Hernandez v. ConwayHernandez v. Conway
- Reporters:
- , ,
- Before:
- Bianchini
DECISION AND ORDER
BIANCHINI, United States Magistrate Judge.I. Introduction
Juan Hernandez (“Hernandez” or “petitioner”) has filed a
pro se
petition (Docket No. 1) for a writ of habeas corpus pursuant to
II. Factual Background and Procedural History
The conviction here at issue stems from several sales of drugs (heroin) by petitioner to informants in police-arranged drug buys and an incident of reckless driving that occurred on January 6, 2000; February 18 and 29, 2000; March 1 and 2, 2000;
• Count One: Criminal Sale of a Controlled Substance in the Third Degree (N.Y. Penal Law 220.39(1)) on February 18, 2000;
• Count Two: Criminal Possession of a Controlled Substance in the Seventh Degree (intent to sell) (N.Y. Penal Law § 220.03 ) on February 18, 2000;
• Count Three: Criminal Sale of a Controlled Substance in the Third Degree (N.Y. Penal Law § 220.39(1) ) on February 29, 2000;
• Count Four: Criminal Possession of a Controlled Substance in the Seventh Degree (intent to sell) (N.Y. Penal Law § 220.03 ) on February 29, 2000;
• Count Five: Criminal Sale of a Controlled Substance in the Third Degree (N.Y. Penal Law 220.39(1)) on March 1, 2000;
• Count Six: Criminal Possession of a Controlled Substance in the Seventh Degree (intent to sell) (N.Y. Penal Law 220.03) on March 1, 2000;
• Count Seven: Criminal Possession of a Controlled Substance in the Third Degree (intent to sell) (N.Y. Penal Law 220.16(1)) on March 2, 2000;
• Count Eight: Criminally Using Drug Paraphernalia (glassine envelopes for the distribution of narcotics) in the Second Degree (N.Y. Penal Law § 220.50(2) ) on March 2, 2000;
• Count Nine: Criminal Mischief (damaging a police vehicle) in the Third Degree (N.Y. Penal Law § 145.05 ) on March 2, 2000;
• Count Ten: Reckless Driving (Vehicle & Traffic Law § 1212) on March 2, 2000; and
• Count Eleven: Criminal Possession of a Controlled Substance in the Third Degree (intent to sell) (N.Y. Penal Law § 220.16(1) ) on April 6, 2000.
Petitioner, through counsel, moved for, inter alia, severance of the various counts of the indictment pursuant to New York State Criminal Procedure Law (“C.P.L.”) § 220.20(3) and for dismissal of counts seven, eight, nine, ten, and eleven of the indictment. Ontario County Court (Harvey, J.) heard argument on February 14, 2000, at which time he denied the severance motion. See Exhibits to Respondent’s Answer (“Resp’t Ex.”) G. Judge Harvey denied the motion to dismiss in a separate decision and order. See Resp’t Ex. A at 53. Following a suppression hearing on March 7, 2001, the trial court dismissed count eleven of the indictment finding that there was no probable cause to stop petitioner. Hernandez was tried before a jury on March 14 and 15, 2001. At the close of the prosecutions’s case, the trial court dismissed count seven of the indictment charging third degree criminal possession of a controlled substance on March 2, 2000. See Resp’t Ex. I at 334. The jury returned a verdict convicting Hernandez on eight counts charging drug-related offenses: three counts of criminal sale of a controlled substance in the third degree; three counts of criminal possession of a controlled substance in the seventh degree; one count of criminally using drug paraphernalia in the second degree; and one count of reckless driving. He was acquitted of count nine, which charged reckless driving (damaging a police vehicle).
Hernandez was sentenced as a second felony offender on March 28, 2001, as follows:
• Count One (criminal sale on February 18, 2000) — 5 to 10 years;
• Count Three (criminal sale on February 29, 2000) — 9 to 18 years, to run consecutively to the sentence for Count One;
• Count Five — 5 to 10 years, to run concurrently with all of the sentences;
• Counts Two, Four, and Six (criminal possession with intent to sell) — 6 months, to run concurrently with all of the sentences;
• Count Eight (criminally using drug paraphernalia) — 60 days, to run concurrently with all of the sentences; and
• Count Ten (reckless driving) — 30 days in the local jail, to run concurrently with all of the sentences.
See Resp’t Ex. J at 15-16.
Represented by new appellate counsel, Hernandez appealed his conviction to the Appellate Division, Fourth Department, of New York State Supreme Court, arguing that (1) the sentence was harsh and excessive; (2) it was error to deny petitioner’s motion to sever; (3) the verdict was against the weight of the evidence; and (4) trial counsel failed to provide effective assistance based on his failure to call a witness. See Resp’t Ex. L. Hernandez filed a pro se supplemental appellate brief arguing that he was denied a fair trial because an interpreter was not appointed. See Resp’t Ex. M. On June 14, 2002, the Appellate Division granted his appeal to the extent it found the consecutive sentence to be excessive. See Resp’t Ex. N. As such, the court modified petitioner’s sentence by directing that all terms of imprisonment run concurrently with each other, making the aggregate sentence 9 to 18 years. See id. All other claims were denied. Petitioner sought leave to appeal as to all issues; this was denied by the New York State Court of Appeals on August 30, 2002. See Resp’t Ex. O.
On or about January 18, 2003, petitioner filed an application for a writ of error coram nobis asserting that his appellate counsel failed to provide effective assistance. The writ was denied on March 21, 2003, and leave to appeal was denied. See Resp’t Exs. S, T, and U.
This federal habeas petition followed, in which Hernandez raises the following grounds for relief: (1) the sentence was harsh and excessive; (2) it was error to deny petitioner’s motion to sever; (3) the verdict was against the weight of the evidence; and (4) trial counsel failed to provide effective assistance based on his failure to call a witness. Respondent answered the petition on January 18, 2004, and raised the defense of non-exhaustion as to all four of petitioner’s claims. See Docket Nos. 3, 4.
For the reasons set forth below, the application for a writ of habeas corpus is denied and the petition is dismissed.
III. Discussion
A. Standard of Review
The filing of Hernandez’s petition post-dates the amendment of the federal habeas corpus statute on April 24, 1996, by the enactment of the Anti-terrorism and Effective Death Penalty Act (“AEDPA”). AEDPA has “significantly curtailed the power of federal courts to grant the habeas petitions of state prisoners.”
Lainfiesta v. Artuz,
253 F.3d 151, 155 (2d Cir.2001) (citing
Williams v. Taylor,
529 U.S. 362, 399, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). Pursuant to AED-PA, when a state court has adjudicated a habeas petitioner’s claims on the merits, habeas relief may not be granted unless the state court’s holding was contrary to, or was an unreasonable application of, clearly established Federal law, as determined by , the United States Supreme
B. Exhaustion
A court may not issue a writ of habeas corpus unless it appears that the petitioner has exhausted the remedies available to him in the state courts.
Respondent concedes that Hernandez presented on direct appeal the four issues he challenges in his habeas petition but argues that “none of the arguments raised federal constitutional issues[;] rather, the arguments raised on appeal were based on state law.” Respondent’s Memorandum of Law (“Resp’t Mem.”) at 6 (Docket No. 4). Furthermore, respondent argues, “even assuming that the petitioner did in fact exhaust one of his federal claims, because the petition would contain both exhausted and unexhausted claims, the entire petition must be dismissed.” Id. at 8 (citing Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982)). 1
Federal courts routinely dismiss claims attacking a verdict as against the weight of the evidence on the basis that they are not federal constitutional issues cognizable in a habeas proceeding.
Ex parte Craig,
282 F. 138, 148 (2d Cir.1922) (holding that “a writ of habeas corpus cannot be used to review the weight of evidence ... ”),
aff‘d,
263 U.S. 255, 44 S.Ct. 103, 68 L.Ed. 293 (1923);
Garrett v. Perlman,
438 F.Supp.2d 467, 470 (S.D.N.Y.2006) (same);
Douglas v. Portuondo,
232 F.Supp.2d 106, 116 (S.D.N.Y.2002) (same);
Garbez v. Greiner,
No. 01Civ.9865(LAX)(GWG), 2002 WL 1760960, at *8 (S.D.N.Y. July 30, 2002) (“[B]y raising a ‘weight of the evidence’ argument, [petitioner] does not present to this Court a federal claim as required by
Arguably, then, it is impossible for a habeas petitioner to present a “weight of the evidence” claim as a federal constitutional issue in order to exhaust it. Here, even if petitioner were to return to state court to attempt to exhaust the claim, he would face an absence of corrective process. Thus, the claim must be deemed exhausted because Hernandez no longer has any available remedies in the New
Respondent also argues that even if the claim were construed as raising a “sufficiency of the evidence argument,” it still lacks merit and does not warrant habeas relief. The Court recognizes the principle that complaints of pro se petitioners are to be considered liberally in their favor, Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Accordingly, some habeas courts have construed “weight of the evidence” claims as “insufficiency of the evidence” claims. E.g., Davis v. McLaughlin, 122 F.Supp.2d 437, 441 (S.D.N.Y.2000) (treating petitioner’s claim that his conviction was against the weight of the evidence and that the prosecution did not prove his guilt beyond a reasonable doubt as “legal sufficiency” claim); Wilson v. Senkowski, No. 02 Civ. 0231(HB)(AJP), 2003 WL 21031975, at *8 (S.D.N.Y. May 7, 2003) (denying “weight of the evidence-claim as not cognizable on federal habeas review but also ‘broadly interpret[ing]’ ” petitioner’s “weight of the evidence” claim to raise a “sufficiency of the evidence claim”) (Report and Recommendation) (citing McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir.1999)). Here, because respondent has provided a substantial argument that the evidence against petitioner was legally sufficient, under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and in keeping with the precepts of Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652, supra, the Court will address the merits of petitioner’s “weight of the evidence” claim as a “sufficiency of the evidence” claim below.
With respect to the severance issue, petitioner again cited only state case law on direct appeal. However, petitioner appears to have a colorable argument that the severance fact pattern involved here is well within the mainstream of constitutional litigation, and was thus properly presented to the state appellate courts under
Daye. See, e.g., Herring v. Meachum,
11 F.3d 374, 377 (2d Cir.1993) (where habeas petitioner argued that claims had been impermissibly joined, Second Circuit stated that “ ‘joinder of offenses has long been recognized as a constitutionally acceptable accommodation of the defendant’s right to
The Court agrees with respondent that petitioner’s claim that his sentence is harsh and excessive is unexhausted because the constitutional nature of the claim — if there is one — was not “fairly presented” to the state courts on direct appeal. Petitioner’s appellate brief presented his excessive sentence claim in terms of state law, invoking the power of a state appellate court to reduce sentences in the interest of justice under C.P.L. § 470.15(6)(b). However, requesting that a state court invoke its discretionary authority to reduce a sentence under C.P.L. § 470.15(6)(b), without more, is not enough to alert the court that the claim is of a federal constitutional dimension. Accord, e.g., King v. Cunningham, 442 F.Supp.2d 171, 181 (S.D.N.Y.2006) (holding that petitioner’s “excessive sentence” claim was unexhausted because it was only presented to the state court on appeal as a request for a reduction in the sentence in the interest of justice under state statutory law, C.P.L. § 470.15(6)(b)) (citations omitted).
The harsh and excessive sentence claim must be deemed exhausted because Hernandez no longer has any available remedies in the New York state courts. See
Finally, the Court turns to the issue of whether petitioner’s claim of ineffective assistance of trial counsel is exhausted. When briefing the claim on direct appeal, appellate counsel cited only to New York state cases such as
People v. Baldi,
54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400 (1981), a case that predates
Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court case articulating the federal standard governing ineffective assistance of counsel claims.
People v. Baldi
does note that “[t]he right to the effective assistance of counsel is guaranteed by both the Federal and State Constitutions]”
Baldi,
54 N.Y.2d at 146, 444 N.Y.S.2d 893, 429 N.E.2d 400 (1981) (citing
C. Analysis of Claims Raised in Petition
1. Denial of the Severance Motion Was Not Erroneous
“Joinder of offenses rises to the level of a constitutional violation only if it ‘actually renders petitioner’s state trial fundamentally unfair and hence, violative of due process.’ ” Herring v. Meachum, 11 F.3d at 377 (quoting Tribbitt v. Wainwright, 540 F.2d at 841; citing United States v. Lane, 474 U.S. 438, 446 n. 8, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986)). In determining whether a due process violation has occurred, the Second Circuit has stressed the word “actually” because it is “only the consequences of joinder, over which the trial judge has much control, and not the joinder itself, which may render the trial ‘fundamentally unfair.’ ” Id. (citing United States ex rel. Evans v. Follette, 364 F.2d 305, 306 (2d Cir.1966) (per curiam) (holding that decision to consolidate charges for trial does not, in and of itself, raise an issue of constitutional dimension), cer t. denied, 385 U.S. 1016, 87 S.Ct. 733, 17 L.Ed.2d 552 (1967)). Thus, where a petitioner claims a due process violation based on a trial court’s joinder or denial of severance, he must show more than merely the potential for prejudice; he must show that “actual prejudice resulted from the events as they unfolded during the joint trial.” Id. at 377-78 (citing Tribbitt, 540 F.2d at 841).
Hernandez argues that the trial court’s failure to sever the counts charging criminal sale and possession of a controlled substance from the counts alleging criminal mischief and reckless driving was erroneous.
See
Resp’t Ex. K at 15. According to petitioner, there was “no language in the indictment to suggest a common scheme or plan” and “no relationship” between the two sets of counts.
See id.
In opposition, respondent points out that counts one through six, which alleged criminal sale of a controlled substance and criminal possession of a controlled substance with intent to sell, were similar in law and properly joined pursuant to C.P.L. § 200.20(2)(c). On direct appeal, the state appellate court held that the trial court properly denied Hernandez’s severance motion because “[c]ertain of the offense were properly joinable pursuant to C.P.L. § 200.20(2)(b)[.]
2
”
People v. Hernandez,
Counts eight through ten all related to petitioner’s reckless operation of a motor vehicle. During the commission of the acts forming the basis of these counts, petitioner was observed emptying plastic bags containing what appeared to be a powdery white (i.e., controlled) substance out of the driver’s side window of the motor vehicle as he fled the police. After petitioner was stopped and arrested, a glass vial of cocaine was recovered from inside the motor vehicle on the driver’s side. A box of glassine bags, commonly used in the packaging of heroin, also was found in the car. Because petitioner was charged, in counts one through six, of possessing heroin with intent to sell it, the proof regarding intent to sell obtained during the pursuit of petitioner while he was committing counts eight through ten, and the subsequent stop and search, was admissible. See People v. Taylor, 141 A.D.2d 982, 530 N.Y.S.2d 859 (App.Div.3d Dept. 1988). Accordingly, joinder of all of the counts of the indictment was proper under C.P.L. §§ 200.20(2)(b) and 200.20(2)(c), as the state appellate court found. (Count eleven was dismissed prior to jury selection, so it is not relevant to the severance analysis.) There was no error of state law here; rather, the trial court was well within its discretion in refusing to grant the severance motion. Furthermore, the jurors were instructed separately on each count of the indictment and told that when they were deliberating, they must consider the proof as to “each charge separately on each date,” Resp’t Ex. I at 375; see also id. at 376, 377, 379, 530 N.Y.S.2d 859. At the close of its charge, the trial court carefully instructed the jury that it “must consider each count separately” and “must consider the evidence with regard to each count separately.” Resp’t Ex. I at. 387. As respondent points out, the fact that the jury actually acquitted petitioner on one count of criminal mischief in the third degree supports a finding that the jury was able to consider the evidence of each crime separately and negates a finding that petitioner was prejudiced by the joinder.
Because petitioner cannot come close to making the showing of “actual prejudice” required to support a claim that denial of severance resulted in a due process violation, habeas relief will not issue on this claim.
2. The Verdict Was Not Against the Weight of the Evidence
a. Overview of the Proof at Trial
i. Criminal Possession and Sale of a Controlled Substance
Counts one and two of the indictment charged Hernandez with possession of and sale of heroin on February 18, 2000. The prosecution presented evidence from informant Jose Torres (“Torres”), who testified that he participated in a police-arranged drug-buy on that date.
See
Resp’t Ex. I at 179-183. Torres testified that he was given $40 by the police to complete the buy,
Counts three and four of the indictment related to Hernandez’s possession of and sale of heroin to informant Joshua Buckley (“Buckley”) on February 29, 2000. Buckley testified that prior to the drug-buy he was searched by the police, fitted with a transmitter wire, and sent to petitioner’s apartment, where he purchased heroin from petitioner. Id. at 195-96. Upon completion of the sale, Buckley turned the drugs over to Investigator Falkey. Buckley also completed a police-arranged drug-buy with Hernandez on March 1, 2000; this drug sale formed the basis of counts five and six of the indictment. As in the previous sale, Buckley was searched prior to the transaction and found to have no contraband on him. Id. at 220, 299. He was given buy-money, fitted with a transmitter wire, and sent to petitioner’s apartment. Id. Upon his. return, he turned the heroin over to Investigator Falkey. Id. at 226, 229.
The forensic chemist who analyzed the substances purchased by the informants testified that the powder contained in the bags received from petitioner was heroin and that the substance found in the glass vial seized from petitioner’s car was crack cocaine. Id. at 311, 313, 314, 323. The bags of heroin purchased were introduced as exhibits. See id. In addition, the prosecutor introduced evidence of the following admissions by petitioner: Investigator Storer, the arresting officer, testified that after Hernandez was read the Miranda warnings, he indicated that the heroin was coming from New York City to the Pearl LaBlanca and that the crack cocaine came from the Brooklyn Grocery Store. Id. at 277. He told the police that while he was being followed by the police in his car, he threw an “egg” (several grams of heroin in a container carried internally in a cavity of a person’s body) of heroin out of the window to try to get rid of it. Id. at 277-78.
The audiotapes of the recordings of the drug sales made from the transmitter wires worn by the informants were submitted as proof at trial; the transcripts were not admitted as evidence but were provided to the jury to review. See id. at 223, 225, 328.
ii. Criminally Using Drug Paraphernalia
Counts eight and ten of the indictment charged Hernandez with criminally using drug paraphernalia based on his possession of glassine envelopes for the purpose of packaging narcotics for sale. At trial, Investigator Timothy Bour testified that while in pursuit of petitioner on March 2, 2000, petitioner was driving erratically. He could see petitioner opening plastic bags and shaking out what appeared to be a white powdery substance onto the roadway.
See
Resp’t Ex. I at 147. After Hernandez was pulled over, the police found one small glassine bag on the side of the road that contained a white powdery substance.
Id.
at 148. In petitioner’s vehicle, the police found a collection of small
iii. Sufficiency of the Evidence Analysis
“`[T]he Due Process Clause of the Fourteenth Amendment protects a defendant in a criminal case against conviction “except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.“‘” Jackson v. Virginia~ 443 U.S. at 315, 99 S.Ct. 2781 (quoting In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)). However, “a properly instructed jury may occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt.” Id. at 317, 99 S.Ct. 2781. Accordingly, “in a challenge to a state criminal conviction brought under
Petitioner bears a “very heavy burden” in attempting to obtain a writ of habeas corpus based upon an “insufficiency of the evidence claim.” United States v. Carson, 702 F.2d 351, 361 (2d Cir.) (citations omitted), certs. denied, 462 U.S. 1108, 103 S.Ct. 2456, 77 L.Ed.2d 1335, 462 U.S. 1108, 103 S.Ct. 2457, 77 L.Ed.2d 1335 (1983); accord, e.g., Fama v. Commissioner of Corr. Servs., 235 F.3d 804, 811 (2d Cir.2000) (stating that a “petitioner bears a very heavy burden in convincing a federal habeas court to g‘rant a petition on the grounds of insufficiency of the evidence“); United States v. Middlemiss, 217 F.3d 112, 117 (2d Cir.2000); United States v. Autuori, 212 F.3d 105, 114 (2d Cir.2000). The habeas court‘s review of the jury‘s factual findings is limited, and the court may not “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” Instead, the Supreme Court explained in Jackson,
the relevant question is whether, 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. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.
Jackson v. Virginia, 443 U.S. at 318-19, 99 S.Ct. 2781 (citations omitted); accord, e.g., United States v. Middlemiss, 217 F.3d at 117.
To convict a petitioner on a charge of third degree criminal sale of a controlled substance, a prosecutor need only prove beyond a reasonable doubt that the petitioner “knowingly and unlawfully [sold] . . a narcotic drug[.]”
“A person is guilty of criminal possession of a controlled substance in the third degree when he knowingly and unlawfully possesses: 1. a narcotic drug with intent to sell it....”
“A person is guilty of criminally using drug paraphernalia in the second degree when he knowingly possesses or sells [drug paraphernalia].” NY. Penal Law
It is true that both informants had criminal records and drug addictions; however, they freely admitted these aspects of their personal history. The police witnesses and other prosecution witnesses testified without any appreciable impeachment. The jury had ample opportunity to view the witnesses’ demeanor and assess their credibility; to the extent that petitioner asserts that these witnesses’ testimony included contradictions, he had the opportunity to highlight these to the jury at trial. Nevertheless, the jury chose to believe the prosecution witnesses’ testimony despite any inconsistencies. Any claim by petitioner that a witness’ testimony was unworthy of belief is not reviewable in habeas proceedings since credibility determinations are the province of the jury. See Maldonado v. Scully, 86 F.3d at 35 (“[Assessments of the weight of the evidence or the credibility of witnesses are for the jury and not grounds for reversal on [habeas] appeal.”); United States v. Vasquez, 267 F.3d 79 (2d Cir.2001) (“The jury chose to believe the witnesses’ testimony despite any inconsistencies. We will defer to the jury’s assessment of credibility.”) (citing United States v. Payton, 159 F.3d 49, 56 (2d Cir.1998) (“Where there is conflicting testimony at trial, we defer to the jury’s resolution of the witnesses’ credibility.”)) (citing United States v. Stratton, 779 F.2d 820, 828 (2d Cir.1985)); Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942) (“It is not for us to weigh the evidence or to determine the credibility of witnesses. The verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it.”), superseded by statute, in part, as recognized in Bourjaily v. United States, 483 U.S. 171, 181, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987); Gruttola v. Hammock, 639 F.2d 922, 928 (2d Cir.1981) (“The jury chose to believe the State’s witnesses, despite the inconsistencies in the evidence and the character testimony. We cannot say that no rational jury could have found guilt beyond a reasonable doubt on all the evidence.”).
After reviewing all of the evidence presented at Hernandez’s trial in the light most favorable to the prosecution, it is clear to the Court that there was more than sufficient evidence as to each and every element of each and every offense on which petitioner was convicted. Indeed, the evidence against petitioner was compelling. Accordingly, based on the testimony presented at trial, it was entirely rational for the jury to return the verdict convicting Hernandez as it did. Habeas relief is therefore not warranted on this claim.
3. The Sentence Was Not Harsh and Excessive
In his petition, Hernandez asserts only that his “sale of two vials of crack, 1.9 grains per vial, did not warrant a sentence of 7/& to 15 years, compared to defendant’s co-defendant’s sentence of one year for the same sale.” Petitioner at 2-3 (Docket No. 1). The Court is unsure as to which “co-defendant” Hernandez is referring, as he was sole defendant at his trial, and he was convicted of possessing and selling heroin. Furthermore, the initial aggregate sentence imposed was an aggregate of two consecutive sentences of 5 to 10 years and 9 to 18 years, not llk to 15 years. The Court will overlook these discrepancies and instead rely on the argument made by appellate counsel regarding petitioner’s sentences.
On direct appeal, the state appellate court found that the consecutive sentences of 5 to 10 years and 9 to 18 years, aggregating in a sentence of 14 to 28 years,
In any event, as respondent argues, this claim does not present a federal constitutional question cognizable on habeas review. White v. Keane, 969 F.2d 1381, 1382 (2d Cir.1992); Bellavia v. Fogg, 613 F.2d 369, 373 (2d Cir.1979). Hernandez’s sentence, even before the modification by the state appellate court, was within the limits set by New York’s Penal Law. “No federal constitutional issue is presented where, as here, the sentence is within the range prescribed by state law.” White v. Keane, 969 F.2d at 1383.
Criminal sale of a controlled substance in the third degree (
4. Trial Counsel Provided Effective Assistance
In assessing a claim of ineffective assistance of trial counsel, the Court is guided by the two-pronged standard set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687-88, 693-94, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail on such a claim, a defendant must show both that his attorney’s conduct fell below an objective standard of reasonableness under prevailing professional norms, and that he was prejudiced by counsel’s unprofessional conduct. The “prejudice” prong of the Strickland test requires the defendant to show that but for counsel’s mistakes, there is a reasonable probability that the outcome of the trial would have been different. Id. “Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim.” Id. at 700, 104 S.Ct. 2052.
Hernandez argues that trial counsel was ineffective because he failed to call Hernandez’s girlfriend, Myrna Martinez (“Martinez”), as a witness. Apparently, Martinez was on the witness list and trial counsel intended to call her in an attempt to show that her voice was on most of the audio tapes and that she “most of the talking.”
See
Resp’t Ex. I at 347. However, trial counsel explained, “When the trial began, ... she was in jail. So I didn’t subpoena her because I thought I would have easy access to her being next door. I found out yesterday she has been released. I don’t know where she resides.” Resp’t
The decision “whether to call any witnesses on behalf of the defendant, and if so which witnesses to call, is a tactical decision of the sort engaged in by defense attorneys in almost every trial.” United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir.1987), cert. denied, 484 U.S. 958, 108 S.Ct. 357, 98 L.Ed.2d 382 (1987); accord United States v. Smith, 198 F.3d 377, 386 (2d Cir.1999). Such decisions, “if reasonably made, will not constitute a basis for an ineffective assistance claim.” Id.; see also United States v. Eyman, 313 F.3d 741, 743 (2d Cir.2002) (“A failure to call a witness for tactical reasons of trial strategy does not satisfy the standard for ineffective assistance of counsel.”), cert. denied, 538 U.S. 1021, 123 S.Ct. 1949, 155 L.Ed.2d 864 (2003). Here, it obviously would have been better practice for trial counsel to have planned in advance for the contingency of Martinez being released from jail. However, based on the colloquy regarding the subpoena, it does not appear to this Court that trial counsel’s strategy as to Martinez was “set in stone”; even at that time, he seemed to be considering requesting an adverse inference/missing witness charge instead. In the end, the strategy that trial counsel utilized — requesting a missing witness charge and arguing the adverse inference during summation — was not objectively unreasonable in light of the circumstance and prevailing norms of professional practice. See Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052. The general rule, according to the Supreme Court is that
[Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.
Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052; accord, e.g., United States v. Gaskin, 364 F.3d 438, 468 (2d Cir.2004). Based on this precedent, the Court cannot say that trial counsel’s performance in this regard was constitutionally deficient.
More important, Hernandez has not attempted to show, nor can he show, prejudice as a result of trial counsel’s decision not to call the witness. On direct appeal, appellate counsel merely made the conclu-
IV. Conclusion
For the reasons stated above, Juan Hernandez’s petition for a writ of habeas corpus pursuant to
IT IS SO ORDERED
Notes
. An exception to the exhaustion requirement set forth in
Rose v. Lundy, supra,
has been provided by statute. Now, pursuant to the 1996 amendments to
The Second Circuit has not yet articulated a standard for determining when unexhausted claims should be denied on the merits, but the majority of district court decisions in this Circuit have embraced a “patently frivolous” test for dismissing unexhausted claims. Nar-anjo v. Filion, No. 02Civ.5449WHPAJP, 2003 WL 1900867, at *8 (S.D.N.Y. Apr. 16, 2003) (footnote omitted) (citing Hammock v. Walker, 2002 WL 31190945, at *2 (W.D.N.Y.Sept.17, 2002); Cruz v. Artuz, No. 97-CV-2508 (FB), 2002 WL 1359386, at *8 (E.D.N.Y. June 24, 2002); Pacheco v. Artuz, 193 F.Supp.2d 756, 761 (S.D.N.Y.2002); Rowe v. New York, No. 99 CIV 12281 GEL, 2002 WL 100633, at *5 (S.D.N.Y. Jan. 25, 2002); Love v. Kuhlman, No. 99CIV 11063DLCRLE, 2001 WL 1606759, at *5 (S.D.N.Y. Dec. 12, 2001); Shaw v. Miller, No. 99 CV 5020(FB), 2001 WL 739241, at *2 n. 2 (E.D.N.Y. June 26, 2001); Santana v. Artuz, No. 97 CIV 3387 RCC RLE, 2001 WL 474207, at *3-4 (S.D.N.Y. May 1, 2001)). A minority of courts in this Circuit have expressed the test as whether ” ‘it is perfectly clear that the [petitioner] does not raise even a colorable federal claim,’ in which case the Court should dismiss the unexhaust-ed claim on the merits (or rather the clear lack thereof).” Id. (quoting Hernandez v. Lord, No. 00 Civ. 2306(AJP), 2000 WL 1010975, at *4-5 & n. 8 (S.D.N.Y. July 21, 2000)) (internal quotations omitted) (analyzing the diverging views without deciding which standard is appropriate) (Report and Recommendation); see also Padilla v. Keane, No. 00 Civ. 1235VM AJP, 2000 WL 1774717, at *3 (S.D.N.Y. Dec. 4, 2000); Orraca v. Walker, 53 F.Supp.2d 605, 611 (S.D.N.Y.1999); Basnight v. Keane, No. 99-CV-5907(FB), 2001 WL 901139, at *5 n. 1 (E.D.N.Y. July 31, 2001) (articulating ‘‘nonmeritorious” standard rather than “patently frivolous,” although claims failed either standard). The Second Circuit opted for the “patently frivolous” test in Jones v. Senkowski, No. 00-2145, 2001 WL 1230800, at *4 (2d Cir. Oct. 5, 2001), but that decision was later vacated and withdrawn. Naranjo, 2003 WL 1900867, at *8 n. 14 (citing Jones v. Senkowski, 00-2145, 2002 WL 246451 (2d Cir. May 22, 2002), amended by Jones v. Senkowski, 42 Fed.Appx. 485, 2002 WL 1032589 (2d Cir.2002), cert. denied, 537 U.S. 1177, 123 S.Ct. 1005, 154 L.Ed.2d 923 (2003)).
Respondent also urges that should the Court find any of Hernandez’s claims to be unexhausted, it should dismiss them pursuant to
. “Two offenses are ‘joinable’ when:
(b) Even though based upon different criminal transactions, such offenses, or the criminal transactions underlying them, are of such nature that either proof of the first offense would be material and admissible as evidence in chief upon a trial of the second, or proof of the second would be material and admissible as evidence in chief upon a trial of the first[.]”
N.Y.Crim. Proc. Law § 200.20(b)(2).
. “Two offenses are ‘joinable’ when:
(c) Even though based upon different criminal transactions, and even though not join-able pursuant to paragraph (b), such offenses are defined by the same or similar statutory provisions and consequently are the same or similar in law[.]”
N.Y.Crim. Proc. Law § 200.20(2)(c).