Agee v. Brandt

Filing 18

DECISION AND ORDER denying petition for writ of habeas corpus and dismissing the petition. Signed by Hon. Michael A. Telesca on 8/26/11. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
RONELL AGEE,
DECISION AND ORDER
No. 10-CV-06303T

Petitioner,
-vsJ. BRANDT
Respondent.
________________________________
I.

Introduction
Pro se Petitioner Ronell Agee (“Petitioner”) has filed a

timely petition for a writ of habeas corpus under 28 U.S.C. § 2254
challenging the constitutionality of his custody pursuant to a
judgment entered February 17, 2005, in New York State, Supreme
Court, Monroe County (Hon. Joseph D. Valentino), convicting him,
after a jury trial, of Assault in the First Degree (N.Y. Penal Law
(“Penal Law”) § 120.10 [3]).
felony

offender

to

a

Petitioner was sentenced as a second

determinate

term

of

fifteen

years

imprisonment, with five years of post-release supervision.
For the reasons stated below, habeas relief is denied and the
petition is dismissed.
II.

Factual Background and Procedural History
Under Indictment No. 2004-0372, Petitioner was charged with

two counts of Assault in the First Degree in violation of Penal Law
§§ 120.10 [1], [3]) (intentional assault and depraved indifference
assault). The charges arose from a stabbing incident that occurred
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on April 15, 2004 in the City of Rochester, New York.

See Resp’t

App. B at 6-7.
Prior to the date of the incident, Petitioner and his friends
went to the home of Harriett Williams located at 382 Arnett
Boulevard looking for her adult son, Lynn Henderson (“Henderson”).
Petitioner and his friends threatened Henderson, and Harriett
Williams called the police.

Trial Trans. [T.T.] 477, 481-489.

On the date of the incident, Harriett Williams’ nephew, Byron
Williams, arrived at 382 Arnett Boulevard just after Harriett
Williams had returned home from work. Byron Williams told his aunt
that the people who had “jumped” Henderson were trying to get a
group together to beat up Henderson.

In an effort to settle the

on-going dispute, Henrietta Williams told her nephew to stay in the
house while she went for her husband, Lucius Williams, and his
brother, Chris Williams, to speak to the men who were harassing her
son and nephew. Henrietta Williams picked up her husband and Chris
Williams (who were both at Chris Williams’ house), and then picked
up Henderson (who was at his girlfriend’s house).

The four

individuals then returned to 382 Arnett Boulevard and walked down
Arnett Boulevard toward a group of individuals who had congregated
outside 366 Arnett Boulevard.

T.T. 490-493, 646-650.

As the four individuals neared the larger group, Henderson
exchanged words with one of the men in the group and picked up a
bottle and threw it. The bottle broke Tony Porter’s (“Porter”) car

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window.

Daniel Dixon (“Dixon”), who was one of the men who came to

Henrietta Williams’ home looking for Henderson, threw a bottle back
and then ran away.

T.T. 493-494, 496-501, 857.

While Henrietta

and Lucius Williams were speaking to Porter about having her car
window fixed, Petitioner suddenly appeared and approached Henrietta
and

Lucius

Williams.

Petitioner

then

approached

Henrietta

Williams, stating, “what’s up, nigger,” and then swung around her
and stabbed Lucius Williams.

Lucius Williams testified that he

turned around just in time to see his attacker, whom he did not
know, but had seen around the neighborhood for years.

Lucius

Williams did not realize he had been stabbed until he began having
trouble breathing and saw blood.

Lucius Williams said nothing to

Petitioner before or during the attack.

Petitioner stabbed Lucius

Williams several times with a knife that had a black handle and
silver blade.

T.T. 502-506, 653-656, 688, 693, 695.

Chris Williams and Henderson approached the group of men and
began

fighting

with

Petitioner.

At

some

altercation, Petitioner was also stabbed.

point

during

the

Chris Williams helped

Harriett Williams bring her husband back to 382 Arnett Boulevard,
and Chris Williams then took Lucius Williams to the hospital.
T.T. 503-507, 524.
Upon arrival at Strong Memorial Hospital, Lucius Williams had
three stab wounds: one to his anterior abdominal wall, one to his
left shoulder, and one to his left ventricle.

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T.T. 719.

The

Carhartt-brand jacket Lucius Williams was wearing that night also
showed signs of three separate knife wounds –- two holes in the
front and one in the back.

T.T. 660.

In the emergency room,

Lucius Williams was intubated, given a blood transfusion, had a
chest tube inserted, and had fluid removed from his pericardial
sack with a needle.

Lucius Williams was categorized as a level one

trauma patient, indicating that his condition was life-threatening.
Shortly after his arrival, Lucius Williams underwent surgery to
repair a laceration to his left ventricle.

Dr. Carolyn Jones

performed the surgery, cutting the skin over Lucius Williams’
breastbone, sawing his breastbone, opening his pericardium, and
exploring

his

heart

to

determine

the

source

of

the

blood.

Dr. Jones discovered a laceration at the base of the heart, and
closed it with two stitches and inserted a drain to avoid fluid
build-up.

Dr. Jones then closed the breastbone, wiring it shut.

The surgery performed on Lucius Williams lasted approximately three
hours, and he remained at Strong Memorial for the following four
days.

Dr. Jones testified that Lucius Williams’ injuries were

caused by a sharp object and that had he not sought medical
attention after the stabbing, he would have died.

T.T. 720-730.

Meanwhile, while Lucius Williams was being treated at the
hospital, members of the Rochester Police Department had arrived at
366 Arnett Boulevard, secured the scene, and searched for evidence.
A knife with a black handle and silver blade was recovered from the

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middle of Arnett Boulevard.

A second knife handle was also

recovered on Warwick Street nearby.
appeared

to

Boulevard.

be

blood

on

the

Police also observed what

sidewalk

outside

of

366

Arnett

Lucius Williams identified the knife recovered from

Arnett Boulevard as the one Petitioner used to stab him.

T.T. 539-

543, 570, 611-613, 659.
At

trial,

Petitioner

presented

Dailey, Lamar Parnell, and Dixon.

three

witnesses:

Trisha

Although varying greatly in

their recall of the events of April 15, 2004, all three witnesses
testified that the group of people who approached them as they
stood near 366 Arnett Boulevard consisted of approximately ten men
and no women.
knives.

The group was swearing and some were brandishing

breaking.

They all recalled a bottle being thrown and a car window
However, none of these witnesses recounted the stabbing

of Lucius Williams.

They each testified that after the bottles

were thrown, Petitioner ran and was pursued by the large group of
men with knives.

According to these witnesses, at some before or

during the chase, Petitioner fell and was stabbed multiple times.
Dixon testified that Lucius Williams was one of the people who
chased Petitioner and that he was involved in the stabbing of
Petitioner.

Dixon also testified that it was Chris Williams who

was wearing the Carhartt-brand jacket and that Lucius Williams was
dressed in black.

T.T. 765-766, 784-788, 835-847, 874.

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At the close of his trial, Petitioner was found guilty of
depraved indifference assault (Penal Law § 120.10 [3]) and not
guilty of intentional assault (Penal Law § 120.10 [1]). T.T. 1110.
He was subsequently sentenced as a second felony offender to a
determinate term of fifteen years imprisonment, with five years of
post-release supervision.

Sentencing Mins. [S.M.] 5, 13.

The Appellate Division, Fourth Department unanimously affirmed
the judgment of conviction, and leave to appeal was denied. People
v. Agee, 57 A.D.3d 1486 (4th Dep’t 2008) (Resp’t App. F); lv.
denied, 12 N.Y.3d (2009) (Resp’t App. I).
This habeas corpus petition followed, wherein Petitioner seeks
relief on the following grounds: (1) the evidence at trial was
legally insufficient to support his conviction; and (2) ineffective
assistance of trial counsel.

See Pet. ¶ 22A, B (Dkt. No. 1).

Petitioner’s claims are exhausted and properly before this Court.
III. General Principles Applicable to Habeas Review
A.

The AEDPA Standard of Review

Under the Anti-Terrorism and Effective Death Penalty Act
(“AEDPA”), a federal court may grant habeas relief to a state
prisoner only if a claim that was “adjudicated on the merits” in
state court “resulted in a decision that was contrary to, or
involved

an

unreasonable

application

of,

clearly

established

Federal law, as determined by the Supreme Court of the United
States,” 28 U.S.C. § 2254(d)(1), or if it “was based on an

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unreasonable determination of the facts in light of the evidence
presented in the state court proceeding.” § 2254(d)(2).

A state

court decision is “contrary to” clearly established federal law “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.”
362, 413 (2000).

Williams v. Taylor, 529 U.S.

The phrase, “clearly established Federal law, as

determined by the Supreme Court of the United States,” limits the
law governing a habeas petitioner’s claims to the holdings (not
dicta) of the Supreme Court existing at the time of the relevant
state-court decision.

Williams, 529 U.S. at 412;

accord Sevencan

v. Herbert, 342 F.3d 69, 73-74 (2d Cir. 2002), cert. denied, 540
U.S. 1197 (2004).
A

state

court

decision

is

based

on

an

“unreasonable

application” of Supreme Court precedent if it correctly identified
the governing legal rule, but applied it in an unreasonable manner
to the facts of a particular case.
also id. at 408-10.

Williams, 529 U.S. at 413;

see

“[A] federal habeas court is not empowered to

grant the writ just because, in its independent judgment, it would
have decided the federal law question differently.”
Artuz, 269 F.3d 78, 94 (2d Cir. 2001).

Aparicio v.

Rather, “[t]he state

court’s application must reflect some additional increment of
incorrectness such that it may be said to be unreasonable.”

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Id.

This increment “need not be great; otherwise, habeas relief would
be limited to state court decisions so far off the mark as to
suggest judicial incompetence.” Francis S. v. Stone, 221 F.3d 100,
111 (2d Cir. 2000) (internal quotation marks omitted).
Under AEDPA, “a determination of a factual issue made by a
State court shall be presumed to be correct.

The [petitioner]

shall have the burden of rebutting the presumption of correctness
by clear and convincing evidence.”

28 U.S.C. § 2254(e)(1);

see

also Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir. 2003) (“The
presumption of correctness is particularly important when reviewing
the trial court’s assessment of witness credibility.”), cert.
denied sub nom. Parsad v. Fischer, 540 U.S. 1091 (2003).

A state

court’s findings “will not be overturned on factual grounds unless
objectively unreasonable in light of the evidence presented in the
state-court proceeding.”

Miller-El v. Cockrell, 537 U.S. 322, 340

(2003).
B.

Exhaustion Requirement

“An application for a writ of habeas corpus on behalf of a
person in custody pursuant to a judgment of a State court shall not
be granted unless it appears that . . . the applicant has exhausted
the remedies available in the courts of the State. . . .” 28 U.S.C.
§ 2254(b)(1)(A);
843-44 (1999);

see, e.g., O’Sullivan v. Boerckel, 526 U.S. 838,
accord, e.g., Bossett v. Walker, 41 F.3d 825, 828

(2d Cir.1994), cert. denied, 514 U.S. 1054 (1995). “The exhaustion

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requirement is not satisfied unless the federal claim has been
‘fairly presented’ to the state courts.” Daye v. Attorney General,
696 F.2d 186, 191 (2d Cir. 1982) (en banc), cert. denied, 464 U.S.
1048 (1984).
C.

The Adequate and Independent State Ground Doctrine

A procedural default generally bars a federal court from
reviewing the merits of a habeas claim.
U.S. 72 (1977).

Wainwright v. Sykes, 433

Federal habeas review is prohibited if a state

court rests its judgment on a state law ground that is “independent
of the federal question and adequate to support the judgment.”
Cotto v. Herbert, 331 F.3d 217, 238 (2d Cir. 2003) (quoting Coleman
v. Thompson, 501 U.S. 722, 729 (1991));
229 F.3d 112, 117 (2d Cir. 2000).

accord Jones v. Stinson,

A state procedural bar qualifies

as an “independent and adequate” state law ground where “‘the last
state court rendering a judgment in the case clearly and expressly
states that its judgment rests on a state procedural bar.’” Levine
v. Comm’r of Corr. Servs., 44 F.3d 121, 126 (2d Cir. 1995) (quoting
Harris v. Reed, 489 U.S. 255, 262 (1989)).

A state procedural rule

will be adequate to preclude habeas review if it is “firmly
established and regularly followed,” unless the state rule is
“exorbitant.”

Lee v. Kemna, 534 U.S. 362, 376 (2002) (quoting

James v. Kentucky, 466 U.S. 341, 348 (1984)).
A federal court may review a claim, notwithstanding the
petitioner’s default, if he “can demonstrate cause for the default

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and actual prejudice as a result of the alleged violation of
federal law.”

Coleman, 501 U.S. at 750;

see also Levine, 44 F.3d

at

v.

121

126;

Grey

Hoke,

933

F.2d

117,

(2d

Cir.

1991).

A

petitioner may establish cause by pointing to “some objective
factor external to the defense [that] impeded counsel’s efforts to
comply with the State’s procedural rule.”
U.S. 478, 488 (1986);

Murray v. Carrier, 477

accord Coleman, 501 U.S. at 753.

A

petitioner suffers actual prejudice if the outcome of the case
would likely have been different had the alleged constitutional
violation not occurred.

See Reed v. Ross, 468 U.S. 1, 12 (1984).

Alternatively, even if the petitioner is unable to show cause and
prejudice, the court may consider the claim if he can demonstrate
that failure to do so will result in a “fundamental miscarriage of
justice.”

Coleman, 501 U.S. at 750.

IV.

Petitioner’s Claims

1.

Legally Insufficient Evidence
Petitioner argues, as he did on direct appeal, that the

evidence adduced at trial was legally insufficient to support his
conviction for assault in the first degree (depraved indifference
assault). In particular, he alleges that the prosecution failed to
prove beyond a reasonable doubt that he acted recklessly and with
the requisite depravity necessary for conviction.

See Pet. ¶ 22A;

see also Pet’r Br. on Appeal at Resp’t Appendices A, D.

The

Appellate Division, Fourth Department rejected this claim on a

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state procedural ground because Petitioner failed to properly
preserve the issue for appellate review.

See Agee, 57 A.D.3d at

1486. Consequently, as discussed below, this claim is procedurally
defaulted from review by this Court.
A federal court may not review a question of federal law
decided by a state court if the state court’s decision rested on a
state law ground that is independent of the federal question and
adequate to support the judgment.
U.S. 722, 751 (1991).
preservation

rule

See Coleman v. Thompson, 501

Here, the state court relied on New York’s

(codified

at

CPL

§

470.05

[2])

to

deny

Petitioner’s claim because it had not been properly preserved for
appellate review.

See Agee, 34 A.D.3d at 1486.

The Second Circuit

has determined that CPL § 470.05 [2] is an independent and adequate
state procedural ground.
(2d Cir. 1999);

See Garcia v. Lewis, 188 F.3d 71, 79-82

Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir.

1990). The Appellate Division, Fourth Department’s reliance on New
York’s preservation rule is an adequate and independent state
ground which precludes this Court’s review of Petitioner’s claim.
This Court, however, may reach the merits of Petitioner’s
claim, despite the procedural default, if he can demonstrate cause
for the default and prejudice, or that failure to consider the
claim will result in a fundamental miscarriage of justice.
Coleman, 501 U.S. at 750.

See

Liberally construing the petition,

Petitioner alleges ineffective assistance of trial counsel as cause

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for

the

default.

See

Pet.

¶

22B.

A

claim

of

ineffective

assistance of counsel may establish cause for a procedural default.
See Edwards v. Carpenter, 529 U.S. 446, 451 (2000);
Zant, 499 U.S. 467, 494 (1991);
152, 168 (1982).

McCleskey v.

United States v. Frady, 456 U.S.

However, in order to constitute cause, counsel's

ineffectiveness must itself rise to the level of a constitutional
violation.

McCleskey, 499 U.S. at 494 (“Attorney error short of

ineffective assistance of counsel, however, does not constitute
cause

and

will

not

excuse

a

procedural

default.”).

Here,

Petitioner’s stand-alone ineffective assistance of counsel claim is
meritless (see section “IV, 2” below).

Consequently, he cannot

establish “cause” to excuse the procedural default.

Moreover,

Petitioner has failed to demonstrate that this Court’s failure to
review the claim will result in a fundamental miscarriage of
justice.
Accordingly, Petitioner’s sufficiency of the evidence claim is
dismissed as procedurally defaulted.
2.

Ineffective Assistance of Trial Counsel
Petitioner

received
counsel’s

argues,

ineffective
failure

to

as

he

did

on

assistance

of

renew

motion

his

direct

counsel
for

appeal,
based

a

that

upon

trial

he

trial

order

of

dismissal with respect to the second count of the indictment
(depraved indifference assault).

See Pet. ¶ 22B.

The Appellate

Division, Fourth Department rejected this claim on the merits,

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finding,

in

relevant

part,

that,

“viewing

defense

counsel’s

representation as a whole, we conclude that defendant received
effective assistance of counsel.”

Agee, 57 A.D.3d at 1487.

As

discussed below, this claim is meritless.
To establish that he was deprived of his Sixth Amendment right
to the effective assistance of trial counsel, a petitioner must
show that (1) his attorney’s performance was deficient, and that
(2) this deficient performance prejudiced his defense.

Strickland

v. Washington, 466 U.S. 668, 687 (1984). Deficiency is measured by
an

objective

standard

of

reasonableness,

and

prejudice

is

demonstrated by a showing of a “reasonable probability” that, but
for counsel’s unprofessional errors, the result of the trial would
have been different.

Id. at 694.

“A reasonable probability is a

probability sufficient to undermine confidence in the outcome of
the

proceeding.”

Id.

To

succeed,

a

petitioner

challenging

counsel’s representation must overcome a “strong presumption that
[his attorney’s] conduct falls within the wide range of reasonable
professional assistance.”

Id. at 689.

A reviewing court “must

judge the reasonableness of counsel’s challenged conduct on the
facts of the particular case, viewed as of the time of counsel’s
conduct.”

Id.

Here, Petitioner cannot meet the two-pronged

standard set forth in Strickland.
The record before this Court reflects that, at the close of
the People’s case, defense counsel moved for a trial order of

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dismissal with regard to the first and second counts of the
indictment.1
motion.

T.T. 740-742.

The prosecution opposed the defense’s

With respect to the second count of the indictment

(charging depraved indifference assault), the prosecutor stated:
all of the evidence put forward to support
each and every element of those charges,
specifically, that statements by the doctor
that
the
injury
was
life
threatening,
certainly, the defendant had cause, based on
the testimony of the witnesses and can be seen
by the jury, that he caused circumstances
evincing a depraved indifference to human life
a grave risk of death to another person, that
being Lucius Williams.
T.T. 743.

In response, the trial court judge stated:
I don’t know, Ms. Hart, what evidence you
presented to show that Mr. Agee acted
recklessly. You presented evidence here . . .
to show that Mr. Agee lunged at Lucius
Williams; that he uttered words; that Lucius
Williams was stabbed three times.
That was
it.
I don’t know if there is any evidence
that has been indicated that would support the
reckless conduct charge.

T.T. 744.

After making additional arguments in support of her

position, the prosecutor requested that the trial court reserve
decision on the issue.

T.T. 745.

The trial court complied with

the prosecutor’s request, indicating that it needed to research the
issue.

T.T. 747.

The following day, after having listened to the

parties’ arguments and having conducting research, the trial court

1

To reiterate, the first count of the indictment charged Petitioner with
intentional assault, and the second count of the indictment charged Petitioner
with depraved indifference assault. See Resp’t App. B at 6-7.

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denied defense counsel’s request for a trial order of dismissal.
T.T. 756-758.

The defense then presented three witnesses, at the

close of which defense counsel failed to renew his motion for a
trial order of dismissal.

Given the circumstances –- i.e., that

the trial court had already considered the defense’s position with
respect to the depraved indifference assault count and rejected it
prior to the defense’s case -- it was not unreasonable for defense
counsel not have done so.
Additionally, defense counsel’s decision cannot be considered
unreasonable given the theory of defense pursued at trial.

The

record reflects that Petitioner’s defense was based on the theory
that he was justified in his actions, or, in the alternative, that
it was not he who committed the assault on Lucius Williams.
Because either of these defenses, if believed by the jury, would
have been a complete defense to depraved indifference assault,
defense counsel could have reasonably decided to allow the charge
to be considered by the jury with the hopes that the jury would
find Petitioner was justified in stabbing Lucius Williams, or, that
there was a reasonable doubt that it was Petitioner who stabbed
Lucius Williams.
In any event, Petitioner fails to demonstrate that the outcome
of the trial would have been different had the renewed motion been
made with respect to the second count of the indictment.

Upon

motion of the defendant the trial court may issue a trial order of

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dismissal “dismissing any count of an indictment upon the ground
that the trial evidence is not legally sufficient to establish the
offense charged therein or any lesser included defense . . . .”
N.Y. Crim. Proc. Law § 290.10 [1].

The trial record before this

Court includes the testimony of various witnesses to the assault,
including the victim himself, which establishes that the attack on
Lucius Williams was spontaneous, unprovoked, and impulsive.

The

trial record also includes both physical and medical evidence
consistent with the interpretation of the facts as presented by the
prosecution.

Thus, there is no basis for this Court to conclude

that a renewed motion to dismiss at the conclusion of the defense’s
case would have been successful.

See e.g., Delatorres v. Lempke,

08-CV-0183, 2011 U.S. Dist. LEXIS 33034, *11-12 (W.D.N.Y. March 29,
2011) (denying petitioner’s ineffective assistance of trial counsel
claim based upon counsel’s failure to renew her motion to dismiss
where petitioner failed to demonstrate that the outcome would have
been different had the renewed motion been made).
Accordingly, this Court cannot find that the state court’s
adjudication of this claim was contrary to or an unreasonable
application of settled Supreme Court law. Petitioner’s ineffective
assistance of counsel claim is therefore dismissed as meritless.
V.

Conclusion
For the reasons stated above, the petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254 (Dkt. No. 1) is denied,

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and the petition is dismissed.

Because Petitioner has failed to

make “a substantial showing of a denial of a constitutional right,”
28 U.S.C. § 2253(c)(2), the Court declines to issue a certificate
of appealability. See, e.g., Lucidore v. New York State Div. of
Parole, 209 F.3d 107, 111-113 (2d Cir. 2000).

The Court also

hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any
appeal from this judgment would not be taken in good faith and
therefore denies leave to appeal as a poor person.

Coppedge v.

United States, 369 U.S. 438 (1962).
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.
Requests to proceed on appeal as a poor person must be filed with
United States Court of Appeals for the Second Circuit in accordance
with the requirements of Rule 24 of the Federal Rules of Appellate
Procedure.
IT IS SO ORDERED.
S/Michael A. Telesca

HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

August 26, 2011
Rochester, New York

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