Colon v. Johnson

• Decision Date: 28 July 1998
• Docket Number: No. 96 Civ. 2175(LAK)(SEG).,96 Civ. 2175(LAK)(SEG).
• Citation: 19 F.Supp.2d 112
• Parties: Felix COLON, Jr., Petitioner, v. Sally JOHNSON, Superintendent of Orleans Correctional Facility, Respondent.
• Court: U.S. District Court — Southern District of New York

19 F.Supp.2d 112

Felix COLON, Jr., Petitioner, v. Sally JOHNSON, Superintendent of Orleans Correctional Facility, Respondent.

No. 96 Civ. 2175(LAK)(SEG).

United States District Court, S.D. New York.

July 28, 1998.

Anastasios Sarikas, Astoria, NY, for Felix Colon, Jr.

Nancy Killian, Asst. Dist. Atty., Bronx, NY, for Sally Johnson.

ORDER

KAPLAN, District Judge.

The petition is dismissed without prejudice for failure to exhaust state remedies for the reasons set forth in the report and recommendation of Magistrate Judge Sharon Grubin to which no objection has been filed.

SO ORDERED.

REPORT AND RECOMMENDATION TO THE HONORABLE LEWIS A. KAPLAN

GRUBIN, United States Magistrate Judge.

Petitioner, represented by counsel, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging a judgment rendered on December 14, 1984 in the New York State Supreme Court, Bronx County, convicting him upon a jury verdict of criminal sale of a controlled substance in the first degree and criminal sale of a controlled substance in the second degree. The instant petition challenges the convictions on two grounds: (1) that the trial court's decision to allow portions of the trial transcript into the jury room during deliberations deprived petitioner of "his right to due process of law, equal protection of the law and a fair trial" and (2) that the trial court's admission into evidence of testimony of an uncharged crime committed by petitioner's wife (the sale of heroin) deprived petitioner of due process of law. As discussed below, I recommend that the petition be dismissed without prejudice as neither claim has been exhausted in the New York State courts.

FACTUAL BACKGROUND

Viewing the facts in a light favorable to the state, see, e.g., Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Reddy v. Coombe, 846 F.2d 866, 869 (2d Cir.), cert. denied, 488 U.S. 929, 109 S.Ct. 316, 102 L.Ed.2d 334 (1988); Garcia v. Warden, 795 F.2d 5, 6 (2d Cir.1986), the evidence established that petitioner and a codefendant, with whom he was jointly tried, sold cocaine and heroin to an undercover police officer on two occasions. Only those facts relevant to the determination herein from the 1,300-page trial transcript ("Tr.") will be set forth below.

As a result of information the police received from a confidential informant ("CI") indicating that narcotics were being sold by petitioner out of his residence at 282 Brook Avenue in the Bronx, an investigation by the Bronx Narcotics Squad was commenced. On May 25, 1983 Detective Charles Serrano acting in an undercover capacity was taken to petitioner's apartment by the CI. They were met at the door by petitioner's wife who stated that petitioner was sleeping. Serrano told her he wanted two bundles of heroin, and she negotiated the purchase with him. Directed by her to wait in the hallway, Serrano was then approached by a person called "Soaky" whom he paid in exchange for the heroin as petitioner's wife looked on. Serrano told her that if the heroin were good, he would be back. A week or two later, petitioner's wife introduced Serrano to petitioner, and during the following month Serrano met numerous times with petitioner in the apartment to discuss the purchase of narcotics. Serrano, known to petitioner and his wife as Nicky, purportedly ran a narcotics operation in Connecticut and was trying to find a good supplier. Tr. 676-77, 681, 940-51.

Serrano testified at length about purchases of narcotics he made on June 29, 1983 and August 13, 1983 from petitioner. On both occasions, as pre-arranged with petitioner, Serrano met him at his apartment. Each time they thereafter drove off in Serrano's car to another location where they met co-defendant DeJesus, and petitioner and DeJesus supplied Serrano with the drugs in exchange for the purchase price. Serrano's testimony about the events on the day of each purchase was quite detailed and specific. In addition, four other officers of the Bronx Narcotics Squad, who had followed Serrano and surveilled his and petitioner's movements on the days of the sales from the time he entered petitioner's apartment building until he returned to the office of the Bronx Narcotics Squad and the narcotics were placed in a sealed envelope, also testified. They identified petitioner at trial as the person who had accompanied Serrano throughout the events to which he testified, and their testimony corroborated Serrano's detailed description of events. Id. 59-76, 190-212, 218, 227-38, 379-428, 524.

PROCEDURAL BACKGROUND

On appeal of his convictions to the Appellate Division, petitioner argued four points, only two of which are raised in the petition herein. The first was that the trial court erred in allowing the testimony about the May 25, 1983 sale of heroin to Serrano by petitioner's wife. Petitioner's second and third grounds on appeal, which are not raised in the instant petition, claimed error of the trial court in, respectively, failing to instruct the jury on the defense of agency and ruling incorrectly on the defense of entrapment. His final ground argued error in the trial court's having provided the jurors with the transcript of Serrano's testimony to take into the jury room during its deliberations. The Appellate Division affirmed the judgment of conviction in an opinion issued November 2, 1989. People v. Colon, 151 A.D.2d 146, 547 N.Y.S.2d 11. The New York State Court of Appeals denied petitioner's application for leave to appeal the Appellate Division's affirmance on March 28, 1990, People v. Colon, 75 N.Y.2d 917, 555 N.Y.S.2d 36, 554 N.E.2d 73, and a petition for a writ of certiorari petitioner sought from the United States Supreme Court was denied on May 17, 1993. Colon v. New York, 508 U.S. 923, 113 S.Ct. 2376, 124 L.Ed.2d 281. The instant petition was filed on March 26, 1996.¹

DISCUSSION

The federal habeas corpus statute, 28 U.S.C. § 2254, requires a person in state custody to exhaust his or her state remedies before seeking federal habeas corpus review. This rule is based on considerations of comity between the federal and state courts, ensuring that the state courts have an opportunity to consider and correct any violations of their own prisoners' federal constitutional rights. See, e.g., Duncan v. Henry, 513 U.S. 364, 365-66, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (per curiam); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); Ellman v. Davis, 42 F.3d 144, 147 (2d Cir. 1994), cert. denied, 515 U.S. 1118, 115 S.Ct. 2269, 132 L.Ed.2d 275 (1995); Daye v. Attorney General of the State of New York, 696 F.2d 186, 191 (2d Cir.1982) (en banc), cert. denied, 464 U.S. 1048, 104 S.Ct. 723, 79 L.Ed.2d 184 (1984); Mercado v. Henderson, 733 F.Supp. 19, 21 (S.D.N.Y.1990); Castillo v. Sullivan, 721 F.Supp. 592, 593 (S.D.N.Y. 1989). Exhaustion requires a petitioner to have presented to each level of the state courts the same federal constitutional claims, legally and factually, as he raises in his petition to the federal court so that the state courts will have been alerted to them and have had the initial opportunity to pass on them. Duncan v. Henry, 513 U.S. at 365-66, 115 S.Ct. 887; Picard v. Connor, 404 U.S. at 275-76, 92 S.Ct. 509; Daye v. Attorney General, 696 F.2d at 191. See also Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982) (per curiam); McGann v. New York, 870 F.2d 908, 910 (2d Cir.1989); Morgan v. Jackson, 869 F.2d 682, 684 (2d Cir.), cert. denied, 493 U.S. 920, 110 S.Ct. 284, 107 L.Ed.2d 264 (1989); Brown v. Miller, No. 97 Civ. 1874(SS), 1998 WL 91081, at *2 (S.D.N.Y. March 3, 1998). As the Supreme Court stated in Duncan v. Henry:

If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution. If a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court.

513 U.S. at 365-366, 115 S.Ct. 887. In Petrucelli v. Coombe, 735 F.2d 684 (2d Cir. 1984), the Second Circuit Court of Appeals explained:

Because non-constitutional claims are not cognizable in federal habeas corpus proceedings, Smith v. Phillips, 455 U.S. 209, 221, 102 S.Ct. 940, 948, 71 L.Ed.2d 78 (1982), a habeas petition[er] must put state courts on notice that they are to decide federal constitutional claims. See, e.g., Daye, 696 F.2d at 192. It is not necessary for a habeas petitioner to cite "book and verse" of the Constitution, id. (quoting Picard v. Connor, 404 U.S. 270, 278, 92 S.Ct. 509, 513, 30 L.Ed.2d 438 (1971)), but adequate notice to the state courts that they are to decide federal constitutional claims at least includes:

(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation. 735 F.2d at 687-88 (quoting Daye v. Attorney General, 696 F.2d at 194). See also Waterhouse v. Rodriguez, 848 F.2d 375, 381 (2d Cir.1988); Grady v. LeFevre, 846 F.2d 862, 864 (2d Cir.1988); Holland v. Scully, 797 F.2d 57, 64-65 (2d Cir.), cert. denied, 479 U.S. 870, 107 S.Ct. 237, 93 L.Ed.2d 162 (1986); Mercado v. Henderson, 733 F.Supp. at 21.

I should note that the Supreme Court's opinion in Duncan v. Henry, decided three years ago (see discussion infra, pp. 15-16), could be seen to require a petitioner to have mentioned explicitly to the state courts the federal constitutional claims he raises in a subsequent federal petition or at least have presented claims to the state courts that are...