Joseph Bellavia v. Walter Fogg, Warden, Green Haven Correctional Facility, Stormville, New York

TIMBERS, Circuit Judge:

On this appeal from a judgment entered in the Eastern District of New York, Charles P. Sifton, District Judge, which denied a state prisoner’s petition for a writ of habeas corpus, appellant challenges the constitutionality of his state court conviction for possession and sale of cocaine on three grounds: (1) that New York’s statutory presumption that the occupants of a motor vehicle which contains narcotic drugs are all knowing possessors of the drugs, N.Y. Penal Law § 220.25 (1) (McKinney Supp. 1978-79), denied him due process and the equal protection of the law; (2) that his mandatory net sentence of fifteen years to life imprisonment imposed under N.Y. Penal Law §§ 70 ,00(2)(a) and 3(a) (McKinney 1975), constituted cruel and unusual punishment; *370 and (3) that he was denied the effective assistance of counsel at his trial.

For the reasons below, we agree with the district court’s rejection of each of appellant’s claims. We affirm.

I.

Appellant Joseph Bellavia and his co-defendants, Michael Kelly and Joseph Veltri, were arrested by undercover New York City police officers in Brooklyn on September 7, 1972. Immediately prior to the arrests, the three were about to conclude the sale of 31 ounces of cocaine to undercover officer Nicholas Molfetta. Undercover officers had been negotiating with Kelly and Veltri for this purchase of cocaine since August 21. Originally scheduled for midnight of September 6, the transaction was postponed to the afternoon of September 7, and then was delayed another five hours by Kelly’s late arrival at the Brooklyn bar which had been chosen for the rendezvous. Increasingly anxious telephone conversations, on the one hand, between Veltri and the undercover officers waiting in the bar, and, on the other hand, between Kelly and Veltri, established that Kelly had the cocaine but was waiting for delivery of some heroin which the undercover officers also wished to buy. 1 Veltri explained to Molfetta that the reason for the delay was “that it’s not his [Kelly’s] stuff.”

Kelly finally arrived at the bar shortly before 9 p. m. on September 7. In response to a question from Molfetta, Kelly said that the drugs were with his brother-in-law “in the car.” He stepped outside to get a sample of the cocaine. He gave it to Molfetta who pretended to “snort” it in the lavatory of the bar. Molfetta pronounced it satisfactory. Kelly, Veltri and Molfetta then left the bar, walked a short distance, and came to a parked car in which Bellavia was seated behind the wheel.

Kelly asked Bellavia for a package. Bellavia slid across to the passenger’s side, got out, and searched briefly in the back seat of the car. He promptly removed a rolled-up brown paper bag, about ten inches high, and handed it to Kelly. Kelly gave it to Molfetta and said, “Here’s your stuff.” Molfetta again pretended to test the contents. He then called in his back-up units. Kelly, Veltri and Bellavia were arrested. Later tests confirmed that the rolled-up bag contained 31 ounces of cocaine.

Bellavia, Kelly and Veltri were indicted in the Supreme Court, Kings County, on three counts: (1) criminal sale of dangerous drugs in the first degree, (2) criminal possession of dangerous drugs in the fourth degree, and (3) criminal possession of dangerous drugs in the first degree. The three defendants were convicted on each of the three counts after a jury trial before Honorable John J. Ryan.

At the trial, Bellavia did not take the stand in his own defense. Throughout the trial, his attorney, Solon Hanft, Esq., adopted what Justice Ryan referred to as “a very low profile”. He allowed counsel for the other defendants, as Judge Sifton put it, “to carry the laboring oar.” By such trial strategy, he hoped to emphasize the minimal role his client had played in the drug deal.

In accordance with New York law, Justice Ryan charged the jury that the evidence of Bellavia’s presence in the car containing cocaine permitted them to infer that he had possession of the cocaine, but that they were not required to do so. The judge further charged the jury that, in the light of the evidence introduced by the defendants, or because of silence on the part of the defendants, they could refuse to draw the inference of possession which the presumption permitted. The State relied solely on the presumption for its case against Bellavia.

After the return of the guilty verdicts. Bellavia was sentenced on April 4, 1973 to concurrent terms of 15 years to life on the *371 first count, a maximum of 7 years on the second count, and 15 years to life on the third count.

Bellavia appealed his conviction to the Appellate Division, Second Department. He claimed as error that there was insufficient evidence to support his conviction, that the prosecutor’s summation denied him a fair trial, that Justice Ryan’s limitation of direct examination of one witness was an abuse of discretion, and that he had been denied equal protection of the law because the New York statute classifying the seriousness of drug offenses by the amount of drug involved did not allow for the purity of the contraband substance. His conviction was unanimously affirmed without opinion. People v. Bellavia, 45 A.D.2d 934 , 358 N.Y.S.2d 959 (2d Dept. 1974). Leave to appeal to the Court of Appeals was denied September 4, 1974.

On May 8, 1975, Bellavia filed with Justice Ryan a coram nobis petition under N.Y. Crim. Proc. Law §§ 440.10 and 440.20 (McKinney 1971), seeking to have his conviction and sentence vacated on the ground that his constitutional rights had been- infringed. Seven claims were asserted in the petition, including claims of ineffective assistance of counsel, the unconstitutionality of the drug presumption statute, and cruel and unusual punishment. 2 The coram nobis petition was denied July 1, 1975. Leave to appeal to the Appellate Division was denied May 13, 1976.

On January 5, 1977, Bellavia commenced the instant habeas corpus proceeding in the Eastern District of New York. After some preliminary matters were handled by Judge Sifton, he filed a well reasoned opinion on June 5, 1978 ruling upon each of the three claims set forth at the beginning of this opinion. From the judgment entered on Judge Sifton’s opinion denying the petition for a writ of habeas corpus, this appeal has been taken.

III.

In the light of these facts and prior proceedings, 3 we turn first to appellant’s claim 4 that he was denied due process and the equal protection of the law by the New York statutory presumption that the occupants of a motor vehicle which contains narcotic drugs are all knowing possessors of the drugs. N.Y. Penal Law § 220.25 (1) (McKinney Supp. 1978-79). 5

*372 We need hardly look further than Chief .Judge Kaufman’s opinion of last Term in Lopez ex rel. Garcia v. Curry, 583 F.2d 1188 (2 Cir. 1978), to sustain the constitutionality of § 220.25(1) as applied to Bellavia. Here, as in Lopez, “dealership quantities” of drugs were involved. Judge Kaufman’s conclusion in Lopez is equally applicable here:

“The Legislature therefore had justification to find that those discovered in an automobile with dealership quantities of controlled substances are more likely than not to have knowing possession of the drugs. Accordingly, we hold § 220.-25(1) to be constitutional as applied to such large quantities of narcotics.” 583 F.2d at 1192 (footnote omitted).

Moreover, the New York Court of Appeals upheld the constitutionality of § 220.-25(1) as applied in the very case out of which the Lopez habeas case arose. People v. Leyva, 38 N.Y.2d 160 , 341 N.E.2d 546 , 370 N.Y.S.2d 30 (1975). We agree with the conclusion reached by Judge Sifton below in following the reasoning of the New York Court of Appeals in People v. Leyva, supra :

“Petitioner’s final argument is that the statutory presumption contained in N.Y. Penal Law [§ 220.25] is unconstitutional. For the reasons set forth in Leyva v. Superintendent, 428 F.Supp. 1 (E.D.N.Y. 1977) [vacated and remanded, 573 F.2d 1292 (2 Cir. 1978)] and People v. Leyva, 38 N.Y.2d 160 , 379 N.Y.S.2d 30 (1975), this Court concludes that the presumption is not unconstitutional as applied to the facts of this case involving a significant quantity of cocaine and that any failure by the trial court to limit the statute to situations where large quantities of drugs were involved was harmless in view of the fact that a large quantity of cocaine was all that was at issue here.” (citations omitted).

Finally, as recently as this past Term the Supreme Court in unmistakable language upheld as applied the constitutionality of a nearly identical New York statute, N.Y. Penal Law § 265.15 (3) (McKinney Supp. 1976-77), which makes presence in an automobile of a firearm presumptive evidence of its possession by all persons occupying the automobile. County Court of Ulster County, New York v. Allen, 442 U.S. 140 (1979), rev’g 568 F.2d 998 (2 Cir. 1977). The Court in Allen held that it was error to “pass on the constitutionality of this kind of statute ‘on its face’ ”, 442 U.S. at 163 , without determining whether the presumption was mandatory; and in fact the presumption was not mandatory, as the New York Court of Appeals had held in People v. Lemmons, 40 N.Y.2d 505, 510-11 , 354 N.E.2d 836, 840 , 387 N.Y.S.2d 97, 100 (1976).

Likewise in the instant case, the presumption created by N.Y. Penal Law § 220 .-25(1) has been held to be a permissive, not a mandatory, presumption by the New York Court of Appeals. People v. Leyva, supra, 38 N.Y.2d at 167 , 341 N.E.2d at 550 , 379 N.Y.S.2d at 36 . And the trial judge in the instant case, Mr. Justice Ryan, instructed the jury accordingly. .

We uphold as applied to Bellavia the constitutionality of N.Y. Penal Law § 220.25 (1). We decline to rule upon the constitutionality of the statute on its face since the presumption is permissive, not mandatory.

We hold that appellant was not denied due process or equal protection of the law under the Fourteenth Amendment.

IV.

We turn next to Bellavia’s claim that the mandatory net sentence of fifteen years to life imposed on him pursuant to N.Y. Penal Law §§ 70.00 (2)(a) and 3(a) (McKinney 1975) constitutes cruel and unusual punishment in violation of the Eighth Amendment.

As with the statutory presumption claim discussed above under section III of this opinion, we regard appellant’s mandatory *373 sentence claim as virtually foreclosed by a very recent opinion of our Court which construed the same mandatory sentence provision as is here involved and rejected substantially the same constitutional claim as is here asserted. Carmona v. Ward, 576 F.2d 405 (2 Cir. 1978), cert. denied, 438 U.S. 1091 (1979).

In Carmona , after a very thorough review of the Eighth Amendment case law, Judge Mulligan acknowledged that its prohibition reaches beyond “torture or other barbaric modes of punishment”, id. at 408 , but noted that the Supreme Court never had struck down a sentence solely because of its length. Turning to a consideration of the New York sentencing scheme under the “disproportionality” test, 6 he stated:

“The crucial issue therefore becomes whether the New York State Legislature’s assessment of the dangerousness of the crimes of selling and of possessing cocaine with an intent to sell it, as reflected in the punishment imposed, is so unreasonable that it violates the constitution by allotting excessively severe penalty for the crime.” Id. at 410 .

After considering the severity of the punishment, as compared with punishments for other crimes in New York and as compared with punishments in other jurisdictions for the same crime, Judge Mulligan concluded:

“In view of the extraordinary crisis faced by the State of New York, caused by the crime of drug trafficking, we cannot agree with the district court that the punishments meted out to the appellees here are constitutionally defective.” Id. at 417 .

We have been invited to substitute our judgment not only for that of a state court, but for that of a state legislature, and to order the mandatory sentence here imposed, which is within statutory limits, to be vacated or reduced. Our respect is so great for the traditional role of the federal judiciary in not interfering with matters which properly are the province of a state legislature and our respect is so profound for the *374 law of this Circuit as recently enunciated in Carmona , that we decline the invitation. 7

We hold that appellant’s sentence does not constitute cruel and unusual punishment in violation of the Eighth Amendment.

y.

This brings us to Bellavia’s remaining claim that he was denied the effective assistance of counsel. This claim can be disposed of summarily, for under any standard the claim is utterly without merit; and this is especially so under the stringent standard of this Circuit. United States v. Wight, 176 F.2d 376, 379 (2 Cir. 1949), cert. denied, 338 U.S. 950 (1950). Accord, e. g., United States v. Bubar, 567 F.2d 192 , 201-02 (2 Cir.), cert. denied, 434 U.S. 872 (1977); Rickenbacker v. Warden, 550 F.2d 62, 65-66 (2 Cir. 1976), and cases there cited, cert. denied, 434 U.S. 826 (1977); Lunz v. Henderson, 533 F.2d 1322, 1327 (2 Cir.), cert. denied, 429 U.S. 849 (1976).

We think that the best summary of the record facts before us which belies appellant’s claim of ineffective assistance of counsel is the statement by Judge Sifton in his opinion of June 5, 1978 denying Bella-via’s petition for a writ of habeas corpus. We set it forth in full in the margin. 8

*375 We hold that appellant was not denied the effective assistance of counsel under the Sixth Amendment.

Affirmed.

. As is customary in illicit drug transactions, there were no direct references to narcotics over the phone. Officer Molfetta testified that Kelly used a code, under which “boys” stood for heroin and “girls” stood for cocaine. Thus, Kelly told the officer that he had the two girls but was still waiting for the boys to arrive.

. The other claims asserted in his coram nobis petition were that he had been denied his constitutional rights by the exclusion of the public from portions of his trial; that he had been denied a fair trial by the claimed destruction of purportedly crucial evidence, namely, tapes made by the State which might have contained exculpatory remarks by Kelly; that classifying cocaine as a narcotic was arbitrary and capricious; and that classifying drug offenses by the amount of contraband, rather than by its pure drug content, was arbitrary and capricious.

. We hold that technically Bellavia has exhausted his state remedies since his coram no-bis petition did present claims that at least were labeled the same as those set forth in his instant habeas petition. Lunz v. Henderson, 533 F.2d 1322 , 1324 & n. 3 (2 Cir. 1976) (three coram nobis petitions held to have exhausted state remedies).

We note, however, that the exhaustion issue here is a close one. As the government points out, appellant’s counsel — presumably in an effort to execute an end run with respect' to recently decided, and controlling, cases of this Court such as Lopez ex rel. Garcia v. Curry, 583 F.2d 1188 (2 Cir. 1978), and Carmona v. Ward, 576 F.2d 405 (2 Cir. 1978), cert. denied, 439 U.S. 1091 (1979) — has added a gloss to his constitutional claims so that they have emerged quite different from those presented to the state court.

In balance, however, and under the special circumstances of this case, we have concluded that the interests of justice will be best served by proceeding directly to the merits of the claims raised.

. This is the only claim on appeal before us as to which Judge Sifton issued a certificate of probable cause. He expressly denied such certification as to appellant’s other claims on appeal.

. N.Y. Penal Law § 220.25 (1) provides;

“The presence of a controlled substance in ai) automobile, other than a public omnibus, is presumptive evidence of knowing possession thereof by each and every person in the automobile at the time such controlled substance was found; except that such presumption does not apply (a) to a duly licensed operator of an automobile who is at the time operating it for hire in the lawful and proper pursuit of his trade, or (b) to any person in the automobile if one of them, *372 having obtained the controlled substance and not being under duress, is authorized to possess it and such controlled substance is in the same container as when he received possession thereof, or (c) when the controlled substance is concealed upon the person of one of the occupants.”

. See Mulligan, “Cruel and Unusual Punishments: The Proportionality Rule ”, 47 Fordham L.Rev. 639 (1979) (Sonnett Lecture).

Judge Mulligan’s lecture also focuses upon the' dangers involved in a court’s efforts to second-guess the legislature in the latter’s sphere of competence, the assessment of the seriousness of a particular crime and the penalty that the legislature ought to provide:

“The first prong of the [proportionality] test requires the court to make a judgment as to the seriousness of the crime charged and this of course invites the substitution of the subjective views of the judge for those of the legislature. The concern here is both constitutional and practical. We must observe the doctrine of separation of powers as well as federalism. This emphasizes the need for judicial restraint. A practical consideration, of course, is the institutional limitation on judicial factfinding. The legislature, acting through commissions and committees with funds for counsel, staff and public hearings, is patently better equipped than the judiciary to make the factual and social determinations which underlie any decision as to the gravity of a crime. It is also more attuned to contemporary community standards and can best judge the public’s concern about particular criminal activity.

The second prong of the test is even more vulnerable since it calls for a comparison by the judicial branch of the statutory sentence imposed for the crime committed with those imposed for more serious offenses in the same jurisdiction. The problem of determining the gravity of a particular crime is difficult enough without having to make judgments about other crimes. It is rather simple to make a decision that smoking in the subway is not as serious as rape. But comparing the crimes of and punishments for arson and kidnapping, automobile larceny and drunken driving, requires the digestion of a vast amount of penological and sociological data not usually available to the jurist. The comparisons cannot be mechanically applied and the danger of the judiciary’s substitution of its judgment on a social issue for that of the legislature charged with the responsibility of making the decision initially is apparent.

The third step of the proportionality test requires the court to compare the sentence under review with those imposed in other jurisdictions for the same crime. • This is the least susceptible to misuse as a tool facilitating the substitution of individual judicial policy views for those of the legislature. At the same time, it is flawed and is basically antagonistic to the principles of federalism.” Id. at 646-47 (footnotes omitted).

. We note that our concurring-dissenting colleague would not decline the invitation. Judge Mansfield’s characteristically thoughtful, innovative opinion, we suggest, should be read in the light of the following observations.

First, the thrust of our colleague’s displeasure appears in large measure to be directed at the statutory presumption provided for in N.Y. Penal Law § 220.25 . The dissent’s emphasis upon appellant’s role as a mere occupant of the car (actually he was behind the wheel) strikes us as irrelevant since the panel is unanimous in rejecting appellant’s challenge to the constitutionality of the statutory presumption, which of course is required by our decision in Lopez ex rel. Garcia v. Curry, supra, and the unmistakable language of the Supreme Court in County Court of Ulster County, New York v. Allen, supra, in reversing our decision in Allen v. County Court, 568 F.2d 998 (2 Cir. 1977), where we struck down as unconstitutional a virtually identical New York statute which created a presumption based on firearms, rather than narcotics, found in an automobile. Here, appellant was arrested, indicted and convicted, inter alia, for the sale of a large quantity of cocaine.

Second, appellant’s conviction and mandatory 15 year to life sentence was unanimously affirmed by the Appellate Division and the New York Court of Appeals denied leave to appeal. The Governor of the State of New York denied appellant’s clemency petition. We thus have a situation where the Chief Executive of the State, at least seven judges of the State, and three federal judges have declined the invitation to disturb the sentence which is within statutory limits.

Third, granted that our dissenting colleague’s opinion appears to be addressed primarily to the Legislature of the State of New York, we should keep constantly in mind not only the controlling precedent, but the powerful reasoning of Judge Mulligan’s opinion, in Carmona v. Ward, supra — a decision which the Supreme Court refused to disturb. Carmona construed the same mandatory sentence provision as controls the instant case and rejected the same constitutional claim as appellant asserts here. Moreover, Judge Mulligan’s discussion of Carmona and the proportionality rule in his Son-nett Lecture published in the Fordham Law Review, note 6, supra, provides a complete response to our dissenting colleague’s plea to set aside appellant’s sentence as cruel and unusual punishment.

Finally, having in mind that the United States Supreme Court "has never found a sentence imposed in a criminal case violative of the Eighth Amendment merely because of its length ”, Carmona, supra, 576 F.2d at 408 (emphasis added), with deference to our learned dissenting colleague we question both the legal basis and the practical feasibility of his suggested mandate in this case, referring to the following statement in the last paragraph of his dissenting opinion:

.1 would remand the case with directions to release appellant . . . unless the state court within 60 days resentences him to a term consistent with the limitations of the Eighth Amendment.”

The resentencing judge of course would have no more discretion under the statute in question than the original sentencing judge did. The sentence as imposed was mandatory and the constitutionality of that sentencing provision was upheld by our Court in Carmona . And even to suggest to the state court that a new sentence be imposed “consistent with the limitations of the Eighth Amendment” in the light of the United States Supreme Court’s refusal ever to strike down a sentence because of its length, strikes us as more of a giant step than should be taken by us as one of the “inferior courts”.

. “This is, first of all, not a case like that in United States v. Williams [ 575 F.2d 388, 393 (2 Cir. 1978)], of a novice attorney handling *375 his first criminal trial. Petitioner’s trial attorney had over thirty years of criminal trial experience and counsel on the sentence and on petitioner’s direct appeal (on which the issue of incompetence was not raised) were former district attorneys known to this Court as able and effective criminal law practitioners. Of course even those long at the bar may nod on occasion or learn little from their experience. However, an examination of the record bears out the conclusion of the state court judge to whom this argument was first presented that any deficiencies in the performance of trial counsel cannot be laid to ignorance.

The examples of counsel’s deficiencies parallel those presented in United States v. Williams, supra: waiver of an opening statement, ineffective cross-examination, tardy motions and an inadequate summation. In addition petitioner complains of his trial counsel’s failure to put him on the witness stand and his failure to object to the alleged unconstitutionality of the statutory presumption contained in N.Y. Penal Law [§ 220.25],

However, counsel’s decision not to put his client on the stand was reasonable in view of his client’s admissions which were not introduced on the People’s case and as they undoubtedly would have been on cross-examination of petitioner. Counsel’s failure to object to the constitutionality of the statutory presumption cannot be faulted in view of the circumstances of this case in which over a pound of cocaine was found in the car, a circumstance which, as noted infra, precludes any conclusion that the presumption was unconstitutionally applied in this case.

The balance of petitioner’s complaints concerning the effectiveness of his counsel all involve apparent differences of opinion concerning effective trial strategy in the defense of a client shown by the evidence to be considerably less involved in the transaction than his co-defendants. This court cannot determine that any of these decisions were so irrational as to deprive petitioner of a fair trial. On the contrary most appear understandable as part of a deliberate strategy to minimize defendant’s culpability when compared with his co-defendants. Other decisions are understandable as appropriate defenses given the circumstances of petitioner’s minimal involvement. Certainly there is no constitutional requirement'that counsel cover matters covered by the cross-examination of co-counsel, particularly where allowing others to carry the laboring oar emphasizes the client’s minimal involvement in the transaction. The waiver of an opening statement was rational in a case in which a too-clearly articulated defense would assure that the prosecutor would concentrate his efforts on attacking it. The failure to join in the motion by co-counsel for a mistrial when the criminal records of the co-defendants were brought out or to move for a severance is certainly understandable as part of an effort to gain acquittal by contrasting petitioner’s minimal involvement with the greater involvement of more culpable co-defendants. Under all the circumstances, considered separately or collectively, trial counsel’s conduct of the trial hardly made a farce or mockery of the proceedings and, in all events, did not demonstrate a likelihood that effective assistance was not rendered.”