Shin v. Smith

Filing 13

OPINION AND ORDER. For the foregoing reasons, Shin's section 2254 Petition is denied. The remaining issue is whether to grant a certificate of appealability (COA). For a COA to issue, a petitioner must make a substantial showing of the denial of a constitutional right. A substantial showing does not require a petitioner to demonstrate that he would prevail on the merits, but merely 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." Petitioner has made no such showing. Accordingly, I decline to grant a certificate of appealability. The Clerk of the Court is directed to close this case. (Signed by Judge Shira A. Scheindlin on 6/18/2012) (lmb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

--------------------------------------------------------)(
YEONG SOOK SHIN,
OPINION AND ORDER
Petitioner,
11 Civ. 4996 (SAS)
- againstJOSEPH T. SMITH, Superintendent of
Shawangunk Correctional Facility,
Respondent.

--------------------------------------------------------)(
SHIRA A. SCHEINDLIN, U.S.D.J.:
I.

INTRODUCTION
Yeong Sook Shin brings this habeas corpus petition pursuant to 28

U.S.c. § 2254 (the "Petition"), chal1enging his state court conviction entered on
October 26, 2006, following a jury trial in New York State Supreme Court, New
York County. Petitioner was convicted of murder in the second degree (N.Y.
Penal Law § 125.25[2]V Petitioner was sentenced to 17 Y2 years to life
imprisonment. 2
On July 5, 2011, petitioner filed the instant petition, challenging his
conviction on the following grounds: (l) the evidence of his guilt was insufficient;

See Petition for a Writ of Habeas Corpus ("Pet.") at 1.

2

See id.

and (2) ineffective assistance of appellate counsel. For the following reasons, the
Petition is denied.
II.

BACKGROUND
A.

The Offense Conduct
1.

The Events Leading to the Offense

During the early morning hours of August 10, 1985, Binh Cu Tran
was killed after being struck by a car near Columbia University. The incident
happened in the wake of an Asian student party at Columbia attended by both
petitioner and Tran. Among the attendees were several students including Ming
Hsun Yang, Roger Chang, Roger’s brother Jerry Chang, Roger’s cousin Chris
Chang, and Jason Hsu. Hsu was a member of the Chinese gang, the White Tigers,
and he liked going to parties to pick fights.3 Jerry Chang did not believe his
brother Robert was a White Tiger, but acknowledged that it was possible.4 Before
entering the party, Hsu asked a young man for a cigarette. When the man obliged,
Hsu hit him, inciting others to join in beating the young man.5

3

See Memorandum of Law in Opposition to the Petition for a Writ of Habeas
Corpus (“Opp. Mem.”) at 6 (citing Transcript (“Tr.”) 281-283, 285, 315).

4

See id. (citing Tr. 167-169, 302).

5

See id. (citing Tr. 284, 315-316).
-2-

By the time the group had entered the party, there were roughly twohundred people in attendance.6 Hsu approached Yang and Roger Chang and told
Roger to punch a man on the dance floor that had been “staring” at him. Roger
punched the man, and soon police officers were on the premises, trying to
determine who started the fight.7 The party was then shut down by school
authorities, and party-goers headed outside to Broadway and 115th Street.8 As
Yang waited for his ride, Hsu yelled that “[t]his guy say Chinese Chink,” at which
time Hsu, Yang and the rest of their group ran after a few people down 115th
Street.9 They beat one of the people they were chasing and then began walking
back, but soon became involved in another fight in the middle of the crosswalk.10
One witness, Deanna Vongutfeld, lived on the eleventh floor of 600 West 115th

6

See id. (citing Tr. 97, 170-171, 285).

7

See id. at 7 (citing Tr. 286-287, 322-323, 287-288).

8

See id. (citing Tr. 68-69).

9

See id. (citing Tr. 288, 323).

10

See id. at 8 (citing Tr. 289-293, 305-307, 324-325). Hsu’s group believed the
people they were fighting were Korean.
-3-

Street.11 She heard noises from the street below and looked out of her kitchen
window to see a group of people fighting, some of whom were in the street.12
2.

The Incident Involving Shin’s Corvette

At the same time as Vongutfeld heard the commotion outside of her
window, Hsu, Yang, Roger Chang, Chris Chang and other party-goers began
walking back toward the east side of Broadway.13 Vongutfeld heard a car “rev” its
engine and saw it “take off” toward the people in the street.14 Hsu reportedly
yelled “watch out.”15 Another witness, Judith Lim, also heard revving sounds
coming from a silver car that then “accelerated.”16 Shin, who was driving his
father’s silver Corvette, proceeded to gun the engine and drive into the group
crossing the street. Shin hit Roger Chang, Hsu, Chris Chang, Yang, and Binh Cu
Tran.17 Shin did not attempt to brake or avoid the pedestrians, nor did Shin honk

11

See id. (citing Tr. 433-434, 437-440).

12

See id.

13

See id. (citing Tr. 293, 294).

14

See id. (citing Tr. 438-441).

15

Id. (citing Tr. 294, 308, 317-318, 330-331, 336).

16

Id. (citing Tr. 152-153, 161).

17

Shin was not charged at the time of the arrest with the injuries sustained by
any victim other than Binh Cu Tran because the statute of limitations had run on
charges other than murder. See Pet. at 7.
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his horn or slow down.18 Bin Cu Tran ended up on the hood of Shin’s car, holding
on for about three-quarters of a block.19 Tran then lost his grip, fell underneath the
vehicle, and was killed.20 Shin did not slow or stop the car, but continued heading
north on Broadway. Police followed Shin, but lost track of the Corvette, which
was said to be traveling at a speed of between 50-60 miles per hour.21 Shin drove
back to a parking lot on the lower east side of Manhattan and stayed at a friend’s
house for a few days before fleeing to California.22 He remained in California for
seven years. While in California, Shin found God and became an active
Christian.23 Before returning to New York, where he worked as an assistant pastor,
Shin spent time in the Philippines performing missionary work.24
On May 27, 2005, detectives from the Police Department’s Latent
Print Unit found a match for a fingerprint lifted from the Corvette linked to the

18

See id. at 9 (citing Tr. 73, 101, 105, 107, 121, 152-156, 162 172-173, 177,
296, 310, 439-330)

19

See id. (citing Tr. 70-71, 78-79, 89-90).

20

A toxicology report showed that Tran had no drugs or alcohol in his system
on the night of his death. See Tr. 474, 487-488.

21

See Opp. Mem. at 9 (citing Tr. 201-203, 213, 217).

22

See id. at 15 (citing Tr. 354-356, 397-398).

23

See id. at 19 (citing Tr. 502-503).

24

See id. (citing Tr. 503-504, 505, 565).
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1985 incident. From this fingerprint, detectives were able to track petitioner to his
address in Fresh Meadows, Queens.25 Shin agreed to go with the detectives to the
26th Precinct stationhouse to answer questions.26 He was read his Miranda rights,
signed the Miranda form, and agreed to speak with the police without an attorney
present. Shin requested that Detective Rivera write out his statement as he spoke
instead of writing it out himself.27 Shin admitted that it was he who had hit the
pedestrians with his car that night, but that it was an accident. Further, Shin stated
that he fled New York out of fear of retaliation from gang members.28
B.

Procedural History
1.

Direct Appeal

Shin, through counsel, appealed his conviction to the Appellate
Division, First Department, raising the following claims: (1) that there was legally
insufficient evidence of his guilt of second-degree murder because the People did
not adequately prove that petitioner had a mental state of depraved indifference to
human life; (2) the verdict was against the weight of the evidence; and (3) the

25

See id. at 14 (citing Tr. 343-346).

26

See id. (citing Tr. 345-348, 399-400, 417, 422-423).

27

See id. at 15 (citing Tr. 349-353, 400-401, 417-418, 423-425).

28

See Pet. at 6.
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judge’s charge with respect to the mens rea element of depraved indifference
murder was incorrect.
On April, 23, 2009, the Appellate Division unanimously affirmed
Shin’s conviction.29 The court found that petitioner’s claim regarding the legal
sufficiency of the evidence was unpreserved for appellate review and that even if it
were preserved, the court would have rejected it on the merits.30 Further, the court
found that the verdict was not against the weight of the evidence. “The evidence,
which included the testimony of numerous eyewitnesses as well as defendant’s
statements to the police and his own trial testimony, established that defendant
acted with an ‘utter disregard for the value of human life,’ as required to establish
that he acted with the culpable mental state of depraved indifference.”31 The
evidence revealed that Shin drove at a fast speed into a crowd of young adults,
failed to honk his horn, and did not apply his brakes or swerve to avoid hitting the
pedestrians.32 Moreover, even when the decedent was holding on to the hood of

29

See People v. Yeong Sook Shin, 877 N.Y.S.2d 85 (1st Dep’t 2009).

30

See id.

31

Id. (quoting People v. Feingold, 7 N.Y.3d 288, 296 (2007)).

32

The evidence presented at trial showed that there were no skid marks at the
scene of the crime (see Tr. 231, 244-245) and that an examination of the Corvette
by the NYPD Accident Investigation Squad found that the car’s accelerator,
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his car, Shin did not stop the car. Shin finally fled the scene, which showed that he
acted with utter disregard for human life.33 Lastly, the Appellate Division held that
petitioner had “expressly waived any objection to the court’s charge on depraved
indifference” because petitioner’s trial counsel had affirmatively approved the
charge. Even if petitioner had not expressly waived this objection, the court found
this claim to be meritless because the charge consisted of proper standards and
followed the language used by the Court of Appeals.34 On July 13, 2009, the New
York Court of Appeals denied defendant’s motion for leave to appeal.35
2.

The Coram Nobis Application

On September 29, 2010, Shin filed an application in the Appellate
Division for a writ of error coram nobis, challenging appellate counsel’s failure to
raise ineffective assistance of trial counsel claims, including a claim based on trial
counsel’s alleged failure to properly preserve the sufficiency of evidence claim.
Further, petitioner argued that trial counsel had failed to object to the admission of

braking system, and steering mechanism were all working properly. The only
damage to the car was a cracked windshield and a broken headlight (see Tr. 266,
269, 270, 272, 274-275).
33

See Shin, 877 N.Y.S.2d at 86.

34

See id.

35

See People v. Yeong Sook Shin, 884 N.Y.S. 2d 711 (2009).
-8-

evidence that four other people were injured by his car when he drove into the
crowd of pedestrians. Additionally, Shin argued that appellate counsel should have
argued on appeal that the trial judge committed reversible error because: (1) the
judge did not read the jury notes into the record or allow trial counsel to read the
notes; and (2) the judge’s instruction to the jury on the mens rea requirement for
depraved indifference impermissibly amended the theory of the indictment. On
February 1, 2011, the Appellate Division denied Shin’s coram nobis petition.36 On
June 30, 2011, the New York Court of Appeals denied petitioner’s application for
leave to appeal.37 Shin filed this timely habeas petition on July 5, 2011.
III.

LEGAL STANDARDS
A.

Deferential Standard for Federal Habeas Review
This petition is governed by the Antiterrorism and Effective

Death Penalty Act of 1996 (the “AEDPA”). The AEDPA provides that a federal
court may grant a writ of habeas corpus to a state prisoner only if the state court’s
adjudication of a particular claim, on the merits in a state court proceeding,
resulted in a decision that: (1) “‘was contrary to, or involved an unreasonable

36

See 2/1/11 Order Denying Petitioner’s Coram Nobis Petition, Ex. 10 to
Opp. Mem.

37

See People v. Yeong Sook Shin, 12 N.Y.3d 930 (2011).
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application of, clearly established Federal law, as determined by the Supreme
Court of the United States;’”38 or (2) “‘was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.’”39
With respect to subsection 2254(d)(1), the Supreme Court has
explained that a state court decision is “contrary to” clearly established federal law
in the following instances:
First, a state-court decision is contrary to this Court’s
precedent if the state court arrives at a conclusion opposite
to that reached by this Court on a question of law. Second,
a state-court decision is also contrary to this Court’s
precedent if the state court confronts facts that are
materially indistinguishable from a relevant Supreme Court
precedent and arrives at a result opposite to ours.40
With regard to the “unreasonable application” prong, the Supreme Court has
stated:
[A] state-court decision can involve an “unreasonable
application” of this Court’s clearly established precedent in
two ways. First, a state-court decision involves an
unreasonable application of this Court’s precedent if the

38

Berghuis v. Thompkins, 130 S. Ct. 2250, 2259 (2010) (quoting 28 U.S.C. §
2254(d)(1)). Accord Knowles v. Mirzayance, 556 U.S. 111, 112 (2009).

39

Berghuis, 130 S. Ct. at 2259 (quoting 28 U.S.C. § 2254(d)(2)).

40

Williams v. Taylor, 529 U.S. 362, 405 (2000).
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state court identifies the correct governing legal rule from
this Court’s cases but unreasonably applies it to the facts of
the particular state prisoner’s case. Second, a state-court
decision also involves an unreasonable application of this
Court’s precedent if the state court either unreasonably
extends a legal principle from our precedent to a new
context where it should not apply or unreasonably refuses
to extend that principle to a new context where it should
apply.41
In order for a federal court to find a state court’s application of
Supreme Court precedent to be unreasonable, the state court’s decision must have
been more than incorrect or erroneous: “[t]he state court’s application of clearly
established law must be objectively unreasonable.”42 This standard “‘falls
somewhere between merely erroneous and unreasonable to all reasonable
jurists.’”43 While the test requires “‘[s]ome increment of incorrectness beyond
error, . . . the increment need not be great; otherwise habeas relief would be limited

41

Id. at 407.

42

Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (emphasis added). Accord
Renico v. Lett, 130 S. Ct. 1855, 1862 (2010) (stating that “[t]his distinction creates
‘a substantially higher threshold’ for obtaining relief than de novo review”)
(quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)); Williams, 529 U.S. at
409; Harris v. Kuhlman, 346 F.3d 330, 344 (2d Cir. 2003).

43

Overton v. Newton, 295 F.3d 270, 276 (2d Cir. 2002) (quoting Jones v.
Stinson, 229 F.3d 112, 119 (2d Cir. 2000)).
-11-

to state court decisions so far off the mark as to suggest judicial incompetence.’”44
Furthermore, section 2254(d) applies to a defendant’s habeas petition even where
the state court order does not include an explanation of the court’s reasoning.45
Where a state court’s decision is unaccompanied by an
explanation, the habeas petitioner’s burden still must be
met by showing there was no reasonable basis for the state
court to deny relief. This is so whether or not the state
court reveals which of the elements in a multipart claim it
found insufficient, for [section] 2254(d) applies when a
‘claim,’ not a component of one, has been adjudicated.46
Section 2254(d) also applies where a state court does not explicitly state in its
opinion that it is adjudicating a claim on the merits.47 “When a federal claim has
been presented to a state court and the state court has denied relief, it may be
presumed that the state court adjudicated the claim on the merits in the absence of
any indication or state-law procedural principles to the contrary.”48
44

Jones, 229 F.3d at 119 (quoting Francis v. Stone, 221 F.3d 100, 111 (2d Cir.
2000) (citations omitted)).
45

See Harrington v. Richter, 131 S. Ct. 770, 784 (2011).

46

Id. (citing, inter alia, Sellan v. Kuhlman, 261 F.3d 303, 311-12 (2d Cir.
2001) (“[W]hen a state court fails to articulate the rationale underlying its rejection
of a petitioner’s claim, and when that rejection is on the merits, the federal court
will focus its review on whether the state court’s ultimate decision was an
‘unreasonable application’ of clearly established Supreme Court precedent.”)).

47

See id.

48

Id. at 784-85.
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B.

Exhaustion Requirement
Section 2254 provides that a habeas petition by a state prisoner may

not be granted unless “the applicant has exhausted the remedies available in the
courts of the State.”49 In order to satisfy the exhaustion requirement, a prisoner
must have “‘fairly presented to an appropriate state court the same federal
constitutional claim that he now urges upon the federal courts,’”50 either in the
form of “explicit constitutional arguments” or simply by “alleging facts that fall
‘well within the mainstream of constitutional litigation.’”51
C.

Procedural Bar
Under the independent and adequate state law doctrine, if the last state

court to render judgment clearly and expressly states that its judgment rests on a
state procedural bar, federal habeas review is precluded.52 In fact, “[t]he Second
Circuit has made clear that ‘federal habeas review is foreclosed when a state court

49

28 U.S.C. § 2254(b)(1)(A).

50

Turner v. Artuz, 262 F.3d 118, 123 (2d Cir. 2001) (quoting Klein v. Harris,
667 F.2d 274, 282 (2d Cir. 1981)).
51

Levine v. Commissioner of Corr. Servs., 44 F.3d 121, 124 (2d Cir. 1995)
(quoting Daye v. Attorney Gen., 696 F.2d 186, 192 (2d Cir. 1982) (en banc)).

52

See Jones v. Duncan, 162 F. Supp. 2d 204, 210 (S.D.N.Y. 2001) (citing
Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997)).
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has expressly relied on a procedural default as an independent and adequate state
ground, even where the state court has also ruled in the alternative on the merits of
the federal claim.’”53 Federal habeas review of procedurally barred claims is
foreclosed unless the prisoner can demonstrate either: (1) “‘cause for the default
and actual prejudice;’” or (2) “‘that failure to consider the claims will result in a
fundamental miscarriage of justice.’”54 Showing cause for a default requires a
petitioner to put forth some objective factor external to the defense, explaining why
the claim was not raised previously.55 Furthermore, a habeas petitioner may invoke
the fundamental miscarriage of justice exception to the procedural bar rule only if
he can demonstrate actual innocence.56
D.

Ineffective Assistance of Counsel Under Strickland v. Washington

53

Id. (quoting Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990)). Accord,
e.g., Harris v. Reed, 489 U.S. 255, 264 n.10 (1989); Garcia v. Lewis, 188 F.3d 71,
77-82 (2d Cir. 1999); Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996).

54

Glenn, 98 F.3d at 724 (quoting Coleman v. Thompson, 501 U.S. 722, 750
(1991)). Accord Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991); Epps v.
Commissioner of Corr. Servs., 13 F.3d 615, 617-18 (2d Cir. 1994).

55

See Restrepo v. Kelly, 178 F.3d 634, 638 (2d Cir. 1999).

56

See Murray v. Carrier, 477 U.S. 478, 496 (1986) (“[W]e think that in an
extraordinary case, where a constitutional violation has probably resulted in the
conviction of one who is actually innocent, a federal habeas court may grant the
writ even in the absence of a showing of cause for the procedural default.”).
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To succeed on a claim of ineffective assistance of counsel in violation
of the Sixth Amendment, a petitioner “must demonstrate (1) that his attorney’s
performance ‘fell below an objective standard of reasonableness,’ and (2) that
‘there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.’”57 “To satisfy the first prong –
the performance prong – the record must demonstrate that ‘counsel made errors so
serious that counsel was not functioning as the “counsel” guaranteed the defendant
by the Sixth Amendment.’”58 The inquiry under the performance prong is
“contextual” and “asks whether defense counsel’s actions were objectively
reasonable considering all the circumstances.”59 “In assessing the attorney’s
performance, a reviewing court must judge his conduct on the basis of the facts of
the particular case, ‘viewed as of the time of counsel’s conduct,’ and may not use
hindsight to second-guess his strategy choices.”60

57

Wilson v. Mazzuca, 570 F.3d 490, 501 (2d Cir. 2009) (quoting Strickland v.
Washington, 466 U.S. 668, 688, 694 (1984)). Accord Smith v. Spisak, 130 S. Ct.
676, 685 (2010).

58

Wilson, 570 F.3d at 502 (quoting Strickland, 466 U.S. at 687).

59

Purdy v. United States, 208 F.3d 41, 44 (2d Cir. 2000) (citing Strickland,
466 U.S. at 688).

60

Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994) (quoting Strickland,
466 U.S. at 690).
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In determining what constitutes objective reasonableness, courts look
to “‘[p]revailing norms of practice as reflected in American Bar Association
standards.’”61 Attorney errors that fall below an objective standard of
reasonableness “include omissions that cannot be explained convincingly as
resulting from a sound trial strategy, but instead arose from oversight, carelessness,
ineptitude, or laziness.”62 “‘Judicial scrutiny of counsel’s performance must be
highly deferential,’ and ‘a court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.’”63
“‘The proper measure of attorney performance remains simply reasonableness
under prevailing professional norms.’”64
To satisfy the second prong – the prejudice prong – a “defendant must
show that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.”65

61

Purdy, 208 F.3d at 44 (quoting Strickland, 466 U.S. at 688).

62

Wilson, 570 F.3d at 502 (citation omitted).

63

Knowles, 129 S. Ct. at 1420 (quoting Strickland, 466 U.S. at 689).

64

Id. (quoting Strickland, 466 U.S. at 688).

65

Strickland, 466 U.S. at 694 (emphasis added).
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In assessing prejudice, courts review the record to determine the impact of the
alleged ineffectiveness within the context of the entire trial.66 In other words, the
“question is whether there is a reasonable probability that, absent the errors, the
fact finder would have had a reasonable doubt respecting guilt.”67 Finally, a
finding of lack of prejudice may precede, or preempt, the quality of representation
inquiry. The Supreme Court has stated:
Although we have discussed the performance component of
an ineffectiveness claim prior to the prejudice component,
there is no reason for a court deciding an ineffective
assistance claim to approach the inquiry in the same order
or even to address both components of the inquiry if the
defendant makes an insufficient showing on one. In
particular, a court need not determine whether counsel’s
performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged
deficiencies. The object of an ineffectiveness claim is not
to grade counsel’s performance. If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course
should be followed. Courts should strive to ensure that
ineffectiveness claims not become so burdensome to
defense counsel that the entire criminal justice system
suffers as a result.68

66

See Berghuis, 130 S. Ct. at 2264 (“In assessing prejudice, courts ‘must
consider the totality of the evidence before the judge or jury.’”) (quoting
Strickland, 466 U.S. at 695).

67

Strickland, 466 U.S. at 695.

68

Id. at 697.
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Thus, if a court finds no prejudice, it need not engage in the often thorny
inquiry regarding the adequacy of counsel’s performance.
IV.

DISCUSSION
A.

Petitioner’s Insufficient Evidence Claim Is Procedurally Barred
Shin alleges that there was insufficient evidence to support his

conviction for depraved indifference murder. Specifically, Shin argues that the
People did not prove that he had a mental state of depraved indifference to human
life because the only evidence presented regarding his mens rea came from his own
statements of remorse for what he maintains was an accident.69 The Appellate
Division found that Shin’s insufficient evidence claim was procedurally barred.70
Under New York law, “in order for a criminal defendant to preserve, for appellate
review, a question of law as to the sufficiency of evidence he must make a timely
motion to dismiss that is ‘sufficiently specific’ to alert the trial judge to the
substance of his argument.”71 Here, petitioner, through his trial attorney, made a
motion at the end of the People’s case, but did not renew his motion at the close of

69

See Pet. at 18.

70

See Shin, 877 N.Y.S. 2d at 85.

71

People v. Gray, 86 N.Y.2d 10, 19-21 (1995)).
-18-

all the evidence. The appellate court found that the claim was not only
unpreserved, but that alternatively, the claim would be rejected on its merits.72
Thus, the First Department’s decision constitutes an adequate and independent
state ground barring federal habeas review.73
Even if this claim were not barred, Supreme Court precedent holds
that “the relevant question 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.”74 Here, the
prosecution presented a case showing that Shin revved his car, accelerated at a high
speed, and crashed into a group of pedestrians. He did not attempt to slow down,
stop, or swerve to avoid them. Even when the decedent was holding onto the hood
of his car, Shin continued driving fast, ultimately running over the victim before
fleeing the scene and evading the police. In sum, the prosecution presented
sufficient evidence for a rational trier of fact to find him guilty of depraved
indifference murder.

72

See Shin, 877 N.Y.S. 2d at 85.

73

See Fama v. Commissioner of Corr. Servs., 235 F.3d 804, 810-11 (2d Cir.
2000).

74

Jackson v. Virginia, 443 U.S. 307, 318-19 (1979).
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Finally, petitioner does not allege that there is cause for his default,
nor does he allege that failure to consider this claim will result in a fundamental
miscarriage of justice. Nor does petitioner claim that he is actually innocent.75
Rather, he argues that the evidence only proves that he accidently sped his car into
a group of people, injuring four and killing one – an argument the jury obviously
rejected. Consequently, Shin cannot satisfy either the cause and prejudice or actual
innocence standard. Because Shin has not made such a showing, his insufficient
evidence claim is denied.
B.

Ineffective Assistance of Counsel
Next, Shin renews the claims he brought in his coram nobis

application against his appellate counsel for failing to raise the following
arguments: (1) trial counsel failed to properly preserve the legal insufficiency
claim; (2) trial counsel failed to object to the admission of evidence that other
pedestrians were injured by Shin76; (3) the trial judge committed reversible error
75

See Schlup v. Delo, 513 U.S. 298, 324 (1995).

76

Although this Court does not review these claims de novo, a discussion of
the merits is warranted to determine if any of the alleged failures by trial counsel
could have had an impact on the verdict. If trial counsel’s deficient performance
could not have affected the verdict, then Shin cannot show any prejudice under the
second prong of Strickland. Without a showing of prejudice, there can be no
ineffective assistance of trial counsel. If trial counsel cannot be found to be
ineffective, then, necessarily, appellate counsel cannot be found to be ineffective
-20-

because he did not read the jury notes into the record or allow trial counsel to read
the notes; and (4) the trial judge’s instruction to the jury on the mens rea
requirement for depraved indifference impermissibly amended the theory of the
indictment.
1.

Trial Counsel’s Failure to Renew the Motion to Dismiss
Based on the Insufficiency of the Evidence

Petitioner claims ineffective assistance of appellate counsel for not
raising an ineffective assistance of trial counsel claim based on trial counsel’s
failure to renew the motion to dismiss on the ground of insufficient evidence at the
close of trial.77 Shin speculates that if his trial attorney had moved to dismiss on
the ground of insufficient evidence, the depraved indifference count would have
been dismissed. There is nothing to suggest that this would have been the result.
After finding this claim procedurally barred, the Appellate Division also found that

for failing to rase the ineffectiveness of trial counsel on appeal. See Hemstreet v.
Greiner, 491 F.3d 84, 91 (2d Cir. 2007) (“Although we do not believe trial
counsel’s performance was deficient, we are not required to resolve that issue.
Even assuming such deficiency, the record does not show that Hemstreet suffered
prejudice from any alleged omissions by his counsel. We therefore conclude that
Hemstreet cannot satisfy the Strickland standard as to the assistance he received at
trial . . . Hemstreet’s inability to make this showing means that he also cannot
demonstrate that his appellate counsel had any obligation to raise the issue of trial
counsel’s ineffectiveness on direct appeal.”).
77

See Pet. at 16.
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there was sufficient evidence to support the conviction. The Appellate Division
then denied Shin’s claim of ineffective assistance of appellate counsel in the coram
nobis proceedings.
Petitioner cannot establish that his appellate counsel was ineffective
for not asserting ineffective assistance of trial counsel because the sufficiency of
the evidence claim was already rejected by the state appellate court on direct
appeal. Moreover, even if trial counsel’s performance was deficient, any alleged
deficiencies did not result in actual prejudice to petitioner because the insufficiency
of evidence claim lacked merit. Because of the absence of prejudice arising from
any failure of trial counsel, Shin’s appellate counsel’s decision not to raise this
ineffective assistance of trial counsel claim on appeal cannot amount to ineffective
assistance of appellate counsel. Accordingly, the Appellate Division’s denial of
Shin’s ineffective assistance of appellate counsel claim was neither contrary to, nor
an unreasonable application of, federal law. Shin’s claim is therefore denied.
2.

Trial Judge’s Failure to Read the Jury Notes on the Record

Next, Shin argues that his appellate counsel was ineffective for not
rasing, on direct appeal, the trial judge’s failure to read the jury notes into the
record, thus depriving defense counsel “of the opportunity to accurately analyze
the jury’s deliberations and frame intelligent suggestions for the Court’s
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response.”78 When handling jury notes, (1) the jury’s inquiry should be submitted
in writing; (2) the note should be read into the record in the presence of counsel
and defendant; (3) counsel should be afforded the opportunity to suggest
appropriate responses; and (4) after the jurors are recalled, the request should again
be read in their presence to make sure that it accurately reflects their question and
allows them to elaborate upon it if needed.79
Here, although the trial court did not follow the procedures set forth in
Ronder, the responsibilities of the trial judge required under Ronder were met.
Although the jury notes were not read word for word into the record, the trial judge
discussed the jury notes in open court, giving trial counsel notice of the content of
the notes. With regards to the first two notes, the judge stated on the record that he
had reviewed them with the parties, with no objections.80 The third note requested
testimony to be read back. The trial judge stated on the record which transcripts

78

Id. at 19.

79

See United States v. Ronder, 639 F.2d 931, 934 (2d Cir. 1981). See also
People v. O’Rama, 574 N.Y.S.2d 159, 162-63 (1991); Munoz v. Burge, No. 02CV-6198, 2007 WL 7244783, at *10 (E.D.N.Y. Aug. 27, 2007) report and
recommendation adopted as modified, 2010 WL 3394696, at *10 (E.D.N.Y. Aug.
20, 2010), aff’d, 442 Fed. App’x 602 (2d Cir. 2011).
80

See Tr. 730, 738-742.
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had been requested and then began the readback.81 The fourth note requested a
read back of Shin’s testimony. The trial judge again summarized this note and
then proceeded to conduct the readback.82 The record does not reflect that trial
counsel was deprived of his opportunity to review the jury questions and suggest
appropriate responses. Rather, it was likely that these notes were discussed off the
record as was the case with the first two notes.
Appellate counsel is not obligated to raise every possible claim on
appeal, rather he should pursue the most effective strategy for appeal.83 Defense
counsel’s decision not to object to the trial judge summarizing the substance of
these notes rather than reading them verbatim into the record was a reasonable
decision given the weakness of the claim. Moreover, because trial counsel did not
object to the court’s failure to allow him to review the notes, appellate counsel
would have been required to show that the judge’s decision was clearly erroneous
– a difficult standard. The appellate counsel’s decision not to raise this claim was
within his discretion and does not rise to the level of ineffective assistance. The
Appellate Division’s denial of his ineffective assistance of appellate counsel claim

81

See id. at 747-748.

82

See id. at 749.

83

See Jones v. Barnes, 463 U.S. 745, 751,52 (1983).
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was not an unreasonable application of clearly established federal law. Therefore,
petitioner’s application for habeas relief on this ground is denied.
3.

Trial Counsel’s Failure to Object to the Admission of the
Injuries of Pedestrians Other than Decedent

Shin next focuses on appellate counsel’s failure to argue on direct
appeal that Shin’s trial counsel was ineffective for not objecting to the admission
of evidence that four other pedestrians were seriously injured in the incident, but
for which Shin was not charged due to the statute of limitations. This argument is
without merit. The fact that Shin drove his car into a crowd of people and hit and
injured four people is directly relevant to the depraved indifference charge.
Accordingly, any objection to the admission of this evidence would have been
overruled by the trial judge. Because trial counsel’s decision not to object to
evidence of the other pedestrians’ injuries did not result in any prejudice to Shin,
the state court’s coram nobis decision denying his ineffective assistance of
appellate counsel claim was not “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States.”84 Petitioner’s application for habeas relief on this
ground is denied.

84

28 U.S.C. § 2254(d).
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4.

The Trial Judge’s Charge to the Jury on the Mens Rea
Element of Depraved Indifference Murder

Finally, Shin contends that his appellate counsel should have raised
the argument on direct appeal that the trial judge’s charge to the jury did not
adequately reflect the new standard for depraved indifference murder, which was
adopted just before the trial began and impermissibly amended the theory of the
indictment. The Appellate Division addressed this claim as follows:
Defendant expressly waived any objection to the court’s
charge on depraved indifference, and there is no merit to
his claim that he preserved his present challenge to that
charge. We decline to review this issue in the interest of
justice. As an alternative holding, we find that the court’s
charge, which tracked the language employed by the Court
of Appeals in Feingold and People v . Suarez conveyed the
proper standards.85
The Appellate Division found that the claim was unpreserved and that if the court
were to review the claim, the claim would be rejected. Shin, therefore, cannot
establish that appellate counsel was ineffective because appellate counsel raised the
jury charge claim on appeal and the Appellate Division found this claim to be
meritless. With respect to Shin’s argument that appellate counsel should have
raised the claim that the jury charge impermissibly changed the theory of the

85

Shin, 877 N.Y.S.2d at 86.
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indictment, this too lacks merit. If anything, the additional mens rea requirement
under Feingold created an added element that the People were required to prove.
Nor has Shin shown any actual prejudice as a result of the alleged ineffective
assistance. Accordingly, because Shin has failed to show that the state court’s
decision denying ineffective assistance of appellate counsel was “contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States”,86 petitioner’s application
for habeas relief on this ground is denied.
V.

CONCLUSION
For the foregoing reasons, Shin’s section 2254 Petition is denied. The

remaining issue is whether to grant a certificate of appealability (“COA”). For a
COA to issue, a petitioner must make a “substantial showing of the denial of a
constitutional right.”87 A “substantial showing” does not require a petitioner to
demonstrate that he would prevail on the merits, but merely 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

86

28 U.S.C. § 2254(d).

87

28 U.S.C. § 2253(c)(2).
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further.",88 Petitioner has made no such showing. Accordingly, I decline to grant
a certificate of appealability. The Clerk of the Court is directed to close this case.

Dated:

New York, New York
June 18,2012

Slackv. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle,
463 U.S. 880, 893 n.4 (1983) (quotation marks and citation omitted)). Accord
88

Middleton v. Attorneys Gen. ofthe States ofNew York and Pennsylvania, 396 F.3d

207,209 (2d Cir. 2005) (denying COA where reasonable jurists could not debate
whether the district court's dismissal of the petition was correct).
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-AppearancesPetitioner (Pro Se):
Yeong Sook Shin
DIN# 06-A-5857
Coxsackie Correctional Facility
P.O. Box 999
Coxsackie, NY 12051
For Respondent:
Allen J. Vickey
Matthew C. Williams
Assistant District Attorneys
New York County District Attorney’s Office
One Hogan Place
New York, NY 10011
[phone]/9235

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