Walker v. Warden Harold D. Graham
Filing
14
MEMORANDUM AND ORDER DENYING PETITION FOR HABEAS RELIEF: For the reasons stated in the attached Memorandum and Order, the petition for a writ of habeas corpus is DENIED. As Petitioner has not made a substantial showing of the denial of a constitutional right, the Court declines to issue a certificate of appealability. The Clerk of Court is directed to terminate the petition and to close this case. Ordered by Judge Pamela K. Chen on 7/2/2013. (Doerr, Mark)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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RASHID WALKER,
Petitioner,
MEMORANDUM & ORDER
10-CV-5558 (PKC)
v.
WARDEN HAROLD D. GRAHAM,
Respondent.
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PAMELA K. CHEN, United States District Judge:
Petitioner Rashid Walker, appearing pro se, seeks a writ of habeas corpus pursuant to 28
U.S.C. § 2254.
The petition now is before the Court following initial review by Chief Judge Carol B.
Amon, to whom the petition originally was assigned. Upon her review pursuant to Rule 4 of the
Rules Governing Section 2254 Cases, on December 17, 2010, Judge Amon ordered Walker to
show cause why the petition was not time-barred by the applicable one-year statute of limitations
established by the Antiterrorism and Effective Death Penalty Act ("AEDPA"). Dkt. 3; see 28
U.S.C. § 2244. Walker responded thereto on January 14, 2011, purporting to set forth the
reasons why equitable tolling applied to excuse the untimely filing of his petition. Dkt. 4.
Following Walker's submission, Judge Amon ordered Respondent to show cause why a writ of
habeas corpus should not issue. Dkt. 5. Respondent submitted a response on May 2, 2011 (Dkt.
6), and Walker submitted a reply in further support of his petition on June 6, 2011. Dkt. 11.
Because Walker indicated that he needed more time to conduct the necessary legal research (Dkt.
12), Judge Amon permitted Walker to submit an additional reply in further support of his
petition, which Walker submitted on August 2, 2011. Dkt. 13.
Upon review of the record and the submissions of the parties, the Court concludes that
the petition must be dismissed as time-barred. However, even were the petition not time-barred,
Walker's claims are without merit. Therefore, for the reasons set forth below, the petition is
denied in its entirety.
BACKGROUND
At Walker’s state court trial, it was established that in the early morning hours of
February 8, 2003, Walker and an acquaintance, Sean Mattis, got into a fight with a group of
people at a nightclub in Brooklyn. Following the altercation, Walker and Mattis left the club,
retrieved firearms from a vehicle, approached the nightclub, and fired their weapons
indiscriminately into the club's entrance. As a result, Chantel Bailey was killed, and four other
patrons were seriously wounded. Dkt. 6 at 2. 1
Walker, who was tried with Mattis before two different juries, 2 presented no evidence at
trial, but contested the state's evidence by, inter alia, challenging the introduction and accuracy
of testimony regarding Walker's pretrial statements (see, e.g., Dkt. 8-2 at 77–85, 92–93), the
accuracy of prosecution expert witness testimony (see, e.g., Dkt. 9-2 at 567–68, 580), and
arguing in summation that the prosecution had not met its burden and that its evidence was not
reliable. See, e.g., Dkt. 9-3 at 630–61.
On January 31, 2005, the jury found Walker guilty of one count of Murder in the Second
Degree (N.Y. Penal Law § 125.25[2]), two counts of Assault in the First Degree (N.Y. Penal
1
Because Walker was convicted, the Court recites relevant facts in the light most favorable to
the verdict. See Garbutt v. Conway, 668 F.3d 79, 80 (2d Cir. 2012).
2
Separate juries were used because each defendant intended to offer evidence that was irrelevant
and potentially prejudicial to the other defendant. See Dkt. 7-3 at ECF 104.
2
Law § 120.10[3]), one count of Criminal Possession of a Weapon in the Second Degree (N.Y.
Penal Law § 265.03[2]), and two counts of Assault in the Third Degree (N.Y. Penal Law §
120.00[2]).
On February 10, 2005, Walker was sentenced to: (1) an indeterminate term of 25 years to
life for second-degree murder, to run consecutively with (2) two consecutive determinate terms
of 25 years for the two first-degree assault counts, (3) a determinate term of 15 years for criminal
weapon possession, and (4) two one-year determinate terms of imprisonment on the third-degree
assault counts. Dkt. 6 at 3.
Walker appealed his conviction, and the Appellate Division, Second Department
unanimously affirmed the judgment. People v. Walker, 45 A.D.3d 878 (2d Dep’t 2007). The
New York Court of Appeals denied leave to appeal on February 26, 2008. People v. Walker, 10
N.Y.3d 772 (2008). Walker’s conviction became final 90 days later, on May 26, 2008, when
time expired for Walker to seek a writ of certiorari from the United States Supreme Court. See
Dkt. 3; Williams v. Artuz, 237 F.3d 147, 150 (2d Cir. 2001) ("[A] petitioner's conviction
bec[omes] final for [AEDPA] purposes when his time to seek direct review in the United States
Supreme Court by writ of certiorari expire[s].") (internal quotations omitted). Thus, Walker,
under AEDPA, had 365 days from May 26, 2008, to seek a writ of habeas corpus in federal
court.
On January 30, 2009, Walker applied to the Appellate Division for a writ of error coram
nobis to vacate his conviction, arguing that his appellate counsel failed to properly raise his
Brady and Rosario claims, and therefore he was denied effective assistance of appellate counsel
in violation of the Sixth Amendment. Dkt. 6 at 4. The Appellate Division denied the application
3
on June 9, 2009, finding that Walker failed to establish that his appellate counsel was ineffective.
People v. Walker, 63 A.D.3d 864 (2d Dep’t 2009). 3
On June 22, 2009, Walker moved pursuant to New York Criminal Procedure Law §
440.20 in the New York Supreme Court to set aside his sentence (the "440 Motion"). Dkt. 6 at 4.
Walker moved on the basis that the imposition of consecutive sentences violated the constitution
under Apprendi v. New Jersey, 530 U.S. 466 (2000), because the facts necessary to impose
consecutive sentences were determined by the judge, not the jury. Dkt. 6 at 4. The New York
Supreme Court denied the motion on the merits on October 16, 2009, on the basis that the
petition was procedurally barred because Walker already had sought relief regarding the same
issue on direct appeal. Dkt. 6 at 4.
On November 17, 2009, Walker moved for leave to appeal the trial court's denial of the
440 Motion to the Appellate Division. Dkt. 4 at 2. The Appellate Division denied Walker leave
to appeal on June 2, 2010. Dkt. 4 at 2; People v. Walker, Case No. 2010-00276, 2010 WL
2197330 (2d Dep't June 2, 2010). On June 14, 2010, Walker sought leave to appeal the denial of
3
Walker claims that after the Appellate Division denied the coram nobis application, he filed an
unspecified application to the New York Court of Appeals on June 21, 2009. Dkt. 4 at 1.
Walker claims he never "heard back," so he submitted a motion pursuant to New York Criminal
Procedure Law § 440 to the New York Supreme Court on June 22, 2009, the very next day. Dkt.
4 at 1–2. First, it makes no sense that Walker would have abandoned his purported application
to the Court of Appeals only one day after he filed it. Second, the record does not reflect such a
filing with the Court of Appeals. Importantly, was this application an appeal of the Appellate
Division's denial of his coram nobis petition, the Court has found no decision or other order of
the Court of Appeals regarding the disposition of such an appeal. Respondent affirms that
Walker "did not seek leave to appeal to the New York Court of Appeals from the denial of his
application for a writ of error coram nobis." Dkt. 6 at ECF 8. The Court has confirmed with the
clerk of the Court of Appeals that it has no record that such an application ever was filed.
Therefore, the Court finds that Walker did not appeal to the Court of Appeals the Appellate
Division's denial of his coram nobis petition.
4
the 440 Motion to the New York Court of Appeals. The New York Court of Appeals denied
leave to appeal on July 7, 2010. See People v. Walker, 15 N.Y.3d 779 (2010). 4
On November 29, 2010—917 days after May 26, 2008—Walker submitted the instant
petition for a writ of habeas corpus. Dkt. 1. As discussed below, because only 488 days within
that time period were tolled for purposes of AEDPA, Walker’s petition was filed 429 days after
May 26, 2008, i.e., 64 days past the AEDPA one-year time limit.
DISCUSSION
At the outset, the Court is mindful of its obligation to construe pro se pleadings "to raise
the strongest arguments that they suggest, Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,
474 (2d Cir. 2006) (emphasis omitted), and that "a pro se complaint, however inartfully pleaded,
must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v.
Pardus, 51 U.S. 89, 94 (2007).
I.
Timeliness
AEDPA sets a one-year limitation period for the filing of a petition for a writ of habeas
corpus by a person in custody pursuant to a state court conviction. 28 U.S.C. § 2254(d)(1). The
applicable one-year period runs from the date on which one of the following four events occurs,
whichever is the latest:
(A)
the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review;
(B)
the date on which the impediment to filing an application created
by State action in violation of the Constitution or laws of the United States
is removed, if the applicant was prevented from filing by such State
action;
4
Again, as discussed further, infra, the Court of Appeals' denial of Walker's motion for leave to
appeal largely is irrelevant for purposes of determining whether this petition was filed timely,
because such an appeal does not exist under New York law.
5
(C)
the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly recognized
by the Supreme Court and made retroactively applicable to cases on
collateral review; or
(D)
the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.
28 U.S.C. § 2244. Subsection (A) governs the time limit for the filing of the instant petition.
According to subsection (A), the one-year period within which Walker had to file a habeas
petition began running on May 26, 2008, which was when the time expired for him to seek from
the United States Supreme Court review of the denial of his direct appeal.
a. Statutory Tolling
Importantly, 28 U.S.C. § 2244(d)(2) provides that “[t]he time during which a properly
filed application for State post-conviction or other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted toward any period or limitation under this
subsection.” Id. (emphases added). In other words, the limitation period is tolled by statute
during the pendency of any properly filed application for state post-conviction or other collateral
review, such as a 440 Motion. Accordingly, such time does not count towards the one-year
limitation period within which to file a petition for habeas relief.
The Second Circuit addressed what constitutes a "properly filed" and "pending"
application under 28 U.S.C. § 2244(d)(2) in Hizbullahankhamon v. Walker, 255 F.3d 65 (2d Cir.
2001). There, the court reaffirmed its prior holding that "properly filed" simply means "an
application for state post-conviction relief recognized as such under governing state procedures."
Id. at 70 (citing Bennett v. Artuz, 199 F.3d 116, 123 (2d Cir. 1999)). In Bennett, the Second
Circuit held that "a state-court petition [for post-conviction or other collateral review] is
'pending' from the time it is first filed until finally disposed of and further appellate review is
6
unavailable under the particular state's procedures.'" Id. (citing Bennett, 199 F.3d at 120).
Therefore, a "properly filed" application for state review ceases to be "pending," and thus the
running of the limitation period commences or re-commences, when no further appellate review
of the application is available.
Here, the one-year limitation period was tolled during the pendency of Walker's direct
appeal. It also was tolled during the pendency of his coram nobis petition 5, because those were
"properly filed" applications for state review which were "pending" until no further review was
available. See 28 U.S.C. § 2244(d)(2). The limitation period also was tolled during the
pendency of Walker's 440 Motion before the trial court and for leave to appeal the denial thereof
to the Appellate Division. However, the limitation period was not tolled during the pendency of
Walker's motion for leave to appeal to the Court of Appeals the Appellate Division's denial of
leave to appeal the 440 Motion, because no such appeals are permitted under New York law.
New York Criminal Procedure Law § 450.90 sets forth the instances in which appeals to
the Court of Appeals are authorized. New York courts have held that there is no statutory
authority in N.Y.C.P.L. § 450.90 or elsewhere providing that Appellate Division denials of leave
to appeal are reviewable by the Court of Appeals. "No appeal lies from an order denying a
5
Although the Second Circuit has not yet decided this issue, the Court assumes for purposes of
Walker's petition that the limitations period also was tolled during the 13 days between the
Appellate Division's denial of Walker's coram nobis petition and the filing of Walker's 440
Motion. In Saunders v. Senkowski, 587 F.3d 543 (2d Cir. 2009) the Second Circuit held that "a §
440.10 motion is 'pending' for purposes of AEDPA at least from the time it is filed through the
time in which the petitioner could file an application for a certificate for leave to appeal the
Appellate Division's denial of the motion." Id. at 548 (citing Bennett, 199 F.3d at 120). Bennett
was decided before the New York legislature authorized the appeal of denials of coram nobis
petitions. Although the Second Circuit has yet to address whether the limitation period is tolled
during the 30-day period in which the denial of a coram nobis petition is appealable, the
reasoning of Bennett and Saunders suggests that AEDPA's one-year limitation period is tolled
during the period "in which the petitioner could file an application for a certificate for leave to
appeal" the denial of a coram nobis petition.
7
motion for leave to appeal to this court." People v. Williams, 342 N.Y.S.2d 75 (2d Dep't 1973);
see also People v. James, 206 A.D.2d 243, 244 (1st Dep't 1994) (holding that "[t]here is simply
no statutory authority in our criminal procedure for review by the Court of Appeals of an
Appellate Division order refusing permission to appeal to this Court" and noting that "[v]irtually
all the cases citing this rule have involved applications under [N.Y.C.P.L. § 450.90].") 6
Here, the order from which Walker sought leave to appeal to the Court of Appeals, viz.,
the Appellate Division's denial of leave to appeal the New York Supreme Court's denial of the
440 Motion, was not appealable to the Court of Appeals. The 440 Motion ceased to be
"pending" under 28 U.S.C. § 2244(d)(2) once the Appellate Division denied leave to appeal,
because that denial foreclosed further state appellate review of the subject claims. See
Hizbullahankhamon, 255 F.3d at 67–68. Therefore, the time from the Appellate Division's
denial of leave to appeal to the filing of the instant petition was not tolled. "[O]nce the Appellate
Division denied [Walker] leave to appeal the denial of his section 440[] motion, he had reached
'the end of the road within the state system'" and the clock resumed running on the one-year
limitation period. Klein, 667 F.2d at 283–84 (citing United States ex rel. Graham v. Mancusi,
457 F.2d 463, 467 (2d Cir. 1972)); see Hizbullahankhamon, 255 F.3d at 69–72 (“Because review
of an Appellate Division order denying a motion for a writ of coram nobis is unavailable in the
New York Court of Appeals, the Court of Appeals has no opportunity to resolve any
6
As noted by the Second Circuit, the New York Court of Appeals has not spoken on this issue
directly. Klein v. Harris, 667 F.2d 274, 284 n.6 (2d Cir. 1981). However, there is no indication
that the Court of Appeals would interpret N.Y.C.P.L. § 450.90 in a manner conflicting with the
Appellate Division's holding in Williams or James. See id. Likewise, the parties point to no
decision of the Court of Appeals or to any other evidence suggesting that the Court of Appeals
would hold otherwise.
8
constitutional issues raised in such a doomed appeal.”) (internal citations and quotation marks
omitted). 7
Nothing else statutorily tolled the running of the one-year limitation period. Therefore,
the amount of time that elapsed between Walker’s conviction becoming final and the filing of the
instant petition can be calculated as follows: (1) 249 days between May 26, 2008, when
Walker's conviction became final, and January 30, 2009, the date on which Walker filed his
coram nobis petition; and (2) 180 days between June 2, 2010, the date on which the Appellate
Division denied Walker leave to appeal the denial of his 440 Motion, and November 29, 2010,
the date on which this petition was filed. Hence, the amount of untolled time attributable to
Walker for purposes of applying the AEDPA one-year time limit is 429 days, which is 64 days
late. 8 Walker's petition, therefore, is untimely and must be dismissed as time-barred, unless the
Court determines that the limitation period should be equitably tolled.
b. Equitable Tolling
Walker concedes that his petition is untimely unless equitable tolling applies to excuse
his failure to submit a timely application. See Dkt. 1 at 14–14b. The one-year limitation period
may be equitably tolled under appropriate circumstances where "extend[ing] the statute of
7
It should be noted that, after Hizbullahankhamon was decided, the New York legislature
authorized the appeal of coram nobis petitions to the Court of Appeals. See Saunders v.
Senkowski, 587 F.3d 543, 548 n.1 (2d Cir. 2009). That is of no moment to Walker's case,
however, because at issue here is the permissibility of appeals of denials of leave to appeal,
which still are not permitted in New York.
8
Although the New York Court of Appeals denied Walker's motion for leave to appeal the
denial of his 440 Motion to that court on July 7, 2010, that decision effectively was a nullity,
because no such leave to appeal exists. See People v. Williams, 342 N.Y.S.2d 75 (2d Dep't
1973). However, even were it the case that AEDPA's one-year limitation period was tolled
during the pendency of Walker's motion for leave to appeal the denial of his 440 Motion to the
Court of Appeals, his petition still would be untimely. This time period amounted to 35 days.
Therefore, even if that appeal was deemed "properly filed" and "pending" during that period,
Walker's petition still would be untimely by 29 days.
9
limitations beyond the time of expiration [is] necessary to avoid inequitable circumstances."
Valverde v. Stinson, 224 F.3d 129, 133 (2d Cir. 2000); see Holland v. Florida, --- U.S. ---, 130 S.
Ct. 2549, 2560 (2010). In the Second Circuit, equitable tolling should be applied only in "rare
and exceptional circumstances." Walker v. Jastremski, 430 F.3d 560, 564 (2d Cir. 2005).
Equitable tolling may apply where the petitioner demonstrates that "extraordinary circumstances
prevented him from filing his petition on time" and that the petitioner "acted with reasonable
diligence throughout the period he seeks to toll." Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.
2000) (per curiam). A petitioner also must show that the extraordinary circumstances prevented
petitioner from filing a timely petition, which is accomplished by "demonstrat[ing] a causal
relationship between the extraordinary circumstances on which the claim for equitable tolling
rests and the lateness of his filing, a demonstration that cannot be made if the petitioner, acting
with reasonable diligence, could have filed on time notwithstanding the extraordinary
circumstances." Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000).
i. Reliance on Jailhouse Lawyer
Walker concedes that he "made a very bad decision" by trusting a "jailhouse law clerk"
with respect to AEDPA's tolling provisions. Dkt. 1 at 14. But as Judge Amon previously
advised Walker, "ignorance of the law or reliance on jailhouse lawyers is not sufficient to
warrant equitable tolling." Dkt. 3 at 4 (citing cases). Courts in New York consistently have held
that reliance on a jailhouse lawyer, or even on the erroneous advice of a licensed attorney, does
not qualify as an extraordinary circumstance warranting equitable tolling. See, e.g., Smith v.
McGinnis, 208 F.3d 13 (2d Cir. 2000) (pro se status does not merit equitable tolling);
Baldayaque v. United States, 338 F.3d 145, 150–153 (2d Cir. 2003) (holding that attorney error
alone does not constitute extraordinary circumstances for purposes of equitable tolling); Lizaide
10
v. Kirkpatrick, 09-CV-5038(CBA), 2009 WL 4110296, at *2 (E.D.N.Y. Nov. 24, 2009)
("Ignorance of the law and lack of education are not sufficient grounds to warrant equitable
tolling."); Francis v. Miller, 198 F. Supp. 2d 232, 235 (E.D.N.Y. 2002) (ignorance of the law and
legal procedure is not so exceptional as to merit equitable tolling).
Moreover, Walker fails to show that his jailhouse lawyer's purportedly erroneous advice
regarding the tolling of the limitation period prevented him from filing a timely petition.
Although the contours of AEDPA's tolling provisions may be complicated, Walker was informed
by his former appellate counsel that he had "one year from [May 25, 2008] to [file] his federal
habeas corpus [petition]." Dkt. 1 at 13. Had Walker followed this advice, he would have filed
this petition on time. Walker suggests that he followed bad advice from a “jailhouse law clerk,”
Dkt. 1 at 14, advice which apparently led him to pursue collateral relief in state court, but these
applications served to toll the AEDPA clock and, therefore, did not prejudice Walker. Even if it
is true that, as Walker states, the jailhouse lawyer erroneously advised Walker that the filing of a
petition for state post-conviction relief restarted the one-year limitation period, Walker had
ample time during the pendency of those petitions to determine the accuracy of that advice.
Accordingly, the Court finds that equitable tolling is not warranted based on Walker's
purported reliance on the erroneous advice of a “jailhouse law clerk.”
ii. Appellate Counsel's Delay
Walker also argues that, because it took his appellate counsel 69 days to notify him of the
Appellate Division’s denial of leave to appeal his conviction, he was unable to petition for
certiorari, and this purported inability to seek certiorari prevented him from timely filing the
instant petition. See Dkt. 11, 13 at 1. However, Walker's alleged inability to petition for
certiorari had no bearing on his ability to meet the one-year deadline for filing his habeas petition
11
because the one-year period did not begin to run until 90 days after the Court of Appeals denied
his direct appeal. 9 Thus, even assuming Walker's counsel was 69 days late in notifying him of
the Court of Appeals' denial, Walker still had more than a year, i.e., one year and 21 days, within
which to file his habeas petition. Having notice that one's conviction has become final before the
running of the limitation period even commences does not qualify as an "extraordinary
circumstance."
Walker likewise fails to demonstrate that he acted with "reasonable diligence" with
respect to the habeas petition throughout the entire time period he seeks to toll. In determining
whether a petitioner acted with reasonable diligence, the Court asks "did the petitioner act as
diligently as reasonably could have been expected under the circumstances?" Nickels v.
Conway, 480 Fed. App'x 54, 57 (2d Cir. 2012) (citing Baldayaque v. United States, 338 F.3d
145, 153 (2d Cir. 2003)). The succession of collateral applications filed by Walker in state court,
e.g., the coram nobis petition followed by the 440 Motion and related appeals, demonstrates that
Walker had the opportunity and resources to consider and develop his claims regarding his state
law remedies, yet failed to exercise the same degree of diligence with respect to the filing of the
instant petition. Indeed, the fact that Walker waited 249 days from the date his conviction
became final before seeking a writ of error coram nobis in state court, Dkt. 4 at 1, also militates
against a finding of reasonable diligence. 10 See Smith, 208 F.3d at 17–18 (finding no
9
Walker does not set forth as a ground for habeas relief his purported inability to petition for a
writ of certiorari.
10
That is not to say, however, that Walker is penalized for "failing to file early or to take other
extraordinary precautions early in the limitations period." Hizbullahankhamon, 255 F.3d at 76
n.9. The fact that Walker delayed 249 days before seeking state remedies simply is another
aspect of the "reasonable diligence" analysis. Hence, even were this a case where extraordinary
circumstances were present and where "the alleged extraordinary circumstances ceased early in
the limitations period," the fact that Walker did not exercise "reasonable diligence in attempting
to file after the extraordinary circumstances began," means that "the link of causation between
12
extraordinary or exceptional circumstances and no reasonable diligence where petitioner
exhausted state remedies and then filed habeas petition 87 days after the state court denied
collateral relief); Hizbullahankhamon, 255 F.3d at 75 (noting that petitioner failed to exercise
reasonable diligence by waiting 250 days before filing first petition for state post-conviction
review).
Walker’s reliance on the alleged delay by his appellate counsel in notifying him of the
Court of Appeals' denial of his direct appeal does not mitigate the lack of diligence in meeting
the one-year deadline. As discussed, there is no causal connection between his appellate
counsel's purported failure to timely notify him that the Court of Appeals denied leave to appeal
and his failure to timely file the instant petition. "[O]nce the Court of Appeals' judgment became
final, there were no further prerequisites or other legal impediments preventing [Walker] from
filing a habeas petition." Hamilton v. Warden of Clinton Correctional Facility, 573 F. Supp. 2d
779, 781 (S.D.N.Y. 2008). Walker was aware of the denial of leave to appeal before the oneyear limitation period began to run, and has failed to demonstrate reasonable diligence meriting
equitable tolling. See Hizbullahankhamon v. Walker, 255 F.3d 65 at 75–76 (denying equitable
tolling where petitioner argued he was deprived of access to legal materials at the outset of the
running of limitations period, but regained access to legal materials 22 days later yet still waited
"over 250 days before filing [his coram nobis motion]").
the extraordinary circumstances and the failure to file [timely] is broken, and the extraordinary
circumstances therefore did not prevent timely filing." Id. at 75 (citing Valverde v. Stinson, 224
F.3d 129, 134 (2d Cir. 2000)). Thus, even more so than the petitioner in Hizbullahankhamon,
Walker fails to establish that his appellate counsel's alleged delay prevented him from timely
filing his habeas petition. Given that his counsel's purported delay occurred even before the
limitations period began running, it cannot be plausibly said that, but for his appellate counsel's
purported delay in notifying Walker that his conviction had become final, Walker would not
have been late in filing his petition.
13
Relatedly, it is not the case that Walker missed the filing deadline by a matter of days.
Under even the most generous calculation of time, which assumes that the time during the
pendency of Walker's motion for leave to appeal the denial of his 440 Motion to the Court of
Appeals should be tolled, Walker's petition still would be untimely by 29 days. Courts have
declined to equitably toll the limitation period for petitions filed untimely by even one day. See,
e.g., White v. Conway, 07-CV-1175(GHL), 2011 WL 1315714, at *4 (N.D.N.Y. Jan. 18, 2011)
(declining to equitably toll petition filed one day late and collecting cases); Smith v. Conway, 07CV-7174(JGK), 2008 WL 2531194, at *3 (S.D.N.Y. June 24, 2008) ("the fact that the [petition]
was only two days late is not itself a basis for equitable tolling"); Ottenwarde v. United States,
12-CV-6537, 2013 WL 1242632(JGK) (S.D.N.Y. Mar. 28, 2013) (declining equitable tolling
where petition time-barred by two months).
iii. Actual Innocence
Lastly, the petition contains no facts or argument suggesting equitable tolling or another
equitable exception based on a claim of actual innocence, and there is no evidence in the record
or elsewhere supporting such a claim. The Second Circuit recognizes "an equitable exception to
AEDPA's limitation period in extraordinary cases . . . in which the petitioner has made a credible
and compelling showing of his actual innocence." Rivas v. Fischer, 687 F.3d 514, 552 (2d Cir.
2012); see also Whitley v. Senkowski, 317 F.3d 23, 25 (2d Cir. 2003) (holding that district court
erred by dismissing on statute of limitations grounds and without further analysis a petition
claiming actual innocence). Walker has not made such a claim or showing and the record
supports no such claim. This finding is further supported by the fact that Walker presented no
evidence in his defense at the trial.
14
Therefore, the Court finds no basis for equitably tolling AEDPA's one-year limitation
period.
*
*
*
For the reasons set forth above, Walker has failed to establish his entitlement to equitable
tolling of the one-year statute of limitation set forth in 28 U.S.C. § 2244(d)(1). Walker’s
petition, therefore, must be denied as time-barred. In any event, were the Court to reach the
merits of Walker's petition, it still would be dismissed for the reasons set forth below.
II.
Walker's Petition, If Not Time-Barred, Would be Dismissed on the Merits
In his petition, Walker sets forth four bases for relief: (1) his post-arrest statement should
have been suppressed; (2) the admission at trial of the fact that Walker had made an oral postarrest statement violated his due process rights; (3) he was denied a fair trial when the trial court
improperly instructed the jury on the elements of New York's depraved indifference murder; and
(4) his appellate counsel was ineffective for failing to appeal the improper admission at trial of
"falsified" evidence.
a. Standard of Review under 28 U.S.C. § 2254
Section 2254 provides that a habeas corpus application must be denied unless the state
court's adjudication on the merits "resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the Supreme
Court of the United States," or "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). "A state court 'adjudicates' a petitioner's federal constitutional claims 'on the
merits' when 'it (1) disposes of the claim on the merits, and (2) reduces its disposition to
15
judgment.'" Norde v. Keane, 294 F.3d 401, 410 (2d Cir. 2002) (quoting Sellan v. Kuhlman, 261
F.3d 303, 312 (2d Cir. 2001)).
"Clearly established federal law 'refers to the holdings, as opposed to the dicta, of the
Supreme Court's decisions as of the time of the relevant state-court decision.'" Howard v.
Walker, 406 F.3d 114, 122 (2d Cir. 2005) (quoting Kennaugh v. Miller, 289 F.3d 36, 42 (2d Cir.
2002)). A decision is "contrary to" established federal law if it either "applies a rule that
contradicts the governing law set forth in" a Supreme Court case, or it "confronts a set of facts
that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless
arrives at a result different from [its] precedent." Penry v. Johnson, 532 U.S. 782, 792 (2001)
(internal quotation marks and citations omitted). A decision is an "unreasonable application of"
clearly established Supreme Court precedent if it "correctly identifies the governing legal rule
but applies it unreasonably to the facts of a particular prisoner's case." Id. (internal quotation
marks and citation omitted).
AEDPA establishes a deferential standard of review: "a federal habeas court may not
issue the writ simply because that court concludes in its independent judgment that the relevant
state-court decision applied clearly established federal law erroneously or incorrectly. Rather,
that application must also be unreasonable." Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001)
(quoting Williams v. Taylor, 529 U.S. 362, 411 (2000)). The Second Circuit added that, while
"[s]ome increment of incorrectness beyond error is required . . . the increment need not be great;
otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest
judicial incompetence." Id. (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).
Finally, "if the federal claim was not adjudicated on the merits, 'AEDPA deference is not
required, and conclusions of law and mixed findings of fact and conclusions of law are reviewed
16
de novo.'" Dolphy v. Mantello, 552 F.3d 236, 238 (2d Cir. 2009) (quoting Spears v. Greiner, 459
F.3d 200, 203 (2d Cir. 2006)).
a. Improper Admission of Walker's Pretrial Written Statement
Walker first alleges that the trial court denied him due process by admitting at trial his
written post-arrest statements confessing to the shooting, which Walker claims were involuntary.
Dkt. 1 at 6; Dkt. 11 at 7. The gravamen of Walker's contention is that two police detectives lied
at the pretrial hearing when they testified that they advised Walker of his Miranda rights and that
he waived those rights before giving his written statement. Dkt. 13 6–15. Walker also argues
that the detective witnesses gave conflicting testimony and were not otherwise credible, and that
the court erred by admitting his written confession in violation of Miranda. Dkt. 11 at 4–9.
Walker's contentions are unavailing.
Factual findings of a state court are presumed correct. See 28 U.S.C. §2254(e)(1). This
presumption "is particularly important when reviewing the trial court's assessment of witness
credibility." Cotto v. Herbert, 331 F.3d 217, 233 (2d Cir. 2003). Walker bears "the burden of
rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. §
2254(e)(1). AEDPA provides that habeas relief may be granted with respect to state court
factual findings only if the state court made an "unreasonable determination of the facts in light
of the evidence presented." 28 U.S.C. § 2254(e)(1). Here, as in Cotto, where a witness
"credibility clash" was "resolved by findings of the [judge] who observed the witnesses and
found that "the People's evidence was credible," the state court decision is subject to an
"extremely narrow scope of review." Cotto, 331 F.3d at 233.
Walker has not established by clear and convincing evidence that the trial court's
admission into evidence of his written statement was an "unreasonable determination of the facts
17
in light of the evidence presented." 28 U.S.C. § 2254(d)(2), (e)(1). There was ample evidence
and testimony adduced at the suppression hearing from which to conclude that Walker was read,
and waived, his Miranda rights prior to making his written confession, and therefore that his
statement was made voluntarily and was properly admitted into evidence. See, e.g., Dkt 7-2 at
29–38. Walker points to inconsistences in the testimony of two police detectives who
interrogated him, e.g., regarding which detectives were in the room during the interrogations and
when, see Dkt. 7-3 at 230–31, as proof that the detectives lied about Walker agreeing to speak to
the detectives after being Mirandized. See Dkt. 13 at 6–15. However, the judge who presided
over the suppression hearing made these credibility determinations and resolved the
inconsistencies based on her observations of the witnesses and their demeanor, as well as her
evaluation of the accuracy and reliability of their testimony when compared with the other
evidence presented at the hearing. Notably, this evidence included the statement, which was
signed by Walker. The Appellate Division affirmed these findings on the merits. There is no
basis in the record upon which to conclude that those findings were "unreasonable” factual
determinations. 28 U.S.C. §2254(d)(2). Nor do any of the inconsistencies in the testimony of
the prosecution witnesses cast significant doubt on whether Walker's statement was voluntary.
Accordingly, Walker's claim that his written post-arrest statement was improperly
admitted at trial is without merit.
b. Improper Admission of Testimony Regarding Walker's Pretrial Oral
Statement
Walker next contends that the trial court improperly permitted a detective to testify at
trial about the fact that Walker had made a post-arrest oral statement, where the statement itself
was not admitted pursuant to the trial court’s earlier ruling that the statement was inadmissible.
18
Dkt. 1 at 7; People v. Walker, 45 A.D.3d 878, 878 (2d Dep't 2007) (noting trial court’s
suppression of Walker’s oral statement). 11 Walker's contention is without merit.
The Appellate Division did not err when it denied Walker's appeal on the grounds that (1)
the statement should not have been suppressed in the first place; (2) Walker voluntarily made the
statement and, therefore, testimony about the fact of him having made the statement did not
violate his privilege against self-incrimination; and (3) the content of his oral statement was not
introduced. See Walker, 45 A.D.3d at 878. Furthermore, even if the testimony was improper,
Walker does not demonstrate any prejudice arising from the mere reference to the fact that he
made a statement. Indeed, Walker's written statement, in which he confessed to the crime, was
admitted at the trial. Thus, any reference at trial to the fact that Walker had made an oral
statement, without revelation of the content of such statement, would be harmless error. See
Parsad v. Greiner, 337 F.3d 175, 185–186 (2d Cir. 2003). In sum, the admission of testimony
about Walker’s statement was not error. And neither the Appellate Division nor the trial court
11
Notably, on appeal, the Appellate Division found, inter alia, that "there was no basis for
suppressing the oral statement.” Walker, 45 A.D.3d at 878. In fact, as Respondent concedes,
the trial court's ruling on the admissibility of Walker's oral statement "was not a paradigm of
clarity." Dkt. 6 at 14; Dkt. 3-4 at 239 ("As to the oral statement, although I have indicated that I
don't have so many problems with it. I believe that [Detective 1] did apprise [Detective 2] on the
matter. [Detective 2] knew what was said. But [Detective 2] went in there not knowing what the
matter was. So I would deny the oral statement and deny the suppression on the written
statement.").
Due to this lack of clarity, it is impossible to conclusively determine whether the statement was
suppressed on federal grounds, such as Miranda, which would permit the Court to review the
claim on the merits were the claim not otherwise procedurally barred, or some other adequate
and independent state ground, which would bar the Court's review. See Coleman v. Thompson,
501 U.S. 722, 729–33 (1991); Richardson v. Greene, 497 F.3d 212, 218 (2d Cir. 2007).
However, based on the trial court's ruling, see Dkt. 6 at 14, in which it refers to the inconsistent
testimony of the two detective-witnesses regarding the oral statement, it appears the trial court
suppressed the evidence based on the unreliability of the statement itself, and not on the basis
that it was involuntarily obtained in violation of Miranda.
19
unreasonably applied federal law or made an unreasonable determination of facts with respect to
this testimony.
c. Improper Jury Instruction Regarding Depraved Indifference Murder
Walker next argues that the trial court erred by improperly instructing the jury regarding
the legal elements of depraved indifference murder. Dkt. 1 at 9. Walker’s argument is based on
the change in New York's law of depraved indifference murder that occurred after his conviction
but during the pendency of his direct appeal. See Dkt. 1 at ECF 27–30; People v. Martinez, 20
N.Y.3d 971, 975–76 (2012) (Smith. J., concurring) (discussing development of New York's
depraved indifference murder jurisprudence).
At the time of Walker’s trial, the elements for depraved indifference murder were
governed by the New York Court of Appeals’ decision in People v. Register, 60 N.Y.2d 270
(1983), which held that there was no mens rea element beyond recklessness for the crime of
depraved indifference murder. Id. at 278 (the state legislature did not intend the concept of
depraved indifference to “function as a mens rea element, but to objectively define the
circumstances which must exist to elevate a homicide from manslaughter to murder”).
Consistent with Register, the jury in Walker’s trial was given the following instruction regarding
the depraved indifference murder count:
Murder in the second degree. Under our law, a person is guilty of murder
in the second degree when, under circumstances showing a depraved indifference
to human life, he recklessly engages in conduct which creates a grave risk of
death to another person, and thereby causes the death of that person.
According to the law, a person acts recklessly with respect to another
person's death when that person engages in conduct which could create the
substantial and unjustifiable and grave risk that another person's death will occur,
and when he is aware of and consciously disregards that risk, and when that risk is
of such nature and degree that disregarding it is a gross deviation from the
standard of conduct a reasonable person would observe in the same situation.
20
A crime which is considered reckless is generally regarded as less serious
and blameworthy than a crime committed intentionally. But when reckless
conduct is engaged in under circumstances showing a depraved indifference to
human life, the law regards that conduct as so serious, so egregious, as to be the
equivalent of intentional conduct.
Conduct showing a depraved indifference to human life is much more
serious and blameworthy than conduct which is merely reckless. It is conduct that,
beyond being reckless, is so wanton, so deficient in moral sense and concern, so
devoid of regard for the life or lives of others, as to equal in blameworthiness as
intentional conduct which produces the same result.
In determining whether the defendant's conduct showed a depraved
indifference to human life, you the jury would have to decide whether the
circumstances as you find they existed surrounding his reckless conduct, when
objectively viewed made that conduct so uncaring, so callous, so dangerous and
so inhuman as to demonstrate an attitude of total and utter disregard for the life or
lives of the persons endangered.
Dkt. 9-3 at ECF 84–86. Walker’s trial counsel did not object to that instruction, which correctly
stated the law at the time under Register.
After Walker’s conviction and while his appeal was pending, the Court of Appeals
decided People v. Feingold, 7 N.Y.3d 288, 294 (2006), which was the culmination of a series of
decisions eroding the “objective circumstances” standard of Register and moving in the direction
of requiring a mens rea element for depraved indifference murder. See People v. Martinez, 20
N.Y.3d 971, 975–76 (2012) (Smith. J., concurring) (discussing development of New York's
depraved indifference murder jurisprudence). 12 In Feingold, the Court of Appeals explicitly
12
Although Walker relies on People v. Hafeez, 100 N.Y.2d 253 (2003), to demonstrate that the
law changed before his conviction, this reliance is misplaced. Hafeez did not change New York's
law of depraved indifference. It merely portended the change that was to come. That change
only occurred with Feingold. See Martinez, 20 N.Y.3d at 976–77 (Smith. J., concurring) ("our
new standard, as articulated in Feingold, should apply to cases brought on direct appeal")
(internal citations omitted). Indeed, in a certified question from the Second Circuit, the New
York Court of Appeals instructed that "a series of decisions [including Hafeez] incrementally
pointed the law in a different direction, culminating in our explicit overruling of Register [60
N.Y.2d 270 (1980)] and Sanchez [98 N.Y.2d 373 (2002)], in Feingold." Policano v. Herbert, 7
N.Y.3d 588, 595 (2006).
21
reversed Register, and established that "depraved indifference to human life is a culpable mental
state" that had to be proved as an element of depraved indifference murder. Feingold, N.Y.3d at
294. The court explained that “depraved indifference is best understood as an utter disregard for
the value of human life—a willingness to act not because one intends harm, but because one
simply doesn’t care whether grievous harm results or not[.]” Id. at 296 (internal quotations
omitted). The court also reaffirmed its earlier conclusion from People v. Gonzalez, 1 N.Y.3d 464
(2004), that depraved indifference is a state of mind that is inconsistent with an intent to kill. Id.
at 293. Hence, after Feingold, “depraved indifference murder convictions may no longer be
upheld where the evidence of intent to kill is compelling." Martinez, 20 N.Y.3d at 976. 13
Although Walker did not object to the depraved indifference murder instruction given at
trial, he challenged it on direct appeal, arguing that the failure to give a jury instruction that
comported with Feingold, which had not yet been decided at the time of his trial, constituted a
due process violation. Dkt. 10-2 at ECF 47–49. The Appellate Division, however, did not
address the merits of this argument, instead finding that it was procedurally barred because of
Walker’s failure to preserve his objection at trial. Walker, 45 A.D.3d at 878. The Appellate
Division denied Walker’s appeal in 2007. At that time, there was no Court of Appeals decision
regarding the applicability of the changed standard established in Feingold to cases on direct
appeal. Walker’s conviction became final in May 2008. See People v. Walker, 10 N.Y.3d 772
(2008).
13
Several months after its decision in Feingold, in November 2006, the Court of Appeals
decided Policano, in which it held, in response to a question certified by the Second Circuit, that
the change in the law regarding the mens rea element of depraved indifference murder that was
definitively established in Feingold does not apply retroactively to convictions challenged on
collateral review. Policano, 7 N.Y.3d at 603–04. Although Walker sought collateral review of
his convictions by filing a coram nobis petition and a 440 Motion, he did not raise the jury
charge issue in either of those petitions. Id.
22
Six months later, in November 2008, the Court of Appeals addressed the applicability of
the change in the law regarding the mens rea element of depraved indifference murder to direct
appeals in People v. Jean-Baptiste, 11 N.Y.3d 539 (2008). In Jean-Baptiste, the Court of
Appeals distinguished its prior holding in Policano v. Herbert, 7 N.Y.3d 588 (2006), and held
that, although intervening changes of law should not be applied to cases on post-conviction
collateral review, they should be applied to cases where the defendant's conviction is still
pending on direct appeal and thus not yet final. Id. at 543 (although intervening changes in law
"should not be applied on collateral review to defendants whose convictions became final prior
to our new interpretation of the law of depraved indifference murder" "that is not the case here,
where defendant's conviction is still not final").
Thus, the history of Walker’s case coincidentally is interwoven with the evolution of the
law on depraved indifference murder: his conviction occurred before the change in the mens rea
standard established by Feingold; his appeal was pending when Feingold was decided; and his
conviction became final before the Court of Appeals decided in Jean-Baptiste that the Feingold
standard should be applied to cases pending on appeal. While this timing might suggest that
Walker should benefit from the intervening change in the law regarding depraved indifference
murder, that is not the case. As discussed below, Walker’s claim fails because he did not
preserve his claim when he challenged only the depraved indifference murder instruction given
to the jury and not the sufficiency of the evidence supporting his conviction, which is a
prerequisite for retroactive application of the Feingold mens rea standard. People v. JeanBaptiste, 11 N.Y.3d 539, 542 (2008) ("We hold that the standard as articulated in Feingold
should apply to cases brought on direct appeal in which the defendant has adequately challenged
23
the sufficiency of the proof as to his depraved indifference murder conviction.") (emphasis
added).
i.
Applicable Standard for A Federal Constitutional Violation Based
on Purportedly Erroneous State Court jury Instruction
The propriety of a state court's jury instructions ordinarily is a matter of state law that
does not raise a federal constitutional issue. See Cupp v. Naughten, 414 U.S. 141, 146 (1973);
United States ex rel. Smith v. Montaye, 505 F.2d 1355, 1359 (2d Cir. 1974). Further, even if the
jury instruction violated state law, no habeas relief is available unless the error also violated the
petitioner’s federal rights. See Estelle v. McGuire, 502 U.S. 62, 71–72 (1991) (state law error
regarding jury instruction is not itself a basis for habeas relief).
Jury instructions violate due process if they "fail[] to give effect to [the] requirement" that
the prosecution must prove every element of a charged offense beyond a reasonable doubt." See
Middleton v. McNeil, 541 U.S. 433, 437 (2004) (per curiam). Also, "[a] jury charge violates due
process when there is a reasonable likelihood that the jury has applied the challenged instruction
in a way that violates the Constitution." Cortijo v. Bennett, 422 Fed. App'x 12, 13 (2d Cir. 2011)
(citing Middleton, 541 U.S. at 437). A petitioner "making a claim of improper jury instructions
faces a substantial burden" to establish that "the ailing instruction by itself so infected the entire
trial that the resulting conviction violat[ed] due process." Devalle v. Armstrong, 306 F.3d 1197,
1200-01 (2d Cir. 2002) (internal alterations and citations omitted).
ii.
Walker Was Not Entitled to Retroactive Application of the
Feingold Mens Rea Standard
Walker has failed to demonstrate that he was entitled, under New York law, to have the
jury instructed pursuant to the standard set in Feingold. While the Court of Appeals in JeanBaptiste held that the intervening change in law with regard to the mens rea requirement for
24
proving depraved indifference murder should apply to cases pending on direct appeal when
Feingold was decided—which was the posture of Walker’s case—it was not erroneous for the
Appellate Division to deny Walker’s appeal. First, the Appellate Division correctly concluded
that, having failed to object to the depraved indifference instruction at trial, Walker failed to
preserve that claim for appeal. 14 As noted in the concurrence in Martinez, with respect to murder
cases, "[t]he general rule that [the Court of Appeals] will review claims only where they have
been properly preserved for review attains special importance in this context. The preservation
rule, like our retroactivity holding in Policano, serves to prevent the unnecessary overturning of
convictions of defendants who committed vicious crimes but who may have been charged and
convicted under the wrong section of the statute." Martinez, 20 N.Y.3d at 977 (Smith, J.,
concurring) (citing Suarez, 6 N.Y.3d at 217). Here, as discussed infra, there is no basis for
arguing that Walker was charged or convicted of the wrong crime.
Second, even if Walker had preserved his claim with respect to the jury instruction, it
would have been denied because Walker did not challenge the sufficiency of the evidence used
to convict him of depraved indifference murder. In Jean-Baptiste, the Court of Appeals held that
14
In finding the claim unpreserved, the Appellate Division necessarily relied on New York's
preservation rule, which constitutes an "adequate and independent" state ground precluding
federal habeas review. A state ground is adequate when it is firmly established and regularly
followed. See Richardson v. Greene, 497 F.3d 212, 219 (2d Cir. 2007) ("[I]n accordance with
New York case law, application of the state's preservation rule is adequate—i.e., firmly
established and regularly followed"). And a procedural rule is considered independent when the
"state court must actually have relied on the procedural bar as an independent basis for its
disposition of the case" by "clearly and expressly stat[ing] that its judgment rests on a state
procedural bar." Harris v. Reed, 489 U.S. 255, 261–62, 263 (1989) (internal quotations omitted).
Both of those requirements are satisfied by the Appellate Division's reliance on New York's
preservation rule. See, e.g., Richardson v. Greene, 497 F.3d 212, 218 (2d Cir. 2007)
("application of the state's preservation rule is adequate—i.e., firmly established and regularly
followed"). Thus, the Appellate Division's reliance on New York's preservation rule in denying
Walker's appeal constitutes an adequate and independent state ground further barring the Court's
review of Walker's claim.
25
“the standard as articulated in Feingold should apply to cases brought on direct appeal in which
the defendant has adequately challenged the sufficiency of the proof as to his depraved
indifference murder conviction.” 11 N.Y.3d at 542 (emphasis added); Martinez, 20 N.Y.3d at
977 (Smith, J., concurring) (“Jean-Baptiste’s qualifying language, ‘in which the defendant has
adequately challenged the sufficiency of the proof,’ is a critical part of our post-Sanchez
jurisprudence[.]”). 15 Unlike the defendant in Jean-Baptiste, Walker did not claim on appeal that
the evidence was insufficient to prove that he was guilty of depraved indifference murder as redefined by Feingold. 16 Thus, Walker’s assertion that he should have received a different jury
instruction at trial, without adequately challenging the sufficiency of the proof of conviction, is
simply not enough. 17
Indeed, given the evidence supporting his conviction, Walker could not have successfully
challenged the sufficiency of the evidence even under a Feingold standard. See Middleton, 541
U.S. at 437 (due process violated if jury instructions fail to give effect to the requirement that
every element of a charged offense is proved beyond a reasonable doubt). The overwhelming
evidence at trial established that Walker committed the “quintessential” depraved indifference
murder, i.e., "lacking the intent to kill (but oblivious to the consequences and with depraved
indifference to human life) [Walker shot] into a crowd or otherwise endanger[ed] innocent
15
People v. Sanchez, 98 N.Y.2d 373 (2002), was the final case to uphold the Register view of
depraved indifference. In Sanchez, the Court of Appeals upheld a conviction of depraved
indifference murder, finding that the evidence that the defendant shot the victim "within not
more than 18 inches of his body and striking him in the chest, would permit a jury rationally to
conclude that defendant demonstrated an indifference to human life so depraved as to be
deserving of the same punishment as intentional murder." Id. at 384.
16
As previously discussed, Walker did not challenge at trial, nor could he have collaterally
attacked, the depraved indifference murder instruction. Policano, 7 N.Y.3d at 604.
17
Walker’s failure to challenge the sufficiency of the evidence supporting his conviction in state
court proceedings also renders that precise claim unpreserved for purposes of federal habeas
review. See 28 U.S.C. § 2254(b)(1)(A) (requiring exhaustion of state remedies with respect to
each claim).
26
bystanders." See People v. Feingold, 7 N.Y.3d at 296; People v. Payne, 3 N.Y.3d 270, 271
(2004). Because the evidence that supported Walker’s conviction would have established his
guilt of depraved indifference murder under the Feingold standard, he cannot establish a due
process violation. Devalle, 306 F.3d at 1201 (habeas petitioner claiming a violation of due
process based on an improper jury charge must show that "the ailing instruction by itself so
infected the entire trial that the resulting conviction violat[ed] due process").
Thus, Walker’s conviction was properly affirmed on appeal because the depraved
indifference murder instruction given at his trial correctly stated the law at that time, and he was
not entitled to the subsequent change in the law, notwithstanding the pendency of his direct
appeal at the time of the change. And in any event, Walker's conviction was supported by ample
evidence that he committed depraved indifference murder under the Feingold standard.
iii.
Due Process Violation for Not Applying Intervening Change in
Law
Even assuming arguendo that the depraved indifference murder instruction given at
Walker’s trial was erroneous, i.e., it should have included the Feingold mens rea requirement,
and that the Appellate Division erroneously denied his appeal, Walker still would not be entitled
to habeas relief unless the error also violated his federal rights. Estelle, 502 U.S. at 71–72 (state
law error regarding jury instruction is not itself a basis for habeas relief). Here, the issue is
whether Walker’s right to due process was violated by the Appellate Division’s decision not to
apply the Feingold mens rea standard in his direct appeal. Walker was not denied due process.
Under AEDPA, a petitioner is entitled to federal habeas relief if the state court
proceedings "resulted in a decision that was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court of the United States."
28 U.S.C. § 2254(d)(1). The Supreme Court has not spoken on the issue of whether a state
27
violates a defendant’s federal due process rights by not applying an intervening change in the
law that occurred while the defendant’s case was pending direct appeal. See Guzman v. Greene,
425 F. Supp. 2d 298, 315 (E.D.N.Y. 2006). Accordingly, given the absence of established
Supreme Court law on this issue, the Court has no basis for concluding that the Appellate
Division’s denial of Walker’s challenge to the depraved indifference murder instruction given at
his trial based on an intervening change in the law was an unreasonable application of federal
law as announced by the Supreme Court.
Federal courts in this circuit have not yet addressed the retroactivity of Feingold and its
kin to state court cases that still were pending on direct appeal when Feingold was decided. See
Guzman, 425 F. Supp. 2d at 316 (also noting that "[t]he Supreme Court has never addressed this
issue" of whether "the failure to retroactively apply a new criminal rule of state law would
violate clearly established Supreme Court law"), aff'd 337 Fed. App'x 27, 29 (2d Cir. 2009);
Melendez v. Kirkpatrick, 742 F. Supp. 2d 336, 351 (W.D.N.Y. 2010).
Judge Frederic Block addressed a similar issue to the one presented here in Guzman. The
defendant in Guzman had been convicted in state court of depraved indifference murder, but the
evidence introduced at trial showed that the defendant had intentionally killed the victim. As
here, the defendant’s case was pending on direct review when Feingold was decided. Judge
Block found that "the Court would be compelled to grant Guzman's habeas petition if the law
applicable during direct review [i.e., Feingold] were controlling." Guzman, 425 F. Supp. 2d at
313. Judge Block explained that he would have granted the writ because, under the thenestablished case law, "there was insufficient evidence to support [the Appellate Division's]
finding that the petitioner was guilty of depraved-indifference murder." Id. Judge Block then,
without the benefit of Jean-Baptiste, which was subsequently decided, analyzed whether the new
28
depraved indifference murder case law applied retroactively on direct appeal, and concluded that
New York retroactivity rules would not require that new case law, such as Suarez, Hafeez,
Gonzalez, and Payne, apply to Guzman. Id. at 315–16. Judge Block then reached the same issue
as presented here: "whether the failure to retroactively apply [on direct appeal] a new criminal
rule of state law would violate clearly established Supreme Court law." Id. at 316. Judge Block
found that it would not, as the Supreme Court had not addressed the issue, and therefore AEDPA
barred the granting of the writ. Id. at 317.
Thus, the unanswered question that remains in the Second Circuit and elsewhere is
whether a state violates a defendant's federal due process rights where the state appellate court
does not apply a change in state law that occurs during direct review of the conviction. 18 All of
the case law identified by the Court only addresses the issue of whether such changes in law are
retroactively applicable on collateral review, not direct review. See, e.g., Henry v. Ricks, 578
F.3d 134, 139–40 (2d Cir. 2009) ("The question whether, or under what circumstances, due
process requires that a new interpretation of a criminal statute by a state's highest court be
applied retroactively on collateral review is one of first impression in this Circuit.") (emphasis
added); Fiore v. White, 531 U.S. 225, 226 (2001) ("We granted certiorari in part to decide when,
or whether, the Federal Due Process Clause requires a State to apply a new interpretation of a
state criminal statute retroactively to cases on collateral review.") (emphasis added). Hence, as
18
The Supreme Court has addressed similar questions regarding new federal law, such as
whether the federal rule announced in Batson v. Kentucky, 476 U.S. 79 (1986), should be applied
"to litigation pending on direct state or federal review or not yet final when Batson was decided."
Griffith v. Kentucky, 479 U.S. 314, 317 (1987). There, the Court answered in the affirmative and
held that "a new rule for the conduct of criminal prosecutions is to be applied retroactively to all
cases, state or federal, pending on direct review or not yet final . . . ." Id. at 328. Additionally,
the New York Court of Appeals has held it is not constitutionally required to retroactively apply
new state rules to cases pending on direct review. People v. Mitchell, 80 N.Y.2d 519 (1992).
But the precise question here remains unanswered in the Second Circuit and, more aptly, by the
Supreme Court.
29
Judge Block concluded in Guzman, this Court has no basis to find that the Appellate Division’s
decision in Walker’s case was an unreasonable application of clearly established federal law
because the Supreme Court has not spoken on this issue. 19
Even were the Court to conclude that the Appellate Division’s decision not to apply the
intervening change in the law to Walker’s case violated due process, that error would be
harmless given that the evidence was sufficient to prove that Walker acted with the requisite
depraved indifference mens rea under Feingold. See Chapman v. California, 386 U.S. 18, 23–24
(1967); Fahy v. State of Connecticut, 375 U.S. 85, 86–97 (1963).
Under the facts of Walker’s case, it reasonably can be inferred that the jury found that the
necessary depraved indifference mens rea was proven beyond a reasonable doubt. See Feingold,
7 N.Y.3d at 295, 297 (finding that evidence could permit the inference of depraved indifference
mens rea). Indeed, Walker "might well be said to have acted with the mens rea of depraved
indifference" because "the factfinder simply announced a guilty verdict." Id. at 295.
iv.
Walker's Conduct Constitutes Depraved Indifference Murder
Unlike in Jean-Baptiste, Martinez, Payne, Suarez, and the other related cases in which
the evidence strongly supported an intentional murder conviction, the evidence here is
paradigmatic of the nature of depraved indifference murder. Walker's case does not fall into the
category of cases that no longer qualify for depraved indifference murder convictions. The
evidence showed that Walker and his accomplice indiscriminately fired their weapons into the
entrance of a nightclub, which demonstrates Walker's "utter disregard for the value of human
life—a willingness to act not because one intends harm, but because one simply doesn't care
19
Judge Block specifically noted that "[s]ince there is no Supreme Court holding addressing the
issue of whether the states must retroactively apply a new criminal rule of state law, it cannot be
concluded under AEDPA that the Appellate Division's rejection of Guzman's insufficiency claim
was contrary to clearly established Supreme Court precedent." Guzman, 425 F. Supp. 2d at 317.
30
whether grievous harm results or not." Id. at 296 (explaining depraved indifference mens rea).
Unlike those typical "one-on-one shooting" cases in which murder convictions were overturned
(such as People v. Suarez, 6 N.Y.3d 202 (2005), Jean-Baptiste, and Martinez), the evidence here
did not strongly indicate intent to kill, but rather strongly demonstrated that the killing occurred
under circumstances evincing depraved indifference to life which, like any other mens rea, may
be proved by circumstantial evidence. See id. at 296–97 (noting that a case may state a
"'quintessential' case of depraved indifference murder [where] the circumstantial proof of
depraved indifference would be compelling"); see also People v. Jernatowski, 238 N.Y. 188, 192
(1924) ("[W]hen the defendant fired two or more shots into the house where he knew there were
human beings he committed an act which the jury certainly could say was imminently dangerous
and which evinced a wicked and depraved mind regardless of human life and which amply
supplied the evidence of malice and felonious intent"); People v. Fenner, 61 N.Y.2d 971 (1984)
(defendant fired into a fleeing crowd); People v. Russell, 91 N.Y.2d 280 (1988) (defendant shot
and killed an innocent bystander during a gun battle).
Accordingly, Walker's petition with respect to his claim that he was denied due process
because an erroneous depraved indifference murder jury charge was given is denied.
d. Ineffective Assistance of Appellate Counsel
Walker lastly argues that his appellate counsel's performance was constitutionally
defective because counsel failed to appeal his conviction on the ground that it was obtained at
least in part by "falsified evidence." Dkt. 1 at 4. Although Walker previously claimed
ineffective assistance of appellate counsel in his writ of error coram nobis petition, the basis for
his claim there was that appellate counsel failed to raise his Brady and Rosario claims to the
Appellate Division, not that his appellate counsel failed to appeal the admission of "falsified
31
evidence" at his trial. Dkt. 1 at 4, 10. Because Walker now presents a new theory of why his
appellate counsel was ineffective, Walker's claim has not been previously "fairly presented" to
the state courts in a manner "such that the state court had a fair opportunity to act." Galdamez v.
Keane, 394 F.3d 68, 73 (2d Cir. 2005) (citation omitted). Walker's claim therefore is
unexhausted and the Court is procedurally barred from granting relief with respect to the claim.
See 28 U.S.C. § 2254(b)(1)(A) ("An application for a writ of habeas corpus . . . shall not be
granted unless it appears that the applicant has exhausted the remedies available in the courts of
the State."). Walker concedes that he did not exhaust this claim. Dkt. 1 at 11.
However, because Walker's petition thus presents both exhausted and unexhausted
claims, it constitutes a "mixed" petition, Pratt v. Greiner, 306 F.3d 1190, 1197 (2d Cir. 2001),
and the Court in its discretion may deny the petition, including the unexhausted claims, on the
merits. 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on
the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the
courts of the State."); see Jelinek v. Costello, 247 F. Supp. 2d 212, 262–63 (E.D.N.Y. 2003)
(discussing discretionary denial of habeas petition on the merits).
Walker's ineffective assistance of appellate counsel claim is without merit. To establish
that his appellate counsel was ineffective, Walker must show that his counsel's conduct "fell
below an objective standard of reasonableness" and that "there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the proceeding would have been different."
Strickland v. Washington, 466 U.S. 668, 688, 694 (1981).
Walker's petition does not identify the "falsified evidence" that purportedly was
presented to the jury. Walker simply asserts that "defense counsel objected to the admission of
into evidence [sic]. The jury specifically requested to view this evidence and therefore took it
32
into consideration as part of their decision of guilt." Dkt. 1 at 10. The record reflects that the
jury requested numerous pieces of evidence and testimony, including exhibits, charts, the
Miranda sheet, and police detective and other witness testimony. See Dkt. 9-3 at 693. Yet
Walker fails to identify which item(s) of evidence was allegedly falsified, and thus presents no
basis to determine the validity of his assertion. In addition, Walker's petition fails to show how
appellate counsel could have shown from the record on appeal that any such evidence was
falsified, or how his claim of the falsified evidence, even if proved, would have affected the
outcome of his appeal.
Accordingly, Walker's claim regarding the ineffectiveness of his appellate counsel is
denied.
33
CONCLUSION
For the reasons set forth above, the petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254 is dismissed as untimely under 28 U.S.C. § 2244(d)(1). Even were the petition
not time-barred, the claims Walker asserts are either procedurally barred, without merit, or both.
Walker is denied a certificate of appealability, as he has failed to make a "substantial
showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see Middleton v. Att'ys
Gen., 396 F.3d 207, 209 (2d Cir. 2005) (petitioner has not shown that "reasonable jurists could
debate whether . . . the petition should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further"). Additionally, the Court
certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken
in good faith, and, therefore, in forma pauperis status is denied for purpose of an appeal.
Coppedge v. United States, 369 U.S. 438, 444–45 (1962).
SO ORDERED:
/s/ Pamela K. Chen
PAMELA K. CHEN
United States District Judge
Dated: July 2, 2013
Brooklyn, New York
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