Opinion
No. 99 Civ. 3490 (RWS)
March 21, 2000
Albert R. Walker, Pro Se, Fishkill Correctional Facility, Box 1245, Beacon, N Y 12508, for petitioner.
Eliot Spitzer, Attorney General of the State of New York, (David Camuzo, Assistant Attorney General, of counsel) 120 Broadway, New York, N Y 10271, Attorney for Respondent,
OPINION
Petitioner pro se Albert R. Walker ("Walker") has petitioned this Court, pursuant to 28 U.S.C. § 2254, for a writ of habeas corpus, on the grounds that (1) the trial judge improperly limited cross-examination of the prosecutor's chief witness; (2) the evidence was insufficient to sustain a guilty verdict; (3) the sentence imposed was excessive for the crime allegedly committed; (4) evidence was obtained pursuant to an improper arrest; (5) ineffective assistance of trial counsel. For the reasons set forth below, the petition is denied.
Prior Proceedings
On May 29, 1996, Walker was convicted, after a jury trial conducted in the Supreme Court of the State of New York, New York County, of Criminal Sale of a Controlled Substance in the Third Degree, and Criminal Possession of a Controlled Substance in the Third Degree. Walker was sentenced as a predicate felon to two concurrent prison terms of nine to eighteen years. He appealed to the New York State Supreme Court, Appellate Division, First Department ("Appellate Division"), claiming that (1) he was deprived the right to cross-examine one of the government's witnesses; (2) he was deprived of a fair trial due to remarks made by the trial judge during the course of the trial; and (3) the sentence imposed was excessive and based on factually erroneous material.
On May 5, 1998, the Appellate Division unanimously affirmed the conviction. Walker applied for leave to appeal to the New York Court of Appeals (the "Court of Appeals") which was denied on June 15, 1998.
On November 15, 1998, Walker moved, pro se, to vacate the judgment of conviction pursuant to New York State Criminal Procedure Law § 440.10, alleging (1) deprivation of the right to effective counsel in violation of the Federal and New York State Constitutions; (2) failure of the prosecutor to provide him with Brady and Rosario material. The New York County Supreme Court denied the motion on April 30, 1999. Leave to appeal the decision was denied by the First Department on July 8, 1999.
On May 13, 1999, Walker filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On August 23, 1999, leave was granted to Walker to amend the petition. Walker's amended petition was filed on September 1, 1999. The Government filed opposition papers on October 14, 1999. Walker's traverse was received on December 13, 1999, at which point the motion was deemed fully submitted.
Facts
On the evening of November 26, 1995, police officer Luis Despaigne ("Despaigne") was assigned to watch for narcotics activity from an observation post on the Upper East Side of Manhattan. Police Officers Marshall Winston ("Winston"), April Arocho ("Arocho"), and Kevin Dunn ("Dunn"), members of Despaigne's backup field team, parked their unmarked van near East 115th Street and Third Avenue.
At approximately 6:55 p.m., Despaigne stationed himself on the rooftop of the 14-story building at 1840 Lexington Avenue, located diagonally across the street from, and approximately one block south of, the northeast corner of East 115th Street and Lexington Avenue. Looking through binoculars that magnified objects sevenfold, Despaigne watched the sidewalk in front of a bodega on the northeast corner of East 115th and Lexington. It was a clear evening, and Despaigne had an unobstructed view of the street corner, which was lit by street lights, store lights, and lights under the store awning.
Despaigne soon observed that Walker, Jeffrey Salgado ("Salgado"), and Maria Costa ("Costa") were standing on the corner. Despaigne observed that Walker was a black man wearing a blue cap, beige coat, black pants, and black and white sneakers; that Salgado was a Hispanic man wearing a black and white flannel jacket, blue jeans, and beige construction boots; and that Costa was a Hispanic woman wearing a red and black jacket, black pants, and black boots. At approximately 7:08 p.m., Despaigne observed Salgado approach Walker and hand him a brown paper bag, which Walker placed in his pocket and then walked a few feet to the public telephone in front of the store. Walker then removed the bag from his pocket, took a white object out of the bag, and placed the bag behind the telephone into the tracking of the store's security gate. At this point, Walker was standing in front of the store near the bag; Salgado leaned against a car parked in front of the store; and Costa stood about fifteen feet away on the street corner. Walker, Salgado, and Costa thus formed a triangle, the sides of which measured approximately fifteen feet.
At approximately 7:10 p.m., Edwin Pacheco ("Pacheco") approached Costa. After a brief conversation, Pacheco handed Costa money, and Costa motioned with her head towards Walker. Pacheco then went over to Walker, who handed him a white object. Pacheco then walked away and turned down East 115th Street. Despaigne radioed a description of Pacheco to the field team in the van, and Winston arrested Pacheco near the corner of East 115th Street and Third Avenue, recovering from him one glassine of heroin labeled "Mad Raw."
Despaigne continued to observe Walker, Salgado, and Costa, who remained in their triangular positions. After a few minutes, Despaigne noticed Jose Mansonett ("Mansonett"), a Hispanic male wearing clothing similar to Walker's, selling drugs 25 to 30 feet further north on Lexington. Despaigne saw no contact between Mansonett and the other three sellers.
At approximately 7:25 p.m., Despaigne radioed descriptions of Walker, Salgado, and Costa to the field team, which drove to the corner. Winston arrested Walker in front of the store; Arocho arrested Costa and discovered five glassines of "Mad Raw" heroin in a glove in Costa's coat pocket. Despaigne directed Dunn to retrieve the brown paper bag from the store's gate. Dunn found six glassines of heroin in the bag. Dunn then detained Salgado. Despaigne observed the detentions and confirmed that the right people had been detained. Despaigne then left his observation post, joined the field team, and again confirmed that the detentions were of the correct people. Mansonett was arrested by the same team.
Police Department chemists tested the contents of the six glassines recovered from the brown paper bag, as well as the five glassines found on Costa and the one glassine seized from Pacheco. All the glassines were found to contain heroin. At trial, Despaigne identified Walker as the person who received the brown paper bag from Salgado, placed the bag in the store gate, and handed heroin to Pacheco. Winston, Dunn, and Arocho also testified regarding their roles in the arrests. Photographs were introduced depicting the scene as it would have looked from Despaigne's perspective, and the photographer testified as well.
Walker also took the stand, testifying that he had simply left his apartment near 121st Street and First Avenue to purchase cigarettes and batteries for his Walkman. He went to the bodega at 115th and Lexington because it was near the train station and he was familiar with the clerks who worked there. After buying the merchandise, he walked outside and was immediately arrested. The cigarettes and batteries were not found on Walker's person.
Discussion
I. Cross-Examination of Despaigne Was Appropriately Limited
Walker claims that the trial court abused its discretion in precluding defense counsel from cross-examining Despaigne in order to establish that the heroin found on Mansonett was stamped "Mad Raw."
The Confrontation Clause of the Sixth Amendment, which applies to the states through the Fourteenth Amendment, see Pointer v. Texas, 380 U.S. 400, 403 (1965), guarantees the defendant in a criminal prosecution the right to confront witnesses against him. See Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986). "`The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination.'" Davis v. Alaska, 415 U.S. 308, 315 (1974) (quoting 5 J. Wigmore, Evidence § 1395, p. 123 (3d ed. 1940)) (emphasis in original); see Van Arsdall, 475 U.S. at 678; Woods v. Kuhlmann, 677 F. Supp. 1302, 1306 (S.D.N.Y. 1988). "[T]he cross-examiner is not only permitted to delve into the witness' story to test the witness' perceptions and memory, but [is also] . . . allowed to impeach, i.e., discredit, the witness." Davis, 415 U.S. at 316. The Confrontation Clause generally requires that the defendant in a criminal prosecution be afforded wide latitude in cross-examining government witnesses. See United States v. Weiss, 930 F.2d 185, 197 (2d Cir. 1991); United States v. Pedroza, 750 F.2d 187, 195 (2d Cir. 1984).
However, the Confrontation Clause generally guarantees only "an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (citing Ohio v. Roberts, 448 U.S. 56, 73 n. 12 (1980)). The trial court retains "wide latitude . . . to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Van Arsdall, 475 U.S. at 679; see Jones v. Berry, 880 F.2d 670, 673 (2d Cir. 1989). "[T]his discretion includes the power to limit cross-examination to the scope of the testimony on direct examination." Guttman v. CFTC, 197 F.3d 33, 38 (2d Cir. 1999) (citing Cities of Bethany v. Federal Energy Regulatory Comm'n, 727 F.2d 1131, 1145 (D.C. Cir. 1984)). Walker maintains that had defense counsel been permitted to establish that the heroin recovered from Mansonett was stamped "Mad Raw," it would have created reasonable doubt as to who was the individual that handed the heroin to Pacheco and possessed the brown bag with the heroin stamped "Mad Raw."
The evidence presented at trial through Despaigne's testimony, however, established that Mansonett had nothing to do with Walker's case. Despaigne testified that Mansonett was up the street running a separate drug dealing operation. Despaigne did not see Mansonett interact with Walker, Salgado, and Costa, and Despaigne had all the individuals in his sight simultaneously throughout the observation period. Thus, whether Mansonett was selling heroin labeled "Mad Raw" was irrelevant to the case and the judge's decision to limit cross-examination could rationally have been based on a fear of confusion of the issues as well as irrelevance.
Moreover, the fact that all the heroin recovered from the Walker-Salgado-Costa operation was stamped "Mad Raw," although it was established during testimony, was not central to the government's case.
In addition, had it been error to limit the cross-examination, such error would have been harmless. The appropriate harmless error standard for federal habeas review of a state conviction is whether the error had a "`substantial and injurious effect or influence in determining the jury's verdict.'" Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). That standard cannot be met here. Despaigne testified at trial that he saw Walker remove a white object from a brown paper bag and hand it to Pacheco after Pacheco gave money to Costa. Pacheco was subsequently arrested in possession of a glassine of heroin; the brown bag, holding six glassines of heroin, was recovered. Despaigne's testimony was credible, specific, and accurate. He observed the scene continuously with high-powered binoculars. He confirmed the detentions, both from his observation post and subsequently on the ground. The testimony was reinforced by testimony from the other arresting officers and from the photographer who took the photos introduced as exhibits. Walker's testimony was presented and the jury weighed the evidence.
A thorough review of the trial transcript leaves no doubt that any failure to permit defense counsel to elicit testimony that Mansonett was also selling heroin stamped "Mad Raw" could not have had a "substantial and injurious effect or influence in determining the jury's verdict." Therefore, had there been error such error would have been harmless.
II. Sufficient Evidence Was Presented To Support a Guilty Verdict
Walker maintains that Despaigne could not make a distinction of any drug containers he claimed Walker had passed, and that he was mistaken regarding the location of the crime and the identification of Walker.
The Supreme Court has held that a federal court must order "habeas corpus relief if it is found that upon the record evidence adduced at trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 324 (1979). In determining the sufficiency of the evidence, the court must view the evidence in the light most favorable to the prosecution, see id. at 319, and decide whether the record is "so totally devoid of evidentiary support that a due process issue is raised." Mapp. v. Warden, N Y State Correctional Inst. for Women, 531 F.2d 1167, 1173 n. 8 (2d Cir. 1976).
As set forth in the facts and in Part I of this section of the opinion, there is ample evidentiary support in the record to sustain Walker's conviction.
III. The Sentence Was Not Excessive
Walker next maintains that his sentence was excessive, as founded on erroneous information and mischaracterizations of his prison record.
It is well established that "no constitutional issue is presented for habeas corpus relief where a sentence imposed falls within the range prescribed by state statutory law." Alvarez v. Scully, 833 F. Supp. 1000, 1009 (S.D.N.Y. 1993) (citing White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992)).
Walker was convicted of Criminal Sale of a Controlled Substance in the Third Degree and Criminal Possession of a Controlled Substance in the Third Degree, both Class B felonies. See N Y Penal Law §§ 220.16(1), 220.39(1) (McKinney 2000). Walker's criminal history included four prior felony convictions: federal convictions for sale of heroin and assault of a federal officer, and state convictions for attempted criminal sale of a controlled substance. Walker also had three drug possession convictions and an arrest for criminal possession of a controlled substance. Due to the prior felony convictions, Walker was sentenced as a predicate felon to two concurrent prison terms of from nine to eighteen years. As a predicate felony offender, he could have received a sentence from twelve-and-one-half to twenty-five years. See N.Y. Penal Law § 70.06(3)(b), (4)(b) (McKinney 2000). Accordingly, the sentence falls well within the range prescribed by state statutory law and cannot be reviewed by this Court on a habeas petition. Walker also claims that his sentence was founded on a factually inaccurate record of his prior convictions. This claim is not supported by the evidence. He contends that his two state felony convictions should have been considered as a single conviction because they were handed down on the same day, yet those convictions stemmed from separate arrests with separate indictment numbers, involving separate incidents which resulted in two separate convictions and different sentences.
Walker further claims that the sentencing judge's reference to the Charge of Criminal Impersonation in the context of the recitation of his arrest record was factually erroneous. Although there is no disposition reflecting a conviction for this charge, under New York law the sentencing court can consider the arrest record of a defendant. See, e.g., People v. Gonzalez, 661 N.Y.S.2d 50, 51 (2d Dep't 1997); People v. Seplow, 226 A.D.2d 178, 179 (1st Dep't 1996). The sentencing judge's consideration of Walker's arrest record was thus within his discretion.
Furthermore, while Walker is correct that the sentencing judge incorrectly stated that Walker was the subject of a 1990 felony narcotics conviction, there is no indication that this affected the length of Walker's sentence.
Finally, although the presentence report mistakenly indicated that Walker had served five years in a federal facility for his federal convictions, while Walker contends he only served 42 months, there is no evidence to indicate that this slight discrepancy in the report had any appreciable effect on Walker's sentencing.
IV. The Evidence Pursuant to an Improper Arrest Claim Is Precluded
A federal court lacks authority to consider a habeas petitioner's Fourth Amendment claim that evidence obtained in an unconstitutional search was wrongfully introduced at his trial where the state already "has provided an opportunity for full and fair litigation of [the] claim." Stone v. Powell, 428 U.S. 465, 482 (1976); see Gates v. Henderson, 568 F.2d 830 (2d Cir. 1977) (en banc). Under Gates, a federal court in this Circuit will review the merits of such a claim only upon a showing that the petitioner was "precluded from utilizing [the available state process] by reason of an unconscionable breakdown in that process." Id. at 840; see also Cruz v. Alexander, 477 F. Supp. 516, 522-23 (S.D.N.Y. 1979) (breakdown in state process deprived petitioner of full and fair opportunity to litigate his claim). Thus, the possibility that a federal court would have reached a different result from the state court does not remove Stone's barrier to review. See Gates, 568 F.2d at 840; Shaw v. Scully, 654 F. Supp. 859, 863 (S.D.N.Y. 1987).
Here, Walker does not claim that New York State lacks a statutorily created mechanism to challenge the admission of tainted evidence, nor does he claim that an "unconscionable breakdown" in state process has occurred. He merely asserts that the police officers had no probable cause to arrest him and that the articles obtained from the arrest should have been suppressed. Because he had an opportunity to fully and fairly litigate this claim in New York state court, habeas review is precluded here.
V. Walker Was Not Denied Effective Assistance of Counsel
"The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686 (1984); see United States v. DiTommaso, 817 F.2d 201, 215 (2d Cir. 1987); Roberts v. Scully, 875 F. Supp. 182, 194 (S.D.N.Y. 1995). To prevail on an ineffective assistance claim, a petitioner must demonstrate first, that his counsel's representation fell below "an objective standard of reasonableness" under "prevailing professional norms," and, second, that without the unprofessional performance of counsel, a reasonable probability exists that the outcome of the proceeding would have been different. Strickland, 466 U.S. at 688, 694; see also United States v. Romero, 54 F.3d 56, 59-60 (2d Cir. 1995); United States v. Vegas, 27 F.3d 773, 777 (2d Cir. 1994); United States v. Aguirre, 912 F.2d 555, 560 (2d Cir. 1990). Both elements of this Strickland test must be satisfied before it can be concluded that "counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687.
A petitioner seeking to establish constitutionally ineffective assistance of counsel must overcome "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is . . . that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 100-101 (1955)). A claim premised merely on the notion that "counsel's trial strategy was inadequate" will fail. United States v. Sanchez, 790 F.2d 245, 253 (2d Cir. 1986). "[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable. . . ." Strickland, 466 U.S. at 690. These same principles have been reiterated numerous times by the Second Circuit. See, e.g., Romero, 54 F.3d at 59-60 (holding counsel's decision not to seek a severance a reasonable tactical decision); Vegas, 27 F.3d at 777-78 (holding counsel's tactical decision to pursue an entrapment defense rather than contest client's involvement to be reasonable); United States v. Simmons, 923 F.2d 934, 956 (2d Cir. 1991) (appellant's displeasure with strategy employed by trial counsel insufficient to establish ineffectiveness); United States v. Aulet, 618 F.2d 182, 189 (2d Cir. 1980) (stating that courts "must allow trial counsel some latitude in deciding which pretrial motions are called for in a given case").
"[T]he Strickland standard is quite deferential." Roberts, 875 F. Supp. at 195. A conviction will not be overturned when counsel provided "reasonably effective assistance" to the petitioner. Strickland, 466 U.S. at 687. "[A] claim of constitutional dimension does not arise unless a lawyer's error is so egregious as to amount to a failure to provide minimal professional representation." Roberts, 875 F. Supp. at 195. Under the standard set forth above, a "counsel's tactical decisions, even those that go awry, will not provide the factual predicate for a Sixth Amendment claim." Id. (citing cases).
Walker claims that his trial counsel provided ineffective assistance by not moving for a suppression hearing to challenge the merits of Walker's arrest. As set forth above, however, the record provides ample evidence of probable cause for Walker's arrest. Defense counsel's decision not to seek a suppression hearing was reasonable in light of the record.
Moreover, a thorough review of the trial transcript reveals that Walker's counsel was, in fact, competent, tenacious, and thorough throughout the proceeding. Counsel made cogent opening and closing statements, rigorously cross-examined the government's witnesses — particularly Despaigne — in an effort to establish reasonable doubt, and overall made a strong attempt to convince the jurors that the government's case was fatally flawed. Counsel thus satisfies the legal standard for effectiveness set forth above.
Conclusion
For the reasons set forth above, the petition for a writ of habeas corpus is denied.
As Walker has not made a substantial showing of the denial of a Constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253; see also United States v. Perez, 129 F.3d 255 (2d Cir. 1997); Lozada v. United States, 107 F.3d 1011 (2d Cir. 1997). Pursuant to 28 U.S.C. § 1915(a)(3), it is hereby certified that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
It is so ordered.