Opinion
No. 06-5781-pr.
January 14, 2009.
Appeal from the United States District Court for the Eastern District of New York (Gershon, J.).
ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and DECREED that the judgment of the district court be and hereby is AFFIRMED.
For Petitioner-Appellant: ELEANOR JACKSON PIEL, New York, N.Y.
For Respondent-Appellee: RUTH E. ROSS (Leonard Joblove, Ann Bordley, of counsel), Assistant District Attorneys for Charles J. Hynes, Kings County District Attorney, Brooklyn, N.Y.
Present: HON. PIERRE N. LEVAL, HON. ROBERT A. KATZMANN, HON. REENA RAGGI, Circuit Judges.
The petitioner-appellant Oscar Donaldson appeals from a judgment of the district court dated October 17, 2006, denying his petition for a writ of habeas corpus. We assume the parties' familiarity with the facts, procedural history, and specification of issues on appeal. Donaldson was convicted, after a jury trial, of murder in the second degree in violation of N.Y. Penal Law § 125.25(2), New York's depraved indifference murder statute, for beating to death his estranged wife, Emma Feliciano, in the early hours of the morning of September 2, 2000. He was sentenced to a term of imprisonment of twenty-four years to life. The Appellate Division affirmed his conviction on direct appeal, declining to review Donaldson's claim that there was insufficient evidence to support his conviction for depraved indifference murder because Donaldson had failed to preserve the claim by failing to raise the issue in the trial court. People v. Donaldson, 802 N.Y.S.2d 375 (App.Div. 2005). The New York Court of Appeals denied leave to appeal to that court. People v. Donaldson, 844 N.E.2d 797 (N.Y. 2006). Donaldson subsequently filed a petition for a writ of habeas corpus in the Eastern District of New York primarily on the ground that there was insufficient evidence of depraved indifference murder, in violation of his federal constitutional rights. The district court denied relief because the Appellate Division had rejected Donaldson's claim on the ground that he had failed to raise his sufficiency objection in the trial court, which constituted an independent and adequate state law ground and barred federal review of the claim. This Court granted a certificate of appealability on the sole issue of whether the purported procedural default was adequate to bar federal review of the claim. Donaldson contends that the purported default was not adequate because he indeed raised a sufficiency objection in the trial court.
"This court reviews a district court's denial of a writ of habeas corpus de novo." Cotto v. Herbert, 331 F.3d 217, 229 (2d Cir. 2003). However, federal courts will not review a state prisoner's claim "when a state court declined to address [the] prisoner's federal claims because the prisoner had failed to meet a state procedural requirement." Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). To bar review, the state ground must be both independent of the federal claim and adequate to preclude review. Cotto, 331 F.3d at 238. "[A] procedural bar will be deemed `adequate' only if it is based on a rule that is `firmly established and regularly followed' by the state in question." Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999). Further, "[t]here are . . . exceptional cases in which exorbitant application of a generally sound rule renders the state ground inadequate to stop consideration of a federal question." Lee v. Kemna, 534 U.S. 362, 376 (2002). Lee v. Kemna identified three factors that this Court uses as "guideposts" to help evaluate "the state interest in a procedural rule against the circumstances of a particular case":
(1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had substantially complied with the rule given the realities of trial, and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest.
Cotto, 331 F.3d at 240 (internal quotation marks omitted).
Donaldson does not argue that New York's contemporaneous objection requirement is not a generally sound procedural rule; instead, he argues that his case fits into Lee's "exceptional case[]" category, see Lee, 534 U.S. at 376, because he adequately apprised the trial court of his sufficiency objection. We disagree.
Donaldson's trial counsel made a number of arguments to the trial court, but none of them even arguably concerned the sufficiency of the evidence of any element of depraved indifference murder. From the trial transcript, we glean two separate arguments made by Donaldson's trial counsel. First, he argued that Donaldson's intoxication on the night of Feliciano's death should be allowed as a defense to depraved indifference murder in Donaldson's trial, although voluntary intoxication is not generally a defense to recklessness crimes under New York law, because, inter alia, New York case law implied that intent was an element of depraved indifference murder and Donaldson was not voluntarily intoxicated because he was an alcoholic. Second, trial counsel argued that any conviction for depraved indifference murder would violate Equal Protection because there was no difference in New York law between the elements of depraved indifference murder and reckless manslaughter. Neither argument raises a sufficiency issue. Cf. Jones v. Keane, 329 F.3d 290, 295 (2d Cir. 2003) (holding that "the insufficiency-of-the-evidence claim [the petitioner] asserted on direct appeal was not substantially the same as his vagueness claim since the insufficiency claim did not alert the state court to a claim of statutory vagueness").
Applying the Lee guideposts to the record described above, we find that the state procedural rule is an adequate bar to federal review. Because the procedural bar in this case is a contemporaneous objection rule, the first guidepost "is less applicable . . . because the lack of a contemporaneous objection would not, almost by definition, be mentioned by the trial court." Cotto, 331 F.3d at 242. We cannot know whether perfect compliance with the contemporaneous objection rule would have changed the trial court's ruling because the trial court did not have a chance to make any determination about sufficiency. Accordingly, this factor is neutral.
As to the second Lee guidepost, there can be no doubt that New York case law requires that a sufficiency objection be specifically made to the trial court in the form of a motion to dismiss at trial. See, e.g., People v. Hines, 762 N.E.2d 329, 333 (N.Y. 2001) ("[W]e have repeatedly held that an indictment may be dismissed due to insufficient evidence only where the sufficiency issues pursued on appeal were preserved by a motion to dismiss at trial. Indeed, even where a motion to dismiss for insufficient evidence was made, the preservation requirement compels that the argument be specifically directed at the alleged error." (citations and internal quotation marks omitted)). The second guidepost, therefore, weighs in favor of the respondent.
Finally, because, as discussed above, Donaldson's trial counsel never raised any sufficiency argument in the state trial court, the third guidepost — "whether petitioner had substantially complied with the rule given the realities of trial," Cotto, 331 F.3d at 240 — weighs in favor of the respondent as well. There can be no substantial compliance with a contemporaneous objection rule when no sufficiency objection was even implied in the trial court.
Because of the independent and adequate state procedural bar, we cannot review Donaldson's sufficiency claim.
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.