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January 29, 1980

BOBBY WASHINGTON, Petitioner, against DAVID HARRIS, as Superintendent of Green Haven Correctional Facility, Respondent.

The opinion of the court was delivered by: CANNELLA

The petition of Bobby Washington, for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, is denied.

Petitioner is currently confined at the Green Haven Correctional Facility, Stormville, New York, pursuant to the judgment of the New York Supreme Court, Bronx County (Tierney, J.), rendered November 19, 1975, convicting him, upon a jury verdict, of Murder in the Second Degree, N.Y. Penal Law § 125.25(1) (McKinney 1975) and Criminal Possession of a Weapon in the Third and Fourth Degrees, N.Y. Penal Law §§ 265.01 and 265.02 (McKinney Supp.1979). Petitioner was sentenced to concurrent terms of fifteen years to life and zero to seven years for these convictions. Petitioner's motion to vacate the judgment pursuant to section 440.10 of the New York Criminal Procedure Law was denied by the trial judge. Petitioner subsequently appealed the judgment of conviction to the Appellate Division, which affirmed the conviction without opinion on April 12, 1977. Leave to appeal to the New York Court of Appeals was denied. Petitioner's pro se petition for a writ of certiorari to the United States Supreme Court was also denied.

 In seeking this writ, the petitioner makes the following constitutional claims: (1) the trial court's erroneous jury instruction concerning the defense of justification violated his right to due process of law; (2) certain statements by the prosecutor during his summation violated his right to counsel since the statements encouraged jurors to draw an adverse inference from the fact that petitioner exercised his right to counsel immediately after his arrest and before he gave a statement to the police; (3) petitioner was denied the effective assistance of counsel in violation of his sixth amendment right, and (4) section 35.15(2) of the New York Penal Law, which outlines the circumstances under which deadly physical force can be used against another, violates the petitioner's right to due process and equal protection since it irrationally imposes a duty to retreat on the victim of an assault or attempted murder, but not on the victim of a kidnapping, forcible rape, forcible sodomy, robbery or burglary.


 At trial, the prosecution presented the testimony of several witnesses and a written statement made by the petitioner several hours after his arrest while represented by counsel, which established the following facts: On June 4, 1973, at approximately 8:15 a.m., the petitioner and his wife were in front of their apartment at 1043 Clay Avenue in the Bronx. The deceased, Peggy Mickens, accompanied by a woman friend, approached and attacked Mrs. Washington with a knife as she was placing trash in the garbage can. Mickens had harassed and assaulted the petitioner and his family for two years prior to this incident, and both Mickens and petitioner had filed criminal complaints against each other in the past. *fn1" When petitioner, who was in his car, saw the attack, he took a pistol from the glove compartment, and intervened in the struggle. Petitioner fired his gun, but did not know whether he hit Mickens. Mickens then came after him with the knife. Petitioner wrestled with Mickens until he succeeded in getting the knife away from her. When petitioner was asked if he stabbed Mrs. Mickens with the knife, he answered "I guess so. I was just afraid." Transcript of proceedings at 202, People v. Washington, No. 1999-73 (Sup.Ct., Bronx Co. October 1, 1975) (hereinafter cited as "Tr.").

 The medical examiner who performed an autopsy of the deceased testified that she had a bullet wound in the right eye, which had destroyed the eyeball; slash wounds on the face; a deep slash wound on the throat, which had severed the main artery; another deep stab wound into the abdominal cavity, as well as "defensive wounds" on the hands, wrists and knee. Tr. at 132-33. Defensive wounds are recognizable as the result of an assault victim's attempt to ward off blows or grab the attacker's weapon. Tr. at 134. The medical examiner identified the cause of death as multiple stab wounds and the bullet wound to the eye, although he also testified that the bullet wound alone would not have caused the deceased to lose consciousness. Neither the petitioner nor his wife were injured during the struggle.

 Alejo Martinez and George Del Valle testified that they saw petitioner grabbing a woman by the arm and stabbing her several times in the neck and face. Tr. at 87, 147. Del Valle testified that when the woman fell to the curb, the man leaned over and stabbed her in the throat. Tr. at 150. The defense attacked the credibility of these witnesses.

 At trial, the petitioner was represented by retained counsel, *fn2" and did not testify or call any witnesses on his behalf. The defense argued that the petitioner's post-arrest statement, which was introduced into evidence during the prosecution's direct case, was the only evidence offered concerning the defense of justification, and was "absolute proof of his innocence." Tr. at 296.


 1. The Jury Instructions

 The petitioner argues that the trial court erroneously instructed the jury regarding the duty to retreat contained in section 35.15(2) of the New York Penal Law. Petitioner did not object to this instruction at trial. The petitioner relies on the constitutional principle that an accused must not be convicted "except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1073, 25 L. Ed. 2d 368 (1970); see Henderson v. Kibbe, 431 U.S. 145, 97 S. Ct. 1730, 52 L. Ed. 2d 203 (1977). Specifically, petitioner contends that the jury instructions did not state a necessary element of the duty to retreat and thus the jury applied an improper standard.

 Section 35.15(2), in pertinent part, provides:

A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless:
(a) He reasonably believes that such other person is using or about to use deadly physical force. Even in such case, however, the actor may not use deadly physical force if he knows that he can with complete safety as to himself and others avoid the necessity of so doing by retreating . . . .

 Id. § 35.15(2). *fn3" The trial court read this statutory definition to the jury, but several times neglected to include the element of the petitioner's knowledge *fn4" that he could retreat in complete safety in his illustrations for the jury. *fn5" Petitioner argues that this was error since the jury applied an objective standard to determine whether the petitioner could have retreated in complete safety, rather than determining his subjective awareness of the situation. Petitioner also maintains that this error was highly prejudicial since his post-arrest statement proves that his state of mind during the attack was such that ...

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