Harris v. Artus

Filing 9

-CLERK TO FOLLOW UP-DECISION AND ORDER dismissing 1 Petition for Writ of Habeas Corpus filed by George Harris and denying a Certificate of Appealability. (Clerk's Office to close case.) Signed by Hon. Michael A. Telesca on 02/09/2015. (AFB)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

GEORGE HARRIS,
Petitioner,
-vs-

No. 6:13-CV-6672(MAT)
DECISION AND ORDER

DALE ARTUS, Superintendent, Attica
Correctional Facility,
Respondent.

I.

Introduction
Proceeding pro se, George Harris (“Petitioner”) seeks a writ

of habeas corpus pursuant to 28 U.S.C. § 2254 on the basis that he
is

being

held

in

State

custody

in

violation

of

his

Federal

constitutional rights. Petitioner is incarcerated pursuant to a
judgment entered against him on November 17, 2008, in Erie County
Court (Troutman, J.) of New York State Supreme Court. Following a
non-jury trial, Petitioner was convicted of one count of second
degree (intentional) murder (N.Y. Penal Law (“P.L.”) § 125.25(1)).
II.

Factual Background and Procedural History
The conviction here at issue stems from the February 7, 2008,

premeditated

shooting

of

his

stepson-in-law,

Tom

Liberatore

(“Tom”), at the multi-family house Petitioner, Tom’s mother (“Mrs.
Harris”), Tom, and Tom’s wife, Kristen Liberatore (“Kristen”),
shared.
About three weeks before the murder, Petitioner had put

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leftover pizza in his refrigerator. It was a well-understood house
rule that no one apart from Petitioner and his wife, Mrs. Harris,
were allowed to eat food from Petitioner’s refrigerator. Petitioner
and Mrs. Harris then took a weekend trip out of town. When they
returned, they found that someone had eaten the pizza. They both
were upset and blamed Tom, who, admittedly, had eaten the pizza.
T.235-236.1 Although Tom bought a replacement pizza, Petitioner was
not appeased.
The tension in the household caused by this incident grew
steadily. Tom and his mother reconciled, and Mrs. Harris urged
Petitioner

to

smooth

things

over

with

Petitioner.

Petitioner

responded, “Me? Apologize? No. I’ll get my respect.” T.240.
On February 1, 2008, Petitioner purchased a shotgun and hid it
in his attic. T.241, 378, 404-406, 623.
On February 6, 2008, Mrs. Harris talked to Petitioner about
buying a place for themselves so that they could have more privacy.
T.246-248.
On the morning of February 7, 2008, Petitioner acted as if it
were just another day, getting up at his regular time and eating
breakfast with his wife. When she left for a luncheon date,
Petitioner waited for Tom to return home for lunch. On hearing Tom
enter the lower apartment, Petitioner ran and got his shotgun, and

1

Citations to “T.” refer to pages from the transcript of Petitioner’s trial.

-2-

stationed himself behind a pillar in the basement. He knew Tom
would have to walk through the basement to return to work at the
automotive garage he owned with his brother. T.620, 624, 653, 664.
Meanwhile, Tom’s wife was taking a nap in their apartment.
T.92, 99. Tom stopped in to see her before he went back to work,
gave her a kiss, and left. Moments later, Kristen was wakened by a
loud explosion and heard her husband scream from the basement, “Oh
my God! Mom! Mom! Kristen!” T.100. Kristen put on her bathrobe and
ran downstairs to find her husband crawling toward her, away from
Petitioner. He said to her, “He shot me.” T.101-102.
As blood flowed from the wound on Tom’s right side, Petitioner
stood over him and reloaded the shotgun. T.103. Kristen begged
Petitioner not to shoot her husband again. Petitioner trained the
muzzle of his shotgun on her face briefly and returned to pointing
it at Tom. T.105. When Kristen asked Petitioner why he was doing
this, Petitioner calmly replied, “He’s an asshole.” T.105, 107.
After repeating this in the same tone of voice, Petitioner shot Tom
in the back of the skull. T.106.
According

to

Kristen,

Petitioner

maintained

his

normal

demeanor throughout the assault. After shooting Tom in the head,
Petitioner remained calm, let the shotgun fall to his side, and
walked out of the basement, leaving Kristen with her robe covered
in her husband’s brain matter, tissue and blood. T.107-108, 170.
When a police officer arrived at the house, Petitioner calmly

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told her, “I'm the one you’re looking for. I shot him. He’s on the
floor in the basement.” T.423-425.
Petitioner elected to have a non-jury trial. He did not
testify in his behalf. The theory of the defense was the Petitioner
was suffering from an extreme emotional disturbance (“EED”) at the
time of the shooting. Defense expert Dr. Rajendra Singh testified
that “[w]hat [EED] means is[,] was the [Petitioner] at the time of
the crime under the influence of extreme emotional distress which
can be explained by the circumstances which led to the crime.”
T.614. Dr. Singh acknowledged that extreme emotional disturbance is
usually characterized by the display of much emotion at the time of
the crime, and is accompanied by an immediate loss of control;
however, Petitioner admittedly never was unable to control himself.
T.599, 688-689
In rebuttal, the prosecution called Dr. Gary Horwitz who
testified that EED has both an objective and subjective component.
Based on his interview with Petitioner and the testimony presented
at trial, Dr. Horwitz opined the murder was about Petitioner
“getting his respect” from Tom. T.750. Dr. Horwitz characterized
the murder as an ambush, rather than an episode of EED. After the
first shot, a person in a heat of passion would have had a reaction
of concern upon realizing the horrific act he had just committed.
Petitioner, however, acted in a manner that showed a calm resolve
to finish the job. After taking the second shot almost immediately

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after the first, the gun misfired, and Petitioner readily re-loaded
it. Dr. Horwitz theorized that if Petitioner truly had been out of
control, he would have shot Kristen when she entered the basement.
On October 16, 2008, Judge Troutman found Petitioner guilty as
charged of second degree (intentional) murder. On November 17,
2008, she sentenced him to the maximum term available, 25 years to
life.
Represented by new counsel, Petitioner appealed his conviction
to the Appellate Division, Fourth Department, of New York State
Supreme Court. Appellate counsel argued that the verdict was
against the weight of the credible evidence and that the sentence
was

harsh

affirmed

and

the

excessive.

conviction

The

Appellate

without

opinion

Division
on

unanimously

October

1,

2010.

Appellate counsel did not file a leave application since both
arguments presented on direct appeal were based on factual matters
which the New York Court of Appeals had no power to review.
Petitioner, acting pro se, received permission to file a belated
leave application, which was denied on December 2, 2011.
On September 1, 2011, Petitioner filed an application for a
writ of error coram nobis in the Appellate Division, arguing that
appellate counsel failed to present his sentencing and weight of
the evidence claims in federal constitutional terms so as to
exhaust them for future habeas review. Petitioner also faulted
appellate counsel for declining to file a leave application. The

-5-

Erie County District Attorney’s Office filed an affidavit in
opposition

on

September

20,

2011.

On

November

10,

2011,

the

Appellate Division summarily denied coram nobis relief. Petitioner
sought leave to appeal to the New York Court of Appeals, which was
denied.
On September 18, 2012, Petitioner filed a pro se motion to
vacate the judgment pursuant to New York Criminal Procedure Law
(“C.P.L.”) § 440.10 in Erie County Court. He argued that the
prosecution’s expert witness made misrepresentations and committed
fraud

on

the

court

so

as

to

rebut

Petitioner’s

purportedly

meritorious EED, and that the prosecutor condoned this misconduct
by using this manufactured evidence. The County Court denied the
motion without a hearing on January 15, 2013. Leave to appeal to
the Appellate Division was denied on April 3, 2013.
Petitioner filed a second application for a writ of error
coram nobis

May

6,

2013,

arguing

that

appellate

counsel

was

ineffective for “fail[ing] to raise the State expert-witness’
willful disregard for truth, manipulation, deception and fraud on
the court. . . .” The Appellate Division summarily denied relief on
June 28, 2013, and the New York Court of Appeals denied leave to
appeal on September 24, 2013.
This timely habeas petition followed in which Petitioner
asserts the following grounds for relief: (1) the evidence was
legally insufficient to negate his EED defense beyond a reasonable

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doubt (Ground One); (2) the prosecution’s expert witness, Dr.
Horwitz, committed perjury, deception, and fraud on the court that
precluded or hindered him from developing his defense (Ground Two,
repeated at Ground Three); and (3) the prosecution committed
misconduct

and

suborned

perjury

by

relying

on

Dr.

Horwitz’s

testimony (Ground Two).
Respondent filed an answer and opposition memorandum of law.
Petitioner filed a traverse. For the reasons set forth below, the
petition is denied.
III. Discussion
A.

Legal Insufficiency of the Evidence (Ground One)

Petitioner asserts that the “evidence adduced at trial was
legally insufficient to negate [his] established extreme emotional
disturbance defense beyond a reasonable doubt as constitutionally
required. . . .” Petition (“Pet.”) (Dkt #1), p. 5 of 27. Respondent
argues that this claim is unexhausted because it was not presented
in federal constitutional terms on direct appeal. See Picard v.
Connor, 404 U.S. 270, 275 (1971) (stating that to satisfy the
exhaustion requirement in 28 U.S.C. § 2254(b)(1), a petitioner must
have “fairly presented” his claims to the state courts); Levine v.
Commissioner of Corr. Servs., 44 F.3d 121, 124 (2d Cir. 1995) (fair
presentation is accomplished, by, inter alia, asserting “explicit
constitutional argument[s], . . . , asserting the claim in terms
that ‘call to mind a specific right protected by the Constitution,’

-7-

or

alleging

facts

that

fall

‘well

within

the

mainstream

of

constitutional litigation.’”) (quotation omitted). As Respondent
notes, on direct appeal, appellate counsel’s first point heading
was that “the verdict was against the weight of the evidence.”
Petitioner’s Appellate Brief (“Pet’r Br.”) at 9 et seq. Appellate
counsel then extensively reviewed the trial evidence and urged the
Appellate Division to find that “the trier of fact failed to
adequately assess the credibility of the People’s witnesses[,]”
“gave undue weight to the People’s witnesses”; and “failed to
consider

that

the

preponderance

of

the

evidence

indubitably

established that [Petitioner]’s actions were a result of extreme
emotional disturbance.” Id. at 10. It thus appears to this Court
that Petitioner did not fairly present his legal insufficiency
claim in constitutional terms. See, e.g., People v. Bleakley, 69
N.Y.2d 490, 495 (1987) (explaining that a “weight of the evidence”
argument is a pure state law claim grounded in C.P.L. § 470.15(5),
which permits an appellate court in New York to reverse or modify
a conviction where it determines “that a verdict of conviction
resulting in a judgment was, in whole or in part, against the
weight of the evidence”) (quotation omitted); Salcedo v. Artuz, 107
F. Supp.2d 405, 416 & n. 4 (S.D.N.Y. 2000) (petitioner’s allegation
that his conviction was not supported by the evidence in violation
of “U.S. Const. Amend. XIV” because he acted under an EED did not
fairly present a constitutional claim because, inter alia, the EED

-8-

defense is “purely a matter of state law”).
Respondent argues that Petitioner cannot return to state court
to exhaust a legal insufficiency claim, because he was required
under New York state law to raise this claim on direct appeal, and
he unjustifiably failed to do so. Respondent’s Memorandum of Law
(“Resp’t Mem.”) at 8 (citing Grey v. Hoke, 933 F.2d 117 (2d Cir.
1991); see also Aparicio v. Artus, 269 F.3d 78, 90 (2d Cir. 2001)
(“When a 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.”)(quotation omitted).
Petitioner concedes that appellate counsel did not present his
legal insufficiency claim in federal constitutional terms on direct
appeal. Indeed, that was one of Petitioner’s major complaints
against appellate counsel, and he argued in his first coram nobis
application that she was ineffective in failing to properly exhaust
a legal insufficiency claim. Petitioner thus asserts that appellate
counsel’s ineffectiveness can serve as “cause” to excuse the
procedural default of his legal insufficiency claim. Rather than
decide the issues of exhaustion and procedural default, the Court
finds that Petitioner’s so-called legal insufficiency claim is
easily resolved against him, as discussed below.

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The

affirmative

defense

of

EED

is

addressed

in

P.L.

§

125.25(1)(a) and § 125.20(2), which define the elements of murder
in the second degree and manslaughter in the first degree. “Read in
tandem, these statutes provide that a defendant who proves by a
preponderance of the evidence that he or she committed a homicide
while ‘under the influence of extreme emotional disturbance for
which there was a reasonable explanation or excuse’ is guilty of
manslaughter and not murder.” Linnen v. Poole, 766 F. Supp.2d 427,
461 (W.D.N.Y. 2011) (quoting People v. Roche, 98 N.Y.2d 70, 75
(2002). “The effect of a successful EED defense does not lead to
acquittal, but reduces the crime upon conviction from murder to
manslaughter in the first degree.” Id. (citing N.Y. PENAL LAW §
125.25(1)(a); DeLuca v. Lord, 77 F.3d 578, 585 (2d Cir. 1996);
other citation omitted). Thus, EED is not a complete affirmative
defense to a charge of murder, in contrast to justification.
Although

he

denominates

his

claim

as

one

“legal

insufficiency”, and mentions the well-known standard set forth in
Jackson v. Virginia, 443 U.S. 307, 318 (1979), Petitioner takes no
exception to the sufficiency of the evidence with regard to the
elements of second degree murder,2 the requirements of EED, or his
opportunity to present his defense. Rather, in state court as well
as in this petition, Petitioner challenges only Judge Troutman’s
2

Notably, after the prosecution rested, trial counsel conceded that the
prosecution had made out a prima facie case of second-degree murder, and stated
his intention to present an affirmative defense. See T.567.

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weighing
See

of

the

Petitioner’s

evidence

and

First

Coram

credibility
Nobis

determinations.

Application

(“First

Coram Nobis”, p. 4 (“Although the judge as trier of fact chose to
give more weight to the People’s psychiatric expert rebuttal
witness. . . .”) (citing People v. Liebman, 179 A.D.2d 246 (1st
Dep’t 1992)(finding that the evidence at bench trial supporting EED
claim of extreme emotional disturbance “was overwhelming and the
trial court’s verdict convicting defendant of murder in the second
degree was against the weight of the evidence”) (Respondent’s
Exhibit (“Resp’t Ex.”) D)). Petitioner’s “legal insufficiency”
argument consists of asking this Court to revisit Judge Troutman’s
determinations as to witness credibility, and conclude that certain
testimony was unworthy of belief. These arguments regarding the
credibility of his witnesses versus the prosecution’s witnesses
were properly made to Judge Troutman as factfinder, who which
rejected them. See Quinney v. Conway, 784 F. Supp.2d 247, 254-55
(W.D.N.Y. 2011). It is well settled, however, that a federal habeas
court is not authorized to revisit a fact-finder’s credibility
determinations. See Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir.
1996) (dismissing habeas claim because “assessments of the weight
of the evidence or the credibility of witnesses are for the jury
and not grounds for reversal on appeal;” deferring to the jury's
assessments of the particular weight to be accorded to the evidence
and the credibility of witnesses). Petitioner’s legal insufficiency

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claim accordingly must be dismissed.
B.

Conviction Based on Perjury by
Witness (Grounds Two and Three)

Prosecution’s

Expert

Petitioner asserted several allegations in support of his
broader

claim

of

perjury

in

his

C.P.L.

§

440.10

motion.

In

particular, he argued that prosecution expert witness Dr. Horwitz
falsified documentation prior to formulating his expert opinion,
which documentation was used at trial in violation of Petitioner’s
due process rights; used manipulation, deception, and tactical
omissions in preparing his opinion, which precluded Petitioner from
asserting a justification defense at trial; and committed fraud
while

testifying,

thereby

hindering

defense

counsel’s

cross-

examination of him. Petitioner accused the prosecutor of complicity
in Dr. Horwitz’s deception. The County Court denied these claims
pursuant to C.P.L. § 440.10(2)(c) noting that “the issues raised by
the defendant are necessarily a matter of record and sufficient
facts appear thereon to have permitted the Appellate Division to
review his claims.” C.P.L. § 440.10 Order at 2-3 (Resp’t Ex. E).
The County Court did not consider the claims’ merits.
Although it appears that the County Court denied Petitioner’s
perjury claims upon an adequate and independent state ground,
Respondent has not asserted the affirmative defense of procedural
default and therefore has waived it. See Trest v. Cain, 522 U.S.
87, 89 (1997) (“[P]rocedural default is normally a ‘defense’ that
the State is ‘obligated to raise’ and ‘preserv[e]’ if it is not to
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‘lose the right to assert the defense thereafter.’”) (quoting Gray
v. Netherland, 518 U.S. 152, 166 (1996); other citation omitted;
alteration in original). Moreover, Respondent did not address the
merits of Petitioner’s perjury claim, instead treating the claim as
an insufficiency-of-the-evidence claim. See Resp’t Mem. at 9.
Because Petitioner’s perjury claim has not been found subject
to a procedural default, and there is no adjudication on the merits
to which deference is owed under 28 U.S.C. § 2254(d)(1), the Court
considers the claim under a de novo standard. See Wiggins v. Smith,
539 U.S. 510, 534 (2003) (finding that because no state court
analyzed the petitioner’s claim for prejudice-the second prong of
Strickland-its “review [wa]s not circumscribed by a state court
conclusion”; court therefore did not assess whether the state
court’s ruling “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,” but rather conducted its review de novo); Maples v.
Stegall, 340 F.3d 433, 437 (6th Cir. 2003) (interpreting Wiggins to
hold that habeas petitioner’s ineffective assistance of counsel
claim was subject to de novo review, where state court had not
assessed merits of that claim).
Petitioner’s claim that his conviction was based on perjured
testimony

is

analyzed

under

the

Due

Process

Clause

of

the

Fourteenth Amendment. Napue v. Illinois, 360 U.S. 264, 269 (1959).

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In Napue, the Supreme Court held that a conviction must be set
aside if “(1)‘the prosecution knew, or should have known, of the
perjury,’ and (2) ‘there is any reasonable likelihood that the
false testimony could have affected the judgment of the jury.’”
Drake v. Portuondo, 321 F.3d 338, 345 (2d Cir. 2003) (quoting
United States v. Agurs, 427 U.S. 97, 103 (1976); footnote in Drake
omitted)). “A witness commits perjury if he gives false testimony
concerning a material matter with the willful intent to provide
false

testimony,

as

distinguished

from

incorrect

testimony

resulting from confusion, mistake, or faulty memory.” United States
v. Monteleone, 257 F.3d 210, 219 (2d Cir. 2001) (citation omitted).
Petitioner claims that Dr. Horwitz materially mischaracterized
portions of Kristen’s statement to the police when, in his expert
opinion, he said that “Tom made no move whatsoever that could have
been interpreted as going for his gun. . . .”3 Dr. Horwitz Opinion
(“Opn.”), p. 4, ¶ 4. Petitioner states that “nowhere” in Kristen’s
statement or in any notes of interviews with her did she “speak of
Tom not attempting to grab his gun.” The Court has reviewed the
record and the documents cited by Petitioner. Even if Kristen did
not say the precise words, “Tom made no move whatsoever that could
have been interpreted as going for his gun,” this was an accurate

3

Tom owned a small gun for protection because the house he shared with his
mother and Petitioner, and out of which he and his brother ran their automotive
garage, was in an unsafe part of town. Tom typically carried his gun on his right
hip, according to Kristen.

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summary of her description of her husband’s movements when she came
upon him, severely wounded, in the basement. As she told Dr.
Horwitz, Tom was cradling his wounded right shoulder with his
opposite hand and crawling on his stomach toward her, away from
Petitioner who was reloading his shotgun. Tom’s gun was not out of
its holster, and his hands were empty.
In short, Petitioner has not demonstrated that Dr. Horwitz’s
report or testimony contained inaccuracies or inconsistencies,
which, in any event, would not be sufficient to establish perjury.
See, e.g., United States v. Gambino, 59 F.3d 353, 365 (2d Cir.
1995) (stating that “even a direct conflict in testimony does not
in itself constitute perjury”), cert. denied, 517 U.S. 1187 (1996).
Petitioner certainly has not come close to demonstrating that Dr.
Horwitz perjured himself by “knowingly and willingly” testifying
falsely about a material matter. It necessarily follows from the
Court’s conclusion that, because Petitioner has not established
perjury by Dr. Horwitz, the prosecutor cannot be found to have
suborned perjury or otherwise committed misconduct in this regards.
Even

accepting

as

true

Petitioner’s

statements

in

his

interview to Dr. Horwitz regarding his alleged observations of Tom
during the shooting, Petitioner did not have a viable justification
defense. Under New York law, “[i]n order to be entitled to a
justification instruction, a defendant must show both that he
subjectively believed that deadly force was necessary under the

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circumstances and that a reasonable person in his situation would
have held this belief.” Blazic v. Henderson, 900 F.2d 534, 540 (2d
Cir. 1990) (citing People v. Goetz, 68 N.Y.2d 96, 115 (1986)).
“Even if a defendant reasonably believed that deadly force was
necessary, his actions were not justified if he knew that he could,
with complete safety, avoid using deadly force by retreating.” Id.
(citing N.Y. PENAL LAW § 35.15(2)(a)). In determining whether the
evidence in a particular case warrants a justification charge, New
York courts have emphasized that the evidence is to be construed in
the light most favorable to the defense. Blazic, 900 F.2d at 540
(citations omitted).
Petitioner told Dr. Horwitz that after the first shot, Tom
struggled to a seated position. When Kristen came downstairs, Tom
rolled onto his stomach, with his hands clutching his chest,
causing Petitioner to think Tom was reaching for his gun. Even if
Tom were clutching his chest with both hands, that would mean that
his hands were not near his hip, where his weapon was holstered. As
Dr. Horwitz observed in his report, Petitioner was “in complete
control of the situation with a severely wounded man who could
hardly move, under his direct observation and very nearby,” making
it “very evident and easy to see if . . . [Tom] was working at
removing his gun from the holster and provid[ing] Petitioner ample
time to react.” Opn., p. 7. It defies credulity to suggest that
Tom,

having

been

gravely

wounded

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in

his

right

shoulder

and

attempting to crawl away from his attacker, could have gotten to
his holstered gun and returned fire. The Court finds that there
simply is no view of the evidence under which a reasonable person
in Petitioner’s situation would have believed that deadly force was
necessary, or that he was unable to retreat in complete safety.
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

appealability will issue. See 28 U.S.C. § 2253(c)(2).
SO ORDERED.
S/ Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

Rochester, New York
February 9, 2015

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of