Opinion
02 Civ. 3778 (HB) (DF)
August 5, 2003
REPORT AND RECOMMENDATION TO THE HONORABLE HAROLD BAER, U.S.D.J.:
INTRODUCTION
Pro se Petitioner Jin Wai ("Petitioner"), currently incarcerated at Sing Sing Correctional Facility, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, asserting that his due process rights were violated by the trial court's denial of his request to submit a jury instruction regarding manslaughter in the second degree. (Pet. at 5; Pet. Mem. 8-14; Traverse at 1-3.) Respondent argues that the petition should be dismissed as without merit. (See Seward Aff. at ¶¶ 16-23.) For the reasons stated below, I recommend that the petition be dismissed.
"Pet." refers to Petitioner's Petition under 28 U.S.C. § 2254, dated April 16, 2002. "Pet. Mem." refers to Petitioner's memorandum of law in support of his Petition, dated April 16, 2002. "Traverse" refers to Petitioner's Traverse, dated August 26, 2002.
"Seward Aff." refers to the Affirmation of Priscilla Seward, Esq., Assistant District Attorney, dated August 12, 2002, submitted in response to the Petition.
FACTUAL BACKGROUND
Petitioner's conviction arose from the murder of Rhona Lantin, on July 4, 1991. (See e.g., Tr. III at 718; Tr. V at 212, 412.) At approximately 11:00 p.m. that night, the Mott Street faction of the Ghost Shadows gang confronted a rival faction in the Chinatown area of New York City. (See, e.g. id. at 718, 796, 822, 859; id. at 320, 330, 415, 417.) Petitioner, a senior member of the Mott Street faction, asked the rival faction to leave the area. When the rival faction failed to leave, Petitioner fired two shots into the air. (Tr. V at 324, 415.) One of the bullets hit a steel storefront gate; the other pierced the passenger-side window of a sports utility vehicle that was moving down the street, and struck Ms. Lantin in the head, killing her. (Tr. III at 719-20, 799-800.)
As explained below (see infra at 3-4), Petitioner was tried twice, as his first trial resulted in a mistrial on certain charges. As used herein, "Tr. I," "Tr. II," and "Tr. IV" refer to the like-numbered transcripts of Petitioner's initial trial, conducted from March 21, 1996 to April 8, 1996. "Tr. III" and "Tr. V" refer to the transcripts of Petitioner's second trial, conducted from January 26, 1998 to February 13, 1998.
On July 10, 1992, Petitioner was charged with two counts of murder in the second degree (Penal Law §§ 125.25(1) (intentional), and 125.25(2) (depraved indifference)), one count of criminal possession of a weapon in the second degree (Penal Law § 265.03), and one count of criminal possession of a weapon in the third degree (Penal Law § 265.02(4)). (Seward Aff., Ex. A.)
PROCEDURAL HISTORY A. Pre-Trial Hearing
Beginning on March 6, 1996, a pre-trial Wade/Huntley hearing was held before the Honorable Felice K. Shea, in the Supreme Court of New York, Bronx County. (See Wade/Huntley Tr. at 2-127.) The trial court's rulings at that hearing are not at issue in this habeas proceeding.
This hearing was held pursuant to: (1) United States v. Wade, 388 U.S. 218 (1967), to determine whether Petitioner's pretrial identification was the result of impermissibly suggestive procedures; and (2) People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838 (1965), to determine whether any statements made by Petitioner should be suppressed.
B. Trial
Petitioner was initially tried by a jury from March 21, 1996, through April 8, 1996, on a weapons possession charge and two counts of second degree murder. Although the jury convicted Petitioner of criminal possession of a weapon, the jury was unable to reach a verdict on the murder charges, and the court therefore declared a mistrial as to those charges. (Tr. IV at 1326, 1334-36.)
From January 26, 1998, through February 13, 1998, Petitioner was re-tried on the murder charges, before a new jury. Petitioner's habeas claim results from that second trial, and, more specifically, from the jury charge given at the close of that trial. During the charging conference, Petitioner requested that the court instruct the jury as to first and second-degree manslaughter, as lesser-included offenses to the intentional and depraved indifference murder counts, respectively. (Tr. V at 556-62.) The court ruled that Petitioner was entitled to the charge of first-degree manslaughter as a lesser-included offense of intentional murder, but that he was not entitled to the charge of second-degree manslaughter as a lesser-included offense to depraved indifference murder, because the evidence did not support a finding that his actions were reckless, but not depraved. (Id. at 561-62, 616-17.) After receiving its charge, the jury convicted Petitioner on one count of second-degree murder under a theory of depraved indifference. (Id. at 992-93.)
C. Motion To Set Aside the Verdict
On April 17, 1998, Petitioner moved pursuant to New York Criminal Procedure Law § 330.30 to set aside the verdict of each of the two juries. Petitioner sought to set aside the verdict in the first trial on the ground that newly discovered evidence proved that his weapons possession conviction was based on perjured testimony. (Seward Aff., Ex. B.) He sought to set aside the verdict in the second trial on the ground that the trial court erred by failing to submit to the jury a charge for manslaughter, as a lesser-included offense of depraved indifference murder. (Id.) The State opposed Petitioner's motion. (Id., Ex. C.)
On May 7, 1998, the trial court denied Petitioner's motion in all respects. With respect to the claim that is relevant to this habeas proceeding (that the court erred by not charging a lesser-included offense in the second trial), the court found that it was undisputed that, on July 4, 1991, Petitioner fired gunshots across a busy intersection in Chinatown, killing a passenger in an automobile that was driving through that intersection, and that there was both pedestrian and vehicular traffic at the intersection, at time of the shooting. The court again held that, based on the evidence, no reasonable jury could have determined that Petitioner was guilty of second-degree manslaughter, but not depraved indifference murder. (Seward Aff., Ex. D.)
On June 15, 1998, the court sentenced Petitioner to five to 15 years imprisonment on his conviction of weapons possession in the second degree, two and one-third to seven years imprisonment on his conviction of weapons possession in the third degree, and 20 years to life imprisonment on his conviction of murder in the second degree. (Tr. V at 784-85.)
D. Direct Appeal
Petitioner appealed his conviction to the Appellate Division, First Department, challenging his conviction on both of the grounds that he had asserted in his post-trial motion. (See Seward Aff., Ex. E.) The State again opposed each of Petitioner's claims. (See id., Ex. F.)
On May 24, 2001, the Appellate Division affirmed Petitioner's conviction. People v. Wai, 283 A.D.2d 326, 724 N.Y.S.2d 852 (Mem) (1st Dep't 2001). With respect to the claim at issue in this proceeding, the Appellate Division held that [t]he court properly declined to submit manslaughter in the second degree to the jury as a lesser included offense of depraved indifference murder. There was no reasonable view of the evidence, even when viewed most favorably to defendant, that defendant was merely reckless but did not evince a depraved indifference to human life and create a grave risk of death to bystanders when he fired his gun on a crowded street corner. The evidence consistently established that at the time of the shooting there were many people at the intersection, including two groups of gang members, that defendant fired his gun at least two times, and that defendant was not pushed until after he fired. Id.
By letters dated June 11, 2001, and June 29, 2001, Petitioner sought leave to appeal the affirmance of his conviction to the Court of Appeals, seeking review of both issues raised to the Appellate Division. (See Seward Aff., Ex. H.) The Court of Appeals denied leave to appeal on August 3, 2001. See People v. Wai, 96 N.Y.2d 920, 758 N.E.2d 662 (Table) (2001); Seward Aff., Ex. J.
Petitioner filed the instant petition in this Court on April 16, 2002. (Dkt. No. 1.)
Although the filing date listed on the docket is May 17, 2002, where pro se incarcerated petitioners are concerned, it is standard practice for this Court to treat the date the papers were handed over to prison officials for forwarding to the Court as the date of filing. See, e.g., Then v. U.S., 126 F. Supp.2d 727, 728 n. 1 (S.D.N.Y. 2001); Collado Diaz v. U.S., No. 97 Civ. 7059 (PKL), No. 95 Cr. 43 (PKL), 1999 WL 252478 at *1 n. 2 (S.D.N.Y. April 28, 1999). That date is generally accepted to be the date on the petition itself, here, April 16, 2002 See Collado Diaz, 1999 WL 252478 (where Court took the date of the petitioner's signature on the petition as the date of filing); Then, 126 F. Supp.2d at 728 n. 1 (Court treated the date on the petition as the date of filing).
DISCUSSION I. EXHAUSTION
A federal court may not consider a petition for habeas corpus unless the petitioner has exhausted all state judicial remedies. See 28 U.S.C. § 2254(b)(1)(A); see also Picard v. Connor, 404 U.S. 270, 275 (1971); Dorsey v. Kelly, 112 F.3d 50, 52 (2d Cir. 1997). To satisfy the exhaustion requirement, a habeas petitioner must have "fairly presented" his claims to the state courts, thereby affording those courts the "'opportunity to pass upon and correct' alleged violations of . . . prisoners' federal rights." Picard, 404 U.S. at 275 (quoting Wilwording v. Swenson, 404 U.S. 249, 250 (1971)).The standards for presenting federal constitutional claims to state courts are not so stringent as to require the recitation of "book and verse on the federal constitution." Picard, 404 U.S. at 278 (citation omitted). The state courts, however, must be "apprised of 'both the factual and the legal premises of the claim [the petitioner] asserts in federal court.'" Jones v. Vacco, 126 F.3d 408, 413 (2d Cir. 1997) (quoting Daye v. Attorney Gen., 696 F.2d 186, 191 (2d Cir. 1982) (en banc)) (alteration in original). Petitioners can ensure that state courts are "alerted to the fact that [they] are asserting claims under the United States Constitution," Duncan v. Henry, 513 U.S. 364, 365-66 (1995), by presenting their claims in a fashion demonstrating either:
(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) [an] assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, [or] (d) [an] allegation of a pattern of facts that is well within the mainstream of constitutional litigation.
Daye, 696 F.2d at 194; see also Petrucelli v. Coombe, 735 F.2d 684, 688 (2d Cir. 1984). Once the state courts are apprised of the constitutional nature of a petitioner's claims, the exhaustion requirement is fulfilled when those claims have been presented to "the highest court of the pertinent state." Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994) (citation omitted).
Here, Petitioner raised his due process claim both on direct appeal and in his letter seeking leave to appeal to the Court of Appeals, stating each time that his claim was raised under the federal, as well as the state, constitution. (See Seward Aff., Ex. E, at 1; see also id., Ex. H (Letter from Lawrence A. Dubin, Esq. to the Honorable Victoria A. Graffeo, dated June 29, 2001).) Petitioner's claim is therefore exhausted for the purpose of habeas review.
II. STANDARD OF REVIEW
Where the state court has reached the merits of a claim, this Court must apply a deferential standard in reviewing that claim in a habeas proceeding. Specifically, this Court must adhere to the standard of review set forth in the Antiterrorism and Effective Death Penalty Act ("AEDPA"), the relevant portion of which provides:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved 7 an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d). In addition, under AEDPA, where not manifestly unreasonable, a state court's factual findings are presumed correct, and can only be overcome by "clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court clarified the meaning of the "contrary to" and "unreasonable application" clauses of AEDPA Section 2254(d)(1). A state court decision is "contrary to" clearly established federal law where the state court either applies a rule that "contradicts the governing law" set forth in Supreme Court precedent, id. at 405, or "confronts a set of facts that are materially indistinguishable from a [Supreme Court] decision" and arrives at a different result, id. at 406. An "unreasonable application" of clearly established federal law occurs when the state court identifies the correct governing legal principle, but unreasonably applies that principle to the particular facts before it. Id. at 413. The Supreme Court has explained that "the most important point is that an unreasonable application of federal law is different from an incorrect application of federal law." Id. at 410. Thus, the writ may not issue simply because the state court decision is erroneous or incorrect; rather, the application must also be unreasonable. Id. at 411.
AEDPA Section 2254(d), however, only applies to the review of claims that have been "adjudicated on the merits" by the state court. 28 U.S.C. § 2254(d). The Second Circuit has held that the phrase "adjudicated on the merits" means "a decision finally resolving the parties' claims, with res judicata effect, that is based on the substance of the claim advanced, rather than on a procedural, or other, ground." Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001). Where the state court has rejected a claim on procedural grounds, or has otherwise not reached the merits of the claim, this Court must review that claim de novo. See Washington v. Schriver, 255 F.3d 45, 55 (2d Cir. 2001).
III. PETITIONER'S CLAIM
In his habeas petition, Petitioner claims that "the trial court's refusal to charge the jury with the lesser-included offense of manslaughter in the second degree denied Petitioner due process of law and a fair trial." (Pet. at ¶ 12; Pet. Mem. at 8.) Because the state court adjudicated this claim on the merits, (see supra at 5), this Court must review the state court's determination under AEDPA.
A. On Collateral Review, this Court Should Not Announce a New Constitutional Rule Requiring the Submission of an Instruction on a Lesser-Included Charge in a Non-Capital Case.Under AEDPA, Petitioner would be entitled to a writ of habeas corpus if the state court's determination was "contrary to, or involved an unreasonable application of, clearly established Federal law." 28 U.S.C. § 2254(d)(1). The Supreme Court, however, has expressly declined to consider whether federal principles of due process require a trial court to submit jury instructions regarding lesser-included offenses in non-capital cases. See Beck v. Alabama, 447 U.S. 625, 638 n. 14 (1980). The Second Circuit, as well, has declined to rule on this issue. Rice v. Hoke, 846 F.2d 160, 164 (2d Cir. 1988); accord Knapp v. Leonardo, 46 F.3d 170, 179 (2d Cir. 1995) ("Neither the Supreme Court nor this circuit has decided whether the failure to instruct a jury on lesser included offenses in noncapital cases is a constitutional issue that may be considered on a habeas petition. "). Therefore, "a decision interpreting the Constitution to require the submission of instructions on lesser-included offenses in non-capital cases would involve the announcement of a new rule," Jones v. Hoffman, 86 F.3d 46, 48 (2d Cir. 1996) (per curiam), i.e., a rule that "breaks new ground or imposes a new obligation on the States or the Federal Government," Teague v. Lane, 489 U.S. 288, 301 (1989).
In Teague, the Supreme Court discussed the ramifications of announcing a new constitutional rule in a case before the federal court on collateral review. Id. at 299-310. After noting the inequity that would result from applying a new rule retroactively to a particular habeas petitioner, but not to other petitioners similarly situated, see id. at 305, and after weighing the prospect of broadly affording retroactive relief against the "interests of comity and finality [that] must . . . be considered in determining the proper scope of habeas review," id. at 308, the Court concluded that, with narrow exceptions, the federal courts should decline to announce — or to apply — new constitutional rules in the context of habeas review, id. at 310.
The two exceptions enunciated by the Court, as to when new rules should be announced in habeas cases and applied retroactively to habeas petitioners, are not applicable in this case.
The first exception, which plainly has no bearing here, is that a new rule should be applied retroactively if it places "certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe." Id. at 311 (internal quotation marks and citation omitted). The second exception is "reserved for watershed rules of criminal procedure," id., and the Second Circuit has expressly held that a "lesser-included offense rule [in non-capital cases] does not . . . fall within that small core of 'watershed' rules requiring the observance of certain procedures that are implicit in the concept of ordered liberty." Jones v. Hoffman, 86 F.3d at 48.
In Jones, as here, the petitioner argued on collateral review that the state court had erred by failing to instruct the jury on a lesser-included offense, even in a non-capital case. Id. The Second Circuit reasoned that, because the issue had been presented in the context of a habeas petition, and because neither of the two limited exceptions set out in Teague applied, Teague precluded the announcement of the new "lesser-included offense" rule sought by the petitioner. Id. The Court of Appeals thus affirmed the District Court's judgment declining to consider the merits of the petitioner's claim. Id.
Here, for the same reasons, this Court should decline to consider the merits of Petitioner's claim, to the extent he is arguing for the application of a new constitutional rule. Rather, the Court should only consider Petitioner's claim in light of the federal law prevailing at the time his conviction became final. See Teague, 489 U.S. at 306. At that time, it was not required by federal law that the jury be instructed on any lesser-included offense. Therefore, even if Petitioner were correct that, based on the trial evidence, a jury could have found that he committed second-degree manslaughter, but not depraved indifference murder, the Appellate Division's determination that the lesser-included offense did not have to be charged to the jury cannot be said to have been contrary to, or to have involved an unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254(d)(1).
B. Petitioner Has Not Presented Clear and Convincing Evidence To Overcome the State Court's Presumptively Correct Finding That the Evidence Did Not Warrant a Lesser Charge.Petitioner also cannot show that, under AEDPA, the Appellate Court's decision as to the propriety of the jury charge was "based on an unreasonable determination of the facts in light of the evidence presented" at trial. 28 U.S.C. § 2254(d)(2).
Under New York law, a trial court may submit in the alternative any lesser included offense if there is a reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater. If there is no reasonable view of the evidence which would support such a finding, the court may not submit such lesser offense. Knapp, 46 F.3d at 179 (emphasis in original) (quoting N.Y. Crim Proc. Law § 300.50(1)) (additional citations omitted).
Here, as set forth above, the Appellate Division determined that "there was no reasonable view of the evidence, even when viewed most favorably to defendant, that defendant was merely reckless but did not evince a depraved indifference to human life and create a grave risk of death to bystanders when he fired his gun on a crowded street corner." (See supra at 5.) Given the evidence adduced at trial regarding the presence of both pedestrian and vehicular traffic at the location where Petitioner twice fired his gun (see e.g. Tr. III at 757, 837, 861; Tr. V at 264), this fact-based determination is not manifestly unreasonable, and is thus "entitled to a presumption of correctness upon federal review," Garcia v. Keane, 973 F. Supp. 364, 368 (S.D.N.Y. 1997). That presumption may then only be overcome by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).
Petitioner has not submitted such evidence. In Petitioner's memorandum of law accompanying his petition, and in Petitioner's traverse, Petitioner argues that the trial court's decision violated his due process rights because of "unresolved issue[s]" concerning the exact number of people in the intersection, the number of shots fired, and whether or not Petitioner's gun discharged as a result of another bystander pushing or knocking into him. (Pet. Mem. at 11-12, Traverse at 2.)
Each of Petitioner's contentions arise from perceived inconsistencies in witness testimony. This Court, however, may not weigh the evidence presented to the state court, nor is it permitted to make judgments about witness credibility, or to resolve conflicting testimony. See e.g., Marshall v. Lonberger, 459 U.S. 422, 434 (1983) ("federal habeas courts [have] no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them"); Vera v. Hanslmaier, 928 F. Supp. 278, 284 (S.D.N.Y. 1996) ("The role of this Court is clear: [f]ederal habeas courts are not free to reassess the facts specific credibility judgments by juries or to weigh conflicting testimony.") (internal quotation and citation omitted).
Thus, Petitioner cannot prevail on his claim that he was denied due process.
CONCLUSION
For the foregoing reasons, I recommend that Petitioner's petition for a writ of habeas corpus be dismissed in its entirety. Further, I recommend that the Court decline to issue a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(1)(A), because Petitioner has not "made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2).
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Harold Baer, United States Courthouse, 500 Pearl Street, Room 2230, New York, New York 10007, and to the chambers of the undersigned, United States Courthouse, 40 Centre Street, Room 631, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Baer. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).