Smith v. Lee

Filing 16

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
───────────────────────────────────
Arenzo Smith,
Petitioner,
- against -

10 Civ. 6941 (JGK)

William F. Lee, Superintendent,

MEMORANDUM OPINION AND
ORDER

Respondent.
───────────────────────────────────
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.

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 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.

I.
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
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the petitioner in the area of the chess tables in lower
Manhattan’s Washington Square Park.

(Tr. 84.)

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.”

(Tr. 84.)

Officer MacDougall continued to watch the petitioner and, at
approximately 7:30 PM, observed a man, later identified as
Gideon Crawley, approach the petitioner.

(Tr. 85-86.)

Crawley

testified that he had gone to Washington Square Park that
evening to buy drugs.

(Tr. 151.)

Crawley testified that he

approached the petitioner and the petitioner asked him how much
he wanted.

(Tr. 153.)

Crawley responded that he “wanted a

dime,” which is ten dollars worth.

(Tr. 153.)

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.
153.)

(Tr. 85-86,

Officer MacDougall apprehended Crawley and had him spit

out the object which, based on his training and experience,
MacDougall believed to be crack cocaine.

(Tr. 86-88.)

MacDougall radioed to the apprehension team that then arrested
the petitioner.

(Tr. 88-93.)

Subsequent testing confirmed that

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the substance recovered from Crawley contained cocaine. (Tr.
175, 215.)
An NYPD surveillance camera captured the sale on video,
however the video (“the sale video”) did not show the
petitioner’s face.

(Voir Dire Tr. 3; Tr. 100-02.)

Video

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.

(Tr. 100-02.)

A New York County Grand Jury charged the petitioner with
Criminal Sale of a Controlled Substance in the Third Degree
(Penal Law § 220.39[1]) and Criminal Possession of a Controlled
Substance in the Third Degree (Penal Law § 220.16[1]).
second count was dismissed before trial. (Tr. 3.)

The

A jury found

the petitioner guilty of the remaining charge on March 16, 2007.
(Tr. 254-56.)

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
3

affirmed the petitioner’s conviction, rejecting all of his
claims.

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.

II.
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.”

28

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.
2006).
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
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precedent and arrives at a result opposite to” the Supreme
Court's result.

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
marks omitted).

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,
2007).

“[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,
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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,
at *5.
III.
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
direct appeal.

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.
Cir. 2004).

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.

IV.
A.
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
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review.

See Garrett v. Perlman, 438 F. Supp. 2d 467, 470

(S.D.N.Y. 2006).

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
principles.”

Id.

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).

The

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.
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Thus, a petitioner

challenging the sufficiency of the evidence supporting a
conviction must overcome a “very heavy burden.”

Knapp v.

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[1].

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
Crawley.

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
contained cocaine.

Furthermore, a video recording of the sale
8

was shown to the jury, from which the jury reasonably could have
concluded that the petitioner was the seller.

B.
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.”

McKinnon v.

Superintendent, Great Meadow Corr. Facility, 422 Fed. App’x 69,
72-73 (2d Cir. 2011) (citations omitted).

“Erroneous

evidentiary rulings do not automatically rise to the level of
constitutional error sufficient to warrant issuance of a writ of
habeas corpus.

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
marks omitted).

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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
seller.

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.

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CONCLUSION

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.

§

2253(c) (2).

The Clerk is

directed to enter judgment dismissing the petition and closing
this case.
SO ORDERED.
Dated:

New York, New York
October~~ , 2012
tates District Judge

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