Holmes v. Crowley
Filing
21
DECISION AND ORDER denying the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, and dismissing the petition. No certificate of appealability shall issue because Petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2).(Clerk to close case.) Signed by Hon. Michael A. Telesca on 11/8/18. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
CARL HOLMES,
Petitioner,
No. 6:17-cv-06118-MAT
DECISION AND ORDER
-vsSUPERINTENDENT KAREN CROWLEY,
Respondent.
I.
Introduction
Carl Holmes (“Petitioner”) brings this pro se habeas corpus
petition pursuant to 28 U.S.C. § 2254 (“Section 2254”), alleging
that he is being held in custody in violation of his constitutional
right of access to the courts. Petitioner is incarcerated as the
result of a judgment entered on March 18, 2008, in New York State
Supreme Court, Monroe Count (Doyle, J.), following a jury verdict
convicting him of Attempted Murder in the Second Degree (N.Y. Penal
Law (“PL”) §§ 110.00, 125.25(1)), and two counts of criminal
possession of a weapon in the second degree (PL § 265.03(1)(b);
(3)). For
the
reasons
discussed
below,
habeas relief
is
not
warranted.
II.
Factual Background and Procedural History
On
the
(“Sparrow”);
afternoon
his
of
cousin,
August
James
30,
Houston
2008,
Corey
(“Houston”);
Sparrow
and
an
unidentified third man wearing a gray hooded sweatshirt went to a
small clothing store called “Fit ‘Em Up” on Genesee Street in the
City of Rochester. The store was partially owned by Jaime Smith
(“Smith”). Petitioner, who knew Sparrow and Houston, was visiting
Smith in the store at the time. Both Sparrow and the man in the
gray sweatshirt were armed. Sparrow demanded that Smith pay him a
sum of money, which Smith said that he did not have. This prompted
Sparrow to hurl a belt rack at a mirror and fire a gunshot.
Petitioner was ordered to get down on the ground, but he tackled
the man in the gray sweatshirt and was able wrest the gun away from
him. Sparrow and his friends then left the store, and Petitioner
called 911. While he was on the phone with the 911 operator, he was
approached by Houston, who had a gun, and the unnamed other man. He
then started running away from them, but then stopped chasing him
shortly.
Petitioner then headed back towards the store. Around Hopkins
Alley, Sparrow, Houston and the unnamed man approached him. Sparrow
angrily asked him if he had called the police.
When Petitioner replied affirmatively, Sparrow called him a
“mother fucker faggot” and said he know Sparrow was on parole. He
demanded that Petitioner get him $3,000 or he would kill Petitioner
and his mother. Houston threatened to come back to “lay him down”
and the unnamed man threatened that he was “gonna dead [him].”
(Transcript (“Tr.”) 1236-37).
As Sparrow and his friends were getting into Sparrow’s car,
Petitioner told them to pull over so he could talk to them. Sparrow
threatened him again and told him to meet him at the park and “have
-2-
that gun” with him, meaning the gun he had taken from the man in
the gray sweatshirt at Smith’s store. Traveling in Smith’s car,
Smith and Petitioner followed Sparrow, who was heading in the
direction of the park. However, as they approached the park,
Petitioner told Smith to drive to Petitioner’s mother’s house so
that he could check on his family. When they arrived, Petitioner
went to the house and rang the doorbell, but there was no answer.
Meanwhile, Sparrow and his cohorts realized that Smith and
Petitioner had evaded them. Sparrow then drove to Petitioner’s
mother’s house. When Petitioner saw Sparrow and his friend arrive,
he went back to the car, where he had left the gun he had taken
from the man in the gray sweatshirt. Sparrow began arguing with
Petitioner and turned as if to reach for his gun. Petitioner shot
Sparrow three times, fatally wounding him. Seeing that Houston was
standing in the driveway of Petitioner’s mother’s house, Petitioner
got into the driver’s side of Smith’s car and drove after Houston
and fired gunshots at him. One of the shots struck Houston’s elbow.
After the shooting, Petitioner disposed of the weapon and
eventually surrendered himself to the police.
At the jury trial, Petitioner testified and called Smith as a
defense witness. The jury returned a verdict
finding him not
guilty of the murder of Sparrow and the related weapon-possession
charge but finding him guilty of second-degree attempted murder
with regard to Houston and the related two counts of second-degree
criminal possession of a weapon. Petitioner was sentenced to
-3-
concurrent, determinate prison terms of 15 years, plus 5 years of
post-release supervision, on each count.
Petitioner filed a pro se motion pursuant to New York Criminal
Procedure Law (“CPL”) § 440.10 in the Monroe County Supreme Court
seeking to vacate the judgment on various grounds related to the
grand
jury
proceedings.
The
People
opposed
the
motion,
and
Petitioner filed a reply. On December 21, 2009, Petitioner’s motion
was denied. Petitioner did not seek leave to appeal.
Through counsel, Petitioner pursued a direct appeal to the
Appellate Division, Fourth Department, of New York State Supreme
Court
(“Fourth
Department”),
which
unanimously
affirmed
the
judgment of conviction. People v. Holmes, 129 A.D.3d 1692 (4th Dep’t
2015). The New York Court of Appeals denied leave to appeal. People
v. Holmes, 26 N.Y.3d 968 (2015).
Petitioner then filed a pro se application for a writ of error
coram
nobis
in
the
Fourth
Department,
arguing
ineffective
assistance of appellate counsel based on the failure to brief a
claim that trial counsel rendered ineffective assistance by failing
to preserve for appeal his legal sufficiency and jury instruction
claims. The People filed an opposing affirmation. On February 3,
2017, the Fourth Department summarily denied coram nobis relief.
Petitioner did not seek leave to appeal.
In his timely pro se petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, Petitioner argues that (1) the trial
court improperly denied his request to instruct the jury on the
-4-
defense of justification pursuant to P.L. § 35.20(3), i.e., whether
Petitioner was justified in using deadly physical force to prevent
Houston from committing or attempting to commit a burglary of his
mother’s home; (2) the evidence was legally insufficient to support
his attempted murder conviction; (3) the trial court improperly
refused to give a jury instruction on the defense of temporary
innocent possession of a firearm; and (4) the trial court should
have given a “choice of evil” jury instruction, and trial counsel
was ineffective for failing to preserve the issue for appeal.
Respondent answered the petition, arguing that the second and
third claims
are
procedurally barred
and,
in
any
event,
are
meritless. Respondent argues that, as to the first claim, the
Fourth Department reasonably applied Supreme Court law in rejecting
his remaining jury instruction claims. Finally, Respondent argues,
his ineffective trial counsel claim based on the failure to request
a “choice of evil” jury charge is unexhausted and, in any event,
without merit because no such charge was warranted on the facts.
Petitioner did not file any reply pleadings.
III. Discussion
A.
The Trial Court Did Not Err in Denying Jury Instructions
Requested by the Defense (Grounds One and Three)
As ground one for relief, Petitioner argues that the trial
court erred in denying his request for a jury charge on the defense
of justification under PL § 35.20(3).
As ground three of the
petition, Petitioner further contends that his right to a fair
-5-
trial was violated by the trial court’s denial of his request for
a jury charge of temporary and lawful possession of a weapon as a
defense to the weapon possession charges.
1.
Standard of Review
The instant petition, filed after the effective date of the
amendments to 28 U.S.C. § 2254 (“Section 2254”), is subject to the
limitations on federal habeas relief set forth in subsection (d).
Because the Fourth Department adjudicated these claims on the
merits, habeas relief is warranted only if the court’s rulings were
contrary to, or an unreasonable application of, clearly established
law as determined by the Supreme Court of the United States.
28 U.S.C. § 2254(d)(1).
The Supreme Court has clearly held that the propriety of a
state trial court’s jury instructions is ordinarily a matter of
state law that does not raise a federal constitutional question.
Cupp v. Naughten, 414 U.S. 141, 146 (1973). A state court’s failure
to give a particular jury instruction does not raise an issue of
federal constitution magnitude unless the error “‘so infected the
entire trial that the resulting conviction violates due process.’”
Estelle v. McGuire, 502 U.S. 62, 72 (1991) (quoting Cupp, 414 U.S.
at 147). Thus, a petitioner bears an “especially heavy” burden when
complaining that his constitutional rights were violated by the
trial court’s failure to give a particular jury instruction.
Henderson v. Kibbe, 431 U.S. 145, 155 (1977).
-6-
The Second Circuit has established a three-step inquiry to
guide determination of habeas claims based on a trial court’s
refusal to give a jury charge: (1) whether the petitioner was
entitled to the charge under state law; (2) if so, whether the
failure to give the charge resulted in a denial of his federal due
process rights; and (3) if so, whether the state court’s decision
constituted an unreasonable application of clear Supreme Court law.
Jackson v. Edwards, 404 F.3d 612, 621 (2d Cir. 2005) (citing Davis
v. Strack, 270 F.3d 111, 124 (2d Cir. 2001)).
2.
The
A Justification Charge Under PL § 35.20(3) Was Not
Required Under New York Law
court’s
role,
sitting
in
habeas
review,
“is
not
to
interpret New York’s law of justification, but to determine whether
the evidence was sufficient to warrant a justification charge under
that law.” Davis, 270 F.3d at 123–24 n. 4; accord Jackson, 404 F.3d
at 621–22. Under New York law, a trial court must instruct a jury
on the defense of justification if there is any reasonable view of
the evidence that the defendant’s actions were justified. People v.
Cox, 92 N.Y.2d 1002, 1004 (1998). PL § 35.20(3), in particular,
provides as follows:
A person in possession or control of, or licensed or
privileged to be in, a dwelling or an occupied building,
who reasonably believes that another person is committing
or attempting to commit a burglary of such dwelling or
building, may use deadly physical force upon such other
person when he or she reasonably believes such to be
necessary to prevent or terminate the commission or
attempted commission of such burglary.
-7-
N.Y. Penal Law § 35.20(3). Second-degree burglary is committed, for
purposes of PL § 140.25, when a person “knowingly enters or remains
unlawfully in a building with intent to commit a crime therein” and
the building is a dwelling. N.Y. Penal Law § 140.25.
In determining whether a justification charge is warranted,
the trial court must evaluate the proof in the light most favorable
to the defendant. Blazic v. Henderson, 900 F.2d 534, 540 (2d Cir.
1990). “[I]f any reasonable view of the evidence would permit the
fact-finder
to
decide
that
the
conduct
of
the
accused
was
justified, an instruction on the defense should be given.” People
v. McManus, 67 N.Y.2d 541, 549 (1986) (citation omitted). However,
“[the trial] court is not required to adopt an artificial or
irrational view of the evidence in deciding whether a justification
charge is warranted.” Blazic, 900 F.2d at 540 (citing People v.
Butts, 72 N.Y.2d 746, 750 (1988)). “[D]ue process does not require
the giving of a jury instruction when such charge is not supported
by the evidence.” Id. (citing Hopper v. Evans, 456 U.S. 605, 611
(1982)).
Thus, for the defense to apply, there must have been evidence
that reasonably could be viewed as establishing the following
elements (1) Petitioner was lawfully in a dwelling, i.e., his
mother’s home; (2) Petitioner reasonably believed that Houston had
knowingly entered or was remaining unlawfully in his mother’s house
with the intent to commit a crime therein; and (3) Petitioner
-8-
reasonably
believed
that
deadly
force
was
necessary
to
stop
Houston’s in-progress, or attempt to commit, burglary.
The Fourth Department held that “[e]ven assuming, arguendo,
that [Petitioner]
was
‘licensed or
privileged
to
be
in’
his
mother’s apartment for purposes of [PL] section 35.20(3), . . .
there is no reasonable view of the evidence that Houston was
committing or attempting to commit a burglary therein, and thus
[Petitioner] was not entitled to a jury instruction under that
statute[.]” Holmes, 129 A.D.3d at 1694 (citation omitted). No
witness—including Petitioner—testified that Houston had handled a
door or a window or took any other action in an attempt to gain
entry to Petitioner’s mother’s house when Petitioner pursued him.
Petitioner himself testified that, although he saw Houston on the
driveway outside his mother’s house, Petitioner ran Houston off the
property and shot at him during the chase. Thus, Petitioner’s own
testimony did not support a jury charge under PL § 35.20(3).
Because there was no reasonable view of the evidence that
Houston was committing or attempting to commit a burglary, the
trial court did not err as a matter of New York state law in
declining to instruct the jury to consider whether Petitioner was
justified in using deadly physical force to prevent Houston from
committing or attempting to commit a burglary. Accordingly, the
Fourth Department’s rejection of this claim could not have been an
unreasonable application of, or contrary to, clearly established
Supreme Court precedent.
-9-
3.
A Charge Regarding the Defense of Temporary and
Lawful Possession Was Not Warranted
Under certain circumstances, New York law allows a person to
possess a criminally prohibited weapon and yet not be guilty of a
crime, so long as the possession results unavoidably from the
performance of some lawful act. People v. Williams, 50 N.Y.2d 1043,
1045 (1980); see also, e.g., People v. Almodovar, 62 N.Y.2d 126,
130 (1984) (“[A] defendant may not be guilty of unlawful possession
if the jury finds that he found the weapon shortly before his
possession of it was discovered and he intended to turn it over to
the authorities, or that he took it from an assailant in the course
of a fight[.]”) (internal and other citation omitted). “To warrant
a
jury
instruction
on
the
defense
of
temporary
and
lawful
possession, ‘there must be proof in the record showing a legal
excuse for [the defendant’s possession of] the weapon . . . as well
as facts tending to establish that, once possession has been
obtained, the weapon had not been used in a dangerous manner[.]’”
People v. Sackey-El, 52 N.Y.S.3d 492, 495 (2d Dep’t 2017) (quoting
People v. Banks, 76 N.Y.2d 799, 801 (1990)). Thus, courts have held
that the charge is not warranted where, for example, a defendant
wrests a loaded pistol away from an assailant, but fails to
surrender it to the responding police officers, who then discover
the gun under the defendant’s bed the next day. People v. Snyder,
73 N.Y.2d 900, 901-02 (1989).
-10-
Viewing
the
evidence
in
the
light
most
favorable
to
Petitioner, there is no reasonable view of the evidence that
supports the defense of temporary and lawful possession. Although
he initially acquired the weapon by disarming the man in the gray
hooded sweatshirt under circumstances that easily could be deemed
justified, Petitioner did not make any effort to turn the gun over
to the police, even after he had called 911. Then, even though he
had requested assistance from the authorities, he did not wait for
them to arrive. Instead, Petitioner took the gun with him to his
mother’s house. Although he left the weapon in Smith’s car when he
approached the house and rang the doorbell, he returned to the car
and retrieved the gun when Sparrow and Houston arrived. Petitioner
then used the gun to shoot Sparrow and Houston. Thus, there was
substantial evidence that Petitioner used the weapon in a dangerous
manner, which negates the defense. See Banks, 76 N.Y.2d at 801.
Although Petitioner suggested at trial that he retained possession
of the gun to protect himself and his family, based on Sparrow’s
earlier threats to kill him and his family, that circumstance does
not render the possession lawful. See Almodovar, 62 N.Y.2d at 130
(“[A] person either possess a weapon lawfully or he does not and he
may not avoid the criminal charge by claiming that he possessed the
weapon for his protection. Justification may excuse otherwise
unlawful
use
of
a
weapon
but
it
is
difficult
to
imagine
circumstances where it could excuse unlawful possession of it.”).
Under these circumstances, petitioner was not entitled to a jury
-11-
charge on temporary innocent possession of a weapon.
Accordingly,
the Fourth Department’s rejection of this claim could not have been
an unreasonable application of, or contrary to, clearly established
Supreme Court precedent.
C.
The Insufficiency of the Evidence Claim is Procedurally
Barred (Ground Two)
Petitioner argues, as he did on direct appeal, that the
evidence was insufficient to convict him of the attempted murder of
Houston because there was no evidence that he intended to kill
Houston instead of injuring him, and the injuries suffered by
Houston
did
not
place
him
at
“actual
risk
of
death.”
The
prosecution asserted that the issue of legal sufficiency was not
preserved for appellate review because although trial counsel made
and renewed a general motion for a trial order of dismissal based
on the argument that Houston’s testimony was incredible as a matter
of law, a general trial order of dismissal motion is not sufficient
for preservation. The prosecution further argued that Petitioner’s
pre-sentencing CPL § 330.30 motion to set aside the verdict, which
raised the issue for the first time, was insufficient to preserve
it for appellate review. The Fourth Department held that “[n]ot
only was that contention unpreserved by a motion for a trial order
of dismissal specifically directed at that alleged insufficiency,”
Holmes, 13 N.Y.S.3d at 722 (citing People v. Hawkins, 11 N.Y.3d
484, 492 (2008)), it was claim was without merit.
-12-
Respondent argues that the Fourth Department’s reliance on the
rule stated in Hawkins regarding the method of preserving a legal
insufficiency claim for review is an “adequate and independent”
state ground which bars review of the claim’s merits by this Court.
In Hawkins, the New York Court of Appeals held that “[t]o preserve
for
[its]
review
a
challenge
to
the
legal
sufficiency
of
a
conviction, a defendant must move for a trial order of dismissal,
and the argument must be ‘specifically directed’ at the error being
urged. . . .” 11 N.Y.2d at 492 (internal and other quotation and
citations omitted)).
The adequate and independent state ground doctrine generally
forecloses federal habeas review of a state court judgment when the
state court rests its holding 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)). The
adequacy
and
independence
of
a
state
procedural
bar
to
the
assertion of a federal question are themselves federal questions.
Garvey v. Duncan, 485 F.3d 709, 714 (2d Cir. 2007) (citing Lee v.
Kemna, 534 U.S. 362, 375 (2002)).
To be “adequate,” the state procedural requirement must be
“‘firmly
established
and
regularly
followed
by
the
state
in
question’ in the specific circumstances presented in the instant
case.” Murden v. Artuz, 497 F.3d 178, 192 (2d Cir. 2007), cert.
denied, 552 U.S. 1150 (2008). The Court agrees that the rule relied
-13-
on is “adequate” to support the judgment as the New York Court of
Appeals has “repeatedly made clear–and underscore[d] again [in
Hawkins]–[that] general motions [for trial orders of dismissal]
simply do not create questions of law for this Court’s review.”
Hawkins, 11 N.Y.3d at 492 (collecting cases). Moreover, the Second
Circuit has recognized this rule as an adequate and independent
state
ground,
explaining
that
“[a]
general
objection
is
not
sufficient to preserve an issue since such would not alert the
court to defendant’s position. Instead New York’s highest courts
uniformly instruct that to preserve a particular issue for appeal,
defendant must specifically focus on the alleged error.” Garvey,
485 F.3d at 714-15 (citations omitted). Likewise, the Court finds
that the rule relied on was “independent” notwithstanding the fact
that the Fourth Department also ruled on the merits of the claim.
Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999) (holding that there
was “no question that the [a]ppellate [court]’s explicit invocation
of the procedural bar constitutes an ‘independent’ state ground,
even though the court spoke to the merits of [the petitioner]’s
claim in an alternative holding”) (internal and other citation
omitted).
Where, as here, the state court has dismissed a petitioner’s
federal claim on an adequate and independent state ground, habeas
review of that claim is procedurally barred unless the petitioner
can demonstrate either (1) cause for the default and prejudice
attributable thereto; or (2) that the failure to consider the
-14-
federal claim will result in a fundamental miscarriage of justice
(i.e.,
a
constitutional
conviction
of
someone
error
who
is
has
probably
actually
resulted
innocent).
in
the
Coleman
v.
Thompson, 501 U.S. 722, 750 (1991).
To the extent that Petitioner suggests that trial counsel’s
ineffectiveness in failing to make a timely and specific motion for
a trial order of dismissal establishes cause for the default, the
Court finds that such a claim cannot establish “cause” because
Petitioner has never exhausted a claim of ineffective assistance of
trial counsel in state court. See DiSimone v. Phillips, 461 F.3d
181,
191
(2d
ineffective
Cir.
2006)
assistance
(“The
of
Supreme
appellate
Court
counsel
has
held
claims
that
cannot
constitute ‘cause’ for procedural default unless first presented in
state court as an independent constitutional claim.”) (citing
Edwards v. Carpenter, 529 U.S. 446, 451-52 (2000)). Therefore, the
unexhausted trial ineffectiveness claim cannot serve as cause for
the default.
Further, Petitioner cannot demonstrate prejudice because the
Fourth Department reviewed the legal insufficiency claim on the
merits despite
the
lack
of
timely
objections. Ali
v.
Unger,
No. 6:13-CV-6210 MAT, 2014 WL 257270, at *9 (W.D.N.Y. Jan. 23,
2014); Walker v. Bennett, 262 F. Supp.2d 25, 40 (W.D.N.Y. 2003).
Finally, Petitioner he has not attempted to show that he is
actually innocent such that a fundamental miscarriage of justice
will occur if this Court does not review his defaulted claim.
-15-
Therefore, Ground Two is dismissed as subject to an unexcused
procedural default.
D.
The Claims Regarding the “Choice of Evils” Jury Charge
Are Meritless (Ground Four)
Petitioner argues, as he did on direct appeal, that he was
entitled to a justification defense based on the so-called “choice
of evils” section, PL § 35.05(2), with regard to the attempted
murder charge involving Houston. The Fourth Department held that
Petitioner had failed to preserve for its review his contention
that the court also should have given a “choice of evils” jury
instruction pursuant to PL § 35.05(2). Holmes, 13 N.Y.S.2d at 722
(citing People
v.
LaPetina,
9
N.Y.3d
854,
855
(2007) (“This
contention is not preserved for review in this Court because
defendant failed to alert the trial court that, in addition to the
Penal Law § 35.15 self-defense instruction discussed during the
charge
conference,
he
was
also
seeking
a
‘choice
of
evils’
instruction[.]” (citing N.Y. Penal Law § 35.05; People v. Craig, 78
N.Y.2d 616 (1991)). The Fourth Department declined to exercise its
power to review that contention as a matter of discretion in the
interest of justice. Id. (citation omitted).
Respondent argues that the claim is barred due to the Fourth
Department’s reliance on an adequate and independent state ground.
Since it is easier to dismiss the claim on the merits
than
determine the adequacy of the state ground upon which the appellate
-16-
court relied,1 the Court, in the interest of judicial economy, will
follow that route.
In relevant part, PL § 35.05(2) provides that “conduct which
would otherwise constitute an offense is justifiable and not
criminal when . . . [s]uch conduct is necessary as an emergency
measure to avoid an imminent public or private injury which is
about to occur by reason of a situation occasioned or developed
through no fault of the actor, and which is of such gravity that,
according to ordinary standards of intelligence and morality, the
desirability and urgency of avoiding such injury clearly outweigh
the desirability of avoiding the injury sought to be prevented by
the
statute
defining
the
offense
in
issue.”
N.Y.
Penal
Law
§ 35.05(2).
Even entirely accepting the version of events set forth in
Petitioner’s testimony, the Court finds that he has failed to
establish entitlement to a “choice of evils” instruction with
regard to the attempted murder charge involving Houston. Prior to
the confrontation in which Sparrow was shot by Petitioner, Houston
1
In the Section 2254 habeas petition filed by the defendant in LaPetina,
9 N.Y.3d 854, the case that supplied the state procedural rule on which the
Fourth Department relied in Petitioner’s appeal, the district court found that
the rule was not “adequate” to support the judgment, based consideration of the
factors enunciated by the Second Circuit in Cotto, 331 F.3d at 239. See LaPetina
v. Carlsen, No. 07-CV-4335(FB), 2008 WL 4619826, at *2 (E.D.N.Y. Oct. 20, 2008)
(“LaPetina argues that the state trial court erred when it did not charge the
jury on the justification defense and that the error constituted a violation of
the federal constitutional guarantee of due process. Respondent counters that the
holding of the Court of Appeals that LaPetina failed to preserve his claim raises
a procedural bar that prevents this Court from reviewing LaPetina’s claim. The
Court disagrees; the claim is not procedurally barred.”).
-17-
yelled at Petitioner, “I’m gonna be back, you got that, me and my
young bloods gonna be back to lay you down[,]” which Petitioner
states
was
an
“obvious
reference
to
hurting
[Petitioner].”
(Tr. 1237). Sparrow threatened that if Petitioner did not get him
$3,000 in an hour, he was “going to kill [Petitioner] and [his]
mother.” (Tr. 1236). Petitioner went to his mother’s house to see
if she, as well as Petitioner’s sister and brother, were okay.
(Tr. 1243-44). Petitioner did not know if they were home or not.
(Id.). He “banged on the door” but no one answered. (Tr. 1245). He
admitted that he did not know if she was home. (Tr. 1310). No one
answered the door or peeked out the window to see what was going
on. (Tr. 1310). Petitioner admitted that his mother has a security
system, and that he did not check to see if the door was locked.
(Tr. 1310-11).
Neither
his
mother
nor
anyone
else
ever
came
outside. (Tr. 1315).
Sparrow and Houston then pulled up in a black car, got out,
stood
in
the
street,
and
confronted
Petitioner
and
Smith.
(Tr. 1249). Sparrow and Houston had their hands in their hoodies,
and Petitioner thought they had guns. Sparrow continued to demand
money, and Petitioner said he had nothing for him. Sparrow started
walking towards him saying, “[B]itch, who the fuck you talkin’ to,
I’m
ready
to
die,”
and
“reaching
on
his
side.”
(Tr.
1253).
Petitioner fired his weapon when he “[seen] [Sparrow] pulling his
gun.” (Id.).
-18-
After shooting Sparrow, Petitioner saw Houston going towards
the side of Petitioner’s mother’s house, towards the driveway area,
in a northbound direction on Maxwell Street. (Tr.
1255-56).
Petitioner was not sure what Houston was doing and told him to “get
the fuck out of here.” (Tr. 1256). Houston continued to head north
on Maxwell Street which was in the direction towards the back of
the house. Petitioner admitted that there is no back door on his
mother’s side of the duplex (Tr. 1312-14). Petitioner followed
Houston in Smith’s car; when Houston saw him coming, he ran back
towards Petitioner, who stuck the gun out the car window and shot
him. (Tr. 1257).
Petitioner then pulled into the driveway of his
mother’s house. (Tr. 1258). Houston turned around and ran back the
other direction, away from Petitioner’s mother’s house. (Tr. 1259).
Petitioner claims entitlement to the “choice of evils” instruction,
arguing
that
he
reasonably
chose
the
“evil”
of
shooting
in
Houston’s “general direction” to “prevent him from attempting to
hurt or possibly kill his Mother or family members.”
For
purposes
of
the
“choice
of
evils”
defense,
“[t]he
requirement that the impending injury be imminent and about to
occur
requires
‘impending
harm
which
constitutes
a
present,
immediate threat—i.e., a danger that is actual and at hand, not one
that is speculative, abstract or remote[.]’” People v. Jing Xiong,
832 N.Y.S.2d 646, 647 (2d Dep’t 2007) (quoting People v. Craig,
78 N.Y.2d 616, 624 ()). However, Petitioner’s own version events
establishes that the “impending injury” (i.e., harm to his mother)
-19-
was “speculative” and “remote.” Petitioner testified that when he
and Smith arrived at his mother’s house, he banged on the door
repeatedly but no one answered; no one looked outside the windows
to see who was there, and no one came outside at any time during
the confrontation between Petitioner, Smith, Sparrow, and Houston.
Although Petitioner claimed that he was concerned that Houston was
going to try to break into his mother’s house from the back, there
is no back door on the north side of the duplex (although there is
a door on the west side (Tr. 1343-44)). Moreover, Petitioner
testified that when Houston saw him approaching his car, Houston
turned away from Petitioner’s mother’s house and started running
towards Petitioner. In addition, Petitioner’s shooting at Houston
resulted in one bullet striking the side of his mother’s house,
which is inconsistent with trying to protect the occupants of the
house. (Tr.
1328). There is simply no reasonable view of the
evidence that there was an actual, immediate threat of harm to
Petitioner’s mother that would have justified a “choice of evils”
instruction with regard to the attempted murder charge involving
the shooting of Houston. Because, under the circumstances, the jury
instruction was not warranted, the failure of Petitioner’s trial
counsel to request it was not objectively unreasonable. Nor was
Petitioner prejudiced, because there is no reasonable probability
that the trial court would have administered it to the jury. See,
e.g., Lee v. Ricks, 388 F. Supp.2d 141, 158 (W.D.N.Y. 2005) (“As a
request to charge lesser included offenses in all likelihood would
-20-
have been denied, Lee was not prejudiced by trial counsel’s failure
to make such a demand. Since the state court on appeal would not
have found trial counsel ineffective on this basis, appellate
counsel’s
failure
to
argue
this
claim
did
not
result
in
prejudice.”).
V.
Conclusion
For the reasons stated above, the petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 is denied, and the
petition is dismissed. No certificate of appealability shall issue
because Petitioner has not made a substantial showing of the denial
of a constitutional right. See 28 U.S.C. § 2253(c)(2).
SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
Dated:
November 8, 2018
Rochester, New York.
-21-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?