Opinion
01 Civ. 11560 (TPG)
November 14, 2002
OPINION
This is a habeas corpus petition attacking a New York State conviction. It is denominated a petition under 28 U.S.C. § 2241 and 2254. However, § 2254 is the proper reference. Pursuant to Rule 4 of the Rules Governing Section 2254 Proceedings, the court has examined the petition and has determined that it must be summarily dismissed.
Rowe was indicted on two counts of second degree murder and on counts of criminal possession of a weapon in the second degree and in the third degree. He was tried in 1999 in Supreme Court, New York County. The jury convicted him of the lesser charge of first degree manslaughter and also convicted him on the weapons charges. On September 21, 1994 Rowe was sentenced to 8 1/3 to 25 years on the manslaughter charge, 5 to 15 years on the second degree weapons charge, and 2 1/3 to 7 years on the third degree weapons charge. The weapons sentences were to run concurrently with each other. However, the weapons sentences were to run consecutively to the manslaughter sentence.
Rowe appealed. The conviction was affirmed by the Appellate Division, First Department, on April 4, 2000. People v. Rowe, 271 A.D.2d 217, 707 N.Y.S.2d 27. Leave to appeal to the Court of Appeals was denied on August 21, 2000.
In the present petition, Rowe asserts the two grounds that he presented in his state court appeal. The first ground is that the trial court unfairly limited Rowe's justification defense when it instructed the jury that, in order to prevail on such a defense, the offensive threat needed to come from the victim rather than from a companion of the victim. The second ground is that it was improper for the trial court to impose consecutive sentences on the manslaughter and weapons counts since the weapons crimes were so closely associated with the crime of manslaughter.
Neither of these arguments raises any federal constitutional question entitling Rowe to habeas corpus relief. It is true that the trial court gave the instruction complained of, but this instruction arose out of the judge's analysis of the factual issues and his application of state law. As to the sentence, the issue of whether Rowe should be given consecutive or concurrent sentences depended upon application of state law. As the Appellate Division put it, the evidence showed that Rowe had been carrying the loaded weapon with him for months prior to the shooting giving rise to the manslaughter conviction, and there was every reason to conclude that Rowe had harbored an intent to use the gun unlawfully on another person well in advance of the transaction leading up to his shooting of this particular victim.
For the foregoing reasons, the petition is dismissed.
Petitioner has not made a substantial showing of the denial of a constitutional right. Therefore a certificate of appealability will not issue. 28 U.S.C. § 2253.
In respect to the in forma pauperis statute, the court certifies that an appeal would not be taken in good faith. 28 U.S.C. § 1915(a)(3).