El v. Artuz, No. 98 Civ. 7564(DC).

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Writing for the CourtChin
Citation105 F.Supp.2d 242
PartiesRhagi EL, Petitioner, v. Christopher ARTUZ, Superintendent, Green Haven Correctional Facility, Respondent.
Decision Date30 June 2000
Docket NumberNo. 98 Civ. 7564(DC).
105 F.Supp.2d 242
Rhagi EL, Petitioner,
v.
Christopher ARTUZ, Superintendent, Green Haven Correctional Facility, Respondent.
No. 98 Civ. 7564(DC).
United States District Court, S.D. New York.
June 30, 2000.

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Rhagi El (a.k.a. Johnny Bast), Miami, FL, pro se.

Robert M. Morgenthau, District Attorney of New York County, by Marc Frazier Scholl, Assistant District Attorney, New York City, for respondent.

OPINION

CHIN, District Judge.


Pro se petitioner Rhagi El petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his April 3, 1996 conviction in the Supreme Court of the State of New York, New York County, for criminal possession of a weapon in the second degree (N.Y.Penal L. § 265.03), criminal possession in the third degree (N.Y.Penal L. § 265.02(4)), assault in the first degree (N.Y.Penal L. § 120.10(3)), and assault in the second degree (N.Y.Penal L. § 120.05(4)). For the reasons set forth herein, the petition is dismissed.

BACKGROUND

A. The Shooting

The evidence adduced at El's trial1 established that shortly after 7:00 p.m. on January 3, 1995, Thomas McCray, Jr., Ronnie Terry, George Townsend, and Keith Warren had gathered on the corner of 149th Street and Amsterdam Avenue. Several others were at the corner, including a man later identified as El. Gunshots broke out. McCray, who had his back turned toward El, heard several gunshots. Terry also heard a shot from somewhere behind him. Warren saw El holding a weapon and heard gunshots.

McCray, Terry, and Warren immediately took flight. McCray was hit by a bullet in his left calf, and was shot again in the other leg as he attempted to flee. Realizing that McCray needed assistance, Terry stopped to help McCray into a building while Warren fled the scene.

Police officers Carlos Morel and Anderson Moran were patrolling the area in a police car. The officers were stopped at a traffic light at the intersection of Amsterdam Avenue and 150th Street at approximately 7:30 p.m. when they heard gunshots and saw flashes of light coming from the corner of 149th Street and Amsterdam Avenue. As they approached the corner, Morel and Moran noticed that El remained in the area as the others ran away. The officers drove toward El, who took flight at the officers' approach.

Believing El to be the shooter, Morel and Moran followed him in their car. The officers testified that El was running in a strange manner with his hands in a semi-upright position held rigidly against his

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torso. El slowed down as he reached 148th Street, and the officers stopped the car and stepped out of the vehicle. They approached El on foot with their guns drawn, and Morel demanded that El stop. The officers had to make several additional demands before El finally stopped and put his hands in the air. Moran searched El and discovered an operable nine-millimeter semi-automatic pistol containing twenty-five rounds of ammunition. A ballistics examination later revealed that three shell casings, recovered from the area in which the shooting occurred, were fired from the weapon recovered from El.

B. State Court Proceedings

1. The Proceedings in the Trial Court

El waived his right to be represented by counsel in his criminal trial in the Supreme Court, New York County, choosing to defend himself pro se. El's previously assigned counsel was appointed by the court to an advisory role. Following a jury trial, El was convicted on two counts of criminal possession of a weapon and two counts of assault.

After the verdict was taken, the trial court (Figueroa, J.) set a sentencing date and remanded the defendant. The court then made the following comments to the defendant:

I'll speak to you quite frankly, that I [don't] know the circumstances or what was your mentality at the time that these alleged acts were perpetrated. Much is going to depend, as far as your sentence is concerned, on how you relate to the Probation Department when they interview you.

I myself, being perplexed as I am, would like some explanation of the surrounding circumstances of your firing the weapon. If I don't get what I consider [a] worthy explanation, a sincere explanation, you are going to feel it on sentencing.

Conversely, if you could shed some light on what happened and give me some sort of explanation — not explanation, but an understanding of the situation, I will also take that into account.

In other words, be sincere with the Probation Department. Because if you don't. I'll tell you right now, it's going to cost you. I want you to be truthful.

(Resp.Ex. D, Tr. at 877-78).

In response to the court's comments, El sought to raise a concern about the impact his statements might have on his appeal. The court told him that his chances of prevailing on appeal were "very dim":

THE DEFENDANT: Isn't that what — wouldn't that be costly to my appeal, admitting —

THE COURT: Yes. But now you have been convicted of firing that weapon indiscriminately by this jury, after what I consider a fair trial. Don't count too much on your appeal, because meanwhile you'll be doing time.

Think of the [here] and now, especially at least in my view, and you can discuss this with your lawyer, when you[r] appeal is really a very dim prospect for you.

There is no doubt in this jury's mind, as there is no doubt in anyone else's mind, that you fired that weapon indiscriminately and that's, in effect, what you are convicted of.

You weren't convicted of the top count. And you definitely possessed a weapon.

So, I don't see how you could get around those facts on appeal.

So, you want to concentrate on the appeal, do so. But I think I put my position on the record. You could consider my position or not consider it.

But right now I am really perplexed about what happened here.

If I remain perplexed, it's going to cost you. I am not asking you — saying you have to give me an explanation, but I am perplexed and when I am perplexed, I resolve all doubt against the accused. It's simple. You don't have to do anything.

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All right. You have anything else you want to say?

THE DEFENDANT: No.

(Resp.Ex. D, Tr. at 878-79).

At the sentencing hearing, the prosecutor asked the court to impose the maximum sentence. (Resp.Ex. E, Sentencing Tr. at 7). In addition to noting the seriousness of the offense and the discovery of outstanding arrest warrants for El in Florida, the prosecutor also mentioned El's response to the Probation Department as a factor the court should consider:

I recall being in court after the defendant was convicted and Your Honor telling the defendant that you thought that it would be a good opportunity for him to be honest with Probation in giving them some indication of what was going on in his mind at the time that he committed the crime....

That you indicated to the defendant that he did have a right to appeal the case. That, you know, he should make a decision in that; depending on his response to Probation that you would take that into consideration.

I think it should be underscored that his statement to Probation is that he denies his guilt in this case. Which from any reasonable person's interpretation defendant's guilt is overwhelming.

(Resp.Ex. E, Sentencing Tr. at 6-7).

In his statement to the court, El offered the following arguments:

[A]s far as the gun charges, under the United States Constitution I cannot be charged with a felony because I'm not obligated to the United States Constitution. ...

And I don't believe that the people showed an intent as far as the assault in the second. And that's what I meant when I say that the jury was biased.

I'm not denying any guilt or anything like that. But I don't feel that the People showed the intent or suggested intent, but that's only an opinion.

(Resp.Ex. E, Sentencing Tr. at 10-11).

After noting that he found the prosecutor's recommendation for the maximum sentence to be "reasonable under the circumstances," Justice Figueroa added the following comments:

The evidence against you I think was somewhat overwhelming. There was no doubt that you had this ... assault weapon ... which was strapped to your body.

How do you deny, I'm not asking you how could you deny, I'm just saying that rhetorically, how you could deny something like that to the Probation Department is really beyond me.

I told you at the time that you should be ... very sincere with them. To claim complete innocence in this case is really somewhat beyond me. I think that, quite frankly, I think that you have a problem with reality coming out with a statement like that.

(Resp.Ex. E, Sentencing Tr. at 14-15).

Justice Figueroa then sentenced El to prison terms of five to fifteen years for the first degree assault and second degree weapon convictions, and two and a third to seven years for the second degree assault and third degree weapons convictions, all to run concurrently. (Resp.Ex. E, Sentencing Tr. at 17).

2. The Proceedings on Appeal

El appealed his conviction to the New York Supreme Court, Appellate Division, First Department, arguing that: (1) his waiver of counsel was invalid because the trial court failed to properly apprise him of the risks of self-representation; (2) the judge's communication with the prosecution during the trial, in the absence of El but in the presence of standby counsel, violated his right to self-representation; and (3) he was improperly penalized at sentencing in violation of his right against self-incrimination. (Resp.Ex.F). On May 7, 1998, El's conviction was unanimously affirmed. People v. El, 250 A.D.2d 395, 671 N.Y.S.2d 654 (1st Dep't 1998). The Appellate Division held that El had been sufficiently apprised of the risks of proceeding pro se and that the sentencing

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claim was unpreserved and unsupported by the record. Id. 671 N.Y.S.2d at 654. The court further indicated that it had "considered defendant's other arguments"...

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7 practice notes
  • Drake v. Woods, No. 07 Civ. 7015(DC).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • April 10, 2008
    ...based on a state procedural rule because it stated the grounds for dismissal and did not explicitly rest on procedural default. 105 F.Supp.2d 242, 249 (S.D.N.Y.2000). Notably, this finding was unaffected by the Appellate Division's failure to make a specific reference to the Sixth Amendment......
  • Bohan v. Kuhlmann, No. 00 CIV.4225 VM.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • August 9, 2002
    ...protestations of innocence where court found her conduct manipulative and defendant failed to accept responsibility); El v. Artuz, 105 F.Supp.2d 242, 255 Nevertheless, the petitioner maintains that courts may only rely on a defendant's lack of remorse to decline to impose a more lenient sen......
  • Paluskas v. Bock, No. 01-10134-BC.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • January 13, 2006
    ...his sentence of twenty-five to fifty years for second-degree murder was within the state sentencing guidelines range. In El v. Artuz, 105 F.Supp.2d 242, 254-55 (S.D.N.Y. 2000), the court rejected a habeas claim similar to the claim the petitioner makes here. In that case, the judge told the......
  • Rhagi v. Artuz, No. 02-2015.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • October 25, 2002
    ...right against self-incrimination because the judge enhanced his sentence for his failure to explain his criminal behavior. El v. Artuz, 105 F.Supp.2d 242, 247-48 (S.D.N.Y.2000). The Court denied the petition, ruling that the latter two claims were procedurally barred and that all three clai......
  • Request a trial to view additional results
7 cases
  • Drake v. Woods, No. 07 Civ. 7015(DC).
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 10, 2008
    ...based on a state procedural rule because it stated the grounds for dismissal and did not explicitly rest on procedural default. 105 F.Supp.2d 242, 249 (S.D.N.Y.2000). Notably, this finding was unaffected by the Appellate Division's failure to make a specific reference to the Sixth Amendment......
  • Bohan v. Kuhlmann, No. 00 CIV.4225 VM.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • August 9, 2002
    ...protestations of innocence where court found her conduct manipulative and defendant failed to accept responsibility); El v. Artuz, 105 F.Supp.2d 242, 255 Nevertheless, the petitioner maintains that courts may only rely on a defendant's lack of remorse to decline to impose a more lenient sen......
  • Paluskas v. Bock, No. 01-10134-BC.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • January 13, 2006
    ...his sentence of twenty-five to fifty years for second-degree murder was within the state sentencing guidelines range. In El v. Artuz, 105 F.Supp.2d 242, 254-55 (S.D.N.Y. 2000), the court rejected a habeas claim similar to the claim the petitioner makes here. In that case, the judge told the......
  • Rhagi v. Artuz, No. 02-2015.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • October 25, 2002
    ...right against self-incrimination because the judge enhanced his sentence for his failure to explain his criminal behavior. El v. Artuz, 105 F.Supp.2d 242, 247-48 (S.D.N.Y.2000). The Court denied the petition, ruling that the latter two claims were procedurally barred and that all three clai......
  • Request a trial to view additional results

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