Hart v. Artus

Filing 24

OPINION AND ORDER: For the foregoing reasons, the Petition is denied. The remaining issue is whether to grant a certificate of appealability ("COA"). For a COA to issue, a petitioner must make a substantial showing of the denial of a consti tutional right."95 A "substantial showing" does not require a petitioner to demonstrate that he would prevail on the merits, but merely that reasonable jurists could debate whether "the petition should have been resolved in a diff erent manner or that the issues presented were adequate to deserve encouragement to proceed further. 96 Petitioner has made no such showing. Accordingly, I decline to grant a COA. The Clerk of the Court is directed to close this Petition and this case. (Signed by Judge Shira A. Scheindlin on 12/20/2012) (pl)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

-------------------------------------------------------------)(
ZEBADIAH HART,
OPINION AND ORDER
Petitioner,
09 Civ. 1032 (SAS)
- againstDALE ARTUS,
Respondent.

-------------------------------------------------------------)(
SHIRA A. SCHEINDLIN, U.S.D.J.:

Zebadiah Hart ("Petitioner"), proceeding pro se, petitions this Court
for a writ of habeas corpus under section 2254 of Title 28 of the United States
Code. l For the reasons set forth below, the Petition is denied.
I.

BACKGROUND
A.

Hart's Trial

Hart was tried for the January 27,2000 shooting of Michael Cooks
outside a corner store in the Bronx. Hart and Cooks knew one another because
they sold narcotics for the same person - Storky Bennis - and controlled different
sides of the same block. 2 Following a turf dispute, friends of Cooks shot at the
See 12114/08 Petition under 28 U.S.C. § 2254 for Writ of Habeas
Corpus by a Person in State Custody (the "Petition").
See 10/1/09 Respondent's Memorandum of Law in Opposition to the
Petition for a Writ of Habeas Corpus ("Opp. Mem.") at 2.
2

Bennis house.3 The next day, Cooks and a friend, Carlos Gomez, ran into Hart and
Bennis’ brother (known as “Ray Dog”) at the corner store.4 Cooks testified at trial
that Hart followed him out of the store and pointed a gun at his head.5 Cooks
raised his arm to shield his head and Hart fired, striking Cooks in the elbow of his
raised arm.6 As Cooks started to flee, he heard a second shot.7 According to the
trauma surgeon who testified at trial, Cooks sustained two gunshot wounds: one to
the right elbow and another to the abdomen.8
Catan Yehudah, the roommate of Hart’s girlfriend, testified that Hart
came to their apartment late in the evening on January 27, 2000. According to her
testimony, Hart was “uneasy” and “said that he just shot Fats9 and he had to get rid

3
4

See id.
`

5

See id.
See 4/18/02 Trial Transcript (Direct Examination of Michael Cooks)

at 80:16-17.
6

See id. at 81:12-21

7

See id. at 82:19-21.

8

See 4/23/02 Trial Transcript (Direct Examination of Dr. Howard
Nadjari) at 261:23-25.
9

Cooks testified at trial that his street name is “Fats” and that Hart
called him by that name the night of the shooting. 4/18/02 Trial Transcript (Direct
Examination of Michael Cooks) at 81:4-6.

of his gun.”10 According to Yehudah, Hart shot Cooks “because he was having a
dispute with one of his friends,” which was tied to “previous arguments over drug
territory.”11
Based principally on this evidence, the jury convicted Hart of
attempted murder in the Second Degree, Assault in the First Degree, and Criminal
Possession of a Weapon in the Second Degree.12
B.

Post-Trial Proceedings
On May 17, 2002, Hart moved, pursuant to Criminal Procedure Law

(“CPL”) 330.30, to set aside the verdict on the ground that the trial court erred by:
(1) not delivering the requested missing witness charge for the prosecution’s
failure to call the arresting officer; (2) allowing the prosecution to improperly
introduce evidence of Hart’s narcotics sales; and (3) unfairly prejudicing Hart by
questioning the jury regarding unfounded allegations of juror misconduct or
tampering.13 On May 20, 2002, the trial court denied Hart’s motion and sentenced
him, as a persistent violent felony offender, to an aggregate term of twenty-five

10

4/24/02 Trial Transcript (Direct Examination of Catan Yehudah) at

433:6-15.
11

Id. at 434:1-14.

12

See 4/30/02 Trial Transcript (Rendering of the Verdict) at 812:4-18.

13

See 5/17/02 Affirmation of Bernadette A. Smith, Trial Attorney for
Hart, in Support of CPL 330.30 Motion.

years to life in prison.14
Hart then moved to vacate his conviction pursuant to CPL 440.10,
raising three claims: (1) that the prosecution withheld evidence concerning the
extent of Cooks’ cooperation and benefit derived therefrom; (2) that the
prosecution failed to disclose exculpatory wiretap evidence; and (3) ineffective
assistance of counsel.15 Hart also moved, in the alternative, to vacate his sentence
pursuant to CPL 440.20, arguing that he was improperly sentenced as a persistent
violent felony offender.16 The trial court denied the motions.17
Hart was granted leave to appeal the denial to the Appellate Division,
First Department, which was consolidated with his direct appeal.18 On appeal, Hart
raised the four claims asserted in his 440.10 and 440.20 motions, as well as his
330.30 claim that the trial court erred in allowing the prosecution to elicit
testimony about Hart’s narcotics sales.19 On September 20, 2007, the Appellate
Division unanimously affirmed Hart’s judgment of conviction and the denial of his
14

See 10/1/09 Declaration of Hannah E.C. Moore, Assistant District
Attorney, in Opposition to the Petition for a Writ of Habeas Corpus (“Moore
Decl.”) at 2.
15

See id.

16

See id.

17

See People v. Hart, 43 A.D.3d 722, 722 (1st Dep’t 2007).

18

See Moore Decl. at 4.

19

See id.

440.10 and 440.20 motions.20 By letter application, dated September 28, 2007,
Hart sought leave to appeal to the New York Court of Appeals.21 By order dated
December 6, 2007, the application was denied.22
II.

LEGAL STANDARDS
A.

Standard of Review for Claims Adjudicated on the Merits
in State Court
This petition is governed by the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”). AEDPA permits a federal court to grant a writ
of habeas corpus to a state prisoner only if the state court’s denial of relief “was
contrary to, or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States.”23
As explained by the Supreme Court in Williams v. Taylor, a state
court decision is “contrary to” clearly established federal law if: (1) the state court
reaches a different result than that mandated by the Supreme Court when presented
with facts that are “materially indistinguishable from a relevant Supreme Court
precedent;” or (2) the state court “applies a rule that contradicts the governing law

20

See Hart, 43 A.D.3d at 722.

21

See 9/28/07 Letter Application for Leave to Appeal.

22

See People v. Hart, 9 N.Y.3d 1006 (2007).

23

28 U.S.C. § 2254(d)(1).

set forth in Supreme Court cases.”24 The “unreasonable application” prong of
section 2254(d)(1) permits a federal habeas court to grant the writ,
if the state court identifies the correct governing legal
principle from this Court’s decisions but unreasonably
applies that principle to the facts of petitioner’s case. In
other words, a federal court may grant relief when a state
court has misapplied a governing legal principle to a set of
facts different from those of the case in which the principle
was announced. In order for a federal court to find a state
court’s application of our precedent unreasonable, the
state court’s decision must have been more than incorrect
or erroneous. The state court’s application must have been
objectively unreasonable.25
B.

Exhaustion of State Court Remedies
Section 2254 provides that a habeas petition by a state prisoner may

not be granted unless “the applicant has exhausted the remedies available in the
courts of the State.”26 In order to satisfy the exhaustion requirement, a prisoner
“must ‘fairly present’ his claim in each appropriate state court.”27 An issue can be
fairly presented in a number of different ways: by citing a specific constitutional
provision, relying on pertinent federal or state cases employing constitutional
24

529 U.S. 362, 404-05 (2000).

25

Wiggins v. Smith, 539 U.S. 510, 520-21 (2003) (quotation marks and
citation omitted).
26
27

28 U.S.C. § 2254(b)(1)(A).

Baldwin v. Reese, 541 U.S. 27, 29 (2004) (quoting Duncan v. Henry,
513 U.S. 364, 365 (1995)). Accord Bierenbaum v. Graham, 607 F.3d 36, 47 (2d
Cir. 2010) cert. denied, 131 S. Ct. 1693 (2011) (same).

analysis, or alleging “‘a pattern of facts that is well within the mainstream of
constitutional litigation.’”28 However, a federal habeas court need not require that
a federal claim be presented to a state court if it is evident that the state court
would hold the claim procedurally barred.29 In such a case, the claim may be
“deemed exhausted” by the habeas court.30
C.

Adequate and Independent State Ground
A federal court will not review a question of federal law decided by a

state court “if the decision of the state court rests on a state law ground that is
independent of the federal question and adequate to support the judgment. The
rule applies with equal force whether the state-law ground is substantive or
procedural.”31 Further, federal habeas review is foreclosed when a state court
explicitly invokes a state procedural rule as a basis for its decision, even if the state
court has also ruled in the alternative on the merits of the federal claim.32
A procedurally barred claim may be considered on the merits in

28

Ramirez v. Attorney Gen. of State of New York, 280 F.3d 87, 94-95
(2d Cir. 2001) (quoting Daye v. Attorney Gen., 696 F.2d 186, 194 (2d Cir. 1982)).
29

See Woodford v. Ngo, 548 U.S. 81, 92-93 (2006); Harris v. Reed, 489
U.S. 255, 263 n.9 (1989).
30

McKethan v. Mantello, 292 F.3d 119, 120 (2d Cir. 2002).

31

Lee v. Kemna, 534 U.S. 362, 375 (2002) (quotation marks and citation

omitted).
32

See Harris, 489 U.S. at 264 n.10.

federal court if the prisoner can demonstrate either: (1) “cause” for the default and
“prejudice therefrom,” or (2) that “failure to review [the] federal claim will result
in a fundamental miscarriage of justice.”33 To show cause, a petitioner must
demonstrate that “some objective factor external to the defense” prevented counsel
from complying with the procedural rule.34 Furthermore, a habeas petitioner may
invoke the fundamental miscarriage of justice exception only if he can demonstrate
actual innocence.35
III.

DISCUSSION
A.

Hart’s Claims36
1.

The prosecution withheld exculpatory evidence

Hart alleges that the prosecution failed to disclose wiretap evidence
showing that Cooks was the object of a murder plot by two defendants in an

33

Edwards v. Carpenter, 529 U.S. 446, 451 (2000).

34

Murray v. Carrier, 477 U.S. 478, 479 (1986).

35

See Dretke v. Haley, 541 U.S. 386, 393 (2004) (“The cause and
prejudice standard is not a perfect safeguard against fundamental miscarriages of
justice. Murray v. Carrier, 477 U.S. 478 (1986), thus recognized a narrow
exception to the cause requirement where a constitutional violation has probably
resulted in the conviction of one who is actually innocent of the substantive
offense.”) (quotation marks omitted).
36

Because Hart’s Petition consists of a photocopy of the table of
contents and point headings from his Appellate Division brief, I assume, where
appropriate, that Hart is raising the same arguments contained in that brief.

unrelated homicide.37 Under Brady v. Maryland, suppression of material evidence
favorable to the accused is a violation of due process.38 Evidence is material “only
if there is a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different.”39
Hart’s claim is unavailing. While the wiretap evidence revealed that
the individuals in question had planned to kill Cooks,40 any “exculpatory value was
completely negated by another taped conversation, occurring after the shooting, in
which the plotters celebrated the fact that someone else had shot the victim . . . .”41
Given that the tapes “did not suggest an alternative culprit but only an additional
motive,”42 the likelihood that disclosing them would have altered the outcome of
the trial is nil, particularly in light of the substantial evidence of Hart’s guilt
adduced through Cooks and Yehudah’s testimony.
The Appellate Division’s ruling was not an unreasonable application

37

See Opp. Mem. at 3.

38

See 373 U.S. 83, 87 (1963).

39

United States v. Bagley, 473 U.S. 667, 682 (1985).

40

See Exhibits 9, 10 & 11 to Opp. Mem. (9/29/00 Wiretap Transcripts
#1, #3 & #5).
41

Hart, 43 A.D.3d at 723. See also Exhibit 15 to Opp. Mem. (1/31/01
Wiretap Transcript) (relaying that “somebody . . . hit [Cooks] with a .357 three
times,” to which the other person responds, “oh that’s great”).
42

Mendez v. Artuz, 303 F.3d 411, 413 (2d Cir. 2002).

of Brady and Hart’s claim is therefore rejected.
2.

The trial court erred in holding that the prosecution did not
mislead the jury regarding the benefit Cooks received for
his testimony

Hart asserts that his due process rights were violated because the
prosecutor knowingly misled the jury regarding the benefit Cooks stood to receive
for his testimony at trial.43 It is well-established that a “‘a conviction obtained by
the knowing use of perjured testimony is fundamentally unfair, and must be set
aside if there is any reasonable likelihood that the false testimony could have
affected the judgment of the jury.’”44 However, Hart has failed to show that any of
the testimony at his trial was false.
The claim centers around a letter that was written by Assistant District
Attorney Karen Yaremko on Cooks’ behalf to the federal judge sentencing Cooks
on a weapons charge. The letter, sent after Hart’s trial, informed the judge of
Cooks’ cooperation as a witness in the murder trial of the two men (Dargan and
King) who were heard on the wiretap conspiring to kill Cooks.45 The letter briefly

43

See 3/16/07 Appellant’s Brief (“App. Br.”) at 42-43.

44

Kyles v. Whitley, 514 U.S. 419, 433 n.7 (1995) (quoting United States
v. Agurs, 427 U.S. 97, 103 (1976)). Accord Shih Wei Su v. Filion, 335 F.3d 119,
126-27 (2d Cir. 2003).
45

Hellerstein.

See 7/9/02 Letter from Karen Yaremko to the Honorable Alvin K.

mentioned Cooks’ testimony against Hart.46 Both the prosecutor and Cooks
acknowledged at trial that Yaremko had offered to write a letter in connection with
the Dargan/King murder case, but that such a letter had not, to date, been written.47
Yaremko’s testimony corroborated that account.48
The fact that a letter was sent after trial does not, as Hart suggests,
raise a “specter of prosecutorial sleight of hand.”49 The testimony given at trial
was neither untruthful nor misleading. The jury was aware that Cooks could
request a letter from Yaremko, but at the time of trial had not done so. Moreover,
any benefit Cooks derived from a letter from Yaremko was a direct result of his
testimony in the Dargan/King trial and entirely unrelated to his role as a
complaining witness in Hart’s trial. It is thus highly unlikely that the existence of
the letter would have impacted the jury’s assessment of Cooks’ credibility as a
46

See id.

47

See 4/22/02 Trial Transcript (Redirect Examination of Michael
Cooks) at 207:21-208:12 (In response to the prosecutor’s question of whether
Cooks was “made any promises” for his testimony in the Dargan/King case, Cooks
stated, “It was only about a letter.” When the prosecutor asked, “are you aware if
the District Attorney in that case ever wrote that letter,” Cooks responded: “I still
haven’t seen that letter.”); 4/30/02 Trial Transcript (People’s Summation) at 701:25 (“[ADA Yaremko] said that she told [Cooks] she would write a letter on his
behalf . . . . She testified that, to this date, she has not written that letter.”).
48

See 4/25/02 Trial Transcript (Direct Examination of Karen Yaremko)
at 549: 4-17 (“[A]ll I had said to him was that I would write a letter to the judge in
Federal Court if he wished me to do so . . . . He never asked me to do so.”).
49

App. Br. at 39.

witness against Hart.
Hart was not deprived of due process and his claim is rejected.
3.

Ineffective assistance of counsel

The Supreme Court has held that the Sixth Amendment’s guarantee of
assistance of counsel is the right to the effective assistance of counsel.50 In order to
set forth a basis for relief on that ground, petitioner must satisfy the two-part test
established in Strickland v. Washington: (1) that counsel’s representation “fell
below an objective standard of reasonableness” measured under “prevailing
professional norms,”51 and (2) that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.”52
Hart raises four possible grounds of ineffective assistance, which are
discussed in turn.
a.

Counsel allowed Hart’s nickname, “Mad Dog” to be
introduced

Prior to trial, defense counsel successfully moved to preclude
evidence that Hart’s nickname was “Mad Dog.”53 However, when cross examining

50

See Strickland v. Washington, 466 U.S. 668, 686 (1984).

51

Id. at 687.

52

Id. at 694.

53

See Opp. Mem. at 26-27.

Cooks, defense counsel read from a prior statement that Cooks had given to the
police, which included references to “Mad Dog.”54 The prosecutor subsequently
asked for permission to clarify who Cooks was referring to when he used the name
“Mad Dog.”55 Over defense counsel’s objection, Cooks was recalled and testified
that he had been referring to Hart.56
As an initial matter, Cooks’ prior statement had impeachment value
and its introduction may have been “sound trial strategy” in spite of the reference
to Hart’s nickname.57 Parts of the statement were inconsistent with Cooks’ trial
testimony, and the statement revealed that Cooks had initially failed to tell the
police that his friend, Carlos Gomez, was present and could identify the assailant.58
Indeed, Cooks denied any memory of giving the statement when counsel
confronted him with it, which may have tarnished his credibility.59 Viewing this
cross examination in the “highly deferential” manner mandated by Strickland,
defense counsel’s conduct falls within the “wide range of reasonable professional
54

See id. at 27.

55

See id. at 27-28.

56

See id. at 28.

57

Strickland, 466 U.S. at 689 (quotation marks and citation omitted).

58

See Opp. Mem. at 30.

59

See 4/22/02 Trial Transcript (Cross Examination of Michael Cooks) at
204:7-10 ([Defense counsel]: “So you deny that you . . . told that to Detective
Rodriguez? [Cooks]: “I don’t recall telling him that story.”).

assistance.”60
In any event, even if defense counsel erred in inadvertently opening
the door to Hart’s nickname, the impact of such a passing reference was likely
minimal.61 The prosecutor’s clarifying redirect was confined to asking Cooks who
he was referring to when he used the moniker “Mad Dog,” and did not seek to
elicit any further information about the basis for the nickname.62 Moreover, any
contention that the revelation of Hart’s nickname affected the outcome of the case
is belied by the compelling evidence of his guilt.
b.

Counsel mishandled allegations of jury tampering

Hart asserts that his attorney was ineffective because she “mishandled
the interrogation of jurors” following allegations of jury tampering.63 Hart
contends that counsel should not have agreed to let the court question each juror
regarding whether they had been approached by a civilian during trial without first

60

Strickland, 466 U.S. at 689.

61

See United States v. Mitchell, 328 F.3d 77, 84 (2d Cir. 2003)
(references to defendant’s nickname, “Phox,” together with questions about
whether foxes are sly, were “arguably inappropriate” but “were not prejudicial in
view of the fact that they were brief and isolated and in light of the substantial
evidence of guilt adduced by the government”).
62

See 4/22/02 Trial Transcript (Redirect Examination of Michael
Cooks) at 227:15-18.
63

App. Br. at 49.

“verify[ing] the allegation.”64 However, defense counsel followed a reasonable
course of action consistent with “prevailing professional norms.”65 Hart’s claim is
thus rejected.
During trial, the prosecutor informed the court that a detective from
her office had spoken with an inmate housed with Hart who had heard Hart say
that “he was going to beat the case because his girlfriend had spoken to three jurors
on the panel.”66 The prosecutor relayed the substance of one of the alleged
conversations, in which a juror supposedly informed Hart’s girlfriend that he did
not like Mr. Cooks’ testimony and was leaning toward acquittal.67 The trial court
determined that an individual inquiry of each juror was appropriate and defense
counsel agreed.68
Following these brief interviews, during which all jurors denied being
approached by a civilian about the trial,69 defense counsel moved for a mistrial on
the ground that the inquiry “was frightening and intimidating and that if there had
been jurors who were inclined to acquit [Hart], that after this interrogation of sorts,
64

Id. at 50.

65

Strickland, 466 U.S. at 687.

66

4/25/02 Trial Transcript (Proceedings) at 510:2-10.

67

See id. at 511: 3-9.

68

See id. at 512:12-14.

69

See id. at 514-530.

that they would be afraid to do so.”70 The judge denied the motion.71
It was hardly unreasonable for defense counsel to have consented to
the inquiry undertaken by the court because that procedure conforms to the New
York Court of Appeals’ explicit instructions to trial courts that are confronted with
evidence of juror misconduct:
[T]he trial court must question each allegedly unqualified
juror individually in camera in the presence of the
attorneys and defendant. Counsel should be permitted to
participate if they desire. In a probing and tactful inquiry,
the court should evaluate the nature of what the juror has
seen, heard, or has acquired knowledge of, and assess its
importance and its bearing on the case.72
Given that the trial court was required to determine that all jurors remained
qualified to serve, defense counsel’s acquiescence in that process does not
constitute evidence of ineffective assistance.
c.

Counsel did not alert the court to a potential sleeping
juror

Hart alleges that counsel was ineffective for failing to alert the court
that a juror was sleeping while the jury charge was being read.73 This claim is
entirely unsubstantiated.
70

See id. at 533:20-534:2.

71

See id. at 534:20-25.

72

People v. Buford, 69 N.Y.2d 290, 299 (1987).

73

See App. Br. at 50.

Hart raised the claim for the first time at sentencing but refused to
identify which juror was allegedly sleeping.74 Defense counsel made no mention at
that time of observing a sleeping juror and did not raise the issue in her motion to
set aside the verdict pursuant to CPL 330.30.75 Because the issue was not brought
to the trial court’s attention at a time when the court could have addressed it, there
is no way of knowing whether a juror with his or her eyes closed was actually
sleeping, “as opposed to daydreaming or concentrating with eyes shut.”76 The
claim is also improbable since the court would likely have observed a sleeping
juror while reading its charge.
The Appellate Division’s ruling that this claim lacks merit is not an
unreasonable application of Strickland.
d.

Counsel failed to challenge Hart’s adjudication as a
persistent violent felony offender

This claim is without merit. At Hart’s behest, defense counsel
objected to Hart’s adjudication as a persistent violent felony offender, despite
having correctly explained to Hart that he had waived this claim by failing to raise

74

See Opp. Mem. at 35.

75

See id.

76

Ciaprazi v. Senkowski, 151 Fed. App’x 62, 64 (2d Cir. 2005).

it previously.77 Defense counsel could not possibly have done more. The claim is
rejected.
4.

The trial court erred in allowing the prosecution to elicit
testimony that Hart was a known drug dealer

Hart claims that the trial court erred in admitting evidence that Hart
was a rival drug dealer of Cooks. Ordinarily, an erroneous application of state
evidentiary rules, by itself, does not merit habeas relief.78 To prevail on a due
process claim, Hart must show that the alleged evidentiary error “was so pervasive
as to have denied him a fundamentally fair trial.”79 However, Hart has failed to
show even that the trial court’s ruling was erroneous.
At trial, the People offered evidence that Cooks, Ray Dog, and Hart
had all sold drugs for Bennis, but that a turf dispute and falling out had precipitated
the shooting.80 As the Appellate Division noted, this evidence “provide[d]
necessary background information, to place the testimony regarding the shooting in
context, and to establish [Hart’s] motive for shooting the victim.”81 Indeed, “New

77

See Opp. Mem. at 42. The procedural bar relevant to Hart’s attack on
his predicate felony is discussed infra.
78

See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).

79

Sims v. Stinson, 8 Fed. App’x 14, 16 (2d Cir. 2001). Accord Agurs,
427 U.S. at 108.
80

See Opp. Mem. at 37.

81

Hart, 43 A.D.3d at 723-24.

York courts have consistently held that drug transactions are admissible
‘uncharged crimes’ to show a motive for a murder or attempted murder and to
complete the narrative of the events leading up to the murder.”82 Moreover, the
trial court gave a limiting instruction to the jury immediately following Cooks’
testimony, clarifying that any evidence of criminal conduct prior to the shooting
was to be considered for the limited purpose of “explaining background
circumstances.”83
The trial court did not err in ruling that the probative value of Hart’s
drug dealing outweighed any prejudicial effect. Even if the ruling was in error,
Hart’s claim is unavailing because there is no colorable argument that such
evidence rendered his trial fundamentally unfair.
5.

Hart was improperly sentenced as a persistent violent felony
offender

Hart seems to raise and connect two claims related to his adjudication
and sentence as a persistent violent felony offender. First, that his sentence is

82

Rivera v. Duncan, No. 00 Civ. 4923, 2001 WL 1580240, at *24
(S.D.N.Y. Dec. 11, 2001). See, e.g., People v. Mena, 269 A.D.2d 147, 148 (1st
Dept. 2000) (evidence that the “defendant and the victim were drug dealers who
sold drugs at the same location” and had recently argued, “permitted the jury to
draw a reasonable inference, without resort to speculation, that the murder was
motivated by a territorial dispute among competing drug dealers”).
83

23.

4/18/02 Trial Transcript (Instruction to Jury in Open Court) at 55:5-

unconstitutional in light of Apprendi v. New Jersey;84 and second, that he was
improperly adjudicated a persistent violent felony offender because he was
erroneously deprived of youthful offender treatment for one of his predicate
convictions.85 Both claims are without merit.
It is clearly established, after Almendarez-Torres v. United States, that
prior convictions may be used as sentencing enhancements.86 Indeed, in Apprendi
v. New Jersey, the Supreme Court recognized that principle as a “narrow
exception” to the general rule that “any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.”87 Under New York’s scheme, a defendant is subject
to an enhanced sentence based solely on the existence of two prior felony
convictions,88 which are not factual findings within the meaning of Apprendi.89
The New York Court of Appeals has thus repeatedly held that New York’s
persistent felony offender enhancement is consistent with Apprendi.90 The
84

530 U.S. 466 (2000).

85

See App. Br. at 55-57.

86

See 523 U.S. 224 (1998).

87

530 U.S. at 490.

88

See C.P.L. § 70.08(1).

89

See People v. Quinones, 12 N.Y.3d 116, 128 (2009).

90

See id.

Appellate Division’s rejection of this claim was based on a faithful application of
Almendarez-Torres and Apprendi.
Hart’s claim pertaining to his predicate conviction is procedurally
barred. Hart alleges that his 1994 conviction was unconstitutionally obtained
because the court mistakenly believed Hart was nineteen instead of sixteen and
thus did not consider youthful offender treatment.91 However, the Appellate
Division rejected this claim because, under New York’s code of criminal
procedure, Hart’s failure to challenge his prior conviction at his 1995 predicate
violent felony hearing constituted a waiver.92
This adequate and independent state ground forecloses federal review
unless Hart can show cause for the procedural default and prejudice resulting
therefrom.93 Hart makes no showing of cause or of prejudice. In any event, no
federal constitutional claim is presented. “The granting or denial of youthful
offender treatment is analogous to that of sentencing . . . . Once it is determined
that the judge has exercised his discretion within statutory limits, appellate review
is at an end.”94
91
92
93
94

See App. Br. at 56-57.
See Hart, 43 A.D.3d at 724. See also C.P.L. § 400.15(7)(b).
See Edwards, 529 U.S. at 451.

United States ex rel. Frasier v. Casscles, 531 F.2d 645, 647-48 (2d
Cir. 1976). Accord Auyeung v. David, No. 00 Civ. 1353, 2000 WL 1877036, at *3

Hart’s sentencing claims are therefore denied.
IV.

CONCLUSION
For the foregoing reasons, the Petition is denied. The remaining issue

is whether to grant a certificate of appealability (“COA”). For a COA to issue, a
petitioner must make a “substantial showing of the denial of a constitutional
right.”95 A “substantial showing” does not require a petitioner to demonstrate that
he would prevail on the merits, but merely that reasonable jurists could debate
whether “the petition should have been resolved in a different manner or that the
issues presented were ‘adequate to deserve encouragement to proceed further.’”96
Petitioner has made no such showing. Accordingly, I decline to grant a COA. The
Clerk of the Court is directed to close this Petition and this case.

(S.D.N.Y. Dec. 26, 2000) (“[I]t is well established that the United States
Constitution grants no independent due process right either to youthful offender
treatment or to any particular procedure for denying it, so long as the trial judge
imposed a sentence that was lawful under state law.”).
95

96

28 U.S.C. § 2253(c)(2).

Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v.
Estelle, 463 U.S. 880, 893 n.4 (1983) (quotation marks and citation omitted)).
Accord Middleton v. Attorneys Gen. of the States of New York and Pennsylvania,
396 F.3d 207, 209 (2d Cir. 2005) (denying COA where reasonable jurists could not
debate whether the district court’s dismissal of the petition was correct).

Dated:

New York, New York
December 20,2012

-Appearances-

For Petitioner (Pro Se):
Zebadiah Hart
02-A-4836
Elmira Correctional Facility
PO Box 500
Elmira, NY 14902-0500
For Defendant:
Hannah E.C. Moore, Assistant District Attorney
Bronx District Attorney Office
198 East 161st Street
Bronx, NY 10451
[phone]