Hernandez v. Conway

• Decision Date: 25 April 2007
• Docket Number: No. 03-CV-0852(VEB).,03-CV-0852(VEB).
• Citation: 485 F.Supp.2d 266
• Parties: Juan HERNANDEZ, Petitioner, v. James CONWAY, Superintendent, Respondent.
• Court: U.S. District Court — Western District of New York

485 F.Supp.2d 266

Juan HERNANDEZ, Petitioner, v. James CONWAY, Superintendent, Respondent.

No. 03-CV-0852(VEB).

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

April 25, 2007.

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Juan Hernandez, Attica, NY, pro se.

Stephen F. Gawlik, Assistant Attorney General, Buffalo, NY, for Respondent.

DECISION AND ORDER

BIANCHINI, United States Magistrate Judge.

I. Introduction

Juan Hernandez ("Hernandez" or "petitioner") has filed a pro se petition (Docket No. 1) for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction on March 15, 2001, in Ontario County Court on drug-related offenses. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(c). See Docket No. 6.

II. Factual Background and Procedural History

The conviction here at issue stems from several sales of drugs (heroin) by petitioner to informants in police-arranged drug buys and an incident of reckless driving that occurred on January 6, 2000; February 18 and 29, 2000; March 1 and 2, 2000 and April 6, 2000. As a result of his involvement in these incidents, Hernandez was indicted by an Ontario County Grand Jury as follows:

• Count One: Criminal Sale of a Controlled Substance in the Third Degree (N.Y. Penal Law 220.39(1)) on February 18, 2000;

• Count Two: Criminal Possession of a Controlled Substance in the Seventh Degree (intent to sell) (N.Y. Penal Law § 220.03) on February 18, 2000;

• Count Three: Criminal Sale of a Controlled Substance in the Third Degree (N.Y. Penal Law § 220.39(1)) on February 29, 2000;

• Count Four: Criminal Possession of a Controlled Substance in the Seventh Degree (intent to sell) (N.Y. Penal Law § 220.03) on February 29, 2000;

• Count Five: Criminal Sale of a Controlled Substance in the Third Degree (N.Y. Penal Law 220.39(1)) on March 1, 2000;

• Count Six: Criminal Possession of a Controlled Substance in the Seventh Degree (intent to sell) (N.Y. Penal Law 220.03) on March 1, 2000;

• Count Seven: Criminal Possession of a Controlled Substance in the Third Degree (intent to sell) (N.Y. Penal Law 220.16(1)) on March 2, 2000;

• Count Eight: Criminally Using Drug Paraphernalia (glassine envelopes for the distribution of narcotics) in the Second Degree (N.Y. Penal Law § 220.50(2)) on March 2, 2000;

• Count Nine: Criminal Mischief (damaging a police vehicle) in the Third Degree (N.Y. Penal Law § 145.05) on March 2, 2000;

• Count Ten: Reckless Driving (Vehicle & Traffic Law § 1212) on March 2, 2000; and

• Count Eleven: Criminal Possession of a Controlled Substance in the Third Degree (intent to sell) (N.Y. Penal Law § 220.16(1)) on April 6, 2000.

Petitioner, through counsel, moved for, inter alia, severance of the various counts of the indictment pursuant to New York State Criminal Procedure Law ("C.P.L.") § 220.20(3) and for dismissal of counts seven, eight, nine, ten, and eleven of the indictment. Ontario County Court (Harvey, J.) heard argument on February 14, 2000, at which time he denied the severance motion. See Exhibits to Respondent's Answer ("Resp't Ex.") G. Judge Harvey denied the motion to dismiss in a separate decision and order. See Resp't Ex. A at 53. Following a suppression hearing on March 7, 2001, the trial court dismissed count eleven of the indictment finding that there was no probable cause to stop petitioner. Hernandez was tried before a jury on March 14 and 15, 2001. At the close of the prosecutions's case, the trial court dismissed count seven of the indictment charging third degree criminal possession of a controlled substance on March 2, 2000. See Resp't Ex. I at 334. The jury returned a verdict convicting Hernandez on eight counts charging drug-related offenses: three counts of criminal sale of a controlled substance in the third degree; three counts of criminal possession of a controlled substance in the seventh degree; one count of criminally using drug paraphernalia in the second degree; and one count of reckless driving. He was acquitted of count nine, which charged reckless driving (damaging a police vehicle).

Hernandez was sentenced as a second felony offender on March 28, 2001, as follows:

• Count One (criminal sale on February 18, 2000)-5 to 10 years • Count Three (criminal sale on February 29, 2000)-9 to 18 years, to run consecutively to the sentence for Count One;

• Count Five — 5 to 10 years, to run concurrently with all of the sentences;

• Counts Two, Four, and Six (criminal possession with intent to sell) — 6 months, to run concurrently with all of the sentences;

• Count Eight (criminally using drug paraphernalia) — 60 days, to run concurrently with all of the sentences; and

• Count Ten (reckless driving) — 30 days in the local jail, to run concurrently with all of the sentences.

See Resp't Ex. J at 15-16.

Represented by new appellate counsel, Hernandez appealed his conviction to the Appellate Division, Fourth Department, of New York State Supreme Court, arguing that (1) the sentence was harsh and excessive; (2) it was error to deny petitioner's motion to sever; (3) the verdict was against the weight of the evidence; and (4) trial counsel failed to provide effective assistance based on his failure to call a witness. See Resp't Ex. L. Hernandez filed a pro se supplemental appellate brief arguing that he was denied a fair trial because an interpreter was not appointed. See Resp't Ex. M. On June 14, 2002, the Appellate Division granted his appeal to the extent it found the consecutive sentence to be excessive. See Resp't Ex. N. As such, the court modified petitioner's sentence by directing that all terms of imprisonment run concurrently with each other, making the aggregate sentence 9 to 18 years. See id. All other claims were denied. Petitioner sought leave to appeal as to all issues; this was denied by the New York State Court of Appeals on August 30, 2002. See Resp't Ex. O.

On or about January 18, 2003, petitioner filed an application for a writ of error coram nobis asserting that his appellate counsel failed to provide effective assistance. The writ was denied on March 21, 2003, and leave to appeal was denied. See Resp't Exs. S, T, and U.

This federal habeas petition followed, in which Hernandez raises the following grounds for relief: (1) the sentence was harsh and excessive; (2) it was error to deny petitioner's motion to sever; (3) the verdict was against the weight of the evidence; and (4) trial counsel failed to provide effective assistance based on his failure to call a witness. Respondent answered the petition on January 18, 2004, and raised the defense of non-exhaustion as to all four of petitioner's claims. See Docket Nos. 3, 4.

For the reasons set forth below, the application for a writ of habeas corpus is denied and the petition is dismissed.

III. Discussion

A. Standard of Review

The filing of Hernandez's petition post-dates the amendment of the federal habeas corpus statute on April 24, 1996, by the enactment of the Anti-terrorism and Effective Death Penalty Act ("AEDPA"). AEDPA has "significantly curtailed the power of federal courts to grant the habeas petitions of state prisoners." Lainfiesta v. Artuz, 253 F.3d 151, 155 (2d Cir.2001) (citing Williams v. Taylor, 529 U.S. 362, 399, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). Pursuant to AEDPA, when a state court has adjudicated a habeas petitioner's claims on the merits, habeas relief may not be granted unless the state court's holding was contrary to, or was an unreasonable application of, clearly established Federal law, as determined by the United States Supreme Court, or was based on unreasonable determination of the facts in light of the evidence presented in petitioner's state court proceeding. See 28 U.S.C. § 2254(d)(1), (2); Williams, 529 U.S. at 412-13, 120 S.Ct. 1495. In order to grant the writ there must be "some increment of incorrectness beyond error," although "the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir.2000) (internal quotation marks omitted).

B. Exhaustion

A court may not issue a writ of habeas corpus unless it appears that the petitioner has exhausted the remedies available to him in the state courts. 28 U.S.C. § 2254(b)(1)(A). To fulfill the exhaustion requirement, a habeas petitioner must have fairly presented the substance of all his federal constitutional claims to state court. See Ayala v. Speckard, 89 F.3d 91 (2d Cir.1996). The Second Circuit has interpreted the "fair presentment" requirement to mean that the petitioner has put the state court on notice that a federal constitutional claim was at issue. See Daye v. Attorney General, 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). A habeas petitioner has a number of ways to fairly present a claim in state court without citing "chapter and verse" of the Constitution, including "(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." Daye, 696 F.2d at 194; accord, e.g., Strogov v. Attorney Gen'l, 191 F.3d 188, 191 (2d Cir. 1999).

Respondent concedes that Hernandez presented on direct appeal the four issues he challenges in his habeas petition but argues that "none of the arguments raised federal constitutional issues[;] rather, the arguments raised on appeal were based on state law." Respondent's Memorandum of Law ("Resp't Mem.") at 6 (Docket No. 4). Furthermore, respondent argues, "even assuming that the petitioner did in fact exhaust...