Jacobs v. Connolly
MEMORANDUM AND ORDER denying 1 Petition for Writ of Habeas Corpus. A certificate of appealability shall not issue because Petitioner has not made a substantial showing of the denial f a constitutional right. See 28 U.S.C. § 2253(c)(2 ); Lucidore v. New York State Div. of Parole, 209 F.3d 107, 11213 (2d Cir. 2000). The Clerk of the Court is directed to enter judgment denying the petition and closing this case. Ordered by Judge Sandra L. Townes on 12/30/2014. Copy mailed to Jimmy Jacobs. (Barrett, C)
IN CLERKS OFFCA
U. S, DISTRICT COURT E.6.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
* DEC 30 2014 *
MEMORANDUM AND ORDER
----------------------- - ----------
TOWNES, United States District Judge:
Currently before the Court is Petitioner Jimmy Jacobs's pro se petition seeking a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2010 conviction, after a
jury trial, in the New York Supreme Court, Queens County, of two counts of criminal possession
of a weapon in the third degree, criminal possession of stolen property in the third degree, and
criminal possession of stolen property in the fourth degree. Petitioner alleges that his due
process rights were violated because: (1) the prosecution violated its obligations under People v.
Rosario, 9 N.Y.2d 286 (1961) and Brady v. Maryland, 373 U.S. 83 (1963); (2) the evidence
supporting his conviction was legally insufficient; and (3) his conviction and sentence for third
degree criminal possession of a weapon under Penal Law § 265.02(4) was unconstitutional
because the statute under which he was indicted was superseded before entry of judgment. For
the reasons set forth below, the petition is denied in its entirety.
Underlying Criminal Case
In the early morning of March 17, 2005, Petitioner allegedly threatened his ex-girlfriend,
Andrea Simmons, via voicemail, allegedly stating: "I am going to get you. I am going to get
everyone." (T: 250-51.) Around 6:20 P.M. that evening, Petitioner, wearing black clothing and
a white gauze eye patch, approached Simmons and her daughter in front of their home; Simmons
and her daughter ran to their car and fled. (Id. at 252-5 8.) Simmons reported Petitioner to the
police by calling 911 and visiting her local precinct. (Id. at 258-59.) At approximately 6:30
P.M., in Simmons's neighborhood, Petitioner allegedly approached a stranger, Pauline Holness,
took her car keys from her at gunpoint, and drove away in her green Volvo. (Id. at 442-46.)
Holness reported the robbery to the police and provided a description of the culprit. (Id. at 44748.) Approximately eight hours later, police officer Brenden Cessar stopped Petitioner, who was
driving another vehicle, because Petitioner matched the description provided by Ms. Simmons in
her police report. (Id. at 548-51.) After searching Petitioner and the automobile, Officer Cessar
recovered the keys to Holness' s Volvo, which was parked 100 feet away. (Id. at 561.) Officer
Cessar then searched Holness' vehicle and found a black handgun in the glove compartment and
Jacobs' New York State driver's license underneath the front passenger seat. (id. at 560, 574.)
The Trial & Verdict
On these facts, Petitioner was. indicted and tried before a jury with crimes involving
robbery, possession of a weapon, and possession of stolen property. Because the prosecution
failed to produce the handwritten notes made by the police officer to whom Simmons initially
described Petitioner and the incident that occurred outside of her home, the trial court provided
the jury with an adverse inference instruction. The court instructed the jury that the
prosecution's failure to produce the notes "may have impaired the ability of defense counsel to
cross examine Ms Simmons." (T: 619-20; 690-91.) Defense counsel did not object to this
instruction nor raise any further claims with respect to the Rosario or Brady material. (Id.)
At the conclusion of trial, the jury convicted Petitioner of Criminal Possession of Stolen
Property in the Third and Fourth Degrees (Penal Law §§ 1650.45, 1650.50) and two counts of
Criminal Possession of a Weapon in the Third Degree (Penal Law §§ 265.02(1), (4)).'
809-12.) On February 8, 2007, Petitioner was sentenced as a second violent felony offender to a
determinate sentence of 7 years in prison, plus 5 years of post-release supervision. (Sentencing
On June 21, 2008, Petitioner, represented by counsel, filed a direct appeal with the New
York Supreme Court, Appellate Division, Second Department, arguing that his conviction was
not based on legally sufficient evidence. (Resp. Ex. 1 at 30-45.) Additionally, Petitioner filed a
supplemental pro se brief, asserting that: "[t]he prosecution[']s falure [sic] to disclose important
Rosario and Brady material, in a timely fashion, deprived the appellant's right to a fair trial,
affective [sic] counsel and due process." (Id. at 47-66.) On March 2, 2010, the Appellate
Division unanimously affirmed Petitioner's conviction, finding Petitioner's legal sufficiency
challenge and supplemental pro se claims based on alleged violations of Rosario and Brady
procedurally barred because those claims were unpreserved for appellate review. People v.
Jacobs, 894 N.Y.S.2d 908 (App. Div. 2d Dep't 2010). The Appellate Division noted that,
alternatively, none of Petitioner's claims had merit. Id.
On March 9, 2010, Petitioner sought leave to further appeal to the New York Court of
Appeals. (Resp. Ex. 1 at 167-219.) On May 27, 2010, the New York Court of Appeals denied
petitioner's application. People v. Jacobs, 14 N.Y.3d 888 (2010).
Petitioner's New York Criminal Procedure Law ("CPL
'9 § 440.20 Motion to Set Aside the
On December 1, 2010, Petitioner moved pro se before the New York Supreme Court,
Queens County, to set aside his sentence, pursuant to CPL § 440.20 on the grounds that, inter
The jury acquitted Petitioner of first-degree robbery, second-degree robbery, seconddegree weapon possession, and second-degree aggravated harassment. (T: 809-11).
alia, "his conviction for Criminal Possession of a Weapon in the Third Degree Penal Law
§ 265.02(4) was unauthorized because the statute had been repealed prior to his conviction."
(Resp. Ex. 1 at 227-32.) By order dated January 20, 2011, the trial court denied Petitioner's
motion, finding, inter alia, that because Petitioner "was indicted in 2005, and the statute was not
superseded until 2006," Petitioner "was indicted, convicted and sentenced under the correct
statute." (Id. at 255-58.) The trial court explained that, in any event, the statute was not
repealed, but rather, superseded and "the purpose of superseding the statute was not ameliorative,
but, rather, to punish the same conduct more harshly by raising the classification of the crime
from a [class] D violent felony to a [class] C violent felony." (Id. at 257-58.) The New York
Supreme Court, Appellate Division, Second Department denied Petitioner's application for leave
to appeal. (Id. at 302 .
The Instant Petition
Petitioner timely filed the instant petition for a writ of habeas corpus on September 29,
2011, arguing that his constitutional due process rights were violated because: (1) the
prosecution failed to meet its Rosario and Brady obligations, (Pet. at 6); (2) the evidence as to
Petitioner's knowledge that he possessed stolen property and/or a weapon was legally
insufficient (Pet. at 9); and (3) one of the statutes under which he was convicted and sentenced Penal Law §§ 265.02(4) - was "repealed" before trial, (Pet. at 7).
Although not relevant here, Petitioner also filed apro se motion with the trial court
pursuant to CPL § 440.10 on June 10, 2008, asserting that there was no probable cause to support
the police stop because the police had an improper vehicle identification number for the stolen
Volvo. (Resp. Ex. 1 at 2-13.) On September 15, 2008, the Queens County Supreme Court
denied the motion on the grounds that the argument could have been, but was not, raised on
direct appeal and was thus procedurally barred under CPL § 440.10(2)(c), and was in any event
meritless because it was not based on newly discovered evidence, but rather, was founded upon
information that could have been discovered prior to trial with due diligence. (Id. at 27-28.)
STANDARD OF RE VIE W
As amended by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L.
No. 104-132, 110 Stat. 1214,28 U.S.C. § 2254(a) provides:
The Supreme Court, a Justice thereof, a circuit judge, or a district court shall
entertain an application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court only on the ground that he is in
custody in violation of the Constitution or laws or treaties of the United States.
28 U.S.C. § 2254(a). A federal district court may grant a writ of habeas corpus to a state
prisoner on a claim that was adjudicated on the merits in state court only if it concludes that the
adjudication of the claim:
(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). Errors of state law are thus not subject to federal habeas review. See
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("[lIt is not the province of a federal habeas court
to re-examine state-court determinations on state-law questions"). Rather, petitioners must
demonstrate that their convictions resulted from a state court decision that violated federal law.
See Id. at 68. Petitioners bear the burden of proving such violations of federal law by a
preponderance of the evidence. See Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997).
A. Procedurally Defaulted Claims
As the Supreme Court has set forth, "[fjederal habeas courts reviewing the
constitutionality of a state prisoner's conviction and sentence are guided by rules designed to
ensure that state-court judgments are accorded the finality and respect necessary to preserve the
integrity of legal proceedings within our system of federalism." Martinez v. Ryan, 132 S.Ct.
1309, 1316 (2012). For this reason, the doctrine of procedural default precludes federal review
of "the merits of claims, including constitutional claims, that a state court declined to hear
because the prisoner failed to abide by a state procedural rule." Id. Procedurally defaulted
claims may not be heard unless the petitioner demonstrates "cause for the default and prejudice
from a violation of federal law." Coleman v. Thompson, 501 U.S. 722, 750 (1991). The
procedural bar applies even if the state court addressed the merits of the claim in the alternative.
Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990); see also Angeles v. Greiner, 267 F. Supp.
2d 410, 416 (E.D.N.Y. 2003). Thus, a state-law based procedural bar precludes a federal court
from reviewing the merits of such claims on a habeas petition.
Here, Petitioner raised his first two grounds for habeas relief before the New York
Supreme Court, Appellate Division, Second Department. The Appellate Division found that
Petitioner's pro se claims that "he was deprived of a fair trial by the People's failure to provide
him with certain materials in violation of [Rosario] and by the People's delay in disclosing
Brady material" were "unpreserved for appellate review, since the defendant did not seek any
further relief in connection with the Rosario violation after the Supreme Court granted his
request for an adverse inference charge, and did not raise his current claim regarding the alleged
Brady violation." People v. Jacobs, 894 N.Y.S.2d 908 (App. Div. 2d Dep't 2010). Likewise,
with respect to Petitioner's "challenge to the legal sufficiency of the evidence," the Appellate
Division found that claim was "unpreserved for appellate review." Id. Given that the Appellate
Division denied the claims on state procedural grounds and Petitioner makes no attempt to argue
that an exception to the procedural bar doctrine applies, this Court holds that the first two
grounds raised in his petition are procedurally barred. It would offend principles of comity and
federalism for this Court to grant habeas review of Petitioner's procedurally barred claims, and
accordingly, review of those claims is DENIED.
B. Sentence Under a Superseded Statute
Petitioner's final ground for habeas relief is based on his claim that his conviction and
sentence for third degree possession of a weapon under Penal Law § 265.02(4) violated his right
to due process because the statute was repealed after he was indicted but before he was convicted
and sentenced. The version of Penal Law § 265.02(4) in effect when Petitioner committed the
charged offense made punishable the unlawful possession of a loaded firearm as a class D
violent felony. That statute was repealed, effective November 1, 2006, and was superseded by
Penal Law § 265.03(3), which punished the same behavior as a class C violent felony.
"At common law, the repeal of a criminal statute abated all prosecutions which had not
reached final disposition in the highest court authorized to review them."
Bradley v. United
States, 410 U.S. 605, 607-08 (1973). So-called "abatement by repeal" applied even when a
statute was "re-enact[ed] with different penalties ... [and] even when the penalty was reduced."
Id. However, application of the 'abatement by repeal' doctrine, which has its roots in English
law, "proved particularly problematic because of the interplay of the Constitution's ex post facto
clauses. If legislation amended, repealed, or re-enacted previous legislation ..., conviction under
the old statute was prohibited under the abatement doctrine, while conviction under the new
statute, if it increased punishment, was barred by the ex post facto clauses." United States v.
Santana, 761 F. Supp. 2d 131, 143 (S.D.N.Y. 2011) (internal citations and quotation marks
omitted). "To avoid such results, legislatures frequently indicated an intention not to abate
pending prosecutions by including in the repealing statute a specific clause stating that
prosecutions of offenses under the repealed statute were not to be abated." Bradley, 410 U.S. at
608. Moreover, many state legislatures, including New York's, enacted "general savings
legislation that would apply, in varying ways, to laws that repealed, amended, or re-enacted
previous legislation, the result of which was to shift the presumption towards non-abatement in
the absence of contrary legislative intention." Santana, 761 F. Supp. 2d at 143. New York
General Construction Law § 93 provides that:
The repeal of a statute or part thereof shall not affect or impair any act done,
offense committed or right accruing, accrued or acquired, or liability, penalty,
forfeiture or punishment incurred prior to the time such repeal takes effect, but the
same may be enjoyed, asserted, enforced, prosecuted or inflicted, as fully and to
the same extent as if such repeal had not been effected.
N.Y. Gen. Constr. Law § 93. Similarly, New York General Construction Law § 94 provides
Unless otherwise specially provided by law, all actions and proceedings, civil or
criminal, commenced under or by virtue of any provision of a statute so repealed,
and pending immediately prior to the taking effect of such repeal, may be
prosecuted and defended to final effect in the same manner as they might if such
provisions were not so repealed.
N.Y. Gen. Constr. Law § 94.
Petitioner is correct that the federal constitution does not permit a person to be criminally
prosecuted in the absence of a law prohibiting his or her conduct. See Grayned v. City of
Rockford, 408 U.S. 104, 108-09 (1972) (explaining that prohibitions must be "clearly defined
because we assume that man is free to steer between lawful and unlawful conduct ... [and laws
must] give the person of ordinary intelligence a reasonable opportunity to know what is
prohibited, so that he may act accordingly," and, moreover, "if arbitrary and discriminatory
enforcement is to be prevented, laws must provide explicit standards for those who apply them
[to avoid] ... impermissibly delegate[ing] basic policy matters to policemen, judges, and juries
for resolution on an ad hoc and subjective basis...."). However, Petitioner is incorrect, as a
factual matter, in his assertion that his conviction and sentence under former Penal Law §
265.02(4) was not authorized by the state legislature. New York's general savings legislation
authorizes a pending criminal matter to be "prosecuted and defended to final effect" irrespective
of a post-indictment repeal. N.Y. Gen. Constr. Law § 94. Thus, Petitioner was prosecuted under
applicable law. Had Petitioner been prosecuted under the superseding statute, this would have
increased the penalty for unlawfully possessing a firearm and such a prosecution would have
violated the ex post facto clause of the United States Constitution. See U.S. Const., art. I, § 10.
However, prosecution under the statute applicable at the time that the "offense [was] committed"
was authorized by the New York legislature, and thus, did not violate his right to due process.
N.Y. Gen. Constr. Law § 93. Accordingly, because Petitioner's federal constitutional rights
were not violated, his habeas petition on these grounds is DENIED.
For the reasons set forth above, the instant petition for a writ of habeas corpus is
DENIED. A certificate of appealability shall not issue because Petitioner has not made a
substantial showing of the denial f a constitutional right. See 28 U.S.C. § 2253(c)(2); Lucidore
v. New York State Div. of Parole, 209 F.3d 107, 11213 (2d Cir. 2000). The Clerk of the Court is
directed to enter judgment denying the petition and closing this case.
/s/ Sandra L. Townes
'SANDRA L. TOWNE
United States District Judge
Dated: December 30, 2014
Brooklyn, New York
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