Ragland v. Graham
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 constitutional right." A "substantial showing" does not require a petitioner to show that he would prevail on the merits, but merely that reasonable jurists could disagree as to whether "the petition should have been resolved in a different manner or [whether] the issues presented were 'adequate to deserve encouragement to proceed further.'" Petitioner has made no showing. Thus, I decline to grant a COA. The Clerk of the Court is directed to close this Petition and this case. SO ORDERED. (See Order.) (Signed by Judge Shira A. Scheindlin on 2/10/2015) (ajs)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
KIM RAGLAND,
Petitioner,
OPINION AND ORDER
- against 09-cv-09639 (SAS)
HAROLD D. GRAHAM,
Respondent.
--------------------------------------------------------
)(
SHIRA A. SCHEINDLIN, U.S.D.J.:
I.
INTRODUCTION
Petitioner Kim Ragland brings this pro se habeas corpus petition
pursuant to section 2254 of Title 28 of the United States Code challenging his state
court conviction following a jury trial in New York County Court, Rockland
County. 1 After being convicted of Burglary in the Second Degree 2 and Possession
See Petition for a Writ of Habeas Corpus ("Pet.") at i; Memorandum
of Law in Opposition to the Petition for Writ of Habeas Corpus ("Opp. Mem.") at
1.
2
See New York Penal Law ("NYPL") § 140.25[2].
-1-
of Burglary Tools,3 Ragland was sentenced to a determinate term of thirteen years
for his burglary conviction and a concurrent one-year definite term for possession
of burglar’s tools.4
On November 19, 2009, Ragland filed the instant Petition, challenging
his conviction on the following grounds: (1) the trial court violated Ragland’s
Fourteenth Amendment rights because the court lacked subject matter jurisdiction
on an uncharged, unfiled misdemeanor; (2) the trial court lacked jurisdiction
because Ragland was never arraigned on the uncharged, unfiled misdemeanor; (3)
the prosecutor failed to disclose Rosario and Brady material; (4) the prosecutor
violated New York Criminal Procedure Law (“C.P.L.”) section 170.65; (5) the
prosecutor knowingly presented false evidence before the grand jury and at trial, in
violation of Ragland’s Fifth Amendment rights; (6) the prosecutor violated his
Fifth Amendment right not to incriminate himself; (7) the trial court erred in
imposing a determinate term; and (8) the New York burglary statute is
unconstitutional. For the following reasons, the Petition is denied.
II.
BACKGROUND
A.
The Offending Conduct
3
See id. § 140.35.
4
See Opp. Mem. at 1.
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The crimes underlying Ragland’s conviction occurred on April 12,
2002.5 At approximately 11:40 a.m., Michael and Roberta Katz arrived at their
home at 6 King’s Gate Road and noticed an unfamiliar green car in their
driveway.6 Michael Katz then entered his home and saw Ragland running out of
the house.7 Ragland entered the green car that had been parked in the driveway
and fled.8 After Michael Katz informed police that his home had been burglarized
and a report was issued to that effect over police radio, a police officer drove in
Ragland’s direction and observed a car matching the description that Katz had
provided to the police.9 Ragland exited the vehicle and attempted to hide from the
police.10 Police subsequently found Ragland hiding under a porch and arrested
him.11
B.
Procedural History
On January 17, 2003, Ragland was convicted by a jury of second
5
See id.
6
See id. at 1–2.
7
See id. at 2.
8
See id.
9
See id.
10
See id.
11
See id.
-3-
degree burglary and possession of burglar’s tools.12 Ragland appealed his
conviction to the Appellate Division, Second Department, raising the following
claims: (1) the trial court lacked subject matter jurisdiction on an uncharged,
unfiled misdemeanor; (2) the trial court lacked jurisdiction because Ragland was
never arraigned on the uncharged, unfiled misdemeanor; (3) the prosecutor failed
to disclose Rosario and Brady material; (4) Ragland did not waive his right to be
prosecuted by an information; (5) the prosecutor knowingly presented false
testimony; (6) the prosecutor violated his Fifth Amendment right not to incriminate
himself; and (7) the trial court erred in imposing a determinate sentence.13
On January 30, 2007, the Appellate Division unanimously affirmed
Ragland’s conviction.14 Ragland then submitted a letter seeking leave to appeal to
the New York Court of Appeals.15 On September 7, 2007, leave to appeal to the
Court of Appeals was denied.16 The United States Supreme Court denied certiorari
on April 14, 2008.17
12
See id. at 2–3.
13
See id. at 3.
14
See id.
15
See id.
16
See id.
17
See id.
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III.
LEGAL STANDARDS
A.
Deferential Standard for Federal Habeas Review
This petition is governed by the Antiterrorism and Effective Death
Penalty Act of 1996 (the “AEDPA”). The AEDPA provides that a federal court
may not grant a writ of habeas corpus to a prisoner in custody18 pursuant to the
judgment of a state court with respect to any claim, unless the state court’s
adjudication on the merits of the claim: “(1) was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States;”19 or (2) “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.”20
A state-court decision is contrary to clearly established federal law, as
determined by the Supreme Court, in the following two instances:
First, a state-court decision is contrary to this Court’s precedent if
the state court arrives at a conclusion opposite to that reached by
this Court on a question of law. Second, a state-court decision is
18
The meaning of “in custody” is not limited to situations where an
individual is being held in prison or jail. A person is also considered “in custody”
where, as here, the person is on probation or parole. See Jones v. Cunningham, 371
U.S. 236, 239–41 (1963).
19
28 U.S.C. § 2254(d)(1).
20
Id. § 2254(d)(2).
-5-
also contrary to this Court’s precedent if the state court confronts
facts that are materially indistinguishable from a relevant Supreme
Court precedent and arrives at a result opposite to ours.21
With regard to the “unreasonable application” prong, the Supreme
Court has stated:
[A] state-court decision can involve an “unreasonable application”
of this Court’s clearly established precedent in two ways. First,
a state-court decision involves an unreasonable application of this
Court’s precedent if the state court identifies the correct governing
legal rule from this Court’s cases but unreasonably applies it to
the facts of the particular state prisoner’s case. Second, a statecourt decision also involves an unreasonable application of this
Court’s precedent if the state court either unreasonably extends a
legal principle from our precedent to a new context where it
should not apply or unreasonably refuses to extend that principle
to a new context where it should apply.22
In order for a federal court to find a state court’s application of
Supreme Court precedent to be unreasonable, the state court’s decision must have
been more than incorrect or erroneous. Rather, “[t]he state court’s application of
clearly established law must be objectively unreasonable.”23 This standard “‘falls
21
Williams v. Taylor, 529 U.S. 362, 405 (2000).
22
Id. at 407.
23
Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (emphasis added).
Accord Renico v. Lett, 559 U.S. 766, 773 (2010) (stating that “[t]his distinction
creates ‘a substantially higher threshold’ for obtaining relief than de novo review”)
(quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)); Williams, 529 U.S. at
409; Harris v. Kuhlman, 346 F.3d 330, 344 (2d Cir. 2003).
-6-
somewhere between merely erroneous and unreasonable to all reasonable
jurists.’”24 While the test requires “‘[s]ome increment of incorrectness beyond
error, . . . 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.’”25
Furthermore, section 2254(d) applies to a defendant’s habeas petition even where
the state court order does not include an explanation of its reasoning.26
Where a state court’s decision is unaccompanied by an
explanation, the habeas petitioner’s burden still must be
met by showing there was no reasonable basis for the
state court to deny relief. This is so whether or not the
state court reveals which of the elements in a multipart
claim it found insufficient, for [section] 2254(d) applies
when a “claim,” not a component of one, has been
adjudicated.27
Section 2254(d) also applies where a state court does not explicitly
24
Overton v. Newton, 295 F.3d 270, 276 (2d Cir. 2002) (quoting Jones
v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000)).
25
Francis v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (quoting Matteo v.
Superintendent, SCI Albion, 171 F.3d 877, 889 (3d Cir. 1999)).
26
See Harrington v. Richter, 562 U.S. 86, 98 (2011).
27
Id. (citing, inter alia, Sellan v. Kuhlman, 261 F.3d 303, 311–12 (2d
Cir. 2001) (“[W]hen a state court fails to articulate the rationale underlying its
rejection of a petitioner’s claim, and when that rejection is on the merits, the
federal court will focus its review on whether the state court’s ultimate decision
was an unreasonable application of clearly established Supreme Court precedent.”
(quotation marks and citation omitted))).
-7-
state in its opinion that it is adjudicating a claim on the merits.28 “When a federal
claim has been presented to a state court and the state court has denied relief, it
may be presumed that the state court adjudicated the claim on the merits in the
absence of any indication or state-law procedural principles to the contrary.”29
The deferential standard of review created by the AEDPA also
extends to state-court factual determinations. Such determinations are presumed to
be correct, and the petitioner must rebut them by clear and convincing evidence.30
B.
Exhaustion Requirement
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.”31 In order to satisfy this exhaustion requirement, a prisoner
must have “‘fairly presented to an appropriate state court the same federal
constitutional claim that he now urges upon the federal courts,’”32 either in the
form of “explicit constitutional arguments” or simply by “alleging facts that fall
28
See id.
29
Id. at 99.
30
See 28 U.S.C. § 2254(e)(1).
31
Id. § 2254(b)(1)(A).
32
Turner v. Artuz, 262 F.3d 118, 123 (2d Cir. 2001) (quoting Klein v.
Harris, 667 F.2d 274, 282 (2d Cir. 1981)).
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‘well within the mainstream of constitutional litigation.’”33 Fair presentation of a
claim, for exhaustion purposes, includes petitioning for discretionary review in the
state’s highest appellate court.34
When a habeas petition under the AEDPA contains both exhausted
and unexhausted claims, a district court “can offer the petitioner ‘the choice of
returning to state court to exhaust his claims or of amending or resubmitting the
habeas petition to present only exhausted claims.’”35 A district court may also
deny a petition on the merits, even if it contains unexhausted claims.36 The
Supreme Court has noted that “plainly meritless” claims should be denied on the
merits rather than dismissed for failure to exhaust.37 Finally, in limited
33
Levine v. Commissioner of Corr. Servs., 44 F.3d 121, 124 (2d Cir.
1995) (quoting Dave v. Attorney Gen., 969 F.2d 186, 192 (2d Cir. 1982) (en
banc)).
34
See O’Sullivan v. Boerckel, 526 U.S. 838, 847–48 (1999); see also
Galdamez v. Keane, 394 F.3d 68, 74 (2d Cir. 2005) (stating that in New York,
exhaustion requires that a “criminal defendant . . . first appeal his or her conviction
to the Appellate Division, and then . . . seek further review of that conviction by
applying to the Court of Appeals for a certificate granting leave to appeal”).
35
McKethan v. Mantello, 292 F.3d 119, 122 (2d Cir. 2002) (quoting
Rose v. Lundy, 455 U.S. 509, 510 (1982)).
36
See 28 U.S.C. § 2254(b)(2).
37
See Rhines v. Weber, 544 U.S. 269, 277 (2005) (noting that in light of
the discretion to deny unexhausted claims on the merits, the decision to stay a
habeas petition to allow a petitioner to exhaust plainly meritless claims would be
an abuse of discretion).
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circumstances, a district court may stay a mixed petition and hold it in abeyance
until it has been properly presented to the state courts.38
C.
Procedural Bar
Under the adequate and independent state ground doctrine, if the last
state court to render judgment clearly and expressly states that its judgment rests
on a state procedural bar, federal habeas review is precluded.39 Even if the state
court alternatively rules on the merits of the federal claim, federal habeas review is
precluded if an adequate and independent state ground would bar the claim in state
court.40 Federal habeas review of procedurally barred claims is foreclosed unless
the prisoner can demonstrate either (1) “‘cause for the default and actual
prejudice;’” or (2) “‘that failure to consider the claims will result in a fundamental
miscarriage of justice.’”41 To show cause for a default, a prisoner must put forth
some objective factor, external to the defense, explaining why the claim was not
38
See id. at 277–78.
39
See Jones v. Duncan, 162 F. Supp. 2d 204, 210 (S.D.N.Y. 2001)
(citing Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997)).
40
See, e.g., Harris v. Reed, 489 U.S. 255, 264 n.10 (1989); Garcia v.
Lewis, 188 F.3d 71, 72–82 (2d Cir. 1999); Glenn v. Bartlett, 98 F.3d 721, 724–25
(2d Cir. 1996).
41
Glenn, 98 F.3d at 724 (quoting Coleman v. Thompson, 501 U.S. 722,
750 (1991)). Accord Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991); Epps v.
Commissioner of Corr. Servs., 13 F.3d 615, 617–18 (2d Cir. 1994).
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previously raised.42 The Supreme Court has provided little guidance as to what
constitutes “prejudice,” but it can be inferred that prejudice is shown when the
claim, if proven, would bear on the petitioner’s guilt or punishment.43 The
fundamental miscarriage of justice exception to the procedural bar rule is available
only upon a showing of actual innocence.44 Finally, a habeas petitioner may not
avoid the exhaustion requirement by waiting until federal habeas review to bring
claims properly raised in state court. If such claims would be procedurally barred
on the state level, they are deemed exhausted and procedurally defaulted for the
purposes of federal habeas review.45
IV.
DISCUSSION
A.
Ragland’s Claims
1.
42
Errors Pertaining to Ragland’s Misdemeanor Conviction
See Restrepo v. Kelly, 178 F.3d 634, 638 (2d Cir. 1999).
43
See Banks v. Dretke, 540 U.S. 668, 671 (2004) (stating that “prejudice
within the compass of the ‘cause and prejudice’ requirement exists when
suppressed evidence is ‘material’ for Brady purposes” (quoting Strickler v. Greene,
527 U.S. 263, 281–82 (1999))).
44
See Murray v. Carrier, 477 U.S. 478, 496 (1986) (“[W]e think that in
an extraordinary case, where a constitutional violation has probably resulted in the
conviction of one who is actually innocent, a federal habeas court may grant the
writ even in the absence of a showing of cause for the procedural default.”).
45
See Coleman, 501 U.S. at 735 n.1; see also Woodford v. Ngo, 548
U.S. 81, 92–93 (2006).
-11-
(Grounds 1, 2, and 4)
Ragland alleges several errors regarding his misdemeanor conviction
for possessing burglar’s tools. Specifically, Ragland contends that the trial court
violated his Fourteenth Amendment rights because the court lacked subject matter
jurisdiction on an uncharged, unfiled misdemeanor; that the trial court lacked
jurisdiction because Ragland was never arraigned on the uncharged, unfiled
misdemeanor; and that the prosecutor violated C.P.L. section 170.65.46 In making
these claims, Ragland relies predominately on the fact that the prosecutor failed to
file a misdemeanor complaint charging him with that crime, that Ragland did not
waive his right to be prosecuted by an information, and that he was falsely
convicted for a misdemeanor that was never filed or charged in a complaint.47
Ragland’s claims are unavailing. In New York, a grand jury
indictment, not an accusatory instrument such as a complaint, forms the basis for a
criminal prosecution.48 “The offense or offenses for which a grand jury may indict
a person in any particular case are not limited to that or those which may have been
designated, at the commencement of the grand jury proceeding, to be the subject of
46
See Pet. at 1–8, 13–14.
47
See id. at 13–14.
48
See C.P.L. § 1.20[1], [3], [8], [17].
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the inquiry.”49 Here, Ragland was charged with burglary in the second degree by
felony complaint on April 12, 2002.50 Three days later, the prosecution served
Ragland with statutory notice that it intended to present to the grand jury the
charges of second degree burglary, possession of burglar’s tools, and related
charges.51 On April 24, 2002, the grand jury returned an indictment charging
Ragland with burglary in the second degree and possession of burglar’s tools.52
The grand jury’s decision to indict Ragland for the misdemeanor did not violate his
rights. Moreover, any of the alleged deficiencies in the state grand jury proceeding
were rendered harmless by the petit jury’s subsequent conviction of Ragland for
possession of burglar’s tools.53
Ragland’s claims regarding alleged errors pertaining to his
misdemeanor conviction are therefore denied.
49
C.P.L. § 190.62[2]; see also People v. Guzman, 650 N.Y.S.2d 302,
302–03 (2d Dep’t 1996); People v. Wilkins, 599 N.Y.S.2d 49, 49 (2d Dep’t 1993).
50
See Opp. Mem. at 12.
51
See id.
52
See id.
53
See United States v. Mechanik, 475 U.S. 66, 70 (1986) (“[T]he petit
jury’s subsequent guilty verdict means not only that there was probable cause to
believe that the [defendant was] guilty as charged, but also that [he] is in fact guilty
as charged beyond a reasonable doubt. Measured by the petit jury’s verdict, then,
any error in the grand jury proceeding connected with the charging decision was
harmless beyond a reasonable doubt.”).
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2.
Presentation of False Evidence (Ground 5)
Ragland also contends that the prosecution knowingly presented false
evidence at the grand jury proceeding and at trial.54 The evidence at issue was the
testimony of two police officers, Officer Cawley and Officer Venturini.55 Officer
Cawley testified that she found a screwdriver in Ragland’s possession at the time
of Ragland’s arrest while Officer Venturini testified that Officer Cawley informed
Officer Venturini during the arrest that Ragland was in possession of a
screwdriver.56 Ragland contends that the absence of a misdemeanor complaint and
police reports pertaining to this misdemeanor indicates that this evidence is false.57
It is well-established that “‘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.’”58 However, Ragland has failed to show that any of the evidence
presented at the grand jury proceeding or his trial was false. It does not follow that
54
See Pet. at 14–18.
55
See id. at 14–15, 17.
56
See id.
57
See id. at 15.
58
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).
-14-
the testimony is false simply because there was no mention of the screwdriver in
one officer’s police report and no issuance of a misdemeanor complaint.
Moreover, Detective Dunn’s report, which was disclosed to Ragland prior to trial,
specified that Officer Cawley had informed Detective Dunn of Ragland’s
possession of a screwdriver.59 Whether Officer Cawley was being truthful was a
question of fact for the jury.
Thus, Ragland was not deprived of due process and his claim is
rejected.
3.
Failure to Disclose Brady and Rosario Material (Ground 3)
a.
Brady Violation
Ragland contends that the prosecution failed to disclose written
statements, a filed complaint, and police incident reports or notes pertaining to
Ragland’s possession of burglary tools.60 Under Brady v. Maryland, suppression
of material evidence favorable to the accused is a violation of due process.61
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
59
See Opp. Mem. at 14–15.
60
See Pet. at 9.
61
See 373 U.S. 83, 87 (1963).
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been different.”62 The Appellate Division determined that Ragland’s Brady
violation claim was without merit.63
Ragland’s claim is unavailing. First, the prosecution did disclose
reports written by Officer Cawley, Officer Venturini, and Detective Dunn.64
Ragland has not specified which additional documents should have been disclosed
to him prior to trial. Instead, Ragland appears to take issue with the non-existence
of some of these documents, such as the misdemeanor complaint, as well as the
lack of reference to Ragland’s possession of a screwdriver in the reports written by
Officer Crowley and Officer Venturini. Neither constitutes a Brady violation.
Second, Ragland’s claim pertains to documents that support Ragland’s possession
of burglar’s tools. If such documents did exist, they would have been inculpatory,
not exculpatory, which falls outside the purview of Brady. Third, even if such
documents did exist and were exculpatory, Ragland has not alleged how the
disclosure would have altered the outcome of the trial.
The Appellate Division’s ruling was not an unreasonable application
of Brady and Ragland’s claim is therefore rejected.
62
United States v. Bagley, 473 U.S. 667, 682 (1985).
63
See People v. Ragland, 829 N.Y.S.2d 189, 190 (2d Dep’t 1997).
64
See Opp. Mem. at 14–15; Respondent’s Brief to the Appellate
Division, Ex. D to Opp. Mem, at 21–22.
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b.
Rosario Violation
Ragland also alleges that the prosecution’s failure to disclose the
aforementioned evidence constitutes a Rosario65 violation. However, this claim
does not present a federal constitutional question as Rosario is based wholly on
New York law.66 Therefore the issue is not subject to review under a writ of
habeas corpus. Moreover, the Appellate Division determined that Ragland’s claim
that the prosecution withheld Rosario material was not supported by the record on
appeal.67
Thus, Ragland’s Rosario claim is denied.
4.
Violation of Ragland’s Right Against Self-Incrimination
(Ground 6)
Ragland contends that the prosecutor violated Ragland’s right against
self-incrimination under the Fifth Amendment when the prosecutor stated during
trial that Ragland could take the stand.68 Although it is true that a prosecutor may
65
People v. Rosario, 9 N.Y.2d 286 (1961).
66
See United States ex rel. Butler v. Schubin, 376 F. Supp. 1241, 1247
(S.D.N.Y. 1974), aff’d, 508 F.2d 837 (2d Cir. 1975); see also Velazquez v. Poole,
614 F. Supp. 2d 284, 335 (E.D.N.Y. 2007) (stating that an allegation that the
prosecution violated Rosario “is a state law claim not cognizable on federal habeas
review” (citation omitted)).
67
See Ragland, 829 N.Y.S.2d at 190.
68
See Pet. at 18–19.
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not suggest that a defendant’s silence is evidence of guilt,69 mere reference to a
defendant’s ability to testify is insufficient to constitute a Fifth Amendment
violation.70 The Second Circuit has stated:
The test governing whether a prosecutor’s statements amount to
an improper comment on the accused’s silence in violation of the
Fifth Amendment looks at the statements in context and examines
whether they naturally and necessarily would be interpreted by the
jury as a comment on the defendant’s failure to testify.71
Further, the prosecutor’s statements must substantially prejudice the defendant’s
right to a fair trial.72 The existence of such prejudice is less likely where the trial
court gave curative instructions to the jury.73
Here, the prosecutor made reference to Ragland’s ability to testify
after objecting to Ragland’s repeated attempts to provide his own account of the
events to the jury, without being sworn and subject to cross-examination, and
69
See Griffin v. California, 380 U.S. 609, 615 (1965).
70
See, e.g., United States v. Robinson, 485 U.S. 25, 31–32 (1988)
(holding that a prosecutor’s reference to a defendant’s ability to testify does not
violate the defendant’s Fifth Amendment rights where the prosecutor’s statement is
a “fair response to a claim made by defendant or his counsel”).
71
United States v. Knoll, 16 F.3d 1313, 1323 (2d Cir. 1994) (quotation
marks and citation omitted).
72
See United States v. Modica, 663 F.2d 1173, 1181 (2d Cir. 1981).
73
See Knoll, 16 F.3d at 1323 (discussing how the trial court’s issuance
of a curative instruction presents the appellants with a “particularly heavy burden”
in establishing that the prosecutor’s statements resulted in substantial prejudice).
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despite the prosecutor’s objections.74 Further, the trial court provided curative
instructions to the jury indicating that the defendant was not required to testify.75
Given this context, the Appellate Division determined that “the prosecutor’s
comment merely advised the defendant of the proper options open to him, and did
not deprive the defendant of a fair trial.”76
Based on the foregoing, it is unlikely that the prosecutor’s statement
prejudiced the defendant’s due process rights. The Appellate Division’s ruling was
not an unreasonable application of Supreme Court precedent. Thus, Ragland’s
claim is rejected.
5.
Sentencing Error (Ground 7)
Ragland also argues that the trial court incorrectly sentenced him as a
second felony offender and improperly sentenced Ragland to a determinate
sentence.77 However, this claim is without merit. First, Ragland was not
sentenced as a second felony offender.78 Second, “[n]o federal constitutional issue
74
See Opp. Mem. at 20–21.
75
See id. at 18.
76
See Ragland, 829 N.Y.S.2d at 190.
77
See Pet. at 19–20.
78
See Opp. Mem. at 24–25.
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is presented where . . . the sentence is within the range prescribed by law.”79
Ragland was sentenced to a determinate sentence of thirteen years,80 which is
within the statutory sentencing range for class C felonies, including burglary in the
second degree.81 As Ragland’s sentence falls within the range prescribed by state
law, his claim is not cognizable on federal habeas review and is therefore rejected.
6.
Constitutionality of NYPL Section 140.25 (Ground 8)
Ragland also contends that New York’s burglary statute82 violates due
process because the statute was improperly passed in 1981.83 This claim, however,
is procedurally barred from habeas review. The Second Circuit has determined
that the invocation of C.P.L. Section 440.10(3)(c) constitutes an independent and
adequate state procedural bar foreclosing habeas review.84 In affirming the denial
of Ragland’s state habeas corpus petition, the Appellate Division invoked a state
procedural bar, determining that Ragland’s challenge to the constitutionality of
79
White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992).
80
See Pet. at 1; Opp. Mem. at 24.
81
NYPL § 70.02[3][b]. Specifically, Ragland faced a minimum
sentence of three and one-half years and a maximum sentence of fifteen years for
his second degree burglary conviction. See id.
82
Id. § 140.25.
83
See Opp. Mem. at 26.
84
See Murden v. Artuz, 497 F.3d 178, 191–95 (2d Cir. 2007).
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New York’s burglary statute was procedurally barred because the claim could have
been raised on direct appeal or in a C.P.L. Article 440 motion.85 Ragland has not
offered any reason for the procedural default, nor has he established that a
fundamental miscarriage of justice would occur from the failure to entertain his
challenge. Ragland’s claim is therefore rejected.
V.
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.”86 A “substantial showing” does not require a petitioner to show that he
would prevail on the merits, but merely that reasonable jurists could disagree as to
whether “the petition should have been resolved in a different manner or [whether]
the issues presented were ‘adequate to deserve encouragement to proceed
further.’”87 Petitioner has made no showing. Thus, I decline to grant a COA. The
85
See People ex rel. Ragland v. Bellnier, 920 N.Y.S.2d 919, 920 (3d
Dep’t 2011).
86
28 U.S.C. § 2253(c)(2).
87
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).
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Clerk of the Court is directed to close this Petition and this case.
SO ORDERED:
Dated:
New York, New York
February 10, 2015
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- Appearances Petitioner (Pro Se):
Kim Ragland
SBI# 362775B
Northern State Prison
P.O. Box 190
Avenel, N.J. 07001
For Respondent:
Carrie A. Ciganek
Senior Assistant District Attorney, Rockland County
County Office Building
1 South Main Street, Suite 500
New City, New York 10956
(845) 638-5005
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