Johnson v. Lee
MEMORANDUM DECISION: ORDERED THAT the Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus is DENIED. IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of Appealability. 28 U.S.C. § 2253(c); Banks v. Dretke, 540 U.S. 668, 705 (2004) ("To obtain a certificate of appealability, a prisoner must 'demonstrat[e] that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.'" (quoting Miller-El, 537 U.S. at 327)). Any further request for a Certificate of Appealability must be addressed to the Court of Appeals. See FED. R. APP. P. 22(b); 2D CIR. R. 22.1. Signed by Judge James K. Singleton on 4/14/17. (served on petitioner by regular mail)(alh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK
JOSEPH NOETH, Superintendent, Attica
Shawndell Johnson, a New York state prisoner proceeding pro se, filed a Petition for a
Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Johnson is in the custody
of the New York State Department of Corrections and Community Supervision and incarcerated
at Attica Correctional Facility. Respondent has answered the Petition, and Johnson has not
I. BACKGROUND/PRIOR PROCEEDINGS
In September 2009, Johnson was charged with murdering Ulysses Canty over Labor Day
2008. On direct appeal of his conviction, the Appellate Division of the New York Supreme
Court laid out the following facts underlying this case:
During the early morning hours of September 1, 2008, [Johnson] and his
cohorts—Tyrell Durham and David Dickerson—met up with Jennifer Derenzo Williams
(hereinafter Derenzo) and her then boyfriend, Christopher Williams, at a Hess gas station
in the City of Schenectady, Schenectady County. [Johnson] was driving a blue Lexus
that he had borrowed from a friend, and Derenzo was driving a rented Toyota Camry.
The group, at least some of whom already had been drinking beer and/or smoking
marihuana, purchased additional beer and decided to continue partying at the home of
Joseph Noeth, Superintendent, Attica Correctional Facility, is substituted for
William Lee, Superintendent, Green Haven Correctional Facility. FED. R. CIV. P. 25(c).
Travis Cellini, where they remained until approximately 4:30 a.m. After departing
Cellini’s home, the group—consisting of Derenzo and Williams in the Camry and
[Johnson], Dickerson and Durham in the Lexus—unsuccessfully attempted to purchase
marihuana from a local “weed spot.” The group continued to drive around Schenectady
County and, at some point, [Johnson] struck a curb with the Lexus and apparently
damaged one of the wheels. [Johnson] then parked the vehicle in the lot of a local hotel,
and the group set out again in Derenzo’s Camry. When Williams expressed interest in
finding another weed spot, [Johnson] directed him to 933 Albany Street in
Schenectady—a location from which he previously had purchased marihuana.
Upon arriving at that address, [Johnson] entered an apartment and made his
purchase from Tristan Phillips. [Johnson], however, was dissatisfied with the quality of
his purchase and thereafter devised a plan to rob the weed spot in order to obtain money
to fix the damaged Lexus. At [Johnson’s] request, Williams retrieved a 9 millimeter
handgun that he had stashed at a friend’s house earlier that evening, and the group then
drove back to 933 Albany Street.FN1 Once there, Derenzo parked a few houses away in
order to avoid detection, and [Johnson], Williams, Durham and Dickerson exited the
Camry and entered the weed spot.
FN1. Derenzo later would describe [Johnson’s] mood during this time as
agitated. Durham would offer similar testimony, stating that [Johnson]
was nervous and in need of money to pay for the repairs to the Lexus.
[Johnson] knocked on the door of the apartment, told Phillips why he was there,
explained that he had been in an accident and asked Phillips to let him inside so that he
could wash his hands. Williams, Dickerson and Durham waited—apparently out of
sight—in the hallway. [Johnson] told Phillips that he was waiting for his “homeboy” to
bring him money for the purchase and lingered in the apartment—waiting for Williams to
rush in as planned. When Williams failed to materialize, [Johnson] told Phillips that he
had changed his mind and started to leave. At this point, Ulysses Canty—the alleged
proprietor of the weed spot—became suspicious, pushed [Johnson] from the apartment
and closed the door behind him.FN2 According to Williams and Durham, [Johnson] then
grabbed the gun from Williams and fired multiple shots at the closed door. Canty, who
was braced against the inside of the door, was struck and fatally wounded. [Johnson],
Williams, Durham and Dickerson then fled the scene in Derenzo’s Camry, which she
crashed into a telephone pole shortly thereafter.
FN2. Canty apparently was not present when [Johnson] made his original
purchase earlier that morning.
[Johnson] subsequently was arrested in connection with unrelated drug sales
made to a confidential informant (see People v. Johnson, 91 A.D.3d 1194, 937 N.Y.S.2d
443 , lv. denied 18 N.Y.3d 995, 945 N.Y.S.2d 649, 968 N.E.2d 1005 ) and,
in September 2009, was indicted and charged with various crimes stemming from the
shooting at the weed spot. Following a 14–day jury trial, [Johnson] was convicted of the
crimes of murder in the first degree, murder in the second degree, attempted robbery in
the first degree (three counts), attempted robbery in the second degree, criminal
possession of a weapon in the second degree (two counts), criminal possession of a
weapon in the third degree, reckless endangerment in the first degree and tampering with
physical evidence and thereafter was sentenced to an aggregate prison term of 28 ½ years
People v. Johnson, 965 N.Y.S.2d 220, 222-23 (N.Y. App. Div. 2013).
Through counsel, Johnson appealed his conviction, arguing that: 1) the trial court erred
by admitting into evidence a portion of his statement to police after he had invoked his right to
remain silent in violation of Miranda v. Arizona, 384 U.S. 436 (1966); 2) he was denied due
process by the trial court’s refusal to redact from the videotape of the interrogation shown to the
jury during the prosecution’s case-in-chief his invocations of the right to remain silent; 3) he was
denied a fair trial when the trial court admitted evidence of other bad acts, including that he sold
cocaine and was affiliated with the Bloods gang; and 4) the evidence was legally insufficient to
establish his intent to kill. The Appellate Division unanimously affirmed his conviction in a
reasoned opinion issued on May 16, 2013. Johnson, 965 N.Y.S.2d at 227. Johnson sought leave
to appeal the denial to the New York Court of Appeals, which was summarily denied on August
5, 2013. People v. Johnson, 995 N.E.2d 856, 856 (N.Y. 2013).
Johnson then filed this pro se Petition for a Writ of Habeas Corpus to this Court.
II. GROUNDS RAISED
Johnson raises 4 claims in his pro se Petition before this Court. First, he argues that his
right to remain silent was violated when the court failed to suppress all statements to law
enforcement after he invoked his right to remain silent. He next contends that the trial court
erred in refusing to redact from a video played to the jury Johnson’s invocation of his right to
remain silent. Third, he alleges that the trial court erred in admitting prejudicial evidence of
other crimes and bad acts. Finally, he avers that the evidence was insufficient to establish an
“‘intent to kill’ required to prove First-Degree Felony Murder.”
III. STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.
§ 2254(d), this Court cannot grant relief unless the decision of the state court was “contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States,” § 2254(d)(1), or “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding,”
§ 2254(d)(2). A state-court decision is contrary to federal law if the state court applies a rule that
contradicts controlling Supreme Court authority or “if the state court confronts a set of facts that
are materially indistinguishable from a decision” of the Supreme Court, but nevertheless arrives
at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000).
To the extent that the Petition raises issues of the proper application of state law, they are
beyond the purview of this Court in a federal habeas proceeding. See Swarthout v. Cooke, 131 S.
Ct. 859, 863 (2011) (per curiam) (holding that it is of no federal concern whether state law was
correctly applied). It is a fundamental precept of dual federalism that the states possess primary
authority for defining and enforcing the criminal law. See, e.g., Estelle v. McGuire, 502 U.S. 62,
67-68 (1991) (a federal habeas court cannot reexamine a state court’s interpretation and
application of state law); Walton v. Arizona, 497 U.S. 639, 653 (1990) (presuming that the state
court knew and correctly applied state law), overruled on other grounds by Ring v. Arizona, 536
U.S. 584 (2002).
In applying these standards on habeas review, this Court reviews the “last reasoned
decision” by the state court. Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991); Jones v. Stinson,
229 F.3d 112, 118 (2d Cir. 2000). Where there is no reasoned decision of the state court
addressing the ground or grounds raised on the merits and no independent state grounds exist for
not addressing those grounds, this Court must decide the issues de novo on the record before it.
See Dolphy v. Mantello, 552 F.3d 236, 239-40 (2d Cir. 2009) (citing Spears v. Greiner, 459 F.3d
200, 203 (2d Cir. 2006)); cf. Wiggins v. Smith, 539 U.S. 510, 530-31 (2003) (applying a de novo
standard to a federal claim not reached by the state court). In so doing, the Court presumes that
the state court decided the claim on the merits and the decision rested on federal grounds. See
Coleman v. Thompson, 501 U.S. 722, 740 (1991); Harris v. Reed, 489 U.S. 255, 263 (1989); see
also Jimenez v. Walker, 458 F.3d 130, 140 (2d Cir. 2006) (explaining the Harris-Coleman
interplay); Fama v. Comm’r of Corr. Servs., 235 F.3d 804, 810-11 (2d Cir. 2000) (same). This
Court gives the presumed decision of the state court the same AEDPA deference that it would
give a reasoned decision of the state court. Harrington v. Richter, 131 S. Ct. 770, 784-85 (2011)
(rejecting the argument that a summary disposition was not entitled to § 2254(d) deference);
Jimenez, 458 F.3d at 145-46. Under the AEDPA, the state court’s findings of fact are presumed
to be correct unless the petitioner rebuts this presumption by clear and convincing evidence. 28
U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
Johnson has not replied to Respondent’s answer. The relevant statute provides that “[t]he
allegations of a return to the writ of habeas corpus or of an answer to an order to show cause in a
habeas corpus proceeding, if not traversed, shall be accepted as true except to the extent that the
judge finds from the evidence that they are not true.” 28 U.S.C. § 2248; see also Carlson v.
Landon, 342 U.S. 524, 530 (1952). Where, as here, there is no traverse filed and no evidence
offered to contradict the allegations of the return, the court must accept those allegations as true.
United States ex rel. Catalano v. Shaughnessy, 197 F.2d 65, 66-67 (2d Cir. 1952) (per curiam).
Respondent urges the Court to dismiss Johnson’s Petition as untimely.
The AEDPA provides:
(1) A 1-year period of limitation shall apply to an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a State court.
The limitation period shall run from the latest of—
(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;
(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.
(2) The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or
claim is pending shall not be counted toward any period of limitation under this
28 U.S.C. § 2244(d).
On May 16, 2013, the Appellate Division affirmed Johnson’s judgment of conviction,
Johnson, 965 N.Y.S.2d at 227, and the New York Court of Appeals denied Johnson’s application
for leave to appeal on August 5, 2013, Johnson, 995 N.E.2d at 856. His conviction therefore
became final 90 days later, on November 3, 2013, the conclusion of the period during which
Johnson could have sought certiorari review in the United States Supreme Court. See Williams
v. Artuz, 237 F.3d 147, 150-51 (2d Cir. 2001). Johnson thus had one year from that date, or until
November 3, 2014, to file his Petition with this Court. See 28 U.S.C. § 2244(d)(1)(A).
Johnson’s Petition was not docketed in this Court until November 20, 2014.
Respondent argues that his Petition was filed 17 days late and should be dismissed as
untimely. It is well established that incarcerated pro se litigants are deemed to have filed their
federal papers on the date the papers were handed to prison officials for mailing. See Houston v.
Lack, 487 U.S. 266, 270 (1988). In the absence of evidence to the contrary, a federal court
should assume that the application was delivered to the prison official on the date it was signed.
See Rhodes v. Senkowski, 82 F. Supp. 2d 160, 165 (S.D.N.Y. 1999). Johnson’s signed Petition
indicates that he placed his Petition in the prison mailing system on November 5, 2014, which is
still two days late. See Smith v. Lee, No. 11 Civ. 8376, 2013 WL 2467988, at *9 (S.D.N.Y. Jun.
7, 2013) (dismissing as untimely habeas petition that was filed at least two days late).
An untimely petition is subject to dismissal. Day v. McDonough, 547 U.S. 198, 201
(2006); Jenkins v. Greene, 630 F.3d 298, 305 (2d Cir. 2010). The statutory limitations period
under the AEDPA, however, may be tolled for equitable reasons. Holland v. Florida, 560 U.S.
631, 645 (2010). A petitioner seeking equitable tolling bears the burden of establishing two
elements: 1) “that he has been pursuing his rights diligently,” and 2) “that some extraordinary
circumstance stood in his way” and prevented timely filing. Id. at 649 (quoting Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005)); Diaz v. Kelly, 515 F.3d 149, 153 (2d Cir. 2008). The
determination is made on a case-by-case basis. Holland, 560 U.S. at 649-50. “The term
‘extraordinary’ refers not to the uniqueness of a party’s circumstances, but rather to the severity
of the obstacle impeding compliance with a limitations period.” Harper v. Ercole, 648 F.3d 132,
137 (2d Cir. 2011) (citations omitted). The threshold for a petitioner to establish equitable
tolling is very high. See Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000).
Here, Johnson did not respond to Respondent’s answer and thus does not provide reasons
as to why equitable tolling might apply. Accordingly, while this Court is not unmindful of the
plight of unrepresented state prisoners in federal habeas proceedings, the Court must conclude
that there are no extraordinary circumstances that warrant application of equitable tolling, and
Johnson’s Petition is untimely and is dismissed on that ground.
Even if Johnson’s Petition were timely, he still would not be entitled to relief on it. As
discussed below, the Court also denies relief on the merits of Johnson’s claims.
Admission of statements (Grounds 1, 2)
Johnson first argues that the trial court made two reversible errors with respect to his
invocation of the right to remain silent—first, by admitting the portion of his statement after he
invoked his right to remain silent, and second, by refusing to redact the videotaped interview of
his invocations. The Appellate Division agreed that the trial court erred, but nonetheless
concluded that the errors were harmless beyond a reasonable doubt. Johnson, 965 N.Y.S.2d at
On direct review of a state court conviction, the appellate court must find a constitutional
error “harmless beyond a reasonable doubt,” Chapman v. California, 386 U.S. 18, 24 (1967),
before affirming the conviction. On collateral review, a federal court may overturn a State
conviction only when the constitutional error “had substantial and injurious effect or influence in
determining the jury's verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (internal
quotation marks omitted). In Fry v. Pliler, 551 U.S. 112 (2007), the Supreme Court held that
collateral proceedings brought pursuant to 28 U.S.C. § 2254, “a court must assess the prejudicial
impact of constitutional error in a state-court criminal trial under the [Brecht] standard . . . ,
whether or not the state appellate court recognized the error and reviewed it for harmlessness
under [Chapman].” Fry, 551 U.S. at 121–22 (citations omitted). Fry further noted that
application of the Brecht test “obviously subsumes,” 551 U.S. at 120, an alternative test whereby
a court would “assess whether the state appellate court acted reasonably in determining that the
error was ‘harmless . . . beyond a reasonable doubt’” under Chapman. Perkins v. Herbert, 596
F.3d 161, 174 (2d Cir. 2010). Accordingly, the Court must assess, under the Brecht standard,
whether the error in admitting Johnson’s statements after he invoked his right to remain silent
“had substantial and injurious effect or influence in determining the jury’s verdict.” Brecht, 507
U.S. at 638 (quotation omitted); Fry, 551 U.S. at 121-22.
This Court may only reverse the state court’s harmless error determination on the ground
that it was objectively unreasonable. Zappulla v. New York, 391 F.3d 462, 467 (2d Cir. 2004).
By “distilling . . . Supreme Court precedents,” the Second Circuit has found the following factors
to be relevant in determining whether the erroneous admission of a statement was harmless error:
1) the overall strength of the prosecution’s case; 2) the prosecution’s conduct with respect to the
improperly admitted evidence; 3) the importance of the wrongly admitted testimony; and
4) whether such evidence was cumulative of other properly admitted evidence. Id. at 468. The
strength of the prosecution’s case is “the most important factor in our inquiry.” Perkins v.
Herbert, 596 F.3d 161, 179 (2d Cir. 2010).
Assessing these factors, the Appellate Division concluded:
In our view, the testimony of, among others, Derenzo, Williams, Durham and
Phillips, together with the independent fingerprint and DNA evidence,FN7 constitute
overwhelming evidence of Johnson’s guilt. We therefore conclude that there is no
reasonable possibility that the statements made by [Johnson] after he first invoked his
right to remain silent, which did not include any admission of guilt, contributed to his
FN7. Although such evidence does not place [Johnson] at the scene of the
crime, it does corroborate other details provided by Derenzo, Williams
Johnson, 965 N.Y.S.2d at 226.
The Appellate Division’s conclusion is both reasonable and fully supported by the
record. Again, the Second Circuit has emphasized that “[t]he strength of the prosecution’s case,
absent the erroneously admitted evidence, ‘is probably the single most critical factor in
determining whether [the] error was harmless.’” Wood v. Ercole, 644 F.3d 83, 94 (2011)
(quoting Latine v. Mann, 25 F.3d 1162, 1167-68 (2d Cir. 1994)). The prosecution’s evidence,
apart from the wrongly introduced statement, need not be “overwhelming,” only “weighty.”
Glenn v. Bartlett, 98 F.3d 721, 729 (2d Cir. 1996) (quoting Samuels v. Mann, 13 F.3d 522,
527–28 (2d Cir. 1993)) (“In order to find the [constitutional] error in this case to be harmless, we
need not conclude that the evidence against Samuels was overwhelming.”) (citation omitted),
cert. denied, 513 U.S. 849 (1994). Here, as the Appellate Division reasonably concluded, the
evidence supporting the prosecution’s case was more than weighty, it was overwhelming.2
Other courts have admonished that harmless error review should not be confused
with the sufficiency of the evidence inquiry required under Jackson v. Virginia, 443 U.S. 307,
324 (1979). See, e.g., Jensen v. Clements, 800 F.3d 892, 902 (7th Cir. Sept. 8, 2015) (“Time and
time again, the Supreme Court has emphasized that a harmless-error inquiry is not the same as a
review for whether there was sufficient evidence at trial to support a verdict.”). The Court’s
reliance on the overwhelming evidence against Johnson in finding any error harmless does not
simply focus on the sufficiency of the other evidence, but rather properly “look[s] at the
influence the improperly admitted [evidence] had on the verdict,” in light of a “host of factors,”
Among other evidence, his cohorts identified him as the killer, other witnesses testified that
Johnson admitted the crimes, and DNA corroborated testimony that Johnson was partying at
Cellini’s home shortly before the murder and was in the getaway car just after the murder.
Moreover, the record reflects that most of Johnson’s comments were made before he made the
statement constituting his first invocation of his right to remain silent. There was very little said
afterwards that had not already been stated, and the prosecutor did not use any of those
statements in closing argument. Notably, the entire interview with law enforcement3 (both
before and after Johnson invoked his right to remain silent) was confined to background facts
and, as such, did not bear on the dispositive issue of whether Johnson had the requisite intent to
kill. Accordingly, the Court has little doubt, let alone, a “grave doubt,” O’Neal v. McAninch,
513 U.S. 432, 437 (1995), that admission of the statements to Detective Brown did not have a
substantial and injurious effect on the jury’s verdict given the overall strength of the
prosecution’s case. Johnson is therefore not entitled to relief on either of these grounds.
Admission of other bad acts (Ground 3)
Johnson additionally alleges that the trial court erred in admitting evidence that he sold
cocaine and was affiliated with a gang. But Johnson’s claim is not cognizable on federal habeas
review. See, e.g., Mercedes v. McGuire, No. 08-CV-299, 2010 WL 1936227, at *8 (E.D.N.Y.
May 12, 2010) (Appellate Division’s rejection of petitioner’s claim that the use of uncharged
crimes violated his due process rights was neither contrary to, nor an unreasonable application
of, clearly established Supreme Court precedent because “the Supreme Court has never held that
including the overall strength of the prosecution’s case. Id. at 904 (citations omitted).
A transcript of the interview is in the record before this Court.
a criminal defendant’s due process rights are violated by the introduction of prior bad acts or
uncharged crimes.”); Allaway v. McGinnis, 301 F. Supp. 2d 297, 300 (S.D.N.Y. 2004) (the
Supreme Court has yet to clearly establish “when the admission of evidence of prior crimes
under state evidentiary laws can constitute a federal due process violation”).
And even if it were cognizable, Johnson would not be entitled to relief because the claim
is without merit. Under New York law, it is well-settled that evidence of uncharged crimes or
prior bad acts is admissible if it is relevant to issues of intent, motive, knowledge, common
scheme or plan, or identity. People v. Long, 846 N.Y.S.2d 381, 382 (N.Y. App. Div. 2012).
This evidence is also admissible to serve as background information or to complete the narrative
of the events. People v. Dennis, 937 N.Y.S.2d 496, 498 (N.Y. App. Div. 2012). The probative
value of the evidence must outweigh the potential prejudice to the defendant, which is
determined by the trial court. People v. Alvino, 519 N.E.2d 808, 812 (N.Y. 1987).
In this case, as the Appellate Division concluded on direct appeal, the trial court properly
admitted the evidence because:
[Johnson’s] drug-related activities and purported gang membership provided
necessary background information, explained how Derenzo, Williams, Durham, Phillips
and [Johnson] knew one another (as well as why [Johnson’s] acquaintances went along
with his plan to rob the weed spot) and, viewed in the context of the activities that
occurred prior to the shooting, established both [Johnson’s] awareness of the weed spot
and a motive for the shooting; thus, such “evidence was highly probative of several
relevant and material issues at trial and genuinely interwoven with the facts surrounding
Johnson, 965 N.Y.S.2d at 223 (citation omitted).
Moreover, the record supports the Appellate Division’s conclusion that the “Supreme
Court, which revisited this issue frequently throughout the trial, properly balanced the probative
value of such evidence against its prejudicial effect and gave appropriate limiting instructions.”
Id. For the foregoing reasons, this Court concludes that Johnson is not entitled to habeas relief
on this claim.
Sufficiency of evidence of intent to kill (Ground 4)
Finally, Johnson avers that the evidence presented at trial was insufficient to establish the
requisite intent to kill.4 As articulated by the Supreme Court in Jackson, the constitutional
standard for sufficiency of the evidence is whether, “after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis
in the original); see McDaniel v. Brown, 558 U.S. 120, 132-33 (2010) (reaffirming this standard).
This Court must therefore determine whether the New York court unreasonably applied Jackson.
In making this determination, this Court may not usurp the role of the finder of fact by
considering how it would have resolved any conflicts in the evidence, made the inferences, or
considered the evidence at trial. Jackson, 443 U.S. at 318-19. Rather, when “faced with a
record of historical facts that supports conflicting inferences,” this Court “must presume–even if
it does not affirmatively appear in the record–that the trier of fact resolved any such conflicts in
favor of the prosecution, and defer to that resolution.” Id. at 326.
To the extent that Johnson’s pro se Petition re-alleges his direct appeal claim that
the verdict is against the weight of the evidence, claims that challenge verdicts as against the
weight of the evidence are not cognizable on federal habeas review. See McKinnon v.
Superintendent, Great Meadow Corr. Facility, 422 F. App’x 69, 75 (2d Cir. 2011). “Unlike a
sufficiency of the evidence claim, which is based upon federal due process principles, a weight
of the evidence claim is an error of state law, for which habeas review is not available.” Garrett
v. Perlman, 438 F. Supp. 2d 467, 470 (S.D.N.Y. 2006) (citation and internal quotation marks
omitted). “A weight of the evidence argument is a pure state law claim grounded in [CPL]
§ 470.15(5) which empowers New York state intermediate appellate court[s] to make weight of
the evidence determinations.” Id. (citation and internal quotation marks omitted).
It is a fundamental precept of dual federalism that the States possess primary authority
for defining and enforcing the criminal law. See Engle v. Isaac, 456 U.S. 107, 128 (1982).
Consequently, although the sufficiency of the evidence review by this Court is grounded in the
Fourteenth Amendment, it must take its inquiry by reference to the elements of the crime as set
forth in state law. Jackson, 443 U.S. at 324 n.16. A fundamental principle of our federal system
is “that a state court’s interpretation of state law, including one announced on direct appeal of the
challenged conviction, binds a federal court sitting in habeas corpus.” Bradshaw, 546 U.S. at 76;
see West v. AT&T, 311 U.S. 223, 236 (1940) (“[T]he highest court of the state is the final arbiter
of what is state law. When it has spoken, its pronouncement is to be accepted by federal courts
as defining state law . . . .”). “Federal courts hold no supervisory authority over state judicial
proceedings and may intervene only to correct wrongs of constitutional dimension.” SanchezLlamas v. Oregon, 548 U.S. 331, 345 (2006) (quoting Smith v. Philips, 455 U.S. 209, 221
(1982)) (internal quotation marks omitted).
In his Petition, Johnson argues that:
The evidence presented showed that there were several gunshots fired through a
closed door after a failed ‘attempt robbery.’ Even according to the testimony the attempt
robbery was already completed, the door was closed thereby thwarting the robbery
attempt when shots were fired wildly; two separate and distinct acts. The verdict of guilt
was against the weight and sufficiency of the evidence.
Johnson’s arguments in this regard simply attack the value of the evidence against him.
But this Court is precluded from either re-weighing the evidence or assessing the credibility of
witnesses. See Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996) (dismissing habeas claim
because “assessments of the weight of the evidence or the credibility of witnesses are for the jury
and not grounds for reversal on appeal” and deferring to the jury’s assessments of the particular
weight to be accorded to the evidence and the credibility of witnesses). Under Jackson, this
Court’s role is simply to determine whether there is any evidence, if accepted as credible by the
trier of fact, sufficient to sustain conviction. See Schlup v. Delo, 513 U.S. 298, 330 (1995).
As the Appellate Division explained when rejecting this claim on direct appeal:
[Johnson’s] intent may be inferred from both his actions and the surrounding
circumstances. Here, Derenzo, Williams and Durham testified that [Johnson]—agitated,
nervous and dissatisfied with his prior purchase of marihuana from Phillips—decided to
rob the weed spot in order to obtain money to pay for repairs to the damaged Lexus.
When the robbery failed to progress as planned and [Johnson] was abruptly pushed out of
the apartment, Williams and Durham testified, [Johnson] grabbed the gun from Williams
and attempted to either prevent the apartment door from fully closing or force his way
back inside. At this point, [Johnson] fired five shots at the door; four of the projectiles
struck and penetrated the door—at varying heights, locations and angles of
trajectory—and one of the projectiles penetrated the surrounding frame. According to
Durham, one of these shots was fired at “close range”—an observation corroborated by
the subsequent crime scene investigation—and Phillips testified that Canty, who had just
pushed [Johnson] out of the apartment and “closed the door real fast,” was bracing
himself against the door at the time the shooting began. As the shots rang out, Canty
started to run for cover, whereupon he exclaimed, “I’m hit. I’m hit. Oh, man” and
collapsed. Although there was other evidence in the record that could have supported a
finding that the shooting was not intentional,FN10 we are satisfied—based upon our review
of the record as a whole—that there is ample evidence to support [Johnson’s] conviction
of intentional murder. As the verdict is supported by legally sufficient evidence and is
not against the weight of the evidence, it will not be disturbed.
FN10. An inmate at the local jail testified that he overheard [Johnson] discussing
the shooting and, according to [Johnson], he just went to the weed spot to
“do some thief work” and “it . . . wasn’t supposed to happen that way.”
Johnson, 965 N.Y.S.2d at 226-27 (citations omitted).
Although, as the Appellate Division acknowledged, it might have been possible to draw a
different inference from the evidence, this Court is required to resolve that conflict in favor of
the prosecution. See Jackson, 443 U.S. at 326. Johnson bears the burden of establishing by clear
and convincing evidence that these factual findings were erroneous. 28 U.S.C. § 2254(e)(1). He
has failed to carry such burden. For the reasons discussed in the Appellate Division’s thoughtful
analysis, the record does not compel the conclusion that no rational trier of fact could have found
proof that Johnson was guilty of intentional murder, especially considering the double deference
owed under Jackson and the AEDPA. Johnson therefore cannot prevail on his insufficiency of
the evidence claim.
Johnson is not entitled to relief on any ground raised in his Petition.
IT IS THEREFORE ORDERED THAT the Petition under 28 U.S.C. § 2254 for a Writ
of Habeas Corpus is DENIED.
IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of
Appealability. 28 U.S.C. § 2253(c); Banks v. Dretke, 540 U.S. 668, 705 (2004) (“To obtain a
certificate of appealability, a prisoner must ‘demonstrat[e] that jurists of reason could disagree
with the district court’s resolution of his constitutional claims or that jurists could conclude the
issues presented are adequate to deserve encouragement to proceed further.’” (quoting Miller-El,
537 U.S. at 327)). Any further request for a Certificate of Appealability must be addressed to the
Court of Appeals. See FED. R. APP. P. 22(b); 2D CIR. R. 22.1.
Dated: April 14, 2017.
/s/ James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
Senior United States District Judge
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