JEREMIAH J. McCARTHY, Magistrate Judge.
The parties have consented to my jurisdiction pursuant to 28 U.S.C. §636(c). [11]. Petitioner Dennis Browning brings this petition for habeas corpus relief pursuant to 28 U.S.C. §2254. Petitioner was convicted on January 12, 2012 of criminal possession of a weapon in the 2
With the passage of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Congress established a one-year statute of limitations for the filing of a petition for a writ of habeas corpus by a person in custody pursuant to a state court conviction. 28 U.S.C. §2244(d)(1). Under 28 U.S.C. §2244(d)(1), the one-year period runs from the latest of:
Here, the petitioner's direct appeal to the New York State Appellate Division, Fourth Department was denied on May 2, 2014. The petitioner's application to appeal to the New York State Court of Appeals was denied on August 12, 2014. The original petition for habeas corpus relief was filed in this Court on October 8, 2014 [1]. The amended petition was filed on December 9, 2014. Thus, the petition was timely filed within the one-year statute of limitations.
In the interest of comity and in keeping with the requirements of 28 U.S.C. §2254(b), federal courts will not consider a constitutional challenge that has not first been "fairly presented" to the state courts. See
To meet this requirement, the petitioner must have raised the question in a state court and put the state appellate court on notice that a federal constitutional claim was at issue. "Passage through the state courts, in and of itself, is not sufficient".
It is not enough to refer generally to "due process" or that the trial was "unfair". "The term `right to a fair trial' is not so particular to as to call to mind a specific right protected by the Constitution".
In his direct appeal to the Fourth Department, petitioner raised two grounds: (1) that the verdict was against the weight of the circumstantial evidence; and (2) that he was denied a fair trial because the witness who interpreted alleged coded slang language used by him did not have the expertise to offer such an interpretation. See Brief for Appellant, attached as Exhibit B to the state court records manually filed with the court [referred hereafter as "Brief for Appellant"].
The petition in this case also asserts two grounds for relief: (1) "inconclusive D.N.A.", and (2) "no use of expert in `Coded Slang" Amended Petition [4], p. 6-7. With respect to the first ground, petitioner states the following supporting facts: "Does not show dominion control over weapon in case co-defendant was seen possessing weapon."
However, the respondent asserts that petitioner failed to present both of these claims to the state appellate court in constitutional terms. Respondent's Memorandum of Law [8], p. 8, 13. A review of the Brief for Appellant reflects that the petitioner did not articulate the federal constitutional dimension of either claim, nor did the petitioner rely upon federal authority. The respondent further argues that the petitioner no longer has a state court remedy with respect to these claims, and thus, the claims are procedurally barred.
"Any challenge to the sufficiency of the evidence would have to have been raised on direct appeal, and cannot be raised in state court now".
A petitioner can overcome the procedural bar to consideration of his claims if he can demonstrate both "cause" for his default and actual prejudice flowing from the substantive violation of federal law that he alleges; alternatively, the court can also consider the claim on its merits if the failure to do so will result in a fundamental miscarriage of justice.
In this case, even if I were to find that petitioner could meet his burden to demonstrate cause and prejudice excusing the procedural default, petitioner's claims would have to be denied on the merits as discussed below. See 28 U.S.C. §2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of [Petitioner] to exhaust the remedies available in the courts of the State").
State court findings of historical facts, and inferences drawn from those facts, are entitled to a presumption of correctness.
The petitioner bears the burden of rebutting the presumption of correctness by clear and convincing evidence. The presumption of correctness attaches to findings both by state trial courts and by state appellate courts.
In enacting AEDPA, Congress intended to heighten the deference given to state court determinations of law and fact. As noted by Judge Larimer in
Petitioner was convicted after a bench trial in state court that commenced on December 12, 2011. On November 12, 2010, Buffalo Police Officers Ann Devaney, Jasen Whitehead and Jonathan Pietrzak responded to a call that a burglary was in progress at 18 Pershing Street in the City of Buffalo (T. 22).
Officers Devaney and Whitehead continued into the house. When they arrived at the kitchen, they observed two men, petitioner and Adrian Dixon, in the bathroom off of the kitchen (T. 25). Dixon was wearing a brown hoodie; while petitioner was wearing a black hoodie (T. 25, 27). According to Officer Devaney, the officers directed the men to come out with their hands up, but the men did not comply (T. 24-25). She stated that Dixon was pounding on the bathroom window attempting to break it. Officer Devaney testified that she could not see anything in Dixon's hands as he was trying to break the double pane window (T. 47-48). She also testified that she did not see petitioner's hands (T. 27, 38).
Officer Devaney stated that the men did not respond to the officers' commands to come out of the bathroom for a "good minute, minute and a half" (T. 29). Dixon eventually succeeded in breaking the window. Both Officer Devaney, who was in the kitchen trying to get the men to come out of the bathroom (T. 26, 62), and Officer Pietrzak, who was outside the house near the bathroom window (T. 73), testified that they saw Dixon throw something out of the window. Officer Pietrzak testified that he saw something drop, but did not know what it was at the time. When he realized that the window was too small to allow for escape, he returned to the inside of the house to assist Officers Devaney and Whitehead (T. 74). At this point both Dixon and the petitioner were handcuffed and placed under arrest (T. 75). Dixon had cuts on his arm from sticking them through the window (T.30).
After Dixon and the petitioner were restrained, Officer Pietrzak went back outside to see what was dropped from the window. With the help of Officer Devaney shinning her flashlight from the bathroom window, he found a 9mm gun on the ground a few feet in front of the bathroom window. (T. 31-32, 76). The gun was found lying on top of leaves that had previously fallen (T. 112). The gun was loaded (T. 78).
A search of the house revealed that two other individuals had been hiding upstairs. One, eventually identified as Darryl Williams, was hiding in the attic closet (T. 32, 89, 124). The other individual, who was not definitively identified in the record, had apparently gone out a second floor window and was hiding on the roof of the front porch (T. 32, 89, 124). Both Williams and the other individual were wearing pajamas when found by the police (T. 89). Williams testified that he and the other individual
Michelle Lillie, a forensic biologist, testified that DNA tests were conducted with respect to material found on the gun (T. 193-98). Tests excluded the presence of Dixon's DNA on the gun (T. 206). However, petitioner's DNA could not be excluded. Lillie testified that "[t]he partial major DNA profile obtained from the swab from the handgun was the same as the known buccal specimen from" petitioner (T. 206). Lillie stated the test indicated that the similarities between the DNA found on the gun and petitioner's DNA was such that one of every 153.5 million people in the United States would have such similarities (T. 206-09). In other words, since there are approximately 300 million people in the United States, only two people in the country could have produced those test results (T. 209).
Erie County Deputy Sheriff Joseph Higgins testified that he was responsible for monitoring and recording inmate phone calls at the Erie County Holding Center. Deputy Sheriff Higgins stated that while petitioner was being held at the Erie County Holding Center on November 13, 2010, the day after his arrest in this incident, petitioner made a phone call that was recorded (T. 157).
Buffalo Police Detective Marvin Sanford testified as an expert on street slang (T. 162-63). He stated that he had been a police officer for more than 24 years (T. 162), that he had experience with street slang, that he had to communicate with people who used street slang, and that he used street slang in his everyday life growing up (T. 163). Sanford stated that he was familiar with petitioner, having interviewed him in the past (T. 167). He testified that he listened to the recorded phone call involving the petitioner, and that he recognized petitioner's voice on that phone call (T. 168). Sanford stated that the word "joint" could have multiple meanings and that "you can use it to describe or replace the meaning, if you're talking in code, to use that word in place of something — a word you're trying to describe . . . when you want to say something but you don't want somebody to overhear you saying the word" (T. 164-65). Sanford stated that petitioner had said something to the effect that petitioner had "dropped my joint or they found my joint and my shits all over that joint", and that this was coded language for petitioner talking about the gun (T. 168, 176). The recorded call was played at the trial (T. 174). Petitioner was actually heard to have stated "my joints are all over that shit."
In his summation, petitioner's attorney argued that not one witness had testified that they saw the petitioner with the gun (T. 240). He also argued that petitioner had gone to the house to smoke marijuana, and that petitioner's use of the word "joint" referred to marijuana (T. 242-43). Finally, he argued that the DNA evidence did not result in a match that was conclusive (T. 245). After the conclusion of the trial on December 13, 2011, Judge D'Amico stated that he was going to review the evidence (T. 254). On December 14, 2011, Judge D'Amico found both Dixon and petitioner guilty of criminal possession of a weapon in the second degree pursuant to New York Penal Law §265.03.3 (T. 232, 257).
Petitioner lists "inconclusive DNA" as his first ground for relief, adding that it "does not show dominion control over weapon in case co-defendant was seen possessing weapon." [4, p. 6]. Petitioner does not otherwise characterize this claim. In his state court appeal, this claim was presented as being based upon the argument that the verdict was against the weight of the evidence. [Brief for Appellant, p. 6]. A claim that the verdict is against the weight of the evidence is not cognizable upon habeas corpus review.
While a "weight of the evidence" claim is based upon state law, a "sufficiency of the evidence" claim is based upon federal due process principles which may be reviewed in connection with an application for habeas corpus relief.
As noted above, historical facts and inferences determined by the state court are subject to a presumption of correctness. Further, petitioner carries a heavy burden to prevail in a habeas challenge to the sufficiency of evidence to support a state-court conviction.
Here, applying the presumption of correctness and inferences discussed above, the record reflects that petitioner, and at least one other individual, entered a house at 4:00 a.m. without the permission of the occupants, that police went to scene to investigate a call that a burglary was in progress and shots were fired, that the petitioner was found by the police in the bathroom with Dixon, that Dixon broke the bathroom window and threw something out the window, that the item thrown out the window was discovered to be a handgun, and that petitioner's DNA was found on the handgun. Notwithstanding the absence of testimony that petitioner was seen holding the gun or passing the gun to Dixon to be thrown out of the window, the presence of petitioner's DNA on the handgun under these circumstances is sufficient to establish petitioner's constructive possession of the weapon and supports the petitioner's conviction. See
In his state court appeal, petitioner relied heavily on
Under the circumstances in this case, and particularly in light of the deferential standard applied to state court factual findings, I cannot conclude that the evidence presented in the state court trial was insufficient to establish petitioner's constructive possession of the handgun in question.
Petitioner also argues that Sanford was not "a reliable source for coded slang" and gave different meanings to the word "joint". Also, petitioner points out that Sanford admitted that he was guessing. Amended Petition [4], p. 7. This argument relates to a recorded phone conversation in which petitioner stated: "my joints is all over that shit" (T. 174). In his state court appeal, petitioner's primary argument with respect to this claim was that expert slang interpretation evidence was only admissible in narcotics cases, and since there were no narcotics charges in this case, such evidence should not have been allowed. [Brief for Appellant, p. 13]. The Fourth Department rejected this argument, citing cases where such expert slang testimony was admitted in non-narcotics cases. Amended Petition [4], p. 11.
In any event, discretionary state court evidentiary rulings normally do not rise to a constitutional level so as to be cognizable in a federal habeas corpus proceeding, absent a showing that the challenged rulings violated a specific constitutional right. "Under Supreme Court jurisprudence, a state court's evidentiary rulings, even if erroneous under state law, do not present constitutional issues cognizable under federal habeas review."
Based on the above, the amended petition for habeas corpus relief [4] is denied. I hereby certify, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith, and leave to appeal to the Court of Appeals as a poor person is denied.
