets recovered from the apartment; (4) examine the chemist's reports; (5) argue coherently regarding the defendant's prior N.Y. Crim. Proc. Law § 330.30 motion; and (6) object to the "drug-factory" presumption in the jury charge.
On August 13, 1998, by written decision and order, Serrata's motion to vacate the judgment of conviction was denied. See Aff. of Howard A. Getzler dated Nov. 29, 2000 ("Getzler Aff."), Ex. F. The court stated that there had been no showing that a speedy trial motion or a motion to controvert the search warrant would have been successful and that the jury instructions were proper. On October 20, 1998, Serrata's application for leave to appeal was denied.
On November 10, 1998, Serrata filed a direct appeal, in which appellate counsel raised the following four claims: (1) the trial court erred by instructing the jury regarding the "drug factory" presumption; (2) the verdict should have been set aside based on the informant's recantation; (3) Serrata was deprived of a fair trial by the introduction of irrelevant and highly prejudicial evidence; and (4) the defendant was denied effective representation at trial.
On May 10, 1999, the Appellate Division affirmed Serrata's conviction.People v. Serrata, 690 N.Y.S.2d 273 (2d Dep't 1999). It held that the trial court did not err in denying the motion to set aside the verdict based on the informant's purported recantation, and that Serrata was not deprived of effective assistance of counsel. Id. The remaining contentions were rejected as unpreserved for appellate review. Id.
By letter dated May 24, 1999, Serrata applied for permission to appeal to the New York Court of Appeals. He asserted the claims that he had asserted in his appeal to the Appellate Division, as well as those contained in the § 440 motion. By certificate dated September 23, 1999, application for leave to appeal was denied. People v. Serrata, 93 N.Y.2d 1045 (1999).
On September 18, 2000, Serrata filed the instant petition for a writ of habeas corpus, in which he raises the same claims his appellate counsel presented to the Appellate Division and the claims that Serrata himself argued in his § 440 motion.
DISCUSSION
A. The Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") has narrowed the scope of federal habeas review of state convictions where the state court has adjudicated a petitioner's federal claim on the merits. See 28 U.S.C. § 2254(d). Under the AEDPA standard, which applies to habeas petitions filed after AEDPA's enactment in 1996, the reviewing court may grant habeas relief only if the state court's decision "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). The Supreme Court has interpreted the phrase "clearly established Federal law" to mean "the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000); see Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001).
A decision is "contrary to" clearly established federal law as determined by the Supreme Court if "the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts."Williams, 529 U.S. at 413. A decision is an "unreasonable application" of clearly established Supreme Court law if a state court "identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of [a] prisoner's case." Id. "Under the latter standard, `a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.'" Gilchrist, 260 F.3d at 93 (quoting Williams, 529 U.S. at 411). Interpreting Williams, the Second Circuit has added that although "[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted).
This standard of review applies whenever the state court has adjudicated the federal claim on the merits, regardless of whether it has alluded to federal law in its decision. As the Second Circuit stated inSellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001):
[f]or the purposes of AEDPA deference, a state court `adjudicate[s],' a state prisoner's federal claim on the merits when it (1) disposes of the claim `on the merits,' and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.
B. The Newly Discovered Evidence
When a federal habeas petitioner premises his claim upon newly discovered evidence alleged to be material to his state conviction, he must demonstrate that an independent constitutional violation occurred during the underlying criminal proceedings. Herrera v. Collins, 506 U.S. 390, 400-01 (1993). Newly discovered evidence is, in part, evidence that "could not with due diligence have been discovered before or during trial." United States v. White, 972 F.2d 16, 20 (2d Cir. 1992) (citations omitted).
Here, Serrata claims that Gonzalez's recantation of his statements that the drugs belonged to Serrata constitutes "newly discovered evidence." The claim is without merit. First, Gonzalez did not testify at trial, and the information obtained by the police from Gonzalez was not introduced at trial. Second, his recantation, even if believed, would not have tainted the evidence recovered from Serrata's apartment. No suppression of evidence is required when a private informant lies to a law enforcement officer who, believing the informant, then sets out that information in an affidavit. See United States v. Wapnick, 60 F.3d 948, 956 (2d Cir. 1995). Here, the officer and Gonzalez both appeared before the judge who issued the warrant, and there is no allegation that the police knew or believed that Gonzalez was fabricating information.
Third, the claim that Gonzalez was unavailable to testify at trial, and that his unavailability affected the outcome of the trial, is meritless. The defense theory was that the drugs in Serrata's apartment belonged to Gonzalez. Serrata so testified. Six days after the verdict convicting him of possessing the drugs, the defense brought forward a letter, allegedly from Gonzalez, indicating that the drugs were Gonzalez's after all. Gonzalez was still a fugitive and therefore unavailable to testify at any post-trial hearing. On the motion to set aside the verdict, the trial court made the following ruling:
I have a letter, ostensibly written by Mr. Gonzalez, from wherever it is that he is, indicating that he's sorry about anything that happened and it's not his — it's not your client's fault; and for that — on those grounds, you're asking me to set aside the verdict here and order a new trial.
I have two reasons not to do that. First of all, there's nothing to have a new trial about, because Mr. Gonzalez's letter is not admissible in evidence. Mr. Gonzalez's testimony might conceivably be, but not his letter.
Also, as Mr. Kessler pointed out in his papers in opposition, there's no real explanation why Mr. Gonzalez is now coming forth with a letter after he had — after the conviction, when your client testified at trial that, in fact, he saw him the day before, or prior to the testimony, and that he got before the jury the fact that Gonzalez told him at that time that it was him and not Mr. Serrata.
It may be truly no skin off Mr. Gonzalez's [nose] to write a letter and then not come to court, and then say in his letter, "I'm awfully sorry I can't come," as though he's at another function or something.
Those are not reasons to justify granting a new trial.
(Tr. of Sentencing before J. Feldman on Feb. 6, 1996, in Resp't's Ex. A, Part IX, at 2-4.)
The Appellate Division reviewed this determination and concluded that "the trial court did not err in denying the motion without a hearing."Serrata, 690 N.Y.S.2d at 273. I agree with that conclusion. At the very least, it was neither contrary to nor an unreasonable application of clearly established Federal law.
C. The "Drug-Factory" Presumption
Serrata contends that the jury instructions misled the jury into believing that it could convict him on less than proof beyond a reasonable doubt.
Serrata raised this claim on direct appeal, and the Appellate Division ruled that it was "unpreserved for appellate review" because he failed to object to the charge at trial. Id. This is an adequate and independent state ground, and Serrata has not shown cause for failing to object or prejudice resulting from the procedural default.
Even if it were not barred, the claim would fail on the merits. The adequacy of a state court's jury charge is a matter of state law and is not ordinarily grounds for habeas relief. United States ex rel. Smith v. Montanye, 505 F.2d 1355, 1359 (2d Cir. 1974). For a jury charge to give rise to federal habeas corpus relief, a petitioner must carry a heavy burden. "The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court's judgment is even greater than the showing required to establish plain error on direct appeal." Henderson v. Kibbe, 431 U.S. 145, 154 (1977). The petitioner must show "not merely that the instruction is undesirable, erroneous, or even `universally condemned,' but that it violated some right which was guaranteed to the defendant under the Fourteenth Amendment . . . [T]he question is not whether the trial court failed to isolate and cure a particular ailing instruction, but rather whether the ailing instruction by itself so infected the entire trial process that the resulting conviction violates due process."Cupp v. Naughten, 414 U.S. 141, 146-47 (1973). In making this determination, a court "must consider the challenged portion of the charge not in `artificial isolation,' but rather `in the context of the overall charge.'" Justice v. Hoke, 45 F.3d 33, 34 (2d Cir. 1995) (quotingCupp, 414 U.S. at 146-47).
Serrata was charged with possession of the drugs found in the shed or pantry area. The charge was based primarily on a constructive possession theory, that is, that Serrata had "dominion and control" over the property where the drugs were found. He had lived in the apartment for at least 10 years and was sleeping in one of the bedrooms when the search warrant was executed. Secondarily, as a means of proving knowing possession, the judge instructed the jury as to the "drug factory" presumption, contained in N.Y. Penal Law § 220.25(2). The statute reads in relevant part:
The presence of a narcotic drug, narcotic preparation . . . in open view in a room, other than a public place, under circumstances evincing an intent to unlawfully mix, compound, package or otherwise prepare for sale such controlled substance is presumptive evidence of knowing possession thereof by each and every person in close proximity to such controlled substance at the time such controlled substance was found. . . .Id. During the course of the charge, and without objection, the trial court gave the following instruction, which forms the basis for Serrata's claim:
Under our law, the preparation of a narcotic drug or a narcotic preparation in open view in a room under circumstances evincing an intent to unlawfully mix compounds, package, or otherwise prepare the substance for sale is under the law presumption [sic] of evidence of knowing possession of that substance by persons in close proximity to it at the time it is found.
What that means is if the prosecution has proven beyond a reasonable doubt that the various materials that is [sic] used to manufacture the drug according to the evidence in this case was in open view in a room, and that the circumstances are such to show an intent, this is a conscious objective or purpose to unlawfully mix compounds, package, or otherwise prepare drugs for sale, then you may but you're not required to do so, infer from the facts that the defendant if he was in close proximity to this paraphernalia at the time it was found, was in knowing possession of the drugs.
(Trial Tr., in Resp't's Ex. A, Part VIII, at 346-47.)
Serrata's claim is that the use of this presumption was erroneous because the substance that was found as part of the "drug factory" in his kitchen is not the substance in the pantry, just off the kitchen, with which he was charged with possessing. It is not clear that this is a requirement of the statute, and therefore it is not at all clear that this instruction was incorrect as a matter of state law.
In any event, this instruction must be viewed in the context of the instruction that came immediately before it, where the judge emphasized the "dominion and control" of the property. She charged the jury:
The prosecution did not emphasize the drug factory presumption in its summation. Rather, it also emphasized the "dominion and control" over the property. Specifically, the prosecutor said: "It was in possession because it was in his dominion and control. He had control of the item. It was right in his pantry area, right in his storage area. He was in possession because he was in dominion and control of the property." (Id. at 345-46.)
In this case, it is contended that possession of the controlled substance was constructive possession.
A person who while not in physical possession knowingly has both the power and the intent at a given time to exercise dominion or control over a controlled substance either directly or through somebody else is considered to be in constructive possession of that substance.
In other words, it's constructive when it's not found on his person but instead is in a place or a thing or [sic] which he has dominion or control. For example, as the district attorney states in this case, his home.
Bear in mind that a defendant constructively possesses a controlled substance whether he alone or jointly with others has such dominion or control over that substance that remains available for his personal disposition in the place where it is stored or concealed.
However, if the defendant constructively possessed a controlled substance as evidenced here is an issue of fact for you, the jury, to determine. The defendant is not required to prove that he did not constructively possess this substance. The burden of proof that he did constructively possess it is on the prosecution which must establish that element beyond a reasonable doubt.
(Id. at 345-46.)
There was substantial evidence to support Serrata's conviction under a constructive possession theory. Therefore, even assuming that the "drug factory" presumption instruction was erroneous, it cannot reasonably be said that such error so infected the entire trial process that the resulting conviction violates Serrata's due process right. Cupp, 414 U.S. at 146-47. In light of the substantial evidence that Serrata possessed the drugs, any error in the court's instructions did not cause "actual prejudice" to Serrata by having a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahmson, 507 U.S. 619, 637-38 (1993) (internal quotation marks omitted).
Unlike People v. Martinez, 83 N.Y.2d 26 (1993), where the New York Court of Appeals held that an improper "drug factory" presumption charge constituted federal constitutional error, despite a proper instruction on constructive possession, here there was an adequate basis for charging the jury on the presumption, and the definitions of "close proximity" and "open view" were not improperly expanded upon, as in Martinez.
D. The Disputed Evidence
Petitioner also challenges the receipt in evidence of a pistol magazine, bullets, silencer and bulletproof vest recovered from the search of petitioner's apartment. Defense counsel did not object to the introduction of this evidence, which is in part the basis of petitioner' s ineffective assistance claim. Petitioner claims that the introduction of this evidence deprived him of a fair trial.
This claim is procedurally barred. Serrata raised the issue on direct appeal, and the Appellate Division ruled that "defendant's remaining contentions are unpreserved for appellate review." Serrata, 690 N.Y.S.2d at 273. He has shown neither cause for the default nor prejudice, and the admission of the evidence did not affect the "fundamental fairness" of the trial.
Even if I could consider the merits, I would deny the claim. The evidence of weapons-related paraphernalia, which constitute tools of the narcotics trade, was properly admitted to establish Serrata's knowledge of the drug activity in the apartment. Even assuming the court's evidentiary ruling was erroneous, "[e]rroneous evidentiary rulings do not automatically rise to the level of constitutional error sufficient to warrant issuance of a writ of habeas corpus." Taylor v. Curry, 708 F.2d 886, 891 (2d Cir. 1983). Rather, courts will issue a writ of habeas corpus "only where [the] petitioner can show that the error deprived [him] of a fundamentally fair trial." Id. (emphasis in original). For erroneously admitted evidence to violate the Due Process Clause of the Fourteenth Amendment, it must have been "`sufficiently material to provide the basis for conviction or to remove reasonable doubt that would have existed on the record without it.'" Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985).
Serrata fails to meet this "heavy burden." Aponte v. Scully, 740 F. Supp. 153, 158 (E.D.N.Y. 1990). He was convicted of criminal possession of a controlled substance in the second degree. There was substantial evidence recovered from his apartment to support this charge, including the pots, strainer, knife, spoon and scale in the kitchen, all containing cocaine residue, and the box containing crack in the pantry. Thus, any error regarding the admission of the bulletproof vest and ammunition did not cause "actual prejudice" to Serrata by having a "substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 637-38 (internal quotation marks omitted); see Loliscio v. Goord, 263 F.3d 178, 185 (2d Cir. 2001) (posing but not answering question whether, in light of AEDPA, a federal habeas court should continue to apply the Brecht standard or determine instead whether the state court's decision was contrary to, or involved an unreasonable application of, the harmless error standard established inChapman v. California, 386 U.S. 18, 24 (1967)).
E. Ineffective Assistance of Counsel
Finally, Serrata claims that he received ineffective assistance of counsel at trial. Some of the grounds advanced by Serrata are procedurally barred, but in any event all are meritless. The speedy trial claim, which does not raise an issue cognizable on habeas review, had no merit even under New York law. The failure of the attorney who actually tried the case to move to controvert the search warrant was not ineffective assistance where, as here, the issuing judge had personally examined the officer and the informant. The claim that counsel was ineffective in connection with the use of the Gonzalez recantation amounts to nothing more than a complaint that the motion was denied in state court. Finally, the failure to object to the "drug factory" presumption did not place counsel's conduct below an objectively reasonable standard where, as here, the instruction was warranted by the facts and trial counsel successfully moved to ensure that the presumption was characterized as rebuttable.
In sum, this claim was adjudicated on the merits by the Appellate Division, which ruled that "[v]iewing the representation provided by defense counsel `in its entirety, in conjunction with the evidence, the law, and the circumstances of the case,' the defendant was not deprived of the effective assistance of counsel." Serrata, 690 N.Y.S.2d at 273 (citations omitted). The same conclusion was reached in the decision denying Serrata's § 440 motion. (Resp't's Ex. F.) This conclusion was neither contrary to nor an unreasonable application of clearly established Federal law.
CONCLUSION
Serrata has not established any constitutional violations, and his petition for a writ of habeas corpus is accordingly denied. I decline to issue a certificate of appealability because Serrata has not presented a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2).
So Ordered.