Darden v. Conway
Filing
10
DECISION AND ORDER denying petition for writ of habeas corpus and dismissing the petition. Signed by Hon. Michael A. Telesca on 8/24/11. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_____________________________________
RASHAD DARDEN,
Petitioner,
-vs-
DECISION AND ORDER
No. 10-CV-0570(MAT)
JAMES T. CONWAY,
Respondent.
_____________________________________
I.
Introduction
Pro se petitioner Rashad Darden (“Darden” or “Petitioner”) has
filed a petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 challenging the constitutionality of his detention in
Respondent’s custody. Darden is currently incarcerated as the
result of his conviction, following a jury trial in Monroe County
Court, on a charge of intentional murder.
II.
Factual Background and Procedural History
Darden’s conviction stems from an incident that occurred on
January 13, 2005, on Salina Street in the City of Rochester. At
about 5:15 p.m., as Asia McCray (“McCray”) of 138 Salina Street was
leaving to go to the store, she saw Petitioner pointing a shotgun
at Keanon “Smurf” Smith (“Smith”) in front of her house. She
immediately went back inside and told her aunt, Chardé Tillison
(“Tillison”), what she had just seen. When she looked out the
window a moment later, she saw Petitioner shoot Smith at close
range. Smith fell to the ground but then got up and attempted to
walk across the street.
As he did so, Petitioner, who had started to flee after he
fired the first shot, returned to approach the victim and shot him
twice more before running away again . McCray never saw anything in
the victim’s hands.
Tillison testified that after her niece told her someone had
a gun, she called 911 and watched the incident from a “peephole.”
Tillison witnessed Petition shoot Smith three times. She, too,
could see that the victim did not have anything in his hands during
the encounter. Tillison testified that after the first shot was
fired at Smith, he fell down, but jumped up again and started
walking across the street. After the second shot, Smith fell down
once again and Darden stood over him and shot him once more.
From the window of their house across the street at 149 Salina
Street, Hellen Greene Jordan and her husband, Kevin Jordan, also
witnessed the shooting. Although neither recognized the individuals
involved, both saw the man with the shotgun shoot the victim once
and then, as the victim was staggering and shooting, “call the
police,” shoot him twice more. Mr. Jordan said that the third shot
was fired at point-blank range.
The Jordans then went outside and approached the victim.
Neither saw a gun in the victim’s hands but noticed as they went to
him that he was clutching some jewelry. They stayed with Smith
until emergency assistance arrived.
The first police officer on the scene saw no weapons in the
area. Ambulance personnel then arrived and began working on the
-2-
victim, who was not responsive. An EMT noticed plastic shotgun
wadding protruding from the victim’s neck. About twenty minutes
later, after continuous attempts to resuscitate him, the victim was
declared dead.
When Darden and a companion were stopped by a police officer
who thought they were witnesses to the shooting, Petitioner stated
that he had not heard any gunshots.
Later, the police brought Darden in for questioning. After
waiving his Miranda rights, he initially denied knowing the victim
or that he was on Salina Street at any time that day. Petitioner
stated that he knew nothing about the shooting.
He eventually admitted shooting Smith with the shotgun, which
had been recovered in a backyard nearby. According to Petitioner,
he shot the victim after the victim, who had according Petitioner
robbed him the previous day, pulled a pistol on him.
At trial, Petitioner admitted shooting Smith but asserted a
claim of self-defense. Petitioner testified that Smith, whom he
knew from seeing him frequently around the neighborhood, had robbed
him at gunpoint the day before the shooting.
Petitioner explained
that he did not report the robbery to the police because he was
scared and “didn’t want to get involved.”
The next day, Petitioner testified, he obtained a shotgun from
a friend he knew only as “T” who lived “across town on the east
side.” Petitioner hid the shotgun behind an abandoned house.
-3-
On the day of the shooting, Petitioner retrieved the shotgun
and put it in his pants.
As he and his friend, Jerome Roberts
(“Roberts”),
down
were
walking
Salina
Street,
Smith
suddenly
appeared and according to Petitioner, Smith drew a pistol from his
jacket and pointed it at him.
Petitioner then pulled the shotgun
out of his pants and fired one shot at Smith. He started to run
away, but when he saw Smith get up, he “racked” the gun and shot
him again. Petitioner claimed that he really did not know how to
operate the gun but knew that he needed to “rack” it from watching
a lot of “gun movies”.
Petitioner testified that after shooting
Smith again, he then “blacked out” and could not remember the third
shot. As Smith ran away, he claimed he passed the shotgun to his
companion, Roberts. Roberts, however, was not called by the defense
as a witness.
The medical examiner found evidence of shotgun injuries in
five locations on Smith’s body, including the right front of the
lower chest, the back, the left side of the neck, the left wrist,
and the back of the right hand. There was no way of determining the
sequence in which the wounds were sustained. According to the
medical examiner, multiple gunshot wounds caused Smith’s death.
Although each of the wounds was major, it was impossible to
determine which of them caused Smith’s death.
The
jury
rejected
Darden’s
defense
of
justification
and
returned a verdict finding him guilty of intentional murder. He was
-4-
sentenced on July 28, 2005, to an indeterminate term of 25 years to
life.
Darden’s conviction was unanimously affirmed on direct appeal,
and leave to appeal was denied. People v. Darden, 57 A.D.3d 1522
(App. Div. 4th Dept. 2008).
This habeas petition followed, in which Darden raises one
ground for relief: trial counsel was ineffective in failing to
request that the trial court charge the jury on the use of
excessive force as it relates to the defense of justification. The
claim, which was raised on direct appeal and denied on the merits,
is fully exhausted. For the reasons that follow, it does not
warrant habeas relief.
III. Timeliness
Respondent asserts that the petition is untimely because it
was not filed within the one-year statute of limitations. With
limited exceptions, a prisoner seeking a writ of habeas corpus must
submit his petition no more than one year after the judgment
against him becomes final. See 28 U.S.C. § 2244(d)(1) (A)-(D). The
statute also provides for tolling of the limitations period during
the
pendency
of
a
“a
properly
filed
application
for
State
post-conviction or other collateral review with respect to the
pertinent judgment or claim . . . .” 28 U.S.C. § 2244(d)(2).
For the purpose of deciding whether the Petition is timely,
the Court must determine when the one-year period began running. In
Darden’s case, this requires a decision as to when the “judgment
-5-
became final by the conclusion of direct review or the expiration
of time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A).
On April 9, 2009, the New York State Court of Appeals denied
leave to appeal from the Appellate Division’s affirmance of his
conviction. Adding to that a 90–day period during which he could
have petitioned for certiorari in the United States Supreme Court,
Petitioner’s conviction became final on July 9, 2009. See Clay v.
United
States,
conviction
petition
537
becomes
for
U.S.
522,
final
when
certiorari
525
the
(2003)
time
contesting
(“[A]
expires
the
judgment
for
appellate
filing
of
a
court's
affirmation of the conviction.”); SUP. CT. R. 13(1) (setting 90–day
limit for filing of petition of writ of certiorari). Thus, the
one-year statute of limitations commenced on July 9, 2009, and
Petitioner had until July 9, 2010, to file his Section 2254
Petition in this Court.
Respondent argues that the Petition was filed on the date that
it was received by the Court, which was July 12, 2010. This
argument ignores the well-settled “prisoner mailbox rule”. In
Houston v. Lack, 487 U.S. 166 (1988), the United States Supreme
Court held that a pro se habeas petitioner’s notice of appeal is
deemed filed on the date of its submission to prison authorities
for mailing, as opposed to the date of its receipt by the court
clerk. Id. at 276. The rule is premised on the fact that a pro se
prisoner's mail must go through the conduit of prison authorities
-6-
whom he cannot control and whose interests might be adverse to his.
Id. at 271.
“Where it is unclear when a pro se state prisoner mailed his
or her habeas petition, the court assumes that the petition is
filed on the day it is signed and dated.” Porter v. Greiner,
No. 00–6047, 2005 WL 3344828, at *7 (E.D.N.Y. Nov.18, 2005) (citing
Adeline v. Stinson, 206 F.3d 249, 251 n. 1 (2d Cir.2000) (“[W]e
treat the petitioner’s petition as having been given to prison
officials for filing, and therefore having been filed, on the date
that appears on his petition . . . .”)). The Court construes the
date Darden signed the Petition before the Notary Public (July 6,
2009) as the effective filing date. The Petition accordingly is
timely.
IV.
Legal Standards Applicable on Habeas Review
Under the Anti-Terrorism and Effective Death Penalty Act
(“AEDPA”), a habeas corpus petition may be granted with respect to
any claim adjudicated on the merits in state court only if the
state
court’s
adjudication
is
“contrary
to,”
or
involved
an
“unreasonable application” of, clearly established federal law, as
determined by the Supreme Court. 28 U.S.C. § 2254(d)(1). Under the
“contrary to” clause, a federal habeas court may grant the writ
only if the state court arrives at a conclusion opposite to that
reached by the Supreme Court on a question of law, or if the state
court decides a case differently than the Supreme Court has on a
set of materially indistinguishable facts. Williams v. Taylor, 529
-7-
U.S. 362, 405 (2000). Under the “unreasonable application” clause,
a federal habeas court may grant the writ only if the state court
identifies the correct governing legal principle from the Supreme
Court’s decisions but unreasonably applies that principle to the
facts of the prisoner’s case. Id. at 407-09.
V.
Ineffective Assistance of Trial Counsel
A.
Strickland v. Washington, 466 U.S. 668 (1984)
The relevant “clearly established law” here derives from
Strickland v. Washington, 466 U.S. 668, which provides the standard
for inadequate assistance of counsel under the Sixth Amendment.
E.g., Premo v. Moore, 131 S. Ct. 733, 737-38 (2011). “To establish
ineffective assistance of counsel ‘a defendant must show both
deficient performance by counsel and prejudice.’” Premo, 131 S. Ct.
at 739 (quoting Knowles v. Mirzayance, 556 U.S. ___, ___, 129 S.Ct.
1411, 1419, 173 L.Ed.2d 251 (2009)). “To establish deficient
performance, a person challenging a conviction must show that
‘counsels
representation
fell
below
an
objective
standard
of
reasonableness.’” Harrington v. Richter, 131 S. Ct. 770, 787 (2011)
(quoting Strickland, 466 U.S. at 688). “With respect to prejudice,
a challenger must demonstrate ‘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.’”
Id. (quoting Strickland, 466 U.S. at 687). “[T]here is no reason
for a court deciding an ineffective assistance claim to address
-8-
both
components
of
the
inquiry
if
the
defendant
makes
an
insufficient showing on one.” Strickland, 466 U.S. at 697.
As the Supreme Court recently has explained, “[surmounting
Strickland’s
high
bar
is
never
an
easy
task[,]”
Padilla
v.
Kentucky, 559 U.S. ___, ___, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284
(2010), and “[e]stablishing that a state court’s application of
Strickland
was
unreasonable
under
§
2254(d)
is
all
the
more
difficult.” Richter, 131 S. Ct. at 788.
B.
Summary of Petitioner’s Claim
Petitioner contends trial counsel was ineffective in failing
to
request
that
the
trial
court,
in
the
context
of
the
justification defense, also charge that in order for the jury to
consider the use of force after the first shot, the prosecution
must have proved beyond a reasonable doubt that the deceased was
still
alive
and
that
subsequent
force
was
used.
In
effect,
Petitioner contends that he was entitled to a charge requiring the
jury to find that, if the victim had been killed by the first two
shots, which Petitioner claimed were justified, he could not be
found responsible for killing the victim with the subsequent shot.
He argues that the charge was warranted because there was a
reasonable view of the evidence permitting the jury to find that,
although the first or second gunshot may have caused the victim’s
death, those shots were justified by self-defense; and that the
third shot, although excessive, nevertheless was justified either
because it was nonfatal or the victim was already dead.
-9-
C.
The State Court’s Ruling
On direct appeal, the Appellate Division considered Darden’s
claim of ineffective assistance on the merits and rejected it as
follows:
There can be no denial of effective assistance of trial
counsel arising from counsel’s failure to ‘make a motion
or argument that has little or no chance of success[.]’”
Here, we conclude that defense counsel was not
ineffective in failing to request a charge on the use of
excessive force as it relates to a justification defense.
Although “a court must charge the jury on any claimed
defense that is supported by a reasonable view of the
evidence which the court must assess in the light most
favorable to the defendant”, here there is no reasonable
view of the evidence supporting such a charge.
People v. Darden, 57 A.D.3d at 1523 (citing People v. Lee, 224
A.D.2d 916, 917 (App. Div. 4th Dept. 1996) (“Under the circumstances
of this case, there is no view of the evidence to warrant that
bifurcated
analysis
or
require
the
court
to
give
the
charge
requested. By defendant’s own account, after defendant missed with
the first shot, the victim started moving away from defendant.
Nevertheless, defendant fired again and hit the victim in the back
of the head or neck, knocking him face down to the ground.
Defendant then fired two more shots into the back of the victim's
head or neck. That evidence establishes that, after the first
missed shot, defendant was no longer in apprehension of deadly
physical force and became the aggressor. Thus, the shooting was not
justified, regardless of which shot killed the victim.”).
-10-
D.
Analysis of the State Court’s Ruling
Under New York law, “a court must charge the jury on any
claimed defense that is supported by a reasonable view of the
evidence which the court must assess in the light most favorable to
the defendant.” People v. Taylor, 80 N.Y.2d 1, 12 (N.Y. 1992)
(citations omitted). The use of physical force by a defendant in
self-defense is permitted “when and to the extent [the defendant]
reasonably believes such to be necessary to defend himself . . .
from what he reasonably believes to be the use or imminent use of
unlawful
physical
§ 35.15(1).
force”
by
another
person.
N.Y.
PENAL
LAW
“Even if a defendant is initially justified in using
deadly physical force in self-defense, if he or she continues to
use deadly physical force after the assailant no longer poses a
threat, a jury may find that the defendant is no longer acting in
self-defense.” People v. Carrera, 282 A.D.2d 614, 616 (App. Div. 2d
Dept. 2001).
Where
a
defendant
invoking
the
justification
defense
is
charged with homicide, the prosecution must prove that it was the
excessive force which caused death. Id. (citing People v. Hill, 226
A.D.2d 309, 310 (App. Div. 1st Dept. 1996) (“Even if the jury were
to find that defendant employed excessive force after gaining some
control of the gun and repelling the decedent’s attack, the People
still had the burden of establishing that it was the excessive
portion of the force that caused death. No such showing was made
here.”) (internal citation omitted); People v. Perry, 176 A.D.2d
-11-
901, 902 (App. Div. 2d Dept. 1991); People v. Patterson, 21 A.D.2d
356, 361 (App. Div. 1st Dept. 1964)).
Although Petitioner failed to specify the particulars of the
charge that trial counsel should have requested, it appears that he
effectively sought a charge requiring the jury to find that, if the
victim
had
Petitioner
been
killed
asserted
by
were
the
first
justified–he
and
second
could
not
shots-which
be
found
responsible for killing the victim with the third shot. Even
assuming arguendo that such a charge was warranted, there is no
reasonable possibility that the outcome of Darden’s trial would
have been more favorable had it been given. This is because, as the
Appellate Division correctly determined, there was no reasonable
view of the evidence permitting the jury to find that the victim
was not alive at the time the third gunshot was fired. The
testimony of all the witnesses to the shooting–including that of
Petitioner–was that the victim clearly was alive after the first
shot, and the next two shots came in quick succession. The medical
evidence established that the victim died as a result of multiple
gunshot wounds and that it could not be determined which was the
fatal wound. To the contrary, the proof was that all of the shotgun
wounds contributed to the victim’s death.
Given that the victim was taken to the hospital where efforts
to save his life continued for approximately twenty minutes after
the last shot was fired, and that there was no evidence of a single
fatal gunshot, the jury could not reasonably have determined that
-12-
the victim died between the second and third shots. In other words,
contrary to Petitioner’s contention, this was not a case where the
homicide nevertheless was justifiable because the excessive force
used was nonfatal. It would have been unreasonable for the jury to
make such a finding on the evidence presented at trial.
Cf. People
v. Carrera, 282 A.D.2d at 616 (“The Assistant Medical Examiner
testified that death was caused by the single stab wound to the
chest, not by the alleged excessive force subsequently used. Since
it cannot be determined whether the jury found that the defendant’s
conduct was not justified because he was the initial aggressor or
because, although not the initial aggressor, he subsequently used
excessive physical force, his conviction for manslaughter in the
second degree must be reversed and a new trial ordered as to that
crime.”).
Because Darden cannot demonstrate a reasonable possibility,
must less probability, that the jury would have returned a verdict
of acquittal had trial counsel requested the charge discussed
above, he cannot show that he was prejudiced by counsel’s omission.
Therefore, he cannot meet the first prong of Strickland. Because he
cannot demonstrate both prongs of the conjunctive Strickland test,
he cannot show constitutional ineffectiveness. Moreover, because
his claim does not pass muster under a de novo application of
Strickland,
court’s
he
necessarily
decision
cannot
constituted
an
demonstrate
that
objectively
the
state
unreasonable
application of Strickland. See, e.g., Richter, 131 S. Ct. at 788
-13-
(When a state court has adjudicated an ineffective-assistance claim
on the merits and § 2254(d) applies, “the question is not whether
counsel’s actions were reasonable” but rather is “whether there is
any
reasonable
argument
that
counsel
satisfied
Strickland’s
deferential standard.”).
VI.
Conclusion
For the reasons stated above, the Petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 is denied, and the
Petition is dismissed. Because Petitioner has failed to make a
substantial showing of a denial of a constitutional right, the
Court declines to issue a certificate of appealability. See 28
U.S.C. § 2253(c)(2).
SO ORDERED.
S/Michael A. Telesca
___________________________________
MICHAEL A. TELESCA
United States District Judge
DATED:
August 24, 2011
Rochester, New York
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