Smith v. Lee
MEMORANDUM OPINION AND ORDER: The petitioner, Arenzo Smith, brings this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petitioner was convicted in the New York State Supreme Court, New York County, of one count of Criminal Sale of a Controlled Substance in the Third Degree, in violation of N.Y. Penal Law § 220.39 1 . The petitioner challenges his conviction on two grounds. First, the petitioner alleges that the verdict was against the weight of the eviden ce. Second, the petitioner claims that the trial court's decision to permit the prosecution to show an allegedly unduly prejudicial video denied him a fair trial. For the reasons explained herein, the petition for a writ of habeas corpus is deni ed. Because the petitioner has failed to make a substantial showing of the denial of a constitutional right, the Court declines to issue a certificate of appealability pursuant to 28 U.S.C. § 2253(c) (2). The Clerk is directed to enter judgment dismissing the petition and closing this case. SO ORDERED. (Signed by Judge John G. Koeltl on 10/26/2012) (ja)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- against -
10 Civ. 6941 (JGK)
William F. Lee, Superintendent,
MEMORANDUM OPINION AND
JOHN G. KOELTL, District Judge:
The petitioner, Arenzo Smith, brings this pro se petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
petitioner was convicted in the New York State Supreme Court,
New York County, of one count of Criminal Sale of a Controlled
Substance in the Third Degree, in violation of N.Y. Penal Law §
The petitioner challenges his conviction on two grounds.
First, the petitioner alleges that the verdict was against the
weight of the evidence.
Second, the petitioner claims that the
trial court’s decision to permit the prosecution to show an
allegedly unduly prejudicial video denied him a fair trial.
The record reflects the following facts.
On September 14,
2006, Officer Michael MacDougall of the New York Police
Department Street Narcotics Enforcement Unit (“SNEU”) observed
the petitioner in the area of the chess tables in lower
Manhattan’s Washington Square Park.
From his post
inside a nearby NYPD Temporary Headquarters Vehicle, Officer
MacDougall observed the petitioner on surveillance camera
monitors being approached by a variety of individuals and
“point[ing] them off into different directions.”
Officer MacDougall continued to watch the petitioner and, at
approximately 7:30 PM, observed a man, later identified as
Gideon Crawley, approach the petitioner.
testified that he had gone to Washington Square Park that
evening to buy drugs.
Crawley testified that he
approached the petitioner and the petitioner asked him how much
Crawley responded that he “wanted a
dime,” which is ten dollars worth.
After a brief
conversation, the petitioner spit a small object onto the
ground, and Crawley bent down, placed money on the ground,
picked up the object, and placed it in his mouth.
Officer MacDougall apprehended Crawley and had him spit
out the object which, based on his training and experience,
MacDougall believed to be crack cocaine.
MacDougall radioed to the apprehension team that then arrested
Subsequent testing confirmed that
the substance recovered from Crawley contained cocaine. (Tr.
An NYPD surveillance camera captured the sale on video,
however the video (“the sale video”) did not show the
(Voir Dire Tr. 3; Tr. 100-02.)
footage from several hours earlier in the day (“the pre-sale
video”) depicted the petitioner from the front and showed his
face, clothing, and physical mannerisms.
A New York County Grand Jury charged the petitioner with
Criminal Sale of a Controlled Substance in the Third Degree
(Penal Law § 220.39) and Criminal Possession of a Controlled
Substance in the Third Degree (Penal Law § 220.16).
second count was dismissed before trial. (Tr. 3.)
A jury found
the petitioner guilty of the remaining charge on March 16, 2007.
He was subsequently sentenced to a determinate
prison term of ten years, to be followed by three years of postrelease supervision.
(Sentencing Tr. 13.)
The petitioner filed a timely direct appeal, arguing that
the verdict was against the weight of the evidence and that he
was denied a fair trial as a result of the trial court’s
decision to allow the prosecution to present the pre-sale video
footage to the jury.
On May 12, 2009, the New York State
Supreme Court, Appellate Division, First Department unanimously
affirmed the petitioner’s conviction, rejecting all of his
See People v. Smith, 877 N.Y.S.2d 893 (App. Div. 2009).
On July 15, 2009, the petitioner’s application for leave to
appeal to the New York State Court of Appeals was denied.
People v. Smith, 12 N.Y.3d 929 (2009). This petition followed.
Pursuant to the AEDPA, a federal court may grant habeas
corpus relief to a state prisoner on a claim that was
adjudicated on the merits in state court only if it concludes
that the state court's decision “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States” or “was
based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.”
U.S.C. § 2254(d)(1)-(2); see Williams v. Taylor, 529 U.S. 362,
404-05 (2000); Hawkins v. Costello, 460 F.3d 238, 242 (2d Cir.
A state court decision is contrary to clearly established
federal law “if the state court arrives at a conclusion opposite
to that reached by [the Supreme Court of the United States] on a
question of law,” or “if the state court confronts facts that
are materially indistinguishable from a relevant Supreme Court
precedent and arrives at a result opposite to” the Supreme
Williams, 529 U.S. at 405.
A state court
decision involves an unreasonable application of clearly
established federal law when the state court “identifies the
correct governing legal principle from [the Supreme Court’s]
decisions but unreasonably applies that principle to the facts
of petitioner's case.”
Wiggins v. Smith, 539 U.S. 510, 520
(2003) (quoting Williams, 529 U.S. at 413) (internal quotation
To meet that standard, “the state court
decision [must] be more than incorrect or erroneous. [It] must
be objectively unreasonable.”
Lockyer v. Andrade, 538 U.S. 63,
75 (2003) (internal citations omitted); see also Jones v. Walsh,
No. 06 Civ. 225, 2007 WL 4563443, at *5 (S.D.N.Y. Dec. 27,
“[I]t is well established in [this] circuit that the
objectively unreasonable standard of § 2254(d)(1) means that [a]
petitioner must identify some increment of incorrectness beyond
error in order to obtain habeas relief.”
Cotto v. Herbert, 331
F.3d 217, 248 (2d Cir. 2003) (internal quotation marks omitted);
see also Muir v. New York, No. 07 Civ. 7573, 2010 WL 2144250, at
*3 (S.D.N.Y. May 26, 2010).
Because the petitioner is proceeding pro se, his petition
is “read liberally and should be interpreted ‘to raise the
strongest arguments that [it] suggest[s].’” Graham v. Henderson,
89 F.3d 75, 79 (2d Cir. 1996) (quoting Burgos v. Hopkins, 14
F.3d 787, 790 (2d Cir. 1994)); see also Muir, 2010 WL 2144250,
The respondent argues that the petition is procedurally
barred because the petitioner failed to exhaust his claims in
state court by presenting them in constitutional terms in his
See Rodriguez v. Miller, No. 96 Civ. 4723 HB,
1997 WL 599388, at *1 (S.D.N.Y. Sept. 29, 1997) (“The exhaustion
doctrine requires that a habeas petitioner must [first] give the
state courts a fair opportunity to pass upon all of the federal
claims asserted in the petition.”).
However, a district court
retains discretion to deny a claim on the merits even if it has
not been exhausted.
See Zarvela v. Artuz, 364 F.3d 415, 417 (2d
In this case, because there is no merit to the
petitioner’s claims, it is unnecessary to decide whether the
claims were exhausted in state court.
The petitioner first claims that his conviction was against
the weight of the evidence.
A “weight of the evidence” claim is
a purely state law claim and therefore not cognizable on habeas
See Garrett v. Perlman, 438 F. Supp. 2d 467, 470
However, because the petitioner is acting pro
se, the Court will interpret his petition liberally.
Accordingly, the Court will construe his “weight of the
evidence” claim as a claim that his conviction was based on
legally insufficient evidence, which is a cognizable habeas
corpus claim because it is “based upon federal due process
When considering a sufficiency of the evidence claim, a
federal court must view “the evidence in the light most
favorable to the prosecution,” and may only grant a petition for
a writ of habeas corpus if the petitioner has shown that “upon
the record evidence adduced at the trial no rational trier of
fact could have found proof of guilt beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319, 324 (1979); see also
Hawkins v. West, 706 F.2d 437, 439 (2d Cir. 1983).
reviewing court must defer to the trial court in making
“assessments of the weight of the evidence or the credibility of
witnesses” and must construe “all possible inferences that may
be drawn from the evidence” in the prosecution's favor.
Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996) (citing
United States v. Rosa, 11 F.3d 315, 337 (2d Cir. 1993)); see
also Muir, 2010 WL 2144250, at *4.
Thus, a petitioner
challenging the sufficiency of the evidence supporting a
conviction must overcome a “very heavy burden.”
Leonardo, 46 F.3d 170, 178 (2d Cir. 1995) (citations omitted).
In reviewing the legal sufficiency of the evidence of a
state conviction, the Court looks first to state law to
determine the elements of the crime.
See Quartararo v.
Hanslmaier, 186 F.3d 91, 97 (2d Cir. 1999) (citing Green v.
Abrams, 984 F.2d 41, 44-45 (2d Cir. 1993)).
Under the New York
Penal Law, a person is guilty of Criminal Sale of a Controlled
Substance in the Third Degree when he “knowingly and unlawfully
sells . . . a narcotic drug[.]”
Cocaine is a narcotic drug.
N.Y. Penal Law § 220.39.
N.Y. Penal Law § 220.00(7); N.Y.
Public Health Law § 3306, Sch. II(b)(4).
Viewed in the light most favorable to the prosecution, the
evidence adduced at trial was more than sufficient for a
rational trier of fact to find beyond a reasonable doubt that
the petitioner knowingly and unlawfully sold cocaine to Gideon
Mr. Crawley testified that he bought crack cocaine
from the petitioner.
NYPD Officer Michael MacDougall, who
personally viewed the sale via surveillance camera, corroborated
this account of the transaction.
Testing confirmed that the
substance that the petitioner was observed passing to Crawley
Furthermore, a video recording of the sale
was shown to the jury, from which the jury reasonably could have
concluded that the petitioner was the seller.
The petitioner next claims that he was denied a fair trial
as a result of the trial court’s decision to allow the
prosecution to show footage from the pre-sale video.
Generally speaking, “a state court’s evidentiary rulings, even
if erroneous under state law, do not present constitutional
issues cognizable under federal habeas review.”
Superintendent, Great Meadow Corr. Facility, 422 Fed. App’x 69,
72-73 (2d Cir. 2011) (citations omitted).
evidentiary rulings do not automatically rise to the level of
constitutional error sufficient to warrant issuance of a writ of
Rather, the writ would issue only where
petitioner can show that the error deprived [the petitioner] of
a fundamentally fair trial.”
(2d Cir. 1983).
Taylor v. Curry, 708 F.2d 886, 891
“For an evidentiary error to rise to this
level, it must have had a substantial and injurious effect or
influence in determining the jury's verdict.”
Cummings v. Artuz
237 F. Supp. 2d 475, 486 (S.D.N.Y. 2002) (internal quotation
There is no reasonable argument that the trial court’s
decision to allow the prosecution to show the pre-sale video
resulted in a denial of the petitioner’s right to a fair trial.
The pre-sale video, taken together with the sale video, was
plainly relevant to the identification of the petitioner as the
As the Appellate Division concluded, the pre-sale video
“was highly relevant in identifying [the petitioner] as the drug
seller, since, in the later tape of the drug sale itself, the
seller’s back was to the camera but the other characteristics
were the same.” Smith, 877 N.Y.S.2d at 893.
The admission of
this relevant evidence did not deny the petitioner a fair trial.
For the reasons explained above, the petition for a writ of
habeas corpus is denied.
Because the petitioner has failed to
make a substantial showing of the denial of a constitutional
right, the Court declines to issue a certificate of
appealability pursuant to 28 U.S.C.
The Clerk is
directed to enter judgment dismissing the petition and closing
New York, New York
October~~ , 2012
tates District Judge
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