David SWEET, Petitioner-Appellant, v. Floyd BENNETT, Superintendent of Elmira Correctional Institution, Respondent-Appellee.
Docket No. 02-2055
United States Court of Appeals, Second Circuit.
Decided: Dec. 19, 2003.
353 F.3d 135
Argued: June 21, 2002.
The judgment of the district court is AFFIRMED.
Sylvia Wade Josh, Assistant Attorney General, Attorney General‘s Office, State of New York, Rochester, NY, for Appellee.
Before: WALKER, Chief Judge, WINTER and F.I. PARKER,* Circuit Judges.
Chief Judge WALKER concurs in a separate opinion.
F.I. PARKER, Circuit Judge:**
Petitioner-appellant David Sweet appeals from the amended judgment of the United States District Court for the Western District of New York (Jonathan W. Feldman, Magistrate Judge)1 entered on January 15, 2002, denying his petition for habeas corpus relief pursuant to
Although we disagree with the approach the district court took to reach this result, for the reasons set forth herein we agree with the district court‘s ultimate conclusion that Sweet is not entitled to habeas relief. Accordingly, we affirm the judgment of the district court.
I. BACKGROUND
Sweet‘s incarceration stems from the tragic death of three-year-old Nina Fiser. Sweet was engaged to Nina‘s mother, Tammy Fiser, and the three of them lived together in Farmington, New York. Nina was in the sole care and custody of Sweet when she went into cardiac and pulmonary arrest on the afternoon of April 4, 1993. Sweet called 911, and Nina was taken to a nearby hospital. However, shortly after her arrival at the hospital Nina was pronounced dead. The medical examiner later testified that Nina‘s fatal injuries were consistent with “very violent blunt force” to her abdomen. Specifically, the autopsy revealed that Nina‘s liver and pancreas had been torn in half, and the artery that supplies blood to the stomach, spleen, and liver was “completely severed.” Nina‘s body evidenced numerous bruises of varying age.
On June 28, 1994, the Ontario County Grand Jury returned an indictment that charged Sweet with, among other things, second degree murder,
In a post-trial motion, Sweet‘s trial counsel moved to set aside the jury verdict on the ground that Sweet‘s convictions were inconsistent due to the different mental states required under his statutes of conviction. The trial judge denied Sweet‘s post-trial motion and sentenced him to a term of imprisonment of twenty-three years to life on the second degree murder conviction and a concurrent term of imprisonment of eight years and four months to twenty-five years on the first degree manslaughter conviction.
Represented by new counsel, Sweet appealed his conviction to the Appellate Divi-
Sweet then filed a petition in the district court seeking a writ of habeas corpus pursuant to
After considering the merits of Sweet‘s claim, the district court denied Sweet‘s petition. The court noted that, based on the case law in existence at the time of Sweet‘s convictions, Sweet‘s trial counsel appeared to have committed a “serious blunder” when he failed to preserve the inconsistent verdicts claim. Nonetheless, the district court concluded that the Appellate Division‘s decision was not objectively unreasonable because it was unclear whether Sweet suffered prejudice from this probable blunder, given the case law in existence at the time of the Appellate Division‘s decision. The district court then issued a Certificate of Appealability on the issue of whether Sweet was “denied his Sixth Amendment Right to effective assistance of counsel.”6
Sweet argues that the district court erred in its analysis of the inconsistent verdicts issue, and consequently erroneously denied his habeas petition. The state takes the position that there was no error in the district court‘s analysis of the inconsistent verdicts issue, and further suggests that Sweet has waived this claim because he failed to raise it before the state court. We review the district court‘s denial of Sweet‘s habeas petition de novo. Dixon v. Miller, 293 F.3d 74, 78 (2d Cir. 2002).
The state points out that although Sweet argued in the state courts that his trial counsel was constitutionally deficient, he did not include his trial counsel‘s failure to properly preserve the inconsistent charges issue as one of the bases for the ineffective assistance claim. This argument by the state is one of exhaustion, and is coupled with an issue of whether the claim would now be procedurally barred in the state courts. See
A. Procedural Bar Under New York Law
New York law requires a state court to deny a motion to vacate a judgment based on a constitutional violation where the defendant unjustifiably failed to argue the constitutional violation on direct appeal despite a sufficient record.
Moreover, we have held in a case similar to Sweet‘s, where the trial record provided a sufficient basis for the ineffective assistance claim on trial counsel‘s failure to object to a jury charge, that such a claim did not fall within any of the exceptions noted by the New York courts. Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997). More recently, in reviewing a habeas petition claiming ineffective assistance for failing to object on double jeopardy grounds, we again ruled that
Thus we conclude that Sweet‘s appellate counsel unjustifiably failed to argue this ineffective assistance claim on direct appeal despite a sufficient record, and consequently waived the claim under
B. The Supreme Court‘s Recent Decision in Massaro v. United States Does Not Change This Result
We note that there is nothing in Massaro v. United States, 538 U.S. 500 (2003), that disturbs this conclusion. In Massaro, the appellant challenged the validity of this Court‘s decision in Billy-Eko v. United States, 8 F.3d 111 (2d Cir. 1993), where we held that when a habeas petitioner pursuant to
However, Massaro is not a constitutional decision, and by its own language it did not extend its rule beyond
In the [§ 2254] habeas context, the application of the independent and adequate state ground doctrine is grounded in concerns of comity and federalism. Without the rule, a federal district court would be able to do in habeas what this Court could not do on direct review; habeas would offer state prisoners
whose custody was supported by independent and adequate state grounds an end run around the limits of this Court‘s jurisdiction and a means to undermine the State‘s interest in enforcing its laws.
Coleman, 501 U.S. at 730-31. Nothing in Massaro alters our view that it remains inappropriate and inefficient to allow state defendants to bypass state courts on the substance of state rules, and bring federal habeas challenges without the benefit of state decisions on those state rules. Sweet‘s case demonstrates the appropriateness of requiring that state prisoners bring complicated state law issues to state courts first, so that the states, rather than the federal courts, can address and resolve those complexities.
In support of its decision in the
We note that Sweet‘s ineffectiveness claim presents almost a paradigmatic example of a trial record that plainly establishes the basis for an argument that counsel‘s performance was deficient and prejudicial. Counsel‘s failure to object is preserved in the trial record, and the issue of prejudice is a purely legal question of interpreting New York precedents. We do not see how the defendant‘s claim could have benefitted further from separate fact finding in a
C. Actual Innocence
The conclusion that Sweet‘s claim is procedurally defaulted does not end our analysis. A habeas petitioner may avoid such a default as this by showing cause for the default and prejudice, or that failure to consider the claim will result in miscarriage of justice, i.e., the petitioner is actually innocent. See Coleman, 501 U.S. at 748; Murray v. Carrier, 477 U.S. 478, 496 (1986); Aparicio, 269 F.3d at 90. Sweet does not argue cause and prejudice, nor do we see any basis in the record for such an argument.7 Thus
The Supreme Court has explained that the fundamental miscarriage of justice exception is “extremely rare” and should be applied only in “the extraordinary cases.” Schlup v. Delo, 513 U.S. 298, 321-22 (1995). “[A]ctual innocence’ means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998). “To establish actual innocence, [a] petitioner must demonstrate that, ‘in light of all the evidence,’ ‘it is more likely than not that no reasonable juror would have convicted him.‘” Id. (citing Schlup, 513 U.S. at 327-28 (some internal citation marks omitted)).
Although Sweet did not explicitly make an actual innocence claim, he arguably raised this issue as part of his ineffectiveness claim. For example, Sweet argued that:
[He] was charged with second degree murder, a crime that requires a finding beyond a reasonable doubt that he acted recklessly. He was also charged with first degree manslaughter, a charge that requires he act intentionally. The language in the indictment is identical: that his act was applying blunt force trauma to Nina, the result was the laceration of liver and spleen and, subsequently, death . . . . It is as though he were charged with driving his car into a telephone pole negligently and intentionally at the same time. He just can‘t.
Aparicio, 269 F.3d at 87 n. 1 (citing People v. Bachert, 69 N.Y.2d 593, 516 N.Y.S.2d 623, 509 N.E.2d 318 (1987)). Appellant‘s Br. at 8-9. Under this theory, Sweet had to be “actually innocent” of one of the two charges because he could not have acted both intentionally and recklessly with respect to the same result.
However, because “actual innocence” means factual innocence rather than just legal insufficiency, the question does not turn on whether Sweet‘s counsel could have made a successful objection to the jury charge or verdict based on New York procedural law. Instead, the question depends on whether it is more likely than not that no reasonable juror would have concluded that Sweet engaged in conduct that meets the required elements of each of the charges. See Bousley, 523 U.S. at 623. Because there was evidence of multiple blows and injuries, the jury could have concluded that this evidence demonstrated a series of intentional physical injuries, culminating in one final blow that demonstrated the reckless creation of a grave risk of serious physical injury or death. The fact that Sweet was convicted of committing an act with the intent to cause physical injury to Nina does not rule out the possibility that he also unintentionally (and recklessly) created a risk of Nina‘s death. Thus, a reasonable juror could have concluded that Sweet committed at least one act that recklessly created a grave risk of serious physical injury8 or death to Nina in violation of
III. CONCLUSION
For the foregoing reasons, we conclude that Sweet‘s petition for a writ of habeas corpus was properly denied. Accordingly, we AFFIRM the judgment of the district court dismissing, with prejudice, Sweet‘s ineffective assistance claim based upon counsel‘s failure to object on the ground that the verdicts were inconsistent.
JOHN M. WALKER, Jr., Chief Judge, concurring:
I fully concur in Judge Parker‘s opinion dismissing, with prejudice, Sweet‘s
Sweet argues that he was denied the effective assistance of counsel when his trial counsel failed to object to charging the jury with both second-degree murder and first-degree manslaughter as inconsistent. Inconsistent counts may not be charged in the conjunctive because it is not possible for a defendant to be guilty of both crimes. See
Under New York law, “[t]wo counts are ‘inconsistent’ when guilt of the offense charged in one necessarily negates guilt of the offense charged in the other.”
In Gallagher, the defendant, after consuming alcohol, had shot and killed the victim, and was convicted of intentional murder under
One who acts intentionally in shooting a person to death—that is, with the conscious objective of bringing about that result—cannot at the same time act recklessly—that is, with conscious disregard of a substantial and unjustifiable risk that such a result will occur. The act is either intended or not intended; it cannot simultaneously be both. Thus, where the shooting (the act) and the death (the result) are the same, a defendant cannot be convicted twice for the murder, once for acting “intentionally” and once for acting “recklessly.”
Id. (internal citations omitted). The intentional murder and reckless manslaughter counts, under
Subsequent to Gallagher, New York courts applied that case and the “inconsistent verdicts” statute,
On the other hand, there is no inconsistency if the defendant acts with different mental states with regard to two different potential or intended results. The obvious example is where the defendant intentionally beats his victim but is indifferent and reckless as to whether the victim dies. Such a defendant may be charged with both the intentional crime of assault and the reckless crime of murder. This is illustrated in People v. Moloi, 135 A.D.2d 576, 521 N.Y.S.2d 794, 796 (2d Dep‘t 1987). There, a defendant, who had beaten the victim and thrown a pot of boiling oil at her, was convicted of two counts of first-degree assault: intending to cause serious physical injury, in violation of
That a defendant may have committed an act with the intent to seriously injure another person does not rule out the possibility that he may have also unintentionally (and recklessly) created a risk of such person‘s death, since not all “serious” injuries are necessarily life threatening. Thus, it is clear that a defendant could hypothetically engage in conduct which intentionally results in serious physical injury, and unintentionally creates a grave risk of death . . . .
Id. (internal quotations omitted).
The New York legislature has enacted several statutes that proscribe conduct that, in a single act, is at the same time intentional as to one result and reckless as to another. See, e.g., People v. Ruiz, 151 Misc. 2d 757, 573 N.Y.S.2d 845, 846-47 (Sup.Ct.1991) (citing
Sweet was charged with a particular first-degree manslaughter count,
Quite plainly under New York‘s “inconsistent verdicts” provision, there is nothing inconsistent with the two homicide counts charged here because “guilt of the offense charged in one [does not] necessarily negate[] guilt of the offense charged in the other.”
Although the foregoing analysis of the elements is straightforward, the New York courts have complicated the matter. In People v. Robinson, 145 A.D.2d 184, 538 N.Y.S.2d 122 (4th Dep‘t 1989), aff‘d mem., 75 N.Y.2d 879, 554 N.Y.S.2d 473, 553 N.E.2d 1021 (1990), the defendant punched and kicked the victim into a state of unconsciousness, bound him with electrical cord, transported him to a public park, and abandoned him there on the snow-covered ground, where the victim died of hypothermia. The defendant was convicted of first-degree manslaughter, pursuant to
Nevertheless, the Fourth Department reversed the convictions on the basis of inconsistent verdicts. Robinson, 538 N.Y.S.2d at 123. Rather than examining each mens rea element in the appropriate context of the potential result to which it is tied in the statute, the Fourth Department expanded the scope of the mens rea to relate to the complete charge and the statute‘s ultimate result (i.e., death). Id. at 123 & n. 1. Accordingly, even though the intent component of the manslaughter count related only to serious physical injury, the Fourth Department broadly swept the ultimate result of death under the intent rubric by categorizing the manslaughter charge as “intentional homicide,”1 and then equated the facts at hand with those of Gallagher to vacate the conviction. It stated: “Here, as in Gallagher, ‘because the jury found defendant guilty of both intentional and reckless homicide, it is impossible to determine what if anything the jury decided on the issue of defendant‘s mental state at the time of the offense.‘” Id. at 123 (quoting Gallagher, 516 N.Y.S.2d 174, 508 N.E.2d at 910-11).
The Robinson majority‘s categorization elided the substantial difference between an intent to cause serious physical injury in the manslaughter count under
By mistakenly focusing on the label “intentional homicide“, and hence, on the counts’ ultimate result (death) rather than on the specific results tied to the mens rea elements of each count (serious physical injury and risk of death), the Fourth Department departed from the Court of Appeals’ precedents in Loughlin, 559 N.Y.S.2d 962, 559 N.E.2d at 657-58, and Tucker, 447 N.Y.S.2d 132, 431 N.E.2d at 620. See also Robinson, 538 N.Y.S.2d at 124-27 (Boomer, J., dissenting).
The incorrectness of the Robinson analysis becomes evident when it is viewed in
Instead of resolving the confusion created by Robinson, I am afraid the Court of Appeals only exacerbated it, first by summarily affirming the Fourth Department‘s decision, People v. Robinson, 75 N.Y.2d 879, 554 N.Y.S.2d 473, 553 N.E.2d 1021 (1990), and then, in People v. Trappier, 87 N.Y.2d 55, 637 N.Y.S.2d 352, 660 N.E.2d 1131 (1995), by confoundingly trying to reconcile Robinson with its earlier precedents. In Trappier, the defendant, after a confrontation with a security guard, fired three shots in the guard‘s direction. One bullet hit the guard‘s pants leg, and another travelled past his ear. A jury convicted the defendant of first-degree attempted assault,
The Court of Appeals correctly ruled that Trappier‘s conviction on both counts was consistent. First, the Court of Appeals reconfirmed the rule enunciated in Tucker and Loughlin that “[i]n order to determine whether the jury reached ‘an inherently self-contradictory verdict’ a court must examine the essential elements of each count as charged.” Trappier, 637 N.Y.S.2d 352, 660 N.E.2d at 1133 (quoting Tucker, 447 N.Y.S.2d 132, 431 N.E.2d at 620, and citing Loughlin, 559 N.Y.S.2d 962, 559 N.E.2d at 657-58). Then the court characterized its decision in Gallagher as holding “that a defendant who acts with the conscious objective of bringing about a particular result cannot simultaneously act with conscious disregard of a substantial and unjustifiable risk that the very result will occur.” Id. In Gallagher, the defendant could not simultaneously intend to kill the victim and recklessly create a risk of death. By contrast, in Trappier, the court held that the defendant
could certainly intend one result—serious physical injury—while recklessly creating a grave risk that a different, more serious result—death—would ensue from his actions. Defendant, for example, could have fired at [the guard] with the intent to cause him only serious and protracted disfigurement and simultaneously consciously disregarded a substantial and unjustifiable risk that, by so doing, he would create a grave risk of a more severe outcome, [the guard‘s] death. Thus, a finding that defendant was guilty of attempted first degree assault did not “necessarily negate [his] guilt” of first degree reckless endangerment.
Id. at 1133-34 (quoting
While the inconsistent counts in Robinson involved the same culpable mental states at issue here, the defendant in Robinson—like the defendant in Gallagher and unlike the defendant in the instant case—was convicted for acting intentionally and recklessly as to the same result, the death of the victim. Thus, although the Appellate Division dissent in Robinson correctly concluded that intentional and reckless conduct are mutually exclusive “only when the two culpable mental states concern the same result,” the dissent overlooked the fact that the two homicide counts in Robinson did indeed involve identical outcomes.
Id. at 1134 (quoting Robinson, 538 N.Y.S.2d at 123) (emphasis in original) (internal citations omitted). This analysis, rather than comparing the elements of the two counts, looked instead to the ultimate result underlying the charge, “the death of the victim.” In doing so, the Court of Appeals perpetuated the faulty reasoning in Robinson by stating inaccurately that Robinson was convicted of acting “intentionally and recklessly as to the same result.” (emphasis added). As discussed above, although Robinson may have acted both intentionally and recklessly in the process of causing the same result, under the proper pre-Robinson analysis it is more appropriate to say that he acted intentionally as to causing serious physical injury, but recklessly as to causing a grave risk of death.
The upshot of all of this is that in the wake of Trappier, New York now has two different rules for determining inconsistency: one comparing the elements, and one comparing ultimate results. The first rule follows prior Court of Appeals precedent in Loughlin and Gallagher, the language of