Rosa v. Herbert

• Citation: 277 F.Supp.2d 342
• Decision Date: 14 August 2003
• Docket Number: No. 02 Civ. 5881 (AKH).,02 Civ. 5881 (AKH).
• Parties: Jose ROSA, Petitioner, v. Victor HERBERT, Superintendent of Attica Correctional Facility, Respondent.
• Court: U.S. District Court — Southern District of New York

Page 342

277 F.Supp.2d 342

Jose ROSA, Petitioner, v. Victor HERBERT, Superintendent of Attica Correctional Facility, Respondent.

No. 02 Civ. 5881 (AKH).

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

August 14, 2003.

COPYRIGHT MATERIAL OMITTED

Jose Rosa, Attica, NY, Pro se.

OPINION AND ORDER DENYING HABEAS CORPUS PETITION

HELLERSTEIN, District Judge.

Jose Rosa ("petitioner"), proceeding pro se, brings this writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his incarceration. After a jury trial, judgment was entered against the petitioner on March 27, 1998 in the Supreme Court, Bronx County, convicting him of two counts of Attempted Assault in the First Degree and one count of Criminal Possession of a Weapon in the Second Degree. He was adjudicated as a persistent violent felony offender and sentenced to two concurrent indeterminate terms of 25 years to life. Petitioner asserts three grounds of constitutional error entitling him to relief: (1) excessiveness of the sentence; (2) insufficiency of the evidence; and (3) ineffective assistance of counsel. For the reasons discussed below the petition is denied.

The most interesting of petitioner's claims involves his allegation that his counsel failed to advise him not to reject an offer of a seven-to-fourteen year sentence if he were to plead guilty, for he claims that in the absence of a plea agreement, he became subject to being sentenced to the substantially enhanced term of imprisonment of one who is adjudicated a Persistent Violent Felony Offender. The latter part of this opinion discusses whether the New York Supreme Court's denial of this claim because of a pleading deficiency could be considered an adequate and independent state ground-I hold that it cannot, and that I am not foreclosed from treating the merits-and whether petitioner's counsel provided constitutionally inadequate representation by allegedly failing to give him such advice, sufficient to constitute a violation of his Sixth Amendment right to counsel. I hold that petitioner's constitutional rights were not violated, and I dismiss his petition for legal insufficiency.

I. Factual and Procedural Background

On June 29, 1996, at approximately 1:35 a.m., Police Officer Patrick Withers and Sergeant Michael Sweeney heard multiple gunshots from the vicinity of Fordham Road and Grand Avenue in the Bronx. At around this same time, "911" operators received calls also reporting gunshots in the area. Withers and Sweeney were directed, by police radio, to drive to the nearby corner of 184^th Street and Grand Avenue, where they exited their car and, approximately 35 to 40 feet away, saw petitioner and another man struggling. Petitioner fired two shots at the other man, who fell to the ground. Both police officers yelled, "[p]olice, don't move," and retreated to their car. Petitioner then pointed his gun in the police officers' direction and fired three shots. At that point, the man who had apparently been shot sprang up and fled the scene. The petitioner also then fled. Officer Withers pursued the petitioner, never losing sight of him, and Sergeant Sweeney returned to the car to radio for assistance.

Officer Withers chased petitioner south on Grand Avenue and west onto North Street. Petitioner turned in Officer Withers' direction and, from 20 feet away, "clicked off two more shots," but his weapon did not fire. Petitioner, continuing to flee, turned south on Aqueduct Avenue, discarded his gun in front of 2320 Aqueduct Avenue, and managed to evade a barrier set up at the next corner, Aqueduct Avenue and Evelyn Street, by police officers Jose Pichardo and John Horan. Officers Horan and Withers apprehended petitioner further along Aqueduct Avenue. Officer Withers then returned to the location where he had seen petitioner drop his gun, and recovered a .38 caliber, five-shot revolver. It was warm, smelled of gunpowder, and contained five spent shells. The revolver was later determined to be operable, and evidence of discharge was found in all five chambers. The subsequent investigation of the crime scene did not produce any spent bullets, bullet fragments, or evidence of bullets striking any person or object. Additionally, the man that the petitioner had apparently shot was never found. While being processed at the 52nd Precinct, the petitioner, in response to being told that he was being charged with attempted murder, responded that he was shooting at someone else and not at the police. He later stated at Central Booking that someone was shooting at him and he was returning the fire.

After his conviction and sentencing, petitioner filed an appeal with the Appellate Division asserting, inter alia, that there was insufficient evidence introduced at trial to support his conviction and that his sentence of 25 years to life was excessive. On June 13, 2000, the Appellate Division affirmed the petitioner's conviction. Petitioner then sought leave to appeal to the Court of Appeals, which was denied on August 28, 2000. Petitioner moved to vacate his conviction pursuant to section 440.10 of the New York Criminal Procedure Law on various grounds, including ineffective assistance of trial counsel. The trial court denied this motion on July 25, 2001. On November 8, 2001 the Appellate Division denied petitioner leave to appeal the trial court's decision, and on December 11, 2001 the Court of Appeals dismissed petitioner's application to appeal the Appellate Division's order. The petitioner then filed a writ of habeas corpus with this court on July 25, 2002.

II. Discussion

A. Excessiveness of Sentence

In his original petition, petitioner asserted that his sentence of 25 years to life was "unduly harsh." In a later filing, however, the petitioner withdrew this claim as "frivolous and without merit." I agree that such a claim is without merit.¹

If a "sentence is within the range prescribed by state law, ... its length ... does not present a question of constitutional dimensions." Rivera v. Quick, 571 F.Supp. 1247, 1248 (S.D.N.Y.1983). Here, petitioner was adjudicated at his sentencing hearing as a persistent violent felony offender, N.Y. Penal § 70.08 (Consol.1998), and according to state law was eligible for a maximum sentence of life and a minimum of between sixteen to twenty-five years. Id. § 70.08(3)(b). Petitioner's sentence is within this prescribed range. Pursuant to section 70.08, the court's adjudication follows from the nature of his prior, and current, convictions, and no additional fact-finding is required. People v. Mason, 277 A.D.2d 170, 717 N.Y.S.2d 130, 130 (N.Y.App.Div.2000) ("A persistent violent felony sentence is based entirely on the fact of the prior convictions, whereas a persistent felony sentence requires additional findings.") Since no federal constitutional issue arises here, petitioner wisely withdrew this ground of his petition.

B. Sufficiency of Evidence

Petitioner's second ground for relief asserts that the evidence introduced at trial was insufficient as a matter of law to support his conviction for either attempted assault or criminal possession of a weapon. "Petitioner bears a `very heavy burden' in convincing a federal habeas court to grant a petition on the grounds of insufficient evidence." Ponnapula v. Spitzer, 297 F.3d 172, 179 (2d Cir.2002) (citing Quirama v. Michele, 983 F.2d 12, 14 (2d Cir. 1993)). Petitioner cannot satisfy that burden.

Habeas corpus relief for insufficiency of evidence should be granted only "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." Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In conducting this inquiry the evidence is to be viewed as a whole, Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir.1996), and "all the evidence is to be considered in the light most favorable to the prosecution." Jackson, 443 U.S. at 319, 99 S.Ct. 2781. Additionally, "all possible inferences that may be drawn from the evidence must be construed in the prosecution's favor." Maldonado, 86 F.3d at 35. In assessing petitioner's claim, the court must defer to the jury's assessments of the weight of evidence and the credibility of witnesses. See id.

1. Attempted Assault

Petitioner argues that since the jury found him not guilty of the crime of attempted murder, the evidence necessarily must have been insufficient to prove that he intended to cause serious bodily harm to Officer Withers and Sergeant Sweeney. The argument is without merit. It was not inconsistent for the jury to have acquitted the petitioner of the more serious offense of attempted murder in the first and second degree, and to have found him guilty of the lesser included offense of attempted assault. People v. Samwell, 287 A.D.2d 663, 731 N.Y.S.2d 747, 748 (N.Y.App.Div.2001), appeal denied, 97 N.Y.2d 760, 742 N.Y.S.2d 621, 769 N.E.2d 367 (2002) (holding that an acquittal for attempted murder and conviction for attempted assault was not inconsistent or repugnant where defendant was accused of shooting at two police officers). There is a difference between "an intent to cause the death of another person," the element of intent required to convict of murder, N.Y. Penal Law §§ 125.27, 125.25 (Consol.1998), and an "intent to cause serious physical injury to another person," the element of intent required to convict of assault in the first degree. Id. § 120.10. That same distinction holds with regard to the different states of mind required for attempted murder and attempted assault. Clearly, there was sufficient evidence to allow the jury to find petitioner guilty of attempted assault. Additionally, the trial court acted correctly in instructing the jury on this lesser included offense to attempted murder. See People v. Cabassa, 79 N.Y.2d 722, 586 N.Y.S.2d 234, 598 N.E.2d 1, 3 (1992).

2. Criminal Possession of a Weapon

Petitioner also contends that the evidence...