Gethers v. Superintendent

• Docket Number: 9:18-CV-1262 (BKS/DJS)
• Decision Date: 17 August 2021
• Parties: TERRENCE GETHERS, also known as Terance Gethers, Petitioner, v. SUPERINTENDENT, Respondent.
• Court: U.S. District Court — Northern District of New York

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TERRENCE GETHERS, also known as Terance Gethers, Petitioner, v. SUPERINTENDENT, Respondent.

No. 9:18-CV-1262 (BKS/DJS)

United States District Court, N.D. New York

August 17, 2021

APPEARANCES:OF COUNSEL:

TERRENCE GETHERS Petitioner Pro Se

HON LETITIA JAMES MICHELLE MAEROV, Attorney General of the State of New York Assistant Attorney General Attorney for Respondent

REPORT-RECOMMENDATION and ORDER^[1]

DANIEL J. STEWART United States Magistrate Judge

Pro se Petitioner Terance Gethers was convicted by jury verdict of three counts of criminal sale in the second degree. Dkt. No. 7, Am. Petition (“Am. Pet.”) at p. 1.^[2] He was sentenced to a determinate term of imprisonment of ten years with five years of post- release supervision, for each count, with the sentences to run concurrently. Id; Dkt. No. 20, State Court Record (“SR”) at pp. 541-42.^[3] Petitioner seeks a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on four grounds: (I) the verdict was against the weight of the evidence; (II) Petitioner was denied due process and a fair trial due to the Prosecution's improper use of bad acts in its direct case; (III) Petitioner was denied a fair trial due to an improper Sandoval ruling; and (IV) the sentence imposed was harsh and excessive. Am. Pet. Respondent has filed a Memorandum of Law in Opposition to the Amended Petition. Dkt. No. 13, Resp.

I. BACKGROUND

This Petition relates to events that occurred on March 4, 2013, March 28, 2013, and April 30, 2013, when, on each occasion, Petitioner sold over one-half ounce of cocaine to a confidential informant (hereinafter CI) who was working with the Drug Enforcement Agency (hereinafter DEA) to facilitate the sales. SR. at pp. 8-12. On March 26, 2014, as a result of these sales, Petitioner was named in an indictment charging him with three counts of criminal sale in the second degree. SR. at pp. 8-13. He was arraigned on the indictment in Albany County Court on August 22, 2014. SR. at p. 20. Petitioner pled not guilty to all three counts. SR. at p. 22. At trial, Petitioner was found guilty of all three counts and sentenced to a determinate term of imprisonment of ten years with five years of post-release supervision, for each count, with the sentences to run concurrently. SR. at pp. 530-33 & 541-42.

Petitioner appealed to the New York Appellate Division, Third Department. SR. at p. 586. On June 22, 2017, the Appellate Division affirmed the judgment of the New York Supreme Court. People v. Gethers, 151 A.D.3d 1398 (3d Dep't 2017). On October 24, 2017, the New York Court of Appeals denied Petitioner's application for leave to appeal. SR. at pp. 640-43, People v. Gethers, 30 N.Y.3d 980 (2017).

II. STANDARD OF REVIEW

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Petitioner bears the burden of proving by a preponderance of the evidence that he is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997); Rivera v. New York, 2003 WL 22234697, at *3 (S.D.N.Y. Aug. 28, 2003). A federal court may not grant habeas relief to a state prisoner on a claim unless the state court adjudicated the merits of the claim and such adjudication either:

1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or 2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d); see also Hawkins v. Costello, 460 F.3d 238, 242 (2d Cir. 2006).

The Second Circuit has summarized the application of the standard of review under AEDPA as follows:

[u]nder AEDPA, we ask three questions to determine whether a federal court may grant habeas relief: 1) Was the principle of Supreme Court case law relied upon in the habeas petition “clearly established” when the state court ruled? 2) If so, was the state court's decision “contrary to” that established Supreme Court precedent? 3) If not, did the state court's decision constitute an “unreasonable application” of that principle?

Williams v. Artuz, 237 F.3d 147, 152 (2d Cir. 2001) (citing Williams v. Taylor, 529 U.S.362 (2000) and Francis S. v. Stone, 221 F.3d 100, 108-09 (2d Cir. 2000)). The standard of review under § 2254(d) is “highly deferential” and “demands that state-court decisions be given the benefit of the doubt.” Renico v. Lett, 559 U.S. 766, 773 (2010). “[A] state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).

The phrase “clearly established Federal law” refers to “the holdings, as opposed to the dicta, of th[e] Court's decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000). A state court decision is “contrary to” established Supreme Court precedent “if the state court arrives at a conclusion opposite to that reached by th[e] Court on a question of law or if the state court decides a case differently than th[e] Court has on a set of materially indistinguishable facts.” Id. at 413. A state court decision is an “unreasonable application” of established Supreme Court precedent “if the state court identifies the correct governing legal principle from th[e] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. AEDPA also requires that “a determination of a factual issue made by a State court shall be presumed to be correct [and t]he applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); see also DeBerry v. Portuondo, 403 F.3d 57, 66 (2d Cir. 2005); Boyette v. LeFevre, 246 F.3d 76, 88 (2d Cir. 2001).

III. DISCUSSION

A. Petitioner's Weight Of The Evidence Claim Is Not Cognizable

Petitioner first argues that the Jury's verdict was against the weight of the evidence. Am. Pet. at p. 5. While arguments as to the legal sufficiency of evidence are cognizable in federal court under habeas corpus review, “weight of the evidence” arguments are founded in New York Criminal Procedure Law § 470.15(5), and thus are not cognizable. Garbez v. Greiner, 2002 WL 1760960, at *8 (S.D.N.Y. 2002); see also McKinnon v. Superintendent, Great Meadow Corr. Facility, 422 Fed.Appx. 69, 75 (2d Cir. 2018) (“[T]he argument that a verdict is against the weight of the evidence states a claim under state law, which is not cognizable on habeas corpus.”); Torres v. O'Meara, 353 F.Supp.3d 180, 187-88 (N.D.N.Y. 2019); Kimbrough v. Bradt, 949 F.Supp.2d 341, 362 (N.D.N.Y. 2013).

Petitioner argues that there was “no corroboration of the alleged sale, as the police did not recover any marked buy money, or DNA fingerprints on the baggies of drugs allegedly purchased from [him] on either of the three dates in question.” Id. at p. 20. Petitioner further contends that the Prosecution failed to produce the CI who worked with the DEA to facilitate the sales that led to the Petitioner's arrest. Am. Pet. at p. 5. He claims this failure was fatal because the CI was the only person who could verify certain evidence. Id.

These are clear questions about the weight of the evidence that are not cognizable in federal habeas court. See U.S. v. Gordon, 987 F.2d 902, 906 (2d Cir. 1993) (“Any lack of corroboration goes to the weight of the evidence, not to its sufficiency, and a challenge to the weight of the evidence is a matter for argument to the jury, not a ground for reversal on appeal.”); see also United States v. Spruill, 634 Fed.Appx. 312, 314 (2d Cir. 2015) (summary order) (“Although the confidential informants' testimony would have contributed to the weight of evidence, the testimony was not necessary for a reasonable juror to find that [the defendant] intended to distribute and actually distributed cocaine.”). In any event, given the strength of the evidence discussed below, the failure to call the informant at trial does not undermine the sufficiency of the evidence presented. Id. (finding the evidence presented at trial was legally sufficient for a rational jury to convict even absent testimony from confidential informant).

Even if a legal insufficiency claim were properly raised, it would provide no ground for relief. In seeking habeas relief based on alleged insufficiency of the evidence, a petitioner “bears a ‘very heavy burden.'” Torres v. O'Meara, 353 F.Supp.3d 180, 188 (N.D.N.Y. 2019) (quoting Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 811 (2d Cir. 2000). The standard of review for a legal sufficiency claim is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Hogan v. West, 448 F.Supp.2d 496, 512 (W.D.N.Y. 2006) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in original). Therefore, a habeas court may only overturn a conviction if, based upon the evidence presented at trial, “no rational trier of fact could have found that the prosecution established the defendant's guilt beyond a reasonable doubt.” Id. (emphasis in original). This is not the case here.

The Prosecution provided sufficient evidence in their case-in-chief that led the jury to return a guilty verdict including testimony from DEA agents Bascoe, Lovianco, Joyce, Buckley, and Vadell - all of whom were involved in the investigation and arrest of Petitioner. SR. at pp. 239-396. Additio...