Johnson v. Perez
Filing
13
DECISION AND ORDER denying the amended petition for a writ of habeas corpus and dismissing the amended petition. Signed by Hon. Michael A. Telesca on 11/1/11. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
TEOURIALEIR JOHNSON,
Petitioner,
DECISION AND ORDER
No. 08-CV-00522(MAT)
-vsA. PEREZ,
SUPERINTENDENT
Respondent.
________________________________
I.
Introduction
Pro se Petitioner Teourialeir Johnson (“Petitioner”) has filed
a petition1 for a writ of habeas corpus under 28 U.S.C. § 2254
challenging the constitutionality of her detention in Respondent’s
custody. Petitioner is in custody pursuant to a judgment entered on
January 10, 2005, after a jury trial in New York State, Supreme
Court, Erie County, convicting her of Attempted Murder in the
Second Degree (N.Y. Penal Law (“Penal Law”) §§ 110.00, 125.25(1)).
II.
Factual Background and Procedural History
On October 17, 2003, Petitioner was indicted by an Erie County
Grand Jury and charged with one count of Attempted Murder in the
Second Degree (Penal Law §§ 110.00, 125.25(1)) and one count of
Assault in the First Degree (Penal Law § 120.10(1)).
The charges
arose from an incident that occurred on August 7, 2003, wherein
1
Petitioner initially filed her habeas corpus petition on July 16, 2008.
Dkt. No. 1.
Subsequently, she filed an amended petition on August 22, 2008.
Dkt. No. 4.
Petitioner struck her husband’s girlfriend, Jennifer Ahmad (“Ahmad”
or “the victim”), with a motor vehicle.
See Ind. No. 04358-2003
dated 10/17/03 at Resp’t Ex. A.
A jury trial was held before the Hon. Russell P. Buscaglia in
Supreme Court, Erie County from September 27, 2004, to October 1,
2004,
at
the
close
of
which
Petitioner
Attempted Murder in the Second Degree.
584.
On
January
10,
2005,
was
found
guilty
of
Trial Transcript (“T.T.”)
Petitioner
was
sentenced
to
a
determinate term of seventeen and one-half years imprisonment, to
be followed by five years of post release supervision.
Minutes (“S.M.”) 11.
Sentencing
The Appellate Division, Fourth Department,
of New York State Supreme Court, unanimously affirmed Petitioner’s
conviction on March 16, 2007, and leave to appeal was denied on
July 3, 2007.
People v. Johnson, 38 A.D.3d 1327 (App. Div.
4th Dept. 2007); lv. denied, 9 N.Y.3d 866 (2007).
This
amended
habeas
corpus
petition
followed
in
which
Petitioner seeks relief on the following grounds: (1) a violation
of Batson v. Kentucky, 476 U.S. 79 (1986); (2) the trial court’s
read-back of certain testimony to the jury deprived her of due
process; (3) the evidence was legally insufficient to support her
conviction and the verdict was against the weight of the evidence;
(4)
the
sentencing
court
improperly
denied
her
request
that
alternative sentencing under Penal Law § 60.12 be considered; and
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(5) the trial court’s jury charge on motive was improper.
See Am.
Pet. ¶22, Grounds One-Five (Dkt. No. 4).
III. Analysis of Petitioner’s Claims
A.
Batson Violation
Petitioner contends that the prosecutor violated the precepts
of Batson, 476 U.S. 79, supra, in his exercise of a peremptory
challenge to prospective juror D.M.
The
Appellate
Division
rejected
See Pet. ¶ 22, Ground One.
this
claim
on
the
merits,
concluding that Petitioner
failed to meet her ultimate burden of
persuading the court that the People’s raceneutral reasons for exercising a peremptory
challenge with respect to an African-American
juror
were
pretextual.
The
court’s
credibility determination on that issue is
entitled to great deference, and we see no
reason to disturb it.
Johnson, 38 A.D.3d at 1328. Neither the trial court nor the
Appellate
Division
misapplied
Federal
law
in
adjudicating
Petitioner’s Batson claim.
At the first step of a Batson challenge, the opponent of a
peremptory
challenge
discrimination.
must
make
out
a
prima
facie
case
Purkett v. Elem, 514 U.S. 765, 767 (1995).
of
The
burden of production then shifts to the proponent of the strike to
come forward with a race-neutral explanation. Id. “The second step
of this process does not demand an explanation that is persuasive,
or even plausible.”
Id. at 767-68.
If a race-neutral explanation
is provided, the trial court must then decide whether the opponent
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challenging the strike has proved purposeful discrimination.
Id.
at 767.
During jury selection, prospective juror D.M., a black male,
stated that lived in Buffalo, was single, had a young daughter, and
worked at HSBC arena. He also stated that a close friend had
convicted of an armed robbery and that his sister had been beaten
by her boyfriend and that he had had to intercede to protect her.
Jury Selection (“J.S.”) 116-118.
During voir dire, defense counsel asked D.M. the following
question:
If it were to be shown that the victim just
prior to being struck by a vehicle threw a
brick at the window of the vehicle that my
client was operating, would that have any
impact or can you just take it as one of the
elements . . . or is it the fact that the
victim threw a brick at the car just prior to
being struck, is a significant factor that you
can’t overlook and it may balance you . . . .
J.S. 146.
In response, D.M. stated, “Action/reaction.”
J.S. 146.
When asked by the trial court to explain what he meant, D.M.
responded, “You hit me.
I hit you.”
J.S. 151.
Seeking to clarify
D.M.’s response, the trial court asked a further question, to which
D.M. responded that it (i.e., Petitioner having had a brick thrown
at her car before she struck Ahmad) would be one of the factors in
determining Petitioner’s guilt.
J.S. 151.
The prosecutor then challenged D.M. for cause based on D.M.’s
“action/reaction” statement. The prosecutor added that he had
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observed D.M. distancing himself from the other jurors, which
caused
him
concern
deliberations.
about
D.M.’s
participation
in
jury
The prosecutor also noted that D.M.’s sister had
been abused by her boyfriend and D.M. had affirmatively taken
action to protect his sister. Finally, the prosecutor expressed
concern
that
because
the
victim’s
boyfriend
was
married
to
Petitioner, D.M. might view the evidence in a light more favorable
to the defense based upon his experience with his sister.
After the trial court denied the for-cause challenge, the
prosecutor exercised a peremptory challenge to remove D.M..
152-155.
Defense
counsel
then
lodged
a
Batson
J.S.
challenge.
Determining that defense counsel had made out a prima facie case
under Batson, the trial court asked the prosecutor for his raceneutral reasons for striking D.M.
J.S. 158.
The prosecutor
indicated that he excused D.M. for the reasons he previously stated
and reiterated those reasons for the court.
J.S. 158-159.
The trial court denied the Batson challenge, finding that
“certainly [the prosecutor] has sustained his burden to show that
he has a facially neutral reason” based upon the fact that the
prospective juror’s sister had been the victim of domestic abuse
and that he had intervened to help her. J.S. 160.
Defense counsel
argued that the trial court’s ruling sent a message that “that we
are now going to say we don’t want people, especially black people
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with any life experiences, and I think that’s terrible to let that
happen.” J.S. 160-161.
The trial court adhered to its original ruling denying the
Batson challenge, explaining that
the fact that [D.M.’s] sister was the victim
of domestic abuse and what we -- what we have
here is although not domestic abuse of a man
upon a -- upon a woman, we have a domestic
situation that turned violent which is what he
was involved with, what he observed, what he
came to the rescue of his sister for.
And
while he did not indicate that it would affect
-- he did not indicate that it would affect
his ability to be fair and impartial like some
of the other prospective jurors did, some of
those that were –- were excused, I believe
that [defense counsel] has not sustained his
burden,
that
this
is
intentional
discrimination.
J.S. 162-163.
Step one of the Batson analysis is not at issue here. See
Hernandez v. New York, 500 U.S. 352, 349 (1991) (holding that
discriminatory intent sufficient to set forth a prima facie intent
becomes irrelevant once the trial court proceeds to the second and
third steps).
The
second
step
of
the
Batson
inquiry
asks
whether
the
prosecution offered race-neutral explanations for the peremptory
strikes.
reasons
Here, the prosecution met its burden by supplying three
for
challenging
D.M.:
one,
D.M.’s
“action/reaction”
statement; two, that D.M. tended to distance himself from the other
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jurors; and, three, that D.M.’s sister had been the victim of
domestic violence and that D.M. had come to her rescue.
With regard to the third step of the Batson inquiry, a trial
court’s
finding
as
to
whether
the
prosecutor
intentionally
discriminated on the basis of race when exercising a peremptory
strike is a factual finding entitled to substantial deference by a
reviewing court.
Batson, 476 U.S. at 98 n.21 (citation omitted);
accord, e.g., Jordan v. Lefevre, 293 F.3d 587, 593 (2d Cir. 2002).
Since the trial judge’s conclusions during the type of inquiry
contemplated
by
Batson
“largely
will
turn
on
evaluation
of
credibility,” the Supreme Court has instructed that reviewing
courts “ordinarily should give those findings great deference.”
Batson, 476 U.S. at 98 n.21 (citation omitted).
Here, the trial court judge considered the credibility of the
race-neutral reasons offered by the prosecution, rejecting the
first two reasons (D.M.’s “action/reaction” statement and that D.M.
tended to distance himself from the other jurors), and accepting
the third reason (that D.M.’s sister had been the victim of
domestic violence and that D.M. had come to her rescue). See T.T.
162-163. Petitioner’s conclusory assertions do not overcome the
presumption of correctness accorded to the trial court’s factual
determination of the prosecutor’s credibility. The trial court, who
was in the best position to observe the demeanor of the parties,
made a Batson ruling which was amply supported by the record.
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Petitioner’s Batson claim with regard to prospective juror D.M.
therefore fails on the merits.
B.
Trial Court’s Read-Back of Testimony
Petitioner contends that the trial court erred in denying her
motion for a mistrial based on the alleged improper read-back of
certain testimony to the jury.
See Am. Pet. ¶ 22, Ground Two.
The
Appellate Division rejected this pursuant to CPL § 470.05(2),
finding that Petitioner failed to properly preserve the issue for
appellate review.
Johnson, 38 A.D.3d at 1328.
As respondent argues, the claim is procedurally defaulted due
to
the
Appellate
Division’s
reliance
upon
independent state ground for dismissal. See
an
adequate
and
Cotto v. Herbert, 331
F.3d 217, 238 (2d Cir. 2003) (Federal habeas review is prohibited
if a state court rests its judgment on a state law ground that is
“independent of the federal question and adequate to support the
judgment.”)
(1991)).
(quoting
Coleman
v.
Thompson,
501
U.S.
722,
729
Here, the state court relied on New York’s preservation
rule, codified at CPL § 470.05(2), to deny Petitioner’s claim
because defense counsel did not make a timely objection to the
trial court’s response to the read-back request. The Second Circuit
has held that the failure to object at trial when required by
New York’s contemporaneous objection rule, CPL § 470.05, is an
adequate and independent state ground.
See, e.g., Bossett v.
Walker, 41 F.3d 825, 829 n. 2 (2d Cir.1994) (respecting state
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court’s application of C.P.L. § 470.05(2) as adequate bar to
federal habeas review), cert. denied, 514 U.S. 1054 (1995).
This Court may reach the merits of Petitioner’s claim, despite
the procedural default if she can demonstrate cause for the default
and prejudice resulting therefrom, or that failure to consider the
claim will result in a fundamental miscarriage of justice.
Coleman, 501 U.S. at 750.
See
Petitioner does not allege cause and
prejudice for the default, and has not attempted to avail herself
of the fundamental miscarriage of justice exception.
Accordingly,
Petitioner’s claim is procedurally defaulted from habeas review,
and is denied on that basis.
C.
Legally Insufficient Evidence and Verdict Against Weight
of Evidence
1.
Legal Insufficiency Claim
Petitioner contends that the evidence was legally insufficient
to support her conviction in that the prosecution’s proof was
insufficient to establish beyond a reasonable doubt that she
intended to kill the victim, Ahmad, when she attempted to drive
over Ahmad with her vehicle.
See Am. Pet. ¶ 22, Ground Three.
The
Appellate Division rejected this claim on a state procedural ground
because it had not been properly preserved for appellate review.
Johnson, 38 A.D.3d at 1328.
As discussed in “Section IV, 2” above, a federal court may not
review a question of federal law decided by a state court if the
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state court’s decision rested on a state law ground that is
independent of the federal question and adequate to support the
judgment. See Coleman, 501 U.S. at 729.
Here, the state court
relied on New York’s preservation rule, which the Second Circuit
has determined is an independent and adequate state procedural
ground, to deny Petitioner’s claim.
See, e.g., Richardson v.
Greene, 497 F.3d 212, 218 (2d Cir. 2007).
As respondent argues, the Appellate Division’s reliance upon
an adequate and independent state ground creates a procedural
default.
Petitioner
has
not
alleged
cause
and
prejudice
to
overcome the procedural default, nor has she attempted to avail
herself of the miscarriage of justice exception.
Accordingly,
Petitioner’s sufficiency of the evidence claim is procedurally
defaulted from habeas review, and is denied on that basis.
2.
Weight of the Evidence Claim
Petitioner argues that the verdict was against the weight of
the evidence.
See Am. Pet. ¶ 22, Ground Three. Challenges to the
weight of the evidence supporting a conviction, unlike challenges
to the sufficiency of the evidence, are not cognizable on federal
habeas review.
See, e.g., Maldonado v. Scully, 86 F.3d 32, 35
(2d Cir. 1996).
A claim that a verdict was against the weight of
the
evidence
derives
from
CPL
§
470.15(5)
which
permits
an
appellate court in New York to reverse or modify a conviction where
it determines “that a verdict of conviction resulting in a judgment
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was, in whole or in part, against the weight of the evidence.”
§ 470.15(5).
CPL
Thus, the “weight of the evidence” argument is a pure
state law claim grounded in the criminal procedure statute, whereas
a
legal
sufficiency
principles.
claim
is
based
on
federal
due
process
People v. Bleakley, 69 N.Y.2d 490, 495 (1987).
Since a weight of the evidence claim is purely a matter of
state law, it cannot form a basis for habeas relief.
§ 2254(a);
See 28 U.S.C.
Estelle v. McGuire, 502 U.S. 62, 68 (1991) (“In
conducting habeas review, a federal court is limited to deciding
whether a conviction violated the Constitution, laws, or treaties
of the United States.”). Petitioner’s weight of the evidence is not
cognizable on habeas review and is denied on that basis.
4.
Alternative Sentencing under Penal Law § 60.12
Petitioner
contends
that
the
sentencing
court
improperly
denied her request to consider alternative sentencing under Penal
Law § 60.122.
See Am. Pet. ¶ 22, Ground Four.
The Appellate
Division found that “[b]ecause [Petitioner] and the victim were not
members of the same family or household . . . the court properly
2
Penal Law § 60.12(1) provides, in relevant part, that “where a court is
imposing sentence pursuant to section 70.02 [sentence of imprisonment for a
violent felony offense]. . . , the court, upon a determination following a
hearing that . . . (c) the victim or intended victim of such offense was a member
of the same family or household as the defendant as such terms is defined in
subdivision one of section 530.11 of the criminal procedure law, may, in lieu,
of imposing such determinate sentence of imprisonment, impose an indeterminate
sentence of imprisonment in accordance with subdivisions two and three of this
section.” N.Y. Penal Law § 60.21(1).
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refused to sentence [Petitioner] pursuant to Penal Law § 60.12.”
Johnson, 38 A.D.3d at 1329 (internal citation omitted).
A petitioner’s assertion that a sentencing judge abused his
discretion in sentencing is generally not a federal claim subject
to review by a habeas court. See Fielding v. LeFevre, 548 F.2d
1102, 1109 (2d Cir. 1977) (petitioner raised no cognizable federal
claim by seeking to prove that state judge abused his sentencing
discretion
sentence
by
was
disregarding
in
the
psychiatric
applicable
reports).
statutory
Petitioner’s
range
and
no
constitutional question is presented.
Moreover, this claim at most alleges a violation of state
statutory law which is not cognizable on federal habeas review.
See Estelle v. McGuire, 502 U.S. at 67-68.
Petitioner has not
established that the sentencing court misapplied state statutory
law, as Petitioner failed to establish that she fell within the
ambit of the provision at issue–that is, she failed to show that
she was a member of the victim’s family for purposes of Penal Law
§ 60.12(1)(c). Thus, alternative sentencing was not warranted as a
matter of state law. Because Petitioner’s alternative sentencing
claim raises no federal constitutional argument, it is denied on
that basis.
E.
Improper Jury Instruction
Petitioner argues that the trial court’s jury instruction on
motive was improper because the prosecution failed to adduce
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sufficient of proof of motive to warrant sending the issue to the
jury.
See Am. Pet. ¶22, Ground Five.
Petitioner asserted that the
motive instruction “mudd[ied] the waters regarding the People’s
burden of proof of the actual elements on trial” and, “by entwining
the element of intent with the non-element of motive, the court .
. . allowed the jury to bootstrap the easier finding of motive on
the more complex . . . finding of intent.”
Pet’r Br. on Appeal at
28. The Appellate Division rejected this claim on the merits,
finding
that
“based
[Petitioner’s]
acts
on
were
the
theory
accidental
or
of
the
negligent
defense
rather
that
than
intentional, the court properly instructed the jury concerning
motive.”
Johnson, 38 A.D.3d at 1328 (citations omitted).
It is well-settled that the propriety of a state court’s jury
instructions is generally a matter of state law that does not raise
a federal constitutional question. Cupp v. Naughten, 414 U.S. 141,
146
(1973).
“The
burden
of
demonstrating
that
an
erroneous
instruction was so prejudicial that it will support a collateral
attack on the constitutional validity of a state court’s judgment
is even greater than the showing required to establish plain error
on direct appeal.” Henderson v. Kibbe, 431 U.S. 145, 154 (1977).
In determining whether “the ailing instruction itself so infected
the entire trial process that the resulting conviction violates due
process,” the court “must consider the challenged portion of the
charge not in ‘artificial isolation,’ but rather ‘in the context of
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the overall charge.’” Justice v. Hoke, 45 F.3d 33, 34 (2d Cir.
1995) (quoting Cupp, 414 U.S. at 146-47).
Over the defense’s objection, the trial court issued a motive
instruction at the prosecution’s request.
T.T. 505-506.
The
charge mirrored the CJI instruction on motive and was not erroneous
as a matter of state law. Indeed, it is error for a trial court in
New York state to fail to instruct the jury on the question of
motive or lack of motive in determining the defendant’s guilt or
innocence. People v. Reaves, 30 A.D.2d 828, 292 N.Y.S.2d 296 (App.
Div. 2d Dept. 1968) (citing Peole v. Seppi, 221 N.Y. 62, 71, 116
N.E. 793, 796 (1917) (“ In determining the guilt or innocence of a
defendant,
however,
considered
by
the
the
jury
question
in
their
of
motive
is
deliberations.
always
It
was
to
be
error
therefore for the court to charge the jury that ‘motive plays
absolutely no part in your deliberations.’”), aff’d. 26 N.Y.2d 921
(1970)).
Moreover, there was an ample basis for the jury to infer
motive from the prosecution’s proof.
Petitioner’s relationship
with her estranged husband, her dislike of the victim, her concern
for her daughter, and the victim’s behavior toward Petitioner were
all relevant facts tending to support a motive for her conduct.
Although, as a matter of state law, “[m]otive can never, of itself,
prove guilt,” “it may, when other circumstances point to the
conclusion of guilt, strengthen such circumstantial proof of guilt
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and thus aid to establish the commission of the crime or the
identity of the criminal.”
(1915).
People v. Giordano, 213 N.Y. 575, 584
Because it was not error for the trial court to instruct
the jury on the question of motive in determining Petitioner’s
guilt or innocence, Petitioner cannot obtain habeas relief on this
claim.
V.
Conclusion
For the reasons stated above, the amended petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254 (Dkt. No. 4) is
denied, and the amended petition is dismissed.
has failed to
Because Petitioner
make “a substantial showing of a denial of a
constitutional right,” 28 U.S.C. § 2253(c)(2), the Court declines
to issue a certificate of appealability. See, e.g., Lucidore v.
New York State Div. of Parole, 209 F.3d 107, 111-113 (2d Cir.
2000).
The Court also hereby certifies, pursuant to 28 U.S.C.
§ 1915(a)(3), that any appeal from this judgment would not be taken
in good faith and therefore denies leave to appeal as a poor
person.
Coppedge v. United States, 369 U.S. 438 (1962).
Petitioner must file any notice of appeal with the Clerk’s
Office, United States District Court, Western District of New York,
within thirty (30) days of the date of judgment in this action.
Requests to proceed on appeal as a poor person must be filed with
United States Court of Appeals for the Second Circuit in accordance
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with the requirements of Rule 24 of the Federal Rules of Appellate
Procedure.
IT IS SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
November 1, 2011
Rochester, New York
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