Chapman v. Conway

Filing 23

-CLERK TO FOLLOW UP-DECISION AND ORDER dismissing 1 Petition for Writ of Habeas Corpus filed by Rashawn Chapman and denying a Certificate of Appealability. (Clerk's Office is requested to close case.) Signed by Hon. Michael A. Telesca on 3/17/15. (AFB)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

RASHAWN CHAPMAN,
Petitioner,
-vs-

No. 6:07-CV-6583(MAT)
DECISION AND ORDER

M. BRADT, Attica Correctional
Facility Superintendent,
Respondent.

I.

Introduction
Proceeding pro se, Rashawn Chapman (“Petitioner”) filed a

petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner’s state custody arises from a judgment, entered on
October 3, 2003, in Niagara County Court (Broderick, Sr., J.) of
New York State, convicting him, following a jury verdict, of
Manslaughter

in

the

First

Degree

(N.Y. Penal Law

(“P.L.”)

§

125.20(1)) and related charges.
II.

Factual Background and Procedural History
A.

Petitioner’s Trial

The convictions here at issue stem from the fatal shooting of
Douglas Scott (“Scott”) on June 20, 2001, in the City of Niagara
Falls, New York. At approximately 12:30 p.m. on June 20, 2001, the
Niagara Falls Police Department received a call that a man had been
shot on the 400-block of 10th Street. Responding officers found 20year-old Scott lying on the sidewalk in front of a house located at
-1-

462 10th Street, bleeding from an apparent gunshot wound to the
chest. A box-cutter razor and a baseball bat were found nearby.
Scott was taken to the hospital where he died from his injuries.
The gun used in the shooting was identified as a .357-magnum Smith
& Wesson revolver.
Fourteen-year-old Demetrius Nix (“Nix”), who had a history of
disputes with Scott, was identified as the shooter. Nix was friends
with Petitioner, who also had had problems with Scott in the past.
Nix, with Petitioner’s help, evaded police for several days before
being

apprehended

and

charged

with

murder.

During

their

investigation, the police developed the theory that Petitioner had
provided Nix with the gun and assisted him in killing Scott.
Petitioner was arrested and indicted for intentional murder and
depraved indifference murder, criminal facilitation, hindering
prosecution, and second and third degree criminal possession of a
weapon. Nix was permitted to plead guilty to manslaughter as a
juvenile offender in exchange for agreeing to testify truthfully
against Petitioner.
At trial, Nix testified that he had left school after 8th grade
and at the time of the shooting, basically was living on the
street, accepting money from friends and selling drugs in order to
support himself. One of his best friends was Lotha Goldsmith,
killed on June 14, 2001, who owned a .357-magnum Smith & Wesson
pistol, nicknamed “Loth”. “Loth” was kept at the house of an

-2-

acquaintance, Michelle Nesbit (“Nesbit”), and Nix was free to take
it from the house anytime he wanted.
Nix related that he had been involved in several increasingly
violent altercations with Scott. On June 20th, Nix was at his
cousin Keith’s house when Scott attacked him, slamming him against
the porch and slashing his back and neck with a box-cutter while
attempting to cut his throat. After Scott was pulled off Nix by
passers-by, Nix and his cousin walked up 7th Street where they met
some friends and told them what happened. Nix decided to follow
Scott and confront him in a fair fight. Nix and his friends walked
toward 9th Street, down Ferry Avenue, to a store where testified
they met Petitioner.
Nix said that Petitioner told Nix’s friends to leave, and he
and Nix walked down the alley from Ferry toward Niagara Street
where they stopped and talked in back of a house fronting on the
alley.

Nix showed Petitioner his cuts received during Scott’s

recent attack. According to Nix, Petitioner told him that he, too,
had had problems with Scott and said, “I’m going to handle this for
you.” T.491-92, 496.1 Nix understood that “handling the problem”
meant

that

Petitioner

“was

going

to

shoot

him.”

T.496.

Nix

testified that Petitioner then directed him to go out front and
1

Citations to “T.” refer to the pages from the transcript of Petitioner’s
criminal trial. That transcript, and the transcripts of other proceedings
conducted in the course of the trial, were filed by Respondent in connection with
his answer. See Dkt ##21-1 to 21-9. Citations to “SR.” refer to pages from the
state-court records also filed by Respondent. See Dkt #19 (Volume 1); Dkt #20
(Volume 2).

-3-

look for Scott. Nix peered around the corner but did not see Scott.
He went to the back of the house and informed Petitioner, who said
that he would go see where Scott was. T.494-95. Petitioner began
walking down the alley toward Niagara Street to look for Scott.
T.495. Nix said that prior to leaving, Petitioner gave him a silver
.357-magnum gun to hold “for a second.” T.497. Nix leaned against
the house with his back to the wall and remained there for a minute
or two, looking between the houses. T.498.
Nix testified that he first spotted Scott when he was about 12
feet away. Scott appeared angry to Nix and was brandishing a
baseball bat. T.570. Nix testified said that he was afraid if he
tried to run, Scott would hit him with the bat, and that Scott was
so close that Nix was prevented from running out of the yard.
T.501-03. However, Nix did not think Scott could have hit Nix when
Nix first saw Scott. T.504, 586. When Scott was about four feet
away, Nix turned around, aimed, and shot him once in the chest.
T.501. Scott staggered, falling back toward the alley, clutching
his chest. T.504.
Nix related that after the shooting, he ran back out toward
the alley and met Petitioner in the alley outside of the yard,
where he returned the gun to Petitioner. Petitioner ran in a
different direction but they both ended up at Nesbit’s house. After
telling Petitioner he would meet him at Unity Park housing complex,
Nix left again through the back door. Petitioner met Nix in a field

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outside of the complex, after which they went to Petitioner’s Uncle
PeeWee’s house. Petitioner gave the gun to his uncle and told him
to “put it up”, but Nix did not see it was placed. T.513-15. For
the

next

several

days,

Nix

traveled

between

Niagara

Falls,

Lockport, and Buffalo, sometimes by himself and at other times with
Petitioner, staying at houses belonging to his friends or to
friends and relatives of Petitioner. T.516-28. He finally returned
to Niagara Falls, staying in an abandoned house on 5th street for
a few hours before going to a house on Robinson Court occupied by
a person known as “Benny.” Nix stayed overnight and was arrested
there the next day.
Anthony Brantley (“Brantley”), who had a lengthy criminal
history,

was

prosecution

the

who

only

claimed

other
to

individual

have

witnessed

to

testify

any

of

for

the

the

events

surrounding the shooting. He stated that on June 20, 2001, he was
sitting on his uncle’s porch at 929 Ferry Street when he saw Nix
stop

at

a

store

on

9th

Street

and

Ferry

Avenue

to

talk

to

Petitioner. Brantley said he was familiar with both men, although
he did not testify as to how well he knew them. T.369-71. According
to Brantley, Petitioner and Nix walked together into the alley
between 9th

and 10th Streets, as did several people in front of

them, but that Petitioner did not go all the way into the alley.
T.371-72. Five or ten minutes later, Brantley heard shots and saw
a lot of people running, including Nix and Petitioner, who were

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running towards 9th Street. T.373-74. Brantley did not see a gun
displayed by Nix or Petitioner and did not know where the shot
originated.
Victor Johnson (“Johnson”), who also had a lengthy criminal
history, testified that he knew both Petitioner and Nix from the
streets. Johnson recovered the gun used in the shooting for the
police; in exchange, the police dropped several drug charges
pending against his girlfriend. Johnson testified that the gun
originally belonged to his deceased cousin, Goldsmith. T.665, 670.
Johnson contradicted Nix’s testimony that Petitioner had possession
of the gun after the shooting inasmuch as Johnson stated that Nix
told him that he (Nix) had put it in a house located next door to
the one in which he was staying. T.649-50. Johnson testified that
he later gave the gun to Petitioner but did not know where he took
it. T.651. Later, Johnson said he was told by a woman nicknamed
“Brooklyn” that the gun was in her house and that he should take it
from that location. Johnson testified that he did so and hid it in
a relative’s house on Pierce Street where it remained until he
turned it over to police. T.652-54.
The prosecution also called jailhouse informant Michael Cox
(“Cox”), who was housed in the same cell block as Petitioner in
November

or

December

2001.

According

to

Cox,

they

talked

“practically every day.” T.693-95. Petitioner told Cox that he had
seen “Mimi” (i.e., Nix) fight with someone named Doug (i.e.,

-6-

Scott). At the time, Petitioner had been at the “weed house”. Cox
testified that Mimi went inside the house where he had been staying
and came outside again. Petitioner, who was accompanied by some of
their friends, promised to help Mimi go after Doug. According to
Cox, Petitioner said that he gave Mimi a gun while they were in an
alley behind a house; the alley was Petitioner’s shortcut to
“Michelle’s”

house. Petitioner told Cox that “Mimi had to do his

own shooting because it wasn’t him [i.e., Petitioner] that got his
ass whooped.” T.706, 730. Petitioner told Cox that Mimi had wanted
to shoot Doug, and that Petitioner did, too, because he himself had
had issues with Doug. T.703, 705, 730. Petitioner related to Cox
that Doug had come around the

house, swinging a bat, before being

shot. Later on the day of the shooting, Petitioner hid the gun in
Michelle’s house, and then Petitioner and Mimi changed clothes at
Petitioner’s

grandmother’s

apartment.

Petitioner

asked

his

grandmother if Mimi could stay with her awhile, as Mimi was
avoiding the police. Subsequently, Cox testified, Petitioner told
him that Michelle brought the gun to “Brooklyn’s” house, and
Petitioner told Brooklyn to give it to Johnson.
Samuel

Eaddy

(“Eaddy”),

another

jailhouse

neighbor

of

Petitioner’s, testified for the prosecution. Petitioner was housed
one cell away from Eaddy at Wende Correctional Facility where
Petitioner had stayed temporarily for purposes of attending a court
date. Petitioner told Eaddy that he had seen Nix fight on a porch

-7-

with another person, whose name Eaddy did not recall. During the
fight, Nix had been cut. He was about to leave the area
when Nix stopped to talk with Petitioner. Petitioner told Eaddy
that he had given Nix a gun and told him to hold it while
Petitioner obtained a second gun. Petitioner explained to Eaddy
that he then approached the man (i.e., Scott) who had beaten up Nix
and told him that Nix had asked for Petitioner’s help, that
Petitioner was going to get a gun for him, and that Nix was waiting
for this man. T.762, 786-88. The man asked Petitioner where Nix
was, “got a stick or something”, and “went charging” toward Nix,
who shot him. T.762, 763. Petitioner told Eaddy that he previously
had problems with the man Nix had shot.
The defense’s sole witness was Michelle Nesbit, who lived with
Petitioner and referred him to as her “brother”. At her apartment
on 9th Street in Niagara Falls, Nesbit kept a .357-magnum revolver
in either the front living room couch, a couch in the back room, or
a kitchen drawer. Lotha Goldsmith had brought the gun to her house
before his death. Nix, whom Nesbit had known for about a month
before June 2001, sometimes would borrow the gun and then return it
to her apartment.
Petitioner slept at Nesbit’s apartment on June 19, 2001, as
did Rashi Perry (“Perry”). Sometime before noon on June 20th,
Petitioner and Perry left to go buy “some weed.” Nesbit was alone
in the apartment when Nix came by to see Petitioner. He told Nesbit

-8-

that he had been “cut” in a fight and then went to the back of the
apartment. Nesbit did not see what Nix was doing there. Shortly
thereafter, Nix left the apartment. About five or ten minutes
later, he returned through the back door.
On June 21, 2001, Nesbit permitted the police to search her
apartment. However, the police did not find a gun. Nesbit informed
the police that when Scott had been murdered, Petitioner was on the
other side of the city. She had paged Petitioner at 12:30 p.m. on
June 20, 2001, and had had Nix speak to Petitioner once Petitioner
responded to the page. Nix told Petitioner during that conversation
that he would meet him across town. Nix and Petitioner also talked
about finding a change of clothing for Nix.
Three months later, Nesbit informed the police that the
foregoing statements were false. Nesbit gave a new statement,
indicating that on the day of the shooting, Petitioner came in
through the front door of her apartment, and Nix came in through
the back door. “[S]omeone”—probably Petitioner—“said that somebody
got shot.” T.835, 872. Nesbit moved to 1028 South Avenue in about
September 2001, but did not move the gun to her new apartment. She
professed not to know how it eventually ended up there. Petitioner
sometimes visited her at the South Avenue apartment, and Johnson
visited there frequently. At some point, Nesbit paged Johnson and
asked him to meet her outside of her friend Brooklyn’s house, where
Nesbit gave Johnson the gun.

-9-

During the police investigation of the crime scene, Niagara
Falls

Police

Department

Detective

James

Lincoln

(“Detective

Lincoln”) and found a green plastic-handled box cutter razor on the
sidewalk and a silver aluminum bat lying at the curb in front of
the house at 462 10th Street. Detective Lincoln estimated that the
distance from the front to the back of 462 10th Street was between
35 and 40 feet.

He observed drops of blood on a sidewalk just to

the side of the front porch at 462 10th Street. T.421-435. However,
Detective Lincoln saw no blood on the sidewalk that led to the back
of 462 10th Street. Nor did he find any blood on sidewalk that led
from the alley to the rear door of the house. T.427, 431. The area
behind the house as it opened onto the alley was free of any
obstructions or fences. T.433.
On June 13, 2003, the jury returned a verdict acquitting
Petitioner

of

second-degree

murder

(P.L.

§

125.25(1))

as

an

accomplice, but convicting him of first-degree manslaughter as an
accomplice. The jury also returned guilty verdicts on the charges
of Criminal Facilitation in the Second Degree (P.L. § 115.05),
Criminal Possession of a Weapon in the Second Degree (P.L. §
265.03(2)), and Criminal Possession of a Weapon in the Third Degree
(P.L. § 265.02(4)).
Defense counsel then moved pursuant to New York Criminal
Procedure Law (“C.P.L.”) § 330.30 in Niagara County Court to set
aside the verdict on the basis of legally insufficient evidence to

-10-

support the convictions. Judge Broderick found that “[t]here is a
valid line of reasoning and there are permissible inferences that
could lead a rational person to the conclusion reached by this jury
on the basis of the evidence at this trial[,]” that the prosecution
“satisfie[d] the proof and burden requirements for every element of
the crimes of first-degree manslaughter, second-degree criminal
facilitation, second-degree criminal possession of a weapon and
third-degree criminal possession of a weapon.” SR.144-45 (citations
omitted). Judge Broderick, however, found that he had erred with
regard to hindering prosecution jury charge given to the jury
because it failed to include as an element the requirement of
proving

the

underlying

murder.

SR.146

(citations

omitted).

Accordingly, Judge Broderick reversed the hindering prosecution
conviction. Id. Petitioner’s remaining contentions were discussed
and found to be without merit.
On October 3, 2003, Judge Broderick sentenced Petitioner to
the following concurrent sentences: a determinate, 25-year prison
term on the first-degree manslaughter conviction; an indeterminate
term of 5 to 15 years on the criminal facilitation conviction; a
determinate 15-year term on the second-degree weapons possession
conviction; and a determinate prison term of 7 years on the
third-degree weapons possession conviction. All of the determinate
sentences

carried

a

5-year

term

of

post-release

supervision

(“PRS”), except the third-degree weapons possession conviction,

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which carried a 3-year term of PRS.
B.

Post-Conviction Proceedings in State Court

Represented

by

new

counsel,

Petitioner

pursued

a

direct

appeal. On June 9, 2006, the Appellate Division, Fourth Department,
of New York State Supreme Court unanimously affirmed Petitioner’s
conviction. People v. Chapman, 30 A.D.3d 1000 (4th Dep’t 2006). On
August 28, 2006, the New York Court of Appeals denied Petitioner’s
application for leave to appeal. People v. Chapman, 7 N.Y.3d 811
(2006)
On or about June 20, 2012, Petitioner filed a motion to vacate
pursuant to

C.P.L.

§

440.10,

arguing

that

trial

counsel

was

ineffective for not contacting various unidentified witnesses,
including a potential witness who had allegedly reported the
shooting,

for

the

purpose

of

refuting

the

testimony

of

the

jailhouse informants. Petitioner also argued that trial counsel was
ineffective for not objecting to the inconsistent verdicts and for
not

arguing

that

counts

5

and

6

of

the

indictment

were

jurisdictionally defective. In a decision dated October 24, 2012,
the County Court (Farkas, J.) denied vacatur, finding that under
the totality of the circumstances, trial counsel had provided
meaningful representation, rejecting Petitioner’s other claims.
C.

The Federal Habeas Proceeding

Petitioner timely filed his habeas petition in this Court. On
or about January 2, 2008, Petitioner filed a motion to stay his

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habeas petition, which the Court (Arcara, D.J.) granted on April
22, 2008. At the Court’s request, Petitioner provided updates
regarding the status of his state-court exhaustion proceedings. On
June 20, 2014, the stay was lifted, and the case was restored to
the

Court’s

active

docket.

Respondent

filed

an

answer

and

opposition memorandum of law. Petitioner did not file a reply. For
the reasons discussed below, the request for a writ of habeas
corpus is denied.
III. Discussion
A.

Failure to Charge the Jury that a Box-Cutter and a
Baseball Bat are “Dangerous Instruments” (Petition, ¶
22(A))

Petitioner contends that the trial court erred in denying
defense counsel’s request that the jury be charged, in connection
with the self-defense instruction, that the bat and box-cutter
found at the crime scene were “dangerous instruments” as a matter
of law. On direct appeal, the Appellate Division denied this claim
as without merit.
In

general,

the

correctness

of

a

state

court’s

jury

instructions is a matter of state law that does not raise a federal
constitutional question. See Cupp v. Naughten, 414 U.S. 141, 146
(1973). The Second Circuit has explained that “federal courts must
. . . defer to state-court interpretations of the state’s laws, so
long as those interpretations are themselves constitutional . . .
.” Davis v. Strack, 270 F.3d 111, 123 n. 4 (2d Cir. 2001).

-13-

Here, the Appellate Division held that the trial court had
properly denied defense counsel’s request to instruct the jury that
the “box cutter and baseball bat in the victim’s possession were
dangerous instruments as a matter of law[,] inasmuch as those were
disputed issues of fact for the jury’s resolution.” People v.
Chapman, 30 A.D.3d at 1002 (citation omitted). Judge Broderick
instructed the jury regarding the defensive use of deadly physical
force under P.L. § 35.15(2)(a). See T.1032-33. Neither P.L. § 35.15
nor the criminal pattern jury instruction regarding deadly physical
force mentions “dangerous instruments”, and thus there is no basis
to assert that Judge Broderick erroneously omitted a necessary part
of the charge. Dangerous instrument is defined in the Penal Law as
something “which, under the circumstances in which it is used,
attempted to be used or threatened to be used, is readily capable
of causing death or other serious physical injury.” N.Y. PENAL LAW §
100.13. Thus, defining what is a dangerous instrument does not
entail simply looking at the characteristics of the object; rather,
it

is

context-specific

and

requires

a

factual

determination

regarding how and where the object was used or threatened to be
used. This places the issue squarely within the jury’s province.
In the context of evaluating Petitioner’s asserted defense of
justification, the jury was required to determine whether

Nix

“reasonably believe[d] that such other person [Scott] is using or
about to use deadly physical force,” N.Y. Penal Law § 35.15(2)(a),

-14-

unless Nix could have retreated. Thus, even if the jury had been
instructed

that

the

bat

and

the

box-cutter

were

dangerous

instruments, and the jury determined that Scott was about to use
them to inflict deadly force, that does not end the inquiry. As
noted, there was ample evidence establishing that Nix he had time
to retreat, including his own concession that there was no fence or
other obstacle preventing him from doing so. In other words, not
only was the Appellate Division correct in finding that the trial
court did not err in declining to instruct the jury that the boxcutter and bat were dangerous instruments since these were factual
issues to be resolved, the charge requested would not necessarily
have resulted in a different verdict.
B.

Erroneous Marshaling of the Evidence (Petition, ¶ 22(B))

Petitioner asserts that the trial court, in marshaling the
circumstantial evidence for the jury, incorrectly stated that “as
[he] recall[ed]”, Brantley’s testimony had “plac[ed] [Petitioner]
at the scene of the crime” T.1040-41. Trial counsel objected, and
the following colloquy occurred:
[DEFENSE COUNSEL]: As I recall Anthony Brantley’s
testimony, he saw the defendant at the alleyway at 9th—I
mean at Ferry and—at the alleyway on Ferry. The crime
scene was at the small sidewalk of 462 10th Street and—
THE COURT: Which was said somewhat [sic], what, two
houses down from the alley.
[DEFENSE COUNSEL]: Yeah, but there were also any number
of other people in that same area.
THE COURT: Well, I understand that, but I just merely
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informed them that there was, in my opinion, some
circumstantial evidence which was allegedly adduced to
convince him that he was there.
T.1041.

On

direct

Petitioner’s

appeal,

contention

characterization

of

that

the
the

Brantley’s

Appellate
trial

Division

court

testimony

rejected

erred

during

in

its

its
jury

instructions. Chapman, 30 A.D.3d at 1002. Even assuming arguendo
that the characterization was inaccurate, the Appellate Division
held that the court properly instructed the jurors that they were
the “sole triers of fact[,]” and “thus [Petitioner] was not denied
a fair trial by the alleged inaccurate characterization of the
testimony. . . .” Id. (citations omitted).
In reviewing an allegedly erroneous jury charge by a state
court, the habeas court must ask whether the suspect charge, viewed
in the entirety of all of the charges given, “so infected the
entire trial such that the resulting conviction violates due
process.” Henderson v. Kibbe, 431 U.S. 145, 154 (1977). The crux of
Petitioner’s argument appears to be that the trial judge defined
“scene of the crime” in an overly broad fashion. The evidence
showed that Nix came out from behind the house at 462 10th Street
and fired at Scott, who was walking down the sidewalk next to that
house toward Nix. After Scott was shot, he staggered out to the
sidewalk by the house at 462 10th Street. See T.418-19, 489,
498-501.
According

to

the

witnesses’

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testimony,

Ferry

Avenue

and

Niagara Street run east-west, and 9th Street and 10th Street run
north-south, creating a box. See, e.g., T.355, 433. The alley to
which defense counsel and the trial judge referred, supra, is
located between 9th and 10th Streets and also runs north-south; thus,
the

alley

essentially

9th

parallels

and

10th

Streets.

T.433.

Detective Lincoln testified that 462 10th Street is a “couple” of
houses down from the intersection of Ferry Avenue and 10th Street.
T.418-19.

alley.

Based

on

the

configuration

of

the

streets

described above, the alley essentially bordered the lot at 462 10th
Street.
Brantley testified that he saw Petitioner and Nix talking in
front of a store on the corner of 9th Street and Ferry Avenue, and
then walk toward the alley that ran in between 9th and 10th Streets.
T.370, 406. According to Brantley, Nix and Petitioner entered the
alley, but Petitioner only walked partway down the alley. Still,
walking down that alley puts Petitioner relatively close to the
back of the lot at 462 10th Street.
In any event, the prosecution did not argue that Petitioner
was present at the moment of the shooting or that Petitioner was
the shooter. Rather, the prosecution’s theory of the case, based on
Nix’s testimony and Petitioner’s admissions to, e.g., Cox and
Eaddy, was that Petitioner set a trap for Scott by giving Nix a gun
and steering Scott to the place where Nix was lying in wait. As
Judge Broderick noted in his decision denying the C.P.L § 330.30

-17-

motion,
[m]oments before the shooting, Nix and Chapman conspired
near an alleyway, forming a plan to have Nix wait in the
alley with the gun and to have Chapman locate Scott and
tell him that Nix was in the alley waiting for him to
resume their running confrontation. Chapman then left to
look for Scott. Things progressed according to plan.
Chapman contacted Scott and delivered his message,
telling him that Nix had asked for a gun (which he was
going to get), but was warning Scott first. Chapman,
thus, clearly and intentionally left Scott with the
misimpression that Nix did not yet have a gun.
SR.142.
Although the Court finds that the trial judge’s phraseology in
his instruction marshaling Brantley’s testimony could have been
more precise, it cannot say that there is any reasonable likelihood
that the trial judge’s lack of precision affected the verdict.
C.

Legal Insufficiency of the Evidence (Petition, ¶ 22(C))

Petitioner argues, as he did on appeal, that the evidence was
legally insufficient because (1) the prosecutor failed to disprove
Petitioner’s justification defense beyond a reasonable doubt; (2)
the evidence did not establish that Petitioner, acting as Nix’s
accessory, shared Nix’s intent to kill Scott; and (3) the evidence
did not sufficiently corroborate Nix’s testimony. The Appellate
Division

rejected

these

claims

as

unpreserved,

finding

that

Petitioner “failed to preserve his contentions concerning the legal
sufficiency of the evidence for [its] review by his general motion
to dismiss[,]” Chapman, 30 A.D.3d at 1001 (citing People v. Gray,
86 N.Y.2d 10, 19 (1995)), and “his motion to set aside the verdict

-18-

also
Id.

did

not

(citing

preserve

People

v.

his

contentions

Hines,

97

N.Y.2d

for

[its]

56,

61

review[.]”

(2001)).

The

Appellate Division also ruled that the convictions were “supported
by legally sufficient evidence[.]” Id. Respondent argues that the
Appellate Division’s reliance on an adequate and independent state
ground to dismiss the legal insufficiency claim bars it from habeas
review, notwithstanding that court’s alternative holding regarding
the merits of the claim. Respondent also argues that none of
Petitioner’s theories concerning the alleged insufficiency of the
evidence have merit.
The Supreme Court has held that a state criminal conviction
must be upheld if, “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
original).

Under this “rigorous standard[,]” a “‘federal habeas

court faced

with

a record

conflicting

inferences

of

must

historical facts
presume—even

if

that supports
it

does

not

affirmatively appear in the record—that the trier of fact resolved
any such conflicts in favor of the prosecution, and must defer to
that resolution.’” Wheel v. Robinson, 34 F.3d 60, 66 (2d Cir. 1994)
(quoting Jackson, 443 U.S. at 326. “Under Jackson, federal courts
must look to state law for ‘the substantive elements of the
criminal offense.’” Coleman v. Johnson, 132 S. Ct. 2060, 2064

-19-

(2012) (quoting Jackson, 443 U.S. at 324 n.16). Petitioner was
convicted as a principal of second-degree criminal facilitation. He
was convicted, as an accessory to Nix, see N.Y. PENAL LAW § 20.00,
of first-degree manslaughter and second- and third-degree weapons
possession.
The

Court

turns

first

to

Petitioner’s

claim

that

the

prosecution failed to disprove his justification defense.2 The
Appellate Division held that the prosecution “presented evidence
establishing beyond a reasonable doubt that the shooter [Nix] was
not acting in self defense when he drew his gun and that the
shooter could have retreated.” Chapman, 30 A.D.3d at 1001 (citing
N.Y. PENAL LAW § 35.15(2)(a); internal quotation and other citations
omitted). The Court agrees.
Both

Nix

and

Detective

Lincoln

testified

that

nothing

obstructed Nix’s ability to run away from Scott. T.433, 504, 586.
Although Nix testified that he shot Scott when Scott was running to
the back of the house and was at the “middle of the house”, T.500,
the evidence established that when Nix shot Scott, Scott was not
within the range in which he could have struck Nix with the bat.

2

Although Judge Broderick noted that defense of justification seemingly
would have been personal to Nix, he determined to permit Petitioner to raise the
defense with regard to the second (degree) intentional murder count. The jury
received a verdict sheet (approved by both counsel) that provided a way to
indicate whether a “not guilty” verdict on the murder charge resulted from a
determination that Nix, and by extension Petitioner, had acted in self-defense.
The verdict sheet, later introduced as a court exhibit, indicated that the jury
rejected Nix’s self-defense claim and acquitted Petitioner on other grounds,
namely, that there was insufficient evidence to prove beyond a reasonable doubt
that he intended to cause Scott’s death.

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Moreover, the bat was found at the curb, on 10th Street. T.424. The
house, from the front porch to the back, was 35 to 40 feet in
length. Detective Lincoln observed blood on the sidewalk near the
front porch, but no blood on the sidewalk leading to the back of
the house, and none on the sidewalk from the alley to the rear door
of the house. T.426-32. Finally, the coroner testified that the
fatal bullet was not fired within close range. T.618-19.
With regard to Petitioner’s claim regarding his alleged lack
of

intent,

the

Appellate

Division

held

that

the

prosecution

presented sufficient proof that Petitioner “shared [Nix’s] intent
to cause serious physical injury to the victim and intentionally
aided [Nix] by providing him with the weapon and informing the
victim where [Nix] was located, thereby leading the victim” to Nix.
People v. Chapman, 30 A.D.3d at 1001. Based on the testimony
summarized and discussed above, “[t]he inference that [Petitioner]
took part in a plan to trap and seriously injure the victim was
compelling.” People v. Camacho, 22 A.D.3d 367, 2005 N.Y. Slip Op.
07790, at *1 (1st Dep’t 2005).
Finally, with regard to the allegedly insufficient evidence of
corroboration, the Court finds that this argument is based solely
on New York State’s accomplice corroboration requirement, see N.Y.
Crim. Proc. Law § 60.20. As such, it does not state a cognizable
federal constitutional issue. Martinez v. Walker, 380 F. Supp.2d
179, 183 (W.D.N.Y. 2005) (citing Caminetti v. United States, 242

-21-

U.S.

470,

495

(1917)

(“[T]here

is

no

absolute

rule

of

law

preventing convictions on the testimony of accomplices if juries
believe them.”)). As the Second Circuit has explained, “[a]ny lack
of corroboration goes to the weight of the evidence, not to its
sufficiency, and a challenge to the weight of the evidence is a
matter for argument to the jury, not a ground for reversal on
appeal.”

United States v. Gordon, 987 F.2d 902, 906 (2d Cir.

1993). Consequently, Petitioner’s legal insufficiency claim based
on the lack of corroborative testimony must be dismissed. Accord,
e.g., Martinez, 380 F. Supp.2d at 184 (citations omitted).
D.

Verdict Against the Weight of the Evidence (Petition, ¶
22(C))

On direct appeal, Petitioner requested that the Appellate
Division

weigh

the

relative

probative

force

of

conflicting

testimony pursuant to C.P.L. § 470.15(5). The Appellate Division
concluded that “the verdict is not against the weight of the
evidence

with

respect

to

th[e]

count

[of

first-degree

manslaughter].” Chapman, 30 A.D.3d at 1001.
By raising a “weight of the evidence” argument, Petitioner
does not present to this Court a federal issue as required by 28
U.S.C. § 2254(a). E.g., Bester v. Conway, 778 F. Supp.2d 339, 345
(W.D.N.Y. 2011) (“Because Bester's weight of the evidence claim
implicates only state law, it is not cognizable in this federal
habeas proceeding.”) (citing, inter alia, 28 U.S.C. § 2254(a); Ex
parte Craig, 282 F. 138, 148 (2d Cir.1922) (holding that “a writ of
-22-

habeas corpus cannot be used to review the weight of evidence . .
.”), aff’d, 263 U.S. 255 (1923)).
E.

Jurisdictionally Defective Indictment
Attachment to Petition, pp. 11-12)

(Ground

F(1.),

Petitioner contends that count six of the indictment, which
charged him with third-degree criminal possession of a weapon, was
jurisdictionally

defective

because

it

did

not

specifically

articulate that he possessed a firearm outside his home or place or
business. Petitioner also challenges count five of the indictment,
charging him with second-degree criminal possession of a weapon, on
the basis that it did not specify that the weapon was operable.
Respondent argues that this claim is unexhausted because it was not
raised in state court as a stand-alone claim, although Petitioner
did assert in his C.P.L. § 440.10 motion that trial counsel was
ineffective for failing to challenge the jurisdictional sufficiency
of the indictment on the above-mentioned grounds. Respondent argues
that raising the defective-indictment claim as a predicate for
ineffective assistance of trial counsel was insufficient to fairly
present the claim to the state courts for exhaustion purposes. See
Picard v. Connor, 404 U.S. 270, 275-76 (1971) (“emphasiz[ing] that
[for purposes of exhaustion] the federal claim must be fairly
presented to the state courts”; this means that “the state prisoner
[is] required to present the state courts with the same claim he
urges upon the federal courts”) (citations omitted).
“As courts in this circuit have consistently recognized, an
-23-

ineffective

assistance

claim

is

an

insufficient

vehicle

for

exhausting the underlying allegations when those allegations are
asserted for the first time as separate claims on habeas.” Hall v.
Phillips, No. 04-CV-1514 (NGG)(VVP),

2007 WL 2156656, at *5

(E.D.N.Y. July 25, 2007) (citing Bond v. Walker, 68 F. Supp.2d 287,
296 (S.D.N.Y. 1999) (“An ineffective assistance claim is separate
and

distinct

ineffective

from

the

assistance

substantive
claim,

claim

such

that

incorporated

in

the

exhaustion

of

the

ineffective assistance claim is not exhaustion of the underlying
substantive claim.”); Reed v. Strack, No. 97 CV 2513, 1999 WL
187422, at *3 (E.D.N.Y. Mar. 25, 1999) (similar) (citing Levasseur
v. Pepe, 70 F.3d 187, 192 (1st Cir. 1995)) (additional citation
omitted)); see also Turner v. Artuz, 262 F.3d 118, 123 (2d Cir.
2001) (where

petitioner

challenged

effectiveness

of

appellate

counsel in a coram nobis motion, petitioner exhausted only his
ineffectiveness

claim,

and

not

the

claims

underlying

the

ineffectiveness claim).
If a habeas claim has “never been presented to a state court,
a federal court may theoretically find that there is an ‘absence of
available State corrective process’ under § 2254(b)(1)(B)(I) if it
is clear that the unexhausted claim is procedurally barred by state
law and, as such, its presentation in the state forum would be
futile.”

Aparicio

v.

Artus,

269

F.3d

78,

90

(2d

Cir.

2001)

(quotation omitted). That is the case here. Petitioner already has

-24-

used the one direct appeal to which was entitled. See, e.g.,
Cunningham v. Conway, 717 F. Supp.2d 339, 365 (W.D.N.Y. 2010)
(citing N.Y. R. CT. §§ 500.20(a)(2), (d); N.Y. Crim. Proc. Law §
460.10(5); collecting cases). Collateral review in a motion to
vacate pursuant to C.P.L. § 440.10(2)(c) is also barred because
“sufficient

facts

appear

on

the

record

of

the

proceedings

underlying the judgment” to have permitted him to raise the claims
on

direct

appeal.

See

N.Y.

Crim.

Proc.

Law

§

440.10(2)(c)

(mandating denial if sufficient facts appeared on the record to
have permitted direct review but defendant unjustifiably failed to
raise

claim

on

jurisdictionally

direct

defective

appeal).

Although

indictment

claim

Petitioner’s

must

be

deemed

exhausted because he has no available remedies in state court, this
forfeiture of the claim creates a procedural bar to this Court’s
review of the claim’s merits. E.g., Gray v. Netherland, 518 U.S.
152,

162

(1996)

(state

procedural

bar

which

gives

rise

to

exhaustion provides an independent and adequate state-law ground
for conviction and sentence, and thus prevents federal habeas
corpus review of defaulted claim, unless petitioner can demonstrate
cause and prejudice for default). Here, Petitioner has not alleged
cause or prejudice, and the Court has found neither on the record
before it. Furthermore, Petitioner has not made the factual showing
of

“actual

innocence”

necessary

to

warrant

the

“fundamental

miscarriage of justice” exception to the procedural default rule.

-25-

See Murray v. Carrier, 477 U.S. 478, 496 (1986). Accordingly, the
Court

finds

that

Petitioner’s

the

procedural

jurisdictionally

default

defective

remains

unexcused.

indictment

claim

is

dismissed on that basis.
F.

Erroneous Jury Charge and Inconsistency of the Verdicts
(Ground F(2.), Attachment to Petition, p. 12; Ground G,
Attachment to Petition, pp. 12-16)

Petitioner asserts the following interrelated claims: the
trial court’s jury instructions regarding the offense of criminal
facilitation
inconsistent

were

incorrect,

verdicts

(i.e.,

thereby
guilty

leading

verdicts

the

on

the

jury

to

criminal

facilitation and manslaughter charges, and a not guilty verdict on
the second-degree murder charge). Respondent argues that these
claims were
therefore

never

are

raised

in

unexhausted.

any state
Petitioner

court
has

proceeding,

not

and

responded

to

Respondent’s non-exhaustion argument.
Petitioner’s claim that the verdicts were inconsistent is
easily disposed of on the basis of non-cognizability. The Supreme
Court

has

held

that

“[i]nconsistency

in

a

verdict

is

not

a

sufficient reason for setting it aside.” Harris v. Rivera, 454 U.S.
339, 345 (1981).
As to Petitioner’s claim regarding the allegedly erroneous
criminal facilitation jury instruction, the Court agrees that it is
unexhausted, having never been presented to the state courts for
review. However, it must be deemed exhausted because Petitioner

-26-

faces the absence of remedies in state court. He has already used
the one direct appeal to which he is entitled, and because this is
a record-based claim, it would be subject to mandatory dismissal
under C.P.L. § 440.10(2)(c) if raised in a collateral motion to
vacate the judgment. See Section III.E, supra. The circumstances
giving rise to the construction exhaustion of this claim also
create a procedural bar to this Court hearing the merits of the
claim. As discussed above, Petitioner has not attempted to show
cause and prejudice, or that a fundamental miscarriage of justice
will occur if this claim is not reviewed on the merits in this
proceeding. Accordingly, the Court dismisses it as subject to an
unexcused procedural default.
G.

Harsh and Excessive Sentence (Ground E, Attachment to
Petition, p. 11)

Petitioner asserts on direct appeal, that his sentence of 25
years on the manslaughter conviction was grossly unfair given that
Petitioner did not shoot Scott, and the shooter, Nix, was allowed
to plead guilty to manslaughter as a juvenile offender and receive
a

sentence

of

3

to

10

years.

Petitioner

requested

that

the

Appellate Division exercise its discretionary authority under state
law to review factual questions and impose a lesser term of
imprisonment. The Appellate Division declined to do so, finding
that “the sentence is not unduly harsh or severe.” Chapman, 30
A.D.3d at 1002.
The Second Circuit has stated that no federal constitutional
-27-

issue amenable to habeas review is presented where, as here, the
sentence is within the range prescribed by state law. White v.
Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) (citation omitted).
Petitioner received the maximum sentence possible on his conviction
for first-degree manslaughter, but he does not and cannot argue
that his sentence was outside than appropriate statutory range. In
short, his claim that the trial court abused its discretion in
sentencing does not present a question of federal constitutional
magnitude, and is dismissed. See, e.g., Horton v. Ercole, 557 F.
Supp.2d 308, 325 (N.D.N.Y. 2008) (“Horton’s claim that the trial
court abused its discretion when it imposed the maximum sentence
because he was twenty-one years old and he was a ‘first time
offender’ is not a federal claim subject to review by a habeas
court

because

judges

have

the

authority

to

exercise

broad

discretion when imposing sentences.”) (citing, inter alia, Fielding
v. LeFevre, 548 F.2d 1102, 1109 (2d Cir. 1977); footnote omitted).
IV.

Conclusion
For the reasons discussed above, the petition (Dkt. #1) is

dismissed. As Petitioner has failed to make a substantial showing
of

a

denial

of

a

constitutional

right,

no

certificate

of

appealability will issue. See 28 U.S.C. § 2253(c)(2). Petitioner
must file any notice of appeal with the Clerk’s Office, United
States District Court, Western District of New York, within thirty
(30) days of the date of judgment in this action.
-28-

SO ORDERED.

S/ Michael A. Telesca

HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

Rochester, New York
March 17, 2015

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