Carvajal v. Artus

• Decision Date: 25 January 2011
• Docket Number: Docket No. 09–0826–pr.
• Parties: Alvaro CARVAJAL, Petitioner–Appellant,v.Superintendent Dale ARTUS, Respondent–Appellee.
• Court: U.S. Court of Appeals — Second Circuit

633 F.3d 95

Alvaro CARVAJAL, Petitioner–Appellant,

v.Superintendent Dale ARTUS, Respondent–Appellee.

Docket No. 09–0826–pr.

United States Court of Appeals, Second Circuit.

Argued: Sept. 29, 2010.Decided: Jan. 25, 2011.

Georgia J. Hinde, New York, NY, for Petitioner–Appellant.Thomas B. Litsky, Assistant Attorney General (Andrew M. Cuomo, Attorney General of the State of New York, Barbara D. Underwood, Solicitor General, Roseann B. MacKechnie, Deputy Solicitor General for Criminal Matters, on the brief), New York, NY, for Respondent–Appellee.Before: JACOBS, Chief Judge, FEINBERG and CABRANES, Circuit Judges.DENNIS JACOBS, Chief Judge:

Alvaro Carvajal, a New York State prisoner, appeals from the denial of an application for habeas corpus relief in the United States District Court for the Southern District of New York (McMahon, J.). He argues that his prosecution in New York for the unlawful possession of a controlled substance exceeded New York's criminal territorial jurisdiction, and thereby violated his federal constitutional rights, because both he and the drugs that formed the basis for his prosecution for unlawful possession of a controlled substance were found in California. Carvajal challenges the power of New York State to prosecute him for the possessory offenses for which he was convicted. But our power to grant relief is limited by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104–132, § 104, 110 Stat. 1214, 1219 (1996) (“AEDPA”), which bars relief to a state prisoner who raises a federal constitutional claim unless the state court's ruling was contrary to, or an unreasonable application of, clearly established Supreme Court precedent, and the claim was fairly presented to the state court.

Carvajal contends that affirmance of his conviction by the New York Court of Appeals was contrary to, or an unreasonable application of, clearly established Supreme Court precedent that limits a state's prosecutorial power to only those offenses that were committed within the prosecuting state or that were committed outside but had both an intended and actual detrimental effect within.

The New York Court of Appeals determined that the trial court's exercise of territorial jurisdiction over Carvajal was proper under state law, noted that Carvajal had never challenged the state's jurisdiction on constitutional grounds, and upheld his conviction. The United States District Court for the Southern District of New York dismissed the application for a writ of habeas corpus, but issued a certificate of appealability on the question of whether New York had territorial jurisdiction to prosecute Carvajal for three counts of drug possession when he possessed the drugs at issue exclusively out-of-state and was arrested in another state, but participated in a conspiracy to transport drugs into New York.

The force of Carvajal's argument notwithstanding, we must deem his claim procedurally defaulted and dismiss his application for a writ of habeas corpus.

BACKGROUND

In 1993, the New York State Drug Enforcement Task Force launched an investigation into a Colombian narcotics trafficking organization set up to transport cocaine from the San Francisco area to New York City. Intercepted telephone conversations and other surveillance indicated that Carvajal was in charge of the West Coast end and that Carvajal and his coconspirators in New York employed a network of individuals to “drive, store, and otherwise take care of the drugs and equipment.” People v. Carvajal, 14 A.D.3d 165, 786 N.Y.S.2d 450, 452 (2004). Carvajal made one trip to New York, in 1994, but was not arrested at that time or found in possession of any drugs.

Ultimately, California authorities recovered large quantities of drugs hidden in vehicles with secret compartments and a “stash house” used by the trafficking organization in California. Carvajal was arrested in California and extradited to New York where he was charged with conspiracy in the second degree and three counts of criminal possession of a controlled substance. All of the drugs that formed the basis for these possession counts were found and seized in California. On his arrest, Carvajal was in possession of numerous documents linking him to other members of the narcotics conspiracy, but no drugs were on his person or in his vicinity. Under New York law, Carvajal was deemed to be in constructive possession of the drugs seized in California because he exercised dominion over subordinate members of the conspiracy who were found in actual possession of the narcotics, and because he exercised control over the cars and “stash house” where the drugs were seized. See People v. Manini, 79 N.Y.2d 561, 569–70, 584 N.Y.S.2d 282, 594 N.E.2d 563 (1992). Carvajal was tried, along with several of his New York coconspirators, in the State Supreme Court for New York County.

The trial evidence reflected numerous phone calls between Carvajal and his New York coconspirators and emphasized Carvajal's role in supervising the distribution conspiracy from California. See Carvajal v. Artus, No. 07 Civ. 10634(CM)(AJP), 2008 WL 4555531, at *2–*9 (S.D.N.Y. Oct. 10, 2008). Carvajal's application for relief does not challenge the sufficiency of the evidence linking him to the conspiracy. See N.Y.Crim. Proc. Law § 20.20(2)(d). The issue is whether he is entitled to habeas relief with respect to the possession counts of his conviction because New York lacked the power to prosecute him for those offenses.

At the state trial, Justice Bonnie G. Wittner informed the parties that, under People v. McLaughlin, 80 N.Y.2d 466, 469, 591 N.Y.S.2d 966, 606 N.E.2d 1357 (1992), the prosecution need not prove the existence of jurisdiction beyond a reasonable doubt unless the defense disputed the existence of proper jurisdiction. Carvajal, 2008 WL 4555531, at *9. Defense counsel undertook to raise the jurisdiction issue via cross-examination of one of the prosecution's witnesses. Justice Wittner emphasized her view that jurisdiction was established as to the possession counts by evidence of Carvajal's cell phone conversations with his New York coconspirators, because each of those conversations “went through a cell [s]ite within the geographical territory of the State of New York.” Id. Oddly, Carvajal's counsel said he did not “disagree” with the trial judge's statement of the law on this point. Id. Nonetheless, the trial judge announced that, at the request of the defense, she would charge the jury on the question of whether the State had territorial jurisdiction. Id. at *10. Despite the fact that the trial judge was willing to give a charge on jurisdiction, Carvajal and his codefendant subsequently withdrew their request for such a charge. Id. Apparently, this was done because defense counsel objected to the manner in which Justice Wittner intended to charge the jury on jurisdiction. It seems defense counsel sought to avoid the submission of six interrogatories to the jury, which would conform to the prosecution's theory of jurisdiction, and which “would require reading the overt acts in the indictment” to the jury.¹ App. R. Ex. D at 34.

Carvajal was convicted on all counts of the indictment and sentenced to an aggregate indeterminate prison term of thirty-five years to life. He was subsequently resentenced under the Rockefeller Drug Reform Act to a determinate sentence of twelve-and-a-half to twenty-five years on the conspiracy conviction, and thirteen years imprisonment for two of the possession counts, all to run concurrently, and a consecutive term of thirteen years' imprisonment on the third possession count. But for the consecutive term of imprisonment imposed on the third possession count, Carvajal would be immediately eligible for parole and removal to Colombia.

Represented by new counsel, Carvajal appealed his conviction to the New York State Appellate Division, First Department. In relevant part, Carvajal argued that the question of New York's territorial jurisdiction was non-waivable because “[t]erritorial jurisdiction refers to the power of the court to hear and determine the case,” and that territorial jurisdiction was lacking on the possession counts because the acts of possession “took place wholly outside of New York.” App. R. Ex. D at 25. Carvajal's brief to the Appellate Division cited the New York Court of Appeals' decision of McLaughlin, which recognized that “[t]he general rule in New York is that, for the State to have criminal jurisdiction, either the alleged conduct or some consequence of it must have occurred within the State.” 80 N.Y.2d at 471, 591 N.Y.S.2d 966, 606 N.E.2d 1357; see also N.Y.Crim. Proc. Law § 20.20.

The Appellate Division agreed that “[b]ecause the State only has power to enact and enforce criminal laws within its territorial borders, there can be no criminal offense unless it has territorial jurisdiction.” Carvajal, 786 N.Y.S.2d at 453. And, the Appellate Division remarked that it was “aware of no other case in which a defendant was convicted of possession of a controlled substance when neither the drugs at issue nor the defendant was in New York at the time of the offense.” Id. at 454. Nevertheless, the court held that the State had jurisdiction to prosecute Carvajal under Criminal Procedure Law section 20.20(1)(a). Carvajal, 786 N.Y.S.2d at 454, 455; see also N.Y.Crim. Proc. Law § 20.20(1)(a) (providing for jurisdiction over an offense when conduct occurred within New York sufficient to establish an element of the offense). Carvajal was “deemed to have been in New York for jurisdictional purposes” because of phone calls made to his New York coconspirators, and was deemed to have constructively possessed the drugs in New York because he exercised control over the drugs and his subordinates who held the drugs in California. Carvajal, 786 N.Y.S.2d at 455; see also N.Y.Crim. Proc. Law § 20.60(1) (providing that “[a]n oral or written statement made by a person...