Opinion
00 Civ. 2292 (SAS)
August 2, 2000
Brian Sullivan, petitioner, Pro Se.
Stanley R. Kaplan, Esq., Yael V. Levy, Esq., Assistant District Attorneys, Bronx County, Bronx, New York, for respondent.
MEMORANDUM OPINION ORDER
Pro se petitioner Brian Sullivan seeks, pursuant to 28 U.S.C. § 2254, a writ of habeas corpus vacating his sentence on the following grounds: (1) deprivation of his right to due process because of a sixteen month delay between the time he was indicted and the time the case was tried; (2) legal insufficiency of the evidence adduced at trial; and (3) deprivation of his right to due process because of the trial court's refusal to charge Criminal Possession of a Controlled Substance in the Seventh Degree as a lesser included offense of Criminal possession of a Controlled Substance in the Third Degree.
I. Factual and Procedural Background A. Factual Background
On August 25, 1995, Detective Charles Byam attended a tactical meeting at the 48th Precinct Homicide Task Force office in preparation for that day's undercover "buy and bust" operations. See 2/21/97 Trial Minutes ("M1") at 9. At the meeting, Detective Byam received a two-way radio transmitter and pre-recorded buy money consisting of several ten-dollar bills. M1 at 14.
At approximately 4:00 p.m., Detective Byam and two other detectives drove to the vicinity of East 183rd Street and Creston Avenue in the Bronx. M1 at 16. After radioing his supervisor that he arrived in the area, Detective Byam parked his car, left his vehicle and walked Southbound on Creston Avenue. M1 at 18. As he approached 182nd Street and Creston Avenue, Detective Byam saw a 5'8" to 5'9" Hispanic man, later identified as co-defendant Israel Gil. M1 at 18-19. Gil had black hair, a mustache, a fresh cut on his right eye and wore a white sweat shirt, blue jeans and brown shoes. See 11/22/96 Trial Minutes ("M2") at 13; M1 at 19, 24.
Detective Byam approached Gil and asked if he knew if "Uptown was out." M1 at 20. Gil replied, "How many do you want?" Id. Detective Byam said, "Let me get four," and handed Gil forty dollars of pre-recorded buy money. Id. at 25. Gil walked from the Northeast to the Southeast corner of 182nd Street. M1 at 21. Detective Byam walked behind him. Id.
Sullivan was standing on the Southeast corner of 182nd Street and Creston Avenue as Gil and Detective Byam approached. Id. Sullivan, a white man with reddish hair, a mustache and a light beard, was wearing mustard colored shorts, a white pullover shirt and brown shoes. M1 at 22, 24. Gil called to Sullivan, "let me get one bundle." M1 at 21. Gil and Sullivan then had a brief conversation in Spanish. Id. Gil walked over to a blue car, parked approximately thirty feet from the Southeast corner of 182nd Street, and reached underneath it. Id. at 24. Gil returned and told Sullivan "he couldn't find it." Id. The two argued and Sullivan said, "I don't want to touch that stuff." Id. at 26.
Nonetheless, Sullivan walked to the car, bent down and reached under the front portion of the car. Id. He removed some heroin, handed one or two bundles of the heroin to Gil and replaced the rest underneath the car. Id. Gil then handed Detective Byam four glassines of heroin stamped "Uptown". Id.
At approximately 4:17 p.m. Detective Byam returned to his car, radioed the field team that he had made a "positive buy," and described the suspects, their location and the "possible stash" location. M1 at 29. Later when Detective Byam returned to the police precinct station house, he placed the glassines of heroin in a brown manilla envelope, noting on the envelope his name, shield number, tax number and the date. See 2/19/97 — 3/3/97 Trial Minutes ("M3") at 522.
At approximately 4:05 p.m., Detective Thomas Curley, who had also attended the August 25 morning meeting, set up a surveillance post at the corner of 183rd Street and Grand Concourse with another detective. M2 at 21. He received a radio transmission from Detective Byam at approximately 4:12 p.m. describing Sullivan and Gil. M2 at 25. He immediately drove two blocks to 182nd Street and Creston Avenue, arriving there roughly forty seconds later. M3 at 836. Although there were approximately fifteen people in the area, based on the descriptions he received, Detective Curley spotted Sullivan standing on the Southeast corner and Gil standing on the Northeast corner of 182nd Street and Creston Avenue. M2 at 11.
Detective Curley approached Sullivan and asked him to place his hands on the hood of the car. M2 at 79. Sullivan hesitated, but eventually complied. Detective Curley conducted a precautionary pat down. Id. Detective Curley then radioed Detective Byam, directing him to drive by and identify Sullivan and Gil as the men from whom he had purchased the heroin. M2 at 15, 27; M1 at 31. At approximately 4:20 p.m., Detective Byam drove by and positively identified Sullivan and Gil as the men who sold him the heroin minutes earlier. M2 at 79, 80.
After receiving the radio transmission confirming the identification of the suspects, Detective Curley arrested Sullivan and Gil. While searching Sullivan's right pants pocket, Detective Curley recovered eighty-five dollars of non-recorded money and forty dollars of pre-recorded buy money. M2 at 17, 82. Detective Curley also recovered thirty glassines of heroin stamped "Uptown" from underneath the front right passenger tire of the blue car parked on the Southeast corner of 182nd Street and Creston Avenue. M2 at 18; M3 at 520.
A number of days before the trial began, Detective Byam measured the distance between the location of the drug sale and the fenced playground of Public School 79. M3 at 518. He found it to be 389 feet. Id. The location of the drug sale and the disabled persons' entrance to the school at 182nd Street and Creston Avenue was 660 feet. Id. Lastly, the distance from the location of the drug sale to the entrance of the school was 839 feet. M3 at 518-19.
B. Procedural Background
On April 2, 1997, the Supreme Court of the State of New York, Bronx County, convicted Sullivan, following a jury trial, of Criminal Possession of a Controlled Substance in the Third Degree. M3 at 1366. Because petitioner was a second felony offender, he was sentenced to an indeterminate term of imprisonment from four and one-half to nine years. Id. at 1369-70. Petitioner was sent to the Ogdenburg Correctional Facility in Ogdenburg, New York, where he is currently incarcerated. See 2/12/00 Petition for Habeas Corpus Review ("Pet.") at 1.
On direct appeal to the Supreme Court of the State of New York, Appellate Division, First Department, counsel for petitioner argued that "the court's refusal to charge the jury with the lesser included offense of criminal possession of a controlled substance in the seventh degree requires reversal where there was a reasonable view of the evidence that appellant possessed the drugs but did not intend to sell them." See Appellate Brief for Petitioner ("Pet. Brief"), Ex. 1 to 5/31/00 Affidavit of Assistant District Attorney Yael V. Levy, in Opposition to Petitioner's Petition for Habeas Corpus ("Levy Aff."), at 16.
On October 26, 1999, the Appellate Division, First Department, in a written decision, found that no reasonable view of the evidence would permit a finding of possession without the intent to sell, that petitioner's contentions to the contrary were based on speculation and were not supported by the record, and that the trial court properly charged the jury as to the definition of possession. See People v. Sullivan, 697 N.Y.S.2d 592 (1st Dep't 1999).
On November 24, 1999, petitioner sought leave to appeal to the Court of Appeals on the lesser included offense claim. See 11/24/99 Petitioner's Leave Letter ("Leave Letter"), Ex. 3 to Levy Aff., at 1-4. On December 22, 1999, the Court of Appeals denied petitioner's application for leave to appeal to that court. See 12/22/99 Certificate Denying Leave ("Leave Denial"), Ex. 4 to Levy Aff., at 1. Petitioner has not collaterally challenged his conviction in state court.
Petitioner now asserts the same claim he raised in state court: that he was deprived of his right to due process of law because of the trial court's refusal to charge Criminal Possession of a Controlled Substance in the Seventh Degree as a lesser included offense of Criminal Possession of a Controlled Substance in the Third Degree. See Pet. at 2. In addition, petitioner raises two new claims: (1) that he was deprived of his right to due process because of a sixteen-month delay between the time he was indicted and the time of his trial; and (2) the evidence at trial was legally insufficient to support his conviction. See 2/12/00 Petitioner's Memorandum of Law ("Pet. Mem.") at 3.
II. Discussion A. Exhaustion of State Remedies
A petitioner must "present his federal constitutional claims to the highest court of the state before a federal court may consider the merits of the petition." Meatley v. Artuz, 886 F. Supp. 1009, 1013 (E.D.N.Y. 1995). Exhaustion can be achieved "either by direct appeal or through collateral post-conviction remedies." Id.
The exhaustion rule is satisfied "if the claim has been `fairly presented' to the state courts." Jones v. Vacco, 126 F.3d 408, 413 (2d Cir. 1997). The "fair presentation" requirement is fulfilled if the state courts are aware of "both the factual and the legal premises of the claim [the petitioner] asserts in federal court." Id. (quoting Daye v. Attorney General of N.Y., 696 F.2d 186, 191 (2d Cir. 1982)). While exhaustion "does not require petitioner to cite `chapter and verse' of hornbook law, the federal constitutional nature of the claims must be `fairly presented' to the state court." Meatley, 886 F. Supp. at 1013.
Here, petitioner never raised his claims of delay between indictment and trial and of insufficiency before the state courts. On direct appeal, he argued only that the trial court wrongly refused to charge the jury with the lesser included offense of criminal possession of a controlled substance in the seventh degree. He has therefore failed to exhaust these claims.
Nonetheless, a court can deem the claims exhausted if there are no available state remedies. When a petitioner has not properly presented his claims to a state court for consideration on the merits, but "it is clear that the state court would hold them procedurally barred," this Court need not require that the claim be presented to a state court. Harris v. Reed, 489 U.S. 255, 263 (1989); see also Lloyd v. Walker, 771 F. Supp. 570, 574 (E.D.N Y 1991). Under such circumstances, regardless of the failure to present the claim to a state court, the exhaustion requirement is satisfied. For the reasons stated infra Part II.B.1, petitioner's two unexhausted claims are procedurally barred by the state court, and are deemed to be exhausted.
B. Petitioner's Claims 1. Trial Delay and Sufficiency of the Evidence
"A petitioner's forfeiture of his claims in state court by failing to present them to the proper court bars him from litigating the merits of those claims in federal habeas proceedings, absent a showing of cause . . . and prejudice resulting therefrom." Lloyd, 771 F. Supp. at 574. Here, petitioner failed to raise the claims of trial delay and insufficiency on direct appeal. With respect to a showing of cause and prejudice, "[t]he existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). Cause may be demonstrated with "a showing that the factual or legal basis for a claim was not reasonably available to counsel, or that some interference by state officials made some compliance impracticable." Id. (internal quotation marks and citation omitted). Here, petitioner makes no such showing of cause. Therefore, he has not fulfilled the first prong of the cause and prejudice requirement.
However, "even without a showing of cause and prejudice," this Court may excuse a procedural default if the alleged errors have caused a "fundamental miscarriage of justice." Washington v. James, 996 F.2d 1442, 1447 (2d Cir. 1993). Such an extraordinary case only occurs "if a constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray, 477 U.S. at 496. Petitioner must overcome the heavy burden of proving that he is actually innocent. He "must show a fair probability that . . . the trier of the facts would have entertained a reasonable doubt of his guilt." Lebron v. Mann, 40 F.3d 561, 564 (2d Cir. 1994) (internal quotation marks and citation omitted). But petitioner never claimed that he is innocent of the crimes for which he was charged and convicted. He merely objects to the sixteen-month delay between the time he was indicted and the time of his trial, and the alleged legal insufficiency of the evidence adduced at trial.
Accordingly, because petitioner makes no showing of cause, prejudice or a fundamental miscarriage of justice, his claims of trial delay and legal insufficiency are procedurally barred from habeas review and must be dismissed.
2. Jury Charge Regarding Lesser Included Offense
On direct appeal, petitioner argued that a reasonable view of the evidence would have permitted the jury to find that petitioner did not have the intent to sell. The Appellate Division rejected petitioner's argument, stating:
The trial court properly refused defendant's request to charge on criminal possession of a controlled substance in the seventh degree as a lesser included offense of criminal possession of a controlled substance in the third degree, because no reasonable view of the evidence would permit a finding of possession without the intent to sell.
See 10/26/99 Judgment of Supreme Court of New York, Appellate Division ("Judgment"), Ex. C to Pet., at 1.
Petitioner now argues that the trial court's refusal to instruct on the lesser included offense violated his right to due process. In Beck v. Alabama, 447 U.S. 625, 627 (1980), the Supreme Court held that in capital cases a judge must charge the jury on lesser included non-capital offenses where the evidence warrants such a charge. However, the Supreme Court has declined to rule on whether the United States Constitution requires charges of lesser included offenses in non-capital cases. See id. at 638 n. 14.
The Courts of Appeals are in disagreement as to "whether the failure to include a lesser included offense instruction can rise to the level of a constitutional violation in a non-capital case." Till v. Miller, 96 Civ. 4387, 1998 WL 397848, at *4 (S.D.N.Y. July 16, 1998). The Fifth, Eighth and Ninth Circuits "hold that failure to instruct on a lesser offense does not present a federal constitutional question and therefore will not be considered in a federal habeas proceeding." Rice v. Hoke, 846 F.2d 160, 164 (2d Cir. 1988). In contrast, the Third, Sixth and Seventh Circuits "hold that federal courts have jurisdiction to review the refusal to instruct on lesser included offenses if the refusal deprived the defendant of due process." Id. at 164-65.
In Jones v. Hoffman, 86 F.3d 46, 48 (2d Cir. 1996), the Second Circuit took a third position. Citing Teague v. Lane, 489 U.S. 288, 316 (1989), which held that a habeas corpus petition cannot be used as a vehicle to create new constitutional rules of criminal procedure, the Second Circuit stated that "since a decision interpreting the Constitution to require the submission of instructions on lesser-included offenses in non-capital cases would involve the announcement of a new rule, we hold that Teague precludes our consideration of the issue." Thus, in effect, the Second Circuit concluded that "a claimed error in failing to include a lesser offense instruction in a non-capital case is not a cognizable claim in a habeas corpus proceeding." Jones, 86 F.3d at 48; see also Brown v. People, 97 Civ. 4416, 2000 WL 235977, at *7 (S.D.N.Y. Feb. 11, 2000); Till, 1998 WL 397848 at *4. Accordingly, petitioner is not entitled to habeas relief for the claim of failure to charge a lesser offense.
Even had I reached the merits of the lesser included offense claim, I would have denied the petition. Given the Circuit split and the fact that the Supreme Court has not spoken on this issue, I cannot say that the state court ruling involved an unreasonable application of federal law. See Williams v. Taylor, 120 S.Ct. 1495, 1520 (2000).
III. Conclusion
For the foregoing reasons, the petition for habeas relief is denied. A certificate of appealability is also denied as petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2); see also Lucidore v. New York State Division of Parole, 209 F.3d 107, 112 (2d Cir. 2000) (holding that substantial showing exists where (i) the issues involved in the case are debatable among jurists of reason or (ii) a court could resolve the issues in a different manner or (iii) the questions are adequate to deserve encouragement to proceed further); Clark v. Garvin, 99 Civ. 9075, 2000 WL 890272, at *6 (S.D.N.Y. June 30, 2000). The Clerk of the Court is directed to close this case.SO ORDERED: