Dixon v. Miller

• Decision Date: 23 May 2002
• Docket Number: Docket No. 99-2432.
• Parties: Lawrence P. DIXON, Petitioner-Appellant, v. Thomas J. MILLER, Acting Superintendent, Woodbourne Correctional Facility, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

293 F.3d 74

Lawrence P. DIXON, Petitioner-Appellant, v. Thomas J. MILLER, Acting Superintendent, Woodbourne Correctional Facility, Respondent-Appellee.

Docket No. 99-2432.

United States Court of Appeals, Second Circuit.

Argued: April 6, 2000.

Decided: May 23, 2002.

COPYRIGHT MATERIAL OMITTED

Georgia J. Hinde, New York, NY, for Appellant.

Howard A. Getzler, District Attorney's Office, Kings County, Brooklyn, NY, for Appellee.

Before: VAN GRAAFEILAND, F.I. PARKER, Circuit Judges, and UNDERHILL, District Judge.^*

Judge UNDERHILL dissents in a separate opinion.

F.I. PARKER, Circuit Judge.

Petitioner-Appellant Lawrence P. Dixon appeals from a Memorandum and Order of the United States District Court for the Eastern District of New York (Nina Gershon,Judge,) issued July 14, 1999, denying his application for habeas corpus relief pursuant to 28 U.S.C. § 2254. On August 19, 1999, Judge Gershon granted Dixon a certificate of appealability on the issue of the sufficiency of the evidence.

Dixon challenges a June 23, 1982 judgment of the New York Supreme Court, Kings County, convicting him after a jury trial in absentia of Criminal Possession of a Controlled Substance in the First Degree (N.Y. Penal Law § 220.21[1] (1975)) and Criminal Possession of a Weapon in the Third Degree (N.Y. Penal Law § 265.02[4] (1974)). Dixon received concurrent sentences of fifteen years to life and one to three years, and was released on parole in July 1998 after having served the minimum fifteen years of his sentence.

Dixon's petition for habeas corpus relief was filed pro se on January 30, 1997. The district court denied Dixon's petition on July 14, 1999, and Dixon timely appealed.

On appeal, the issues are: (1) whether Dixon's insufficiency of the evidence claim is procedurally barred and (2) whether Dixon's conviction was supported by sufficient evidence. Although we hold that Dixon's insufficiency of the evidence claim is procedurally barred, we consider his argument in the context of his claim of actual innocence. We conclude that Dixon's conviction was sufficiently supported by evidence concerning his prior experience as a drug dealer, the packaging of the drugs found in the car he was driving, and his link to that car, and we affirm.

I. BACKGROUND

The facts of this case are set out in the district court opinion. Dixon v. Miller, 56 F.Supp.2d 289, 292-94 (E.D.N.Y.1999). We repeat only those that are necessary to resolve the issues that remain before us.

Lawrence Dixon owned a small grocery store and barbecue pit a few blocks away from a social club on Reid Avenue in Brooklyn. The New York Police Department targeted the Reid Avenue social club as part of a "buy operation" in November 1977. On November 30, 1977, Dixon allegedly sold four glassine envelopes of heroin to an individual who then sold the heroin to an undercover police officer. The police recorded the sale to the undercover officer on an audio tape,¹ but did not arrest Dixon at that time so that the identity of a confidential informant would be protected.

Dixon was arrested on December 8, 1977 after the police observed him driving a car in the vicinity of Sumner Avenue and Madison Street. The police followed Dixon for several blocks, until he parked the car in front of a small store. As Dixon stepped out of the car, the police arrested him for his involvement in the November 30, 1977 sale. Dixon's passenger, Michelle Johnson, was also arrested after the police observed her hand moving across the front seat near a partially concealed gun. Following the arrests, the police took Dixon, Johnson, and the car to the 79th Precinct. At the Precinct, the police conducted a routine search of the car, and one of the officers discovered a brown paper bag underneath the driver's seat. The bag contained thirty-seven glassine envelopes of a white powder that turned out to be two and five-eighths ounces of heroin. Dixon was charged, inter alia, with Criminal Possession of a Controlled Substance in the First Degree (more than two ounces of heroin), see N.Y. Penal Law § 220.21[1] (1975), and Criminal Possession of a Weapon in the Third Degree, see N.Y. Penal Law § 265.02[4] (1974), in connection with the drugs and firearm found in the car.

Following the postponement of Dixon's trial on the charges arising out of the December 8, 1977 events and an unrelated investigation of the police officers who arrested him, Dixon agreed to plead guilty on March 17, 1982. Dixon did not appear for the plea allocution and eventually was tried in absentia. Dixon was convicted on April 8, 1982 on the drug and firearm possession charges in connection with the December 8, 1977 events, and judgment of conviction was entered June 23, 1982. Dixon was sentenced, also in absentia, to concurrent terms of fifteen years to life for the drug possession count and three and one-half to seven years for the weapon possession count.

Dixon was eventually apprehended in April 1983 and entered a Serrano plea on July 6, 1983, in which he pleaded guilty to certain crimes without admitting to the underlying facts. See People v. Serrano, 15 N.Y.2d 304, 206 N.E.2d 330, 258 N.Y.S.2d 386 (1965). Dixon pleaded guilty to Criminal Possession of a Controlled Substance in the Third Degree (heroin), see N.Y. Penal Law § 220.16[1], in relation to the November 30, 1977 events and to Bail Jumping in the First Degree, see N.Y. Penal Law § 215.57, in relation to his March 1982 disappearance. At sentencing proceedings on December 22, 1983, the court sentenced Dixon to one to three years on the narcotics charge, one and one-half to three years on the bail jumping charge, and reduced Dixon's prior weapons possession sentence to a term of one to three years, all to run concurrently with the prior sentence of fifteen years to life for First Degree Criminal Possession.

As the district court correctly noted, petitioner exhausted the potential state remedies for each of his claims raised in his petition for habeas corpus relief. Dixon, 56 F.Supp.2d at 294. Dixon's application for habeas corpus relief pursuant to 28 U.S.C. § 2254 was filed pro se on January 30, 1997. In his petition, Dixon challenged the April 8, 1982 judgment of conviction of the New York Supreme Court. The district court appointed counsel and considered three claims, including the sufficiency of the evidence. The district court denied Dixon's petition on July 14, 1999 holding that (1) sufficient evidence supported Dixon's convictions for both possession of a controlled substance and possession of a weapon, (2) Dixon was not denied effective assistance of counsel, and (3) Dixon knowingly and voluntarily waived his right to be present at trial by failing to appear as required. Dixon timely appealed.

II. DISCUSSION

The issues on appeal are (1) whether Dixon's insufficiency of the evidence claim is procedurally barred and (2) whether Dixon's conviction on the drug charge was supported by sufficient evidence. This Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 1291, 28 U.S.C. § 2253, and Fed. R.App.P. 4(a). Even though Dixon has been released on parole, he remains "in custody" for habeas proceedings. Jones v. Cunningham, 371 U.S. 236, 242-43, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963); Maleng v. Cook, 490 U.S. 488, 491, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989).

We review de novo a district court's denial of a petition for a writ of habeas corpus. Smith v. Mann, 173 F.3d 73, 76 (2d Cir.1999). The record in a habeas corpus proceeding is reviewed in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319, 324, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Dixon "is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Einaugler v. Supreme Court of New York, 109 F.3d 836, 839 (2d Cir.1997) (quoting Jackson, 443 U.S. at 324, 99 S.Ct. 2781).

A. Procedural Bar

Dixon's habeas petition is founded on the decision of the New York Court of Appeals in People v. Ryan, 82 N.Y.2d 497, 626 N.E.2d 51, 605 N.Y.S.2d 235 (1993). In Ryan, the Court of Appeals interpreted the language of New York Penal Law § 220.18 (Criminal Possession of a Controlled Substance in the Second Degree) to include a "mens rea requirement associated with the weight of a controlled substance." 82 N.Y.2d at 504-05, 626 N.E.2d at 55, 605 N.Y.S.2d at 239.² The court reversed the Appellate Division, which had required knowledge of possession but not knowledge of the weight of the controlled substance. Dixon, basing his petition claim on Ryan, contends that there was insufficient evidence to permit a jury to conclude that he knew the quantity of the drugs found in the car.

1. The Retroactivity of Ryan

The Government first argues that relief under Ryan is unavailable to Dixon because his appeal is on collateral review. As the Government points out, the New York Court of Appeals has held that Ryan is retroactive to cases that were pending on direct appeal at the time Ryan was decided on December 16, 1993, People v.Hill, 85 N.Y.2d 256, 262, 648 N.E.2d 455, 458, 624 N.Y.S.2d 79, 82 (1995), and Dixon's direct appeal was completed six years earlier, see People v. Dixon, 130 A.D.2d 680, 516 N.Y.S.2d 16 (2d Dep't), leave denied, 70 N.Y.2d 645, 512 N.E.2d 563, 518 N.Y.S.2d 1037 (1987).

The Government's argument fails, however, for the reasons given in Fiore v. White, 531 U.S. 225, 121 S.Ct. 712, 148 L.Ed.2d 629 (2001). In Fiore, the Supreme Court explained that where a state's highest court for the first time interprets a criminal statute to require proof of a particular element and that interpretation does not create new law but merely clarifies what the law was at the time of a defendant's conviction, there is "no issue of retroactivity." Id. at 228, 121 S.Ct. 712. The state court's interpretation of the proof required must be applied on collateral review to prevent...