Hall v. Woods
Filing
29
ORDER ADOPTING R&R for 14 Report and Recommendations: For the foregoing reasons, the Court adopts Magistrate Judge Smith's R&R in its entirety. Hall's request for a stay is denied, and his petition for habeas corpus is dismissed. As petit ioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253. The Clerk of Court is directed to enter judgment and terminate this case. (Signed by Judge Paul A. Crotty on 7/12/2012) Copies Mailed By Chambers. (mro)
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: ________________
DATE FILED: July 12, 2012
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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GARY HALL,
:
:
Petitioner,
:
:
-against:
:
R.K. WOODS, Superintendent,
:
Upstate Correctional Facility,
:
:
Respondent.
:
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07 Civ. 9264 (PAC) (LMS)
ORDER ADOPTING R&R
HONORABLE PAUL A. CROTTY, United States District Judge:
Petitioner Gary Hall (“Hall”), pro se, seeks habeas corpus relief from his March 23, 2004
conviction, for of second degree murder (depraved indifference). While an inmate at Sing Sing
Correctional Facility in Ossining, Hall stabbed another inmate in the neck with a homemade
knife, or “shank,” causing the inmate to bleed to death. Hall was tried before a jury in New York
Supreme Court, Westchester County, and thereafter sentenced to twenty-five years to life. On
September 27, 2007, Hall filed a federal habeas petition, pursuant to 28 U.S.C. § 2254, in which
he alleges four grounds for relief: (1) the evidence was legally insufficient to support a
conviction of depraved indifference murder; (2) the verdict was against the weight of the
evidence; (3) ineffective assistance of counsel; and (4) defective grand jury proceedings. (See
Petition, Sept. 27, 2007 (“Pet.”), Dkt. 1, at 7-8.)
On October 24, 2007, former District Judge Stephen G. Robinson referred this case to
Magistrate Judge Lisa Smith. On April 29, 2011, Magistrate Judge Smith issued a Report and
Recommendation (“R&R”), recommending denial of the Petition. (Dkt. 14.) Hall filed
objections to the R&R on June 29, 2011. (Dkt. 16.) Hall also submitted a letter to the Court,
dated June 13, 2011, requesting a stay of these proceedings because he is “currently in the
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process of filing a motion pursuant to New York Criminal Procedure Law Section 440.10
(“440.10 motion”) with the original trial court.”1 Hall did not indicate what issues he intends to
raise in his 440.10 motion, nor did he explain his failure to exhaust this state remedy.
Respondent has not opposed the requested stay.
The Court has reviewed the R&R and Hall’s objections. For the reasons that follow, the
Court denies Hall’s request for a stay and adopts Magistrate Judge Smith’s Report and
Recommendation in its entirety. Hall’s petition is, therefore, denied.
BACKGROUND2
I.
Facts
On September 7, 2002, Hall stabbed Robert Brown, a fellow inmate at Sing Sing
Correctional Facility, during an altercation between them. Hall used a sharp object, or “shank,”
to cut Brown’s jugular vein and carotid artery. Brown bled to death. Hall ran away, depositing
his bloody sweatshirt in a garbage can. A corrections officer later observed blood on Hall’s
pants and placed him in handcuffs. The murder weapon and Hall’s bloody sweatshirt were both
recovered, and subsequent test results revealed that the blood found on those objects matched the
victim’s. There was no doubt that Hall stabbed Brown. Hall claimed on direct examination that
he acted in self defense, but on cross he testified that the stabbing was accidental when he tried
to disarm the victim.
II. Procedural History
On April 8, 2003, a Westchester grand jury indicted Hall for two counts of second
degree murder (intentional and depraved indifference) and one count of first degree
manslaughter. Hall proceeded to trial before a jury on January 22, 2004. The jury convicted
1
To the extent that Hall raises additional objections to the R&R in his June 13 letter, the Court considers those
objections in its decision.
2
The facts are taken from the R&R, unless otherwise noted.
2
Hall of one count of second degree murder (depraved indifference). On March 23, 2004, the trial
court sentenced Hall to an indeterminate term of imprisonment of 25 years to life.
Hall appealed to the Second Department, arguing that: (1) the evidence was legally
insufficient to establish depraved indifference murder; (2) his conviction was against the weight
of the evidence; (3) counsel provided ineffective assistance; and (4) the district attorney failed to
instruct the grand jury on the law with respect to depraved indifference murder. On September
12, 2006, the Appellate Division affirmed Hall’s conviction. See People v. Hall, 820 N.Y.S.2d
526 (N.Y. App. Div. 2d Dep’t 2006). The court found that Hall failed to preserve his claim of
insufficient evidence to prove depraved indifference murder because Hall’s motions to dismiss
during and after trial were “not ‘specifically directed’ to the depraved indifference charge.” Id.
The court concluded that “[s]ince the defendant’s guilt was proven beyond a reasonable doubt at
trial, there can be no appellate review of the issue of whether a prima facie case had been
presented to the grand jury.” Id.
On October 5, 2006, Hall sought leave to appeal to the New York Court of Appeals, but
not on all issues raised before the Appellate Division. Instead, Hall raised only two issues: (1)
whether the issue of the legal sufficiency of the evidence was preserved at trial, and (2) whether
the evidence at trial was legally insufficient to establish guilt of depraved indifference murder.
On November 16, 2006, the New York Court of Appeals denied leave to appeal. Hall did not
seek reconsideration of the denial of leave.
On September 27, 2007, Hall filed his federal habeas corpus petition, and attached the
table of contents from his brief to the Appellate Division. The Court assumes that Hall seeks
habeas review of those same arguments articulated on direct appeal.
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III. Magistrate Judge Smith’s R&R
On, April 29, 2011, Magistrate Judge Smith issued her Report and Recommendation that
this Court deny Hall’s petition. Magistrate Judge Smith addressed each of Hall’s claims and
found that they were each procedurally barred. With respect to Hall’s ineffective assistance of
counsel claim, Magistrate Judge Smith also found the claim to be without merit.
A. AEDPA and Exhaustion Requirements
The Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254,
provides in relevant part:
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d).
Prior to seeking federal habeas review, the petitioner must first exhaust available state
remedies. See id. § 2254(b). A habeas petitioner exhausts his state remedies when he has: (1)
“fairly presented” his federal constitutional claim to the state courts; and (2) after having been
denied relief, utilized all available mechanisms to secure state appellate review of the denial of
that claim. See Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981) (citations omitted), overruled
on other grounds, Daye v. Attorney Gen. of the State of New York, 696 F.2d 186, 194 (2d Cir.
1982) (en banc). “A claim has been ‘fairly presented’ if the state courts are apprised of ‘both the
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factual and legal premises of the claim [a petitioner] asserts in federal court.” Jones v. Vacco,
126 F.3d 408, 413 (2d Cir. 1997). A petitioner can satisfy this requirement by:
(a) [relying] on pertinent federal cases employing constitutional analysis, (b)
[relying] on state cases employing constitutional analysis in like fact situations,
(c) [asserting] the claim in terms so particular as to call to mind a specific right
protected by the Constitution, [or] (d) [alleging] a pattern of facts that is well
within the mainstream of constitutional litigation.
Daye, 696 F.2d at 194. Exhaustion is not satisfied until a habeas petitioner appeals the
conviction to the highest state court. See Klein, 667 F.2d at 282.
B. Legal Sufficiency of the Evidence
Magistrate Judge Smith found that Hall failed to raise a federal claim for legal
sufficiency of the evidence on direct appeal, and that his claim was therefore not fairly presented
to the state court. Magistrate Judge Smith concluded that Hall did not cite any federal law,
federal case, or Constitutional provision in his appellate brief that would alert the state court to
the federal nature of his claim. (R&R 9.) Although Hall relied on state cases which employ the
Supreme Court’s analysis of insufficiency of the evidence, as set forth in Jackson v. Virginia,
443 U.S. 307, 319 (1979), Magistrate Judge Smith found that those cases were distinguishable.
(R&R 9.)
Moreover, even if the references to Jackson in the cases Hall cited were sufficient
to alert the appellate court to the federal nature of Hall’s claim, Magistrate Judge Smith
found that Hall’s habeas claim for insufficiency of the evidence was still procedurally
barred. (R&R 9.)
A federal court may not review a claim in a habeas petition “when a state court
declined to address a prisoner’s federal claim because the prisoner had failed to meet a
state procedural requirement.” Coleman v. Thompson, 501 U.S. 722, 730 (1991). A
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petitioner can overcome a procedural default upon showing “cause for the procedural
default and prejudice attributable thereto,” Harris v. Reed, 489 U.S. 255, 260 (1989), or
“actual innocence,” Schlup v. Delo, 513 U.S. 298 (1995). Here, the Appellate Division
ruled that Hall failed to preserve his insufficient evidence claim for appellate review
because his “motion to dismiss was not specifically directed to the depraved indifference
charge.” Hall, 820 N.Y.S.2d at 526 (internal quotation and citation omitted). The court
further held that “[t]o the extent the motion referred to [Hall’s] earlier dismissal motion
made at the close of the People’s evidence, that too did not include the argument that the
evidence was consistent only with intentional murder, as now argued on appeal.” Id.
Accordingly, Magistrate Judge Smith concluded that this procedural default bars federal
habeas review on Hall’s sufficiency of the evidence claim. (R&R 10.)
Magistrate Judge Smith further noted that Hall failed to show good cause for the
procedural default or any resulting prejudice. Moreover, Magistrate Judge Smith found
that Hall does not assert actual innocence; rather, he contends that he is in fact guilty of
intentional murder, and that the killing was justified. (R&R 10-11.) Courts have refused
to exercise habeas jurisdiction where petitioners seek review of a depraved indifference
murder conviction based on the assertion that the killing was intentional “in the interests
of justice.” See People v. Danielson, 40 A.D.3d 174, 175, 832 N.Y.S.2d 546 (N.Y. App.
Div. 1st Dept. 2007). Accordingly, Magistrate Judge Smith found that Hall’s claim for
insufficiency of the evidence must be dismissed.
C. Ineffective Assistance of Counsel
Magistrate Judge Smith also found that Hall was procedurally barred from asserting his
claim of ineffective assistance of counsel, since he failed to appeal the claim to the New York
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Court of Appeals. (R&R 12.) New York State permits only one request for review by the Court
of Appeals per conviction. See N.Y. Ct. Rules, Court of Appeals, § 500.10(a). As Hall did not
include his ineffective assistance claim in his brief to the Court of Appeals, Magistrate Judge
Smith concluded that this Court cannot consider the claim on habeas review. (R&R 12.) See
Klein, 667 F.2d at 282.
Magistrate Judge Smith also found Hall’s claim of ineffective assistance of counsel to be
without merit. (Id.) In order to prevail on a claim of ineffective assistance of counsel, a habeas
petitioner must satisfy the two requirements set forth in Strickland v. Washington, 446 U.S. 668,
686 (1984). First, a petitioner must establish that counsel’s performance “fell below an objective
standard of reasonableness.” Id. at 688. Second, a petitioner must show that the deficient
performance prejudiced the defense. Id. at 692.
Hall argues that trial counsel filed a defective motion for dismissal because it failed to
address with adequate specificity the evidence concerning the depraved indifference murder
charge. (R&R 14.) Hall bases this argument on a change in New York law following his
conviction. At the time of Hall’s trial, however, both defense counsel’s strategy and Hall’s
conviction for depraved indifference murder were consistent with then-existing law.
Consequently, Magistrate Judge Smith determined that trial counsel’s arguments were based on
the law as it stood at that time, and therefore did not render his representation ineffective. (Id.)
Magistrate Judge Smith also found that in light of his inconsistent trial testimony, Hall
failed to satisfy the prejudice prong of the Strickland analysis. (R&R 15.) During his direct
examination, Hall testified that he killed the victim in self-defense. (Id.) During crossexamination, however, Hall testified that the killing was accidental. (Id.) Given this
inconsistency, Magistrate Judge Smith determined that Hall could not show that he suffered any
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prejudice as a result of counsel’s actions. (Id.) Accordingly, Magistrate Judge Smith concluded
that Hall’s claim of ineffective assistance of counsel should be dismissed.
D. Defect in Grand Jury Proceedings
Magistrate Judge Smith found that Hall failed to raise his claim regarding insufficiency
of the evidence presented to the Grand Jury with the New York State Court of Appeals, and that
Hall’s claim was therefore procedurally barred on federal habeas review. (R&R 15.) See Klein,
667 F.2d at 282. Magistrate Judge Smith further noted that because Hall was convicted by a
petit jury at trial, his claims regarding the state Grant Jury proceedings are not cognizable on
federal habeas review. (Id.) See Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989) (holding that
claimed defects in state grand jury proceedings are rendered harmless by conviction at trial and
are therefore “foreclosed in a collateral attack brought in a federal court”). Accordingly,
Magistrate Judge Smith recommended that the Court dismiss Hall’s claim of defective grand jury
proceedings.
IV. Request for Stay
Before turning to Hall’s objections to Judge Smith’s R&R, the Court must first address
Hall’s request to stay these proceedings while he exhausts post-conviction relief in the state court
on issues not raised in his petition.
A. Statute of Limitations and Stay
AEDPA imposes a one-year statute of limitations period for bringing a habeas petition in
federal court. See id. § 2244(d)(1). This period typically begins to run on “the date on which the
judgment became final by the conclusion of direct review or the expiration of the time for
seeking such review.” Id. Although the statute of limitations period is tolled for the time
“during which a properly filed application for State post-conviction or other collateral review
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with respect to the pertinent judgment or claim is pending,” see id. § 2244(d)(2), the filing of a
habeas petition in federal court does not toll the one-year limitations period. See Duncan v.
Walker, 533 U.S. 167, 181-82 (2001).
A district court may not rule on a “mixed petition” containing exhausted and unexhausted
claims; in such cases, a district court should dismiss the petition without prejudice and give state
courts the opportunity to rule on the unexhausted claims. See Rose v. Lundy, 455 U.S. 509, 51820 (1982). Since the AEDPA one-year limitations period can prevent a petitioner from returning
to federal court for review of any of his claims, district courts have discretion to stay mixed
habeas petitions and hold them in abeyance while a petitioner returns to state court to exhaust
state remedies. See Rhines v. Weber, 544 U.S. 269, 275-76 (2005). A stay of a mixed petition
should be granted “if the petitioner had good cause for his failure to exhaust, his unexhausted
claims are potentially meritorious, and there is no indication that the petitioner engaged in
intentionally dilatory litigation tactics.” Rhines, 544 U.S. at 275-76.
Since Hall’s petition currently contains only exhausted claims, the Court cannot treat his
petition as “mixed” for purposes of considering a stay under Rhines. Hall’s request for a stay is
therefore premature. See Williams v. Sheahan, No. 11-cv-2435, 2011 WL 2437496, at *1
(E.D.N.Y. June 15, 2011) (denying motion for stay of habeas petition pending the filing of
NYCPL § 440.10 motion as premature because petitioner had not raised the claims in his habeas
petition and the petition was therefore not “mixed”); Bethea v. Walsh, No. 09-cv-5037, 2010 WL
2265207, at *1 (E.D.N.Y. June 2, 2010) (same). In order to assert his new, untimely,
unexhausted claim, Hall must move to amend his petition and satisfy the standard under Federal
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Rule of Civil Procedure 15(c).3 See 28 U.S.C. § 2242; Littlejohn v. Artuz, 271 F.3d 360, 363 (2d
Cir. 2001).
B. Federal Rule of Civil Procedure 15(c)
Where a habeas petitioner seeks to add new claims after the statute of limitations has
expired, Rule 15(c) requires that the new claim “relates back” to the date of the original petition.
See Mayle v. Felix, 545 U.S. 644, 655 (2005). An amendment “relates back” when it “asserts a
claim or defense that arose out of the conduct, transaction, or occurrence set out—or attempted
to be set out—in the original pleading.” Fed.R.Civ.P. 15(c)(1)(B). In the habeas context, a
proposed amendment arises out of the same “conduct, transaction, or occurrence” as an original
petition “only when the claims added by amendment arise from the same core facts as the timely
filed claims, and not when the new claims depend upon events separate in both time and type
from the originally raised episodes.” Mayle, 545 U.S. at 657 (internal quotation omitted). New
claims that merely stem from a petitioner’s trial, conviction, or sentence do not satisfy Rule
15(c). See id. at 656-57.
Hall has not told the Court what issues he intends to raise in his NYCPL § 440.10
motion; he states only that it is “my belief that my collateral attack upon my conviction is
meritorious and has a high probability of success.” (June 13 letter at 1.) He notes elsewhere in
his June 13 letter that, subsequent to his conviction, the New York Court of Appeals decided
People v. Hill, 7 N.Y.3d 902 (2006), which “significantly altered the definition and standards for
a conviction pursuant to New York Penal Law Section 125.25(2).” (June 13 letter at 1.) Hall
asserts that the Court of Appeals failed to apply this new rule retroactively, and that doing so
would invalidate his conviction. (Id.) As this Court must construe Hall’s pro se habeas petition
3
In the interest of efficiency, the Court will interpret Hall’s June 13 letter as a combined request for leave to amend
his petition.
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liberally, see Haines v. Kemer, 404 U.S. 519, 520-21 (1972) (per curiam), the Court will assume
for purposes of its decision that Hall intends to raise this issue in his NYCPL § 440.10 motion.
Hall’s new claim asserting that he was entitled to retroactive application of a new state
law redefining elements of the offense does not arise out of the same core facts that underly the
exhausted claims in his petition, namely, sufficiency of the evidence, ineffective assistance of
counsel, and defective grand jury proceedings. Even though Hall’s new claim challenges the
constitutionality of the same conviction, it is insufficient to unite Hall’s new and old claims for
purposes of Rule 15(c). See Mayle, 545 U.S. at 662 (“If claims asserted after the [AEDPA] oneyear period could be revived simply because they relate to the same trial, conviction, or sentence
as a timely filed claim, [the] limitation period would have slim significance.”); Soler v. U.S.,
Nos. 10 Civ. 04342, 05 Cr. 00165, 2010 WL 5173858, at *4 (S.D.N.Y. Dec. 20, 2010) (affirming
order to deny amended habeas petition where new claim of actual innocence “asserts a new
ground for relief supported by facts that differ in both time and type from a claim of ineffective
assistance of counsel”) (internal quotation omitted)). Accordingly, Hall’s new claim does not
relate back to the date of his original petition, and the Court will not excuse Hall’s failure to
amend his petition before the one-year statute of limitations expired.4 Halls’ request for a stay is
therefore denied.
DISCUSSION
I. Standard of Review
A district court may “accept, reject, or modify, in whole or in part, the findings or
4
Even if Hall’s new claim did satisfy the test under Rule 15(c), Hall’s request for leave to amend would still be
inappropriate. District courts retain discretion to deny leave to amend “in order to thwart tactics that are abusive,
dilatory, unfairly prejudicial or otherwise abusive.” Littlejohn, 271 F.3d at 363 (citing Foman v. Davis, 371 U.S.
178, 182 (1962)). Leave to amend would not be appropriate at this late stage in the proceedings—nearly four years
after the AEDPA statute of limitations period has expired—and would result in undue delay and prejudice the state’s
interest in the finality of criminal judgments.
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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). When a timely
objection has been made to the recommendations of the magistrate judge, the court reviews the
contested issues de novo. Hynes v. Squillace, 143 F.3d 653, 656 (2d Cir. 1998). The Court,
however, “may adopt those portions of the Report to which no objections have been made and
which are not facially erroneous.” La Torres v. Walker, 216 F. Supp. 2d 157, 159 (S.D.N.Y.
2000).
II. Hall’s Objections to Magistrate Judge Smith’s R&R
Hall objects to Magistrate Judge Smith’s conclusion that his conviction for depraved
indifference murder should stand. (Objections at 5.) He contends that Magistrate Judge Smith
failed to address that Hall cannot be guilty of both depraved indifference murder—which does
not include an element of intent to kill—and intentional murder due to the different statutory
mens rea requirements. (Id. at 3.)
Magistrate Judge Smith correctly determined that Hall’s claim of insufficient evidence to
support his conviction for depraved indifference murder is procedurally barred because Hall did
not preserve this issue for appellate review. (R&R 10 (citing Hall, 820 N.Y.S.2d at 526). See
Coleman v. Thompson, 501 U.S. 722, 730 (1991) (district court lacks habeas jurisdiction “when
a state court declined to address a prisoner’s federal claim because the prisoner had failed to
meet a state procedural requirement”); Parker v. Ercole, 666 F.3d 830, 834 (2d Cir. 2012)
(finding that petitioner “failed to preserve his claim that the evidence proving his guilt of
depraved-indifference murder was insufficient to support the jury’s verdict” and declining
habeas review as “procedurally barred”). Accordingly, Hall’s objection is without merit, and his
petition for habeas corpus is dismissed.
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