Opinion
No. 05 Civ. 5951 (LAK).
October 31, 2005
ORDER
Petitioner was convicted in New York Supreme Court, Bronx County, on his plea of guilty of criminal sale of a controlled substance on the third degree and sentenced, as a second felony offender, to an indeterminate term of four to nine and one-half years' imprisonment. He appealed on the ground that the sentencing court improvidently refused to exercise its discretion when it refused to allow him a second chance at a drug treatment program before imposing the sentence of imprisonment, but the Appellate Division unanimously affirmed the judgment. People v. Evans, 294 A.D.2d 223 (1st Dept.), leave to appeal denied, 98 N.Y.2d 696 (2002).
Petitioner then moved pro se, pursuant to N.Y. Crim. Proc. L. § 440.10, to vacate his conviction, principally on the ground that the People had been guilty of prosecutorial misconduct in that one of the officers who had arrested him had testified before the grand jury that the substance recovered on one of the dates in question had field tested positive for heroin when, in fact, the field test was negative. The motion was denied by the Honorable Phyliss Skloot Bamberger in a careful decision. Darpino Aff., Ex. 9. Leave to appeal to the Appellate Division was denied. Id. Ex. 13. Petitioner now seeks a writ habeas corpus on the same ground raised in his Section 440.10 motion.
Federal habeas review is limited to claims that a prisoner's conviction violated the Constitution, laws or treaties of the United States. 28 U.S.C. § 2254(a); see, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). As there is federal no constitutional right to a grand jury in a state criminal prosecution, e.g., Fields v. Soloff, 920 F.2d 1114, 1118 (2d Cir. 1990), alleged defects in state grand jury proceedings are not cognizable on a petition for federal habeas relief. E.g., United States v. Mechanik, 475 U.S. 66 (1986); Lopez v. Riley, 865 F.2d 30, 31-32 (2d Cir. 1989). In any case, petitioner's claim is entirely without merit for the reasons set forth in Justice Bamberger's decision. Darpino Aff. Ex. 9, at 4.
Accordingly, the petition is denied and the proceeding dismissed. The Clerk shall close the case. A certificate of appealability is denied, and the Court certifies that any appeal herefrom would not be taken in good faith within the meaning of 28 U.S.C. § 1915(a)(3).
SO ORDERED.