Aughtry v. Artus

Filing 10

ORDER denying petition for writ of habeas corpus and dismissing the action. Signed by Hon. Michael A. Telesca on 6/13/11. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
PEREZ AUGHTRY, 07-B-2499,
Petitioner,
-v-

09-CV-1026(MAT)
ORDER

DALE ARTUS,
Respondent.

I.

Introduction
Pro se petitioner Perez Aughtry (“petitioner”) has filed a

petition for writ habeas corpus pursuant to 28 U.S.C. § 2254,
challenging the constitutionality of his conviction in Erie County
Court of Kidnapping in the Second Degree (N.Y. Penal L. § 135.20)
and Unlawful Imprisonment in the First Degree (§ 135.10). The
judgment of conviction, entered on July 26, 2007, followed a nonjury trial before Judge Michael F. Pietruszka. He was sentenced to
fifteen

years

supervision

imprisonment

for

indeterminate

the

term

plus

kidnapping
of

two

to

five

years

of

post-release

conviction,

concurrent

four

for

years

the

to

an

unlawful

imprisonment conviction.
II.

Factual Background and Procedural History
Petitioner’s

conviction

stems

from

an

incident

wherein

petitioner accosted Shetia Dixon (“the victim”) on the street,
carried her to a nearby apartment building, restrained her, and

insisted that she call her boyfriend, with whom petitioner had a
grudge over a drug deal gone wrong.
According to the trial testimony, Marciea Dixon (“Dixon”), the
victim’s sister, was dating petitioner and helping him sell drugs
from the Shoreline Apartments in the City of Buffalo. On June 6,
2006, Dixon called the victim’s boyfriend, Mesha Branch (“Branch”),
and offered to sell him some marijuana. T. 30, 40-41, 66, 69, 8587, 101.1 When Dixon showed Branch the marijuana, Branch was
displeased with the quality and price of the drugs. He then
“snatched” the bag containing the marijuana, causing it to spill
out onto the floor. According to Dixon, Branch took some of the
marijuana without paying for it and left the apartment. As a
result, Dixon called petitioner to advise him that he had just been
robbed. T. 46, 49, 51, 69-70, 92-94. She also called her sister,
the victim, to tell her what had happened. T. 51, 70.
One day later, the victim was walking to a friend’s house when
she encountered petitioner, who pushed her and accused her of
“set[ting]

him

up.”

acquainted

with

one

T.

114.

another,

The
as

victim
the

two

and

petitioner

had

a

brief

were

sexual

relationship a few months prior while the victim’s boyfriend,
Branch, was serving a short jail term. T. 107-110.

The victim

testified that petitioner threatened her, and she told him that she
did not know what he was talking about. T. 115-116. The victim then
1

Citations to “T.__” refer to pages of the trial transcript; “S.__”
refers to the sentencing transcript.
2

called

her

sister

and

told

her

to

talk

to

petitioner

and

“straighten it out.” T. 116.
On June 8, 2006, the victim was walking to work when she was
approached by petitioner, who again insisted on knowing why she set
him

up.

T.

117,

120,

157-158.

A

woman

who

was

accompanying

petitioner then started a fight with the victim at petitioner’s
urging. The victim, however, ultimately fought the woman off.
T. 120-121, 169. At that point, petitioner picked the victim up and
slung her over his shoulder, telling her to “call [her] boyfriend
so he can shoot him.” T. 121-122. Petitioner then carried the
victim, who was screaming, to a nearby apartment complex, telling
her to calm down and to call Branch. T. 122, 173. While petitioner
was still holding her, he was “buzzed” into the apartment building,
forced the victim into the elevator, and brought her into the
apartment of an acquaintance. T. 128, 130-132.
Once inside the apartment, petitioner told the victim to sit
down, threw a telephone to her, and instructed her to call her
Branch.

The

victim

responded

that

she

could

not

contact

her

boyfriend because he did not have a phone at that time. T. 134-135.
The victim further testified that petitioner was holding a gun
while he demanded that she make the call. After unsuccessfully
calling her mother from the phone, the victim called her father,
crying, and told him that petitioner was trying to kill her.

3

Petitioner snatched the telephone and threatened her again by
cocking the gun and pointing it at her head. T. 135-138.
The victim was ultimately able to flee from the apartment
after the telephone rang, and, the occupant of the apartment,
believing the person on the phone was the victim’s father, advised
petitioner to “get her out of here.” T. 138-141, 191. The victim
ran to her mother’s house to call the police, and subsequently went
to the police station to file a report. T. 145-146, 208. Police
then

took

the

victim

to

petitioner’s

home

in

the

Shoreline

Apartments, where she identified him as the perpetrator. T. 146.
The defense’s position at trial was that a kidnapping did not
occur, but merely an attempt to compel the victim to call her
boyfriend to meet with petitioner to resolve the issue of the
stolen drugs. T. 430-437.
The trial court found petitioner guilty of second-degree
kidnapping and first-degree unlawful imprisonment, and acquitted
him of two additional crimes charged in the indictment, seconddegree menacing and fourth-degree criminal possession of a weapon.
T.

457-458.

Petitioner

was

subsequently

adjudicated

a

second

violent felony offender pursuant to N.Y. Crim. Proc. L. § 400.15,
and was sentenced to aggregate terms of imprisonment totaling
fifteen years with five years of post-release supervision. S. 9-10.
Through counsel, petitioner filed a brief in the Appellate
Division, Fourth Department, raising the following points for

4

appeal: (1) the conviction was based on legally insufficient
evidence; alternatively, the verdict was against the weight of the
evidence; (2) petitioner’s kidnapping conviction was precluded by
the merger doctrine in violation of his right to due process;
(3) petitioner was denied his rights to due process and a fair
trial when the trial court denied his motion to set aside the
verdict; and (4) the sentences were unduly harsh and excessive.
Resp’t Ex. B. The Appellate Division affirmed the judgment of
conviction without opinion. People v. Aughtry, 57 A.D.3d 1430
(4th Dept. 2008), lv. denied, 12 N.Y.3d 780 (2009), recons. denied,
12 N.Y.3d 851 (2009).
This habeas petition followed, in which petitioner raises the
same grounds for relief as he did on appeal. For the reasons that
follow, petitioner’s claims for habeas relief are denied, and the
petition is dismissed.
III. Discussion
A.

Legal Standard for Federal Habeas Review

Under the Anti-Terrorism and Effective Death Penalty Act
(“AEDPA”), a federal court may grant habeas relief to a state
prisoner only if a claim that was “adjudicated on the merits” in
state court “resulted in a decision that was contrary to, or
involved

an

unreasonable

application

of,

clearly

established

Federal law, as determined by the Supreme Court of the United
States,” 28 U.S.C. § 2254(d)(1), or if it “was based on an

5

unreasonable determination of the facts in light of the evidence
presented in the state court proceeding.” § 2254(d)(2). 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] on a question of law or if the state court
decides a case differently than [the Supreme Court] has on a set of
materially indistinguishable facts.” Williams v. Taylor, 529 U.S.
362, 413 (2000). The phrase, “clearly established Federal law, as
determined by the Supreme Court of the United States,” limits the
law governing a habeas petitioner's claims to the holdings (not
dicta) of the Supreme Court existing at the time of the relevant
state-court decision. Williams, 529 U.S. at 412; accord Sevencan v.
Herbert, 342 F.3d 69, 73-74 (2d Cir. 2002), cert. denied, 540 U.S.
1197 (2004).
A

state

court

decision

is

based

on

an

“unreasonable

application” of Supreme Court precedent if it correctly identified
the governing legal rule, but applied it in an unreasonable manner
to the facts of a particular case. Williams, 529 U.S. at 413; see
also id. at 408-10. “[A] federal habeas court is not empowered to
grant the writ just because, in its independent judgment, it would
have decided the federal law question differently.” Aparicio v.
Artuz, 269 F.3d 78, 94 (2d Cir. 2001). Rather, “[t]he state court's
application must reflect some additional increment of incorrectness
such that it may be said to be unreasonable.” Id. This increment

6

“need not be great; otherwise, habeas relief would be limited to
state court decisions so far off the mark as to suggest judicial
incompetence.” Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir.
2000) (internal quotation marks omitted).
Under AEDPA, “a determination of a factual issue made by a
State court shall be presumed to be correct. The [petitioner] shall
have the burden of rebutting the presumption of correctness by
clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); see also
Parsad

v.

Greiner,

337

F.3d

175,

181

(2d

Cir.

2003)

(“The

presumption of correctness is particularly important when reviewing
the trial court's assessment of witness credibility.”), cert.
denied sub nom. Parsad v. Fischer, 540 U.S. 1091 (2003). A state
court's findings “will not be overturned on factual grounds unless
objectively unreasonable in light of the evidence presented in the
state-court proceeding.” Miller-El v. Cockrell, 537 U.S. 322, 340
(2003).
B.

Merits of the Petition
1.

Legal Insufficiency

Petitioner first contends that his kidnapping conviction was
based on legally insufficient evidence because the proof did not
establish intent to prevent the victim’s liberation, but rather an
intent to compel her to call her boyfriend, Mesha Branch, to
resolve a botched drug transaction. Petition (“Pet.”), Attach. 22A.

Alternatively, petitioner argues that the verdict is against

7

the weight of the evidence. Id. While the Appellate Division
rejected petitioner’s appeal without opinion, its determination
nonetheless constitutes a decision on the merits and is subject to
the AEDPA's deferential standard of review. Herrera v. Senkowski,
77 Fed.Appx. 549, 551 (2d Cir. 2003); Aparicio v. Artuz, 269 F.3d
78, 92-94 (2d Cir. 2001) (denial of claims without opinion but
without

indicating

that

denial

was

on

procedural

grounds

is

adjudication on the merits); see Sellan v. Kuhlman, 261 F.3d 303,
311 (2d Cir. 2001) (“Nothing in the phrase ‘adjudicated on the
merits' requires the state court to have explained its reasoning
process”).
A petitioner challenging the sufficiency of the evidence of
his guilt in a habeas corpus proceeding “bears a very heavy
burden.” Fama v. Comm’r of Corr. Services, 235 F.3d 804, 813
(2d Cir. 2000). Habeas corpus relief must be denied if, “after
viewing

the

evidence

in

the

light

most

favorable

to

the

prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson
v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). This
sufficiency-of-evidence “inquiry does not focus on whether the
trier of fact made the correct guilt or innocence determination,
but rather whether it made a rational decision to convict or
acquit.” Herrera v. Collins, 506 U.S. 390, 402 (1993). Stated
another way, the reviewing court must determine “whether the jury,

8

drawing reasonable inferences from the evidence, may fairly and
logically have concluded that the defendant was guilty beyond a
reasonable doubt ... view[ing] the evidence in the light most
favorable to the government, and constru[ing] all permissible
inferences in its favor.” United States v. Carson, 702 F.2d 351,
361 (2d Cir. 1983) (internal citations omitted), cert. denied sub
nom. Mont v. United States, 462 U.S. 1108 (1983).
A federal court reviewing an insufficiency-of-the-evidence
claim must look to state law to determine the elements of the
crime. Quartararo v. Hanslmaier, 186 F.3d 91, 97 (2d Cir. 1999)
(citation

omitted),

cert.

denied,

528

U.S.

1170

(2000).

In

New York, a person is guilty of second-degree kidnapping when “he
abducts another person.” N.Y. Penal L. § 135.20. “‘Abduct’ means to
restrain a person with intent to prevent his liberation by either
(a) secreting or holding him in a place where he is not likely to
be found, or (b) using or threatening to use deadly physical
force.” § 135.00(2).

“Restrain”, in turn, “means to restrict a

person's movements intentionally and unlawfully in such manner as
to interfere substantially with his liberty by moving him from one
place to another, or by confining him either in the place where the
restriction commences or in a place to which he has been moved,
without

consent

and

with

knowledge

that

the

restriction

is

unlawful. A person is so moved or confined ‘without consent’ when

9

such

is

accomplished

by

(a)

physical

force,

intimidation

or

deception, or (b) any means whatever . . . .” § 135.00(1).
The evidence at trial established that petitioner forcibly
brought the victim to an unknown apartment, a place where she was
not likely to be found, and threatened to kill her while pointing
a gun at her. Petitioner’s intent was evidenced by his objective to
restrain and terrorize the woman he believed had “set him up,” as
it was the victim who was targeted after the drug transaction went
awry. The abduction was prefaced by a another threatening encounter
the day prior, when petitioner accused the victim of wronging him
and threatened to kill her and her child. T. 114-116. With regard
to that incident, Mavis Knox, testified that petitioner approached
her to “toss around” another woman who had been “giving [him]
problems” in exchange for thirty dollars.

T. 231. Finally, the

victim testified that it was she who ended the brief relationship
she had with the petitioner, and, following the ordeal, petitioner
told her that he still loved her, see T. 286, underscoring the
notion that the victim was indeed the object of his conduct.
Contrary to petitioner’s assertion, a reasonable view of the
evidence suggests that petitioner’s demand of the victim to call
Branch was incidental to her abduction.
Thus, drawing all reasonable evidentiary inferences in favor
of

the

prosecution,

there

was

ample

evidence

for

a

rational

fact-finder to conclude that the prosecution met its burden of

10

proving

petitioner's

guilt

beyond

a

reasonable

doubt

on

the

essential elements of second-degree kidnapping. Accordingly, the
Appellate Division’s determination was not contrary to, or an
unreasonable application of the precepts of Jackson v. Virginia.
Moreover, petitioner’s claim that the verdict is against the
weight of the evidence is not an issue properly raised on habeas
review because it does not present a constitutional question. See
McKinnon v. Superintendent, Great Meadow Corr. Facility, No. 082828-PR, 2011 WL 2005112, *4 (2d Cir. May 24, 2011) (unpublished
opinion) (“the argument that a verdict is against the weight of the
evidence states a claim under state law, which is not cognizable on
habeas corpus”) (citing Correa v. Duncan, 172 F.Supp.2d 378, 381
(E.D.N.Y. 2001), Douglas v. Portuondo, 232 F.Supp.2d 106, 116
(S.D.N.Y. 2002); Estelle v. McGuire, 502 U.S. 62, 67–68 (1991)).
2.

Merger Doctrine

Petitioner contends in Ground Two of the petition that his
kidnapping conviction was precluded by the merger doctrine.2 Pet.,
Attach. 22-B.
The so-called “merger doctrine” was developed by New York
state courts and is a doctrine of state law, and it is well-settled
that “federal habeas corpus relief does not lie for errors of state

2

“The merger doctrine is intended to preclude conviction for kidnapping
based on acts which are so much the part of another substantive crime that the
substantive crime could not have been committed without such acts and that
independent criminal responsibility may not fairly be attributed to them.”
People v. Cassidy, 40 N.Y.2d 763, 767 (1976).
11

law.” Estelle, 502 U.S. at 67–68. To that end, district courts in
this Circuit have held that stand-alone claims of violations of New
York's merger doctrine are not cognizable on habeas review. See
Mackenzie v. Portuondo, 208 F.Supp.2d 302, 323 (E.D.N.Y. 2002),
Dinsio

v.

Donnelly,

Nos.

2007

4002684,

(LEK/GJD),

WL

9:03-CV-0779
*12

(LEK/VEB),

(N.D.N.Y.

Nov.

9:04-CV-013
15,

2007)

(“Petitioner's claim that the Appellate Division erred with respect
to its interpretation and application of the merger doctrine is
purely a claim under New York State law. Such claims are not
cognizable on federal habeas review.”); McLeod v. Graham, No. 10
Civ. 3778(BMC), 2010 WL 5125317 (E.D.N.Y. Dec. 9, 2010).
Accordingly, petitioner's claim that the kidnapping charge
should

have

been

dismissed

under

the

merger

doctrine

is

not

properly before this Court because it does not present an issue of
Constitutional magnitude.
3.

Denial of 330.30 Motion / Waiver of Jury Trial

Petitioner next avers that he was not competent to waive a
jury trial, and that the trial court’s refusal to set aside the
verdict and grant a new trial on that basis deprived him of his
rights to due process and a fair trial. Pet., Attach. 22-C.
Petitioner appeared before the county court for sentencing
with his attorney on October 30, 2006. At that time, defense
counsel informed the court that he had learned that petitioner did
not understand the proceedings or jury waiver that he executed, and

12

consequently submitted a motion to set aside the verdict pursuant
to N.Y. Crim. Proc. L. § 330.30. See Hr’g Mins. dated 10/30/2006 at
2. The court granted a competency hearing, in which testimony was
heard from two forensic psychiatrists who had evaluated petitioner.
Both experts testified that his behavior was “malingering,” and
both concluded that petitioner was not incapacitated for purposes
of the proceedings against him.

Competency Hr’g Mins. 12, 17, 37-

39. The court then issued a written memorandum and order, finding
that

the

prosecution

had

met

its

burden

of

establishing

petitioner’s competence by a preponderance of the evidence, noting
that “nothing in the Record establishes sufficient doubt as to the
Defendant’s mental competency to understand proceedings against him
or to assist his own on defense.” See Memorandum and Order, Erie
County Court (Peitruszka, J.C.C.), No. 1355-2005, dated 5/10/2007
at 5-6. The court further observed that “at no time did Defense
Counsel

advise

the

Court

that

he

either

had

difficulty

communicating with the Defendant, or that the Defendant exhibited
any form of incapacity to understand or continue with his criminal
proceedings.” Id. at 6. Rather, it was petitioner himself that
advised

the

court,

at

his

original

sentencing

date,

that

he

suffered from mental incapacity at the time he executed the jury
waiver. Id.
A waiver of a constitutional right must be made voluntarily,
knowingly, intelligently, and also competently. Johnson v. Zerbst,

13

304 U.S. 458, 465 (1938).

A state court's finding of a defendant's

mental competency is a factual question entitled to deference. See
Demosthenes v. Baal, 495 U.S. 731, 735 (1990). The Court has
reviewed the transcript of the competency hearing, as well as the
county court’s memorandum and order. The record fully supports the
trial court’s finding that petitioner was competent, which is
afforded a presumption of correctness under AEDPA. Petitioner comes
forward with no evidence regarding his competency to rebut that
presumption.
To the extent that petitioner seeks to argue that the waiver
was not knowing or intelligent, the Court observes that the trial
court in this case advised petitioner that he would waive right to
have a jury of twelve individuals decide his case, and instead have
the court determine the facts and law of his case. Petitioner
acknowledged that he discussed the waiver and its significance with
his attorney. Jury Trial Waiver Tr. 4-6. The record in this case is
clear that petitioner knowingly and intelligently made the choice
to waive a jury trial, informed by both the judge and his attorney
of the consequences. Stated another way, there was “an affirmative
showing that [the waiver] was intelligent and voluntary.” Boykin v.
Alabama, 395 U.S. 238, 242 (1969).
The Appellate Division’s rejection of petitioner’s argument
therefore does not run afoul of Supreme Court precedent, and this
claim is dismissed.

14

4.

Harsh and Excessive Sentence

Petitioner concludes his petition by arguing that the sentence
was unduly harsh and excessive. Pet., Attach. 22-D. However, 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 by disregarding psychiatric reports) (citing Townsend v.
Burke, 334 U.S. 736, 741 (1948) (“The [petitioner’s] sentence being
within the limits set by the statute, its severity would not be
grounds for relief here even on direct review of the conviction,
much

less

corpus.”).

on

review

of

the

state

court’s

denial

of

habeas

A challenge to the term of a sentence does not present

a cognizable constitutional issue if the sentence falls within the
statutory range.
1992);

accord

White v. Keane, 969 F.2d 1381, 1383 (2d Cir.

Ross

v.

Gavin,

101

F.3d

687

(2d

Cir.

1996)

(unpublished opinion).
Accordingly, this claim must be dismissed for failing to state
a constitutional violation.
IV.

Conclusion
For the reasons stated above, Perez Aughtry’s petition for

writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied, and
the

action

is

dismissed.

Petitioner

15

has

failed

to

make

a

“substantial showing of a denial of a constitutional right”, 28
U.S.C. § 2253 (c)(2), the court declines the issue of 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 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).
SO ORDERED.
S/Michael A. Telesca
_____________________________________
MICHAEL A. TELESCA
United States District Judge
Dated:

June 13, 2011
Rochester, New York

16