Appeal from a judgment of the United States District Court for the Eastern District of New York, Jack B. Weinstein, Chief Judge, denying petition for a writ of habeas corpus premised on alleged errors in the jury charge and ineffective assistance of trial and appellate counsel. Affirmed.
Timbers, Kearse, and Pierce, Circuit Judges.
Petitioner John Tsirizotakis, a New York State prisoner, appeals from a judgment of the United States District Court for the Eastern District of New York, Jack B. Weinstein, Chief Judge, denying his petition for a writ of habeas corpus challenging on due process grounds certain aspects of the trial court's charge to the jury, and challenging on Sixth Amendment grounds the failure of his trial and appellate attorneys to call the alleged defects in the charge to the attention of the state courts. The district court ruled that the due process claims could not be raised in a habeas petition because petitioner had failed to assert them properly in the state proceedings and had not shown cause for the procedural defaults as required by Wainwright v. Sykes, 433 U.S. 72, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977). The court ruled that the performances of petitioner's trial and appellate counsel constituted neither cause for petitioner's failure to raise the due process claims in the state proceedings, nor an independent constitutional violation upon which his habeas petition might be granted. For the reasons below, we affirm.
A. The Events and the First State Court Proceedings
Petitioner was convicted in New York Supreme Court in 1974 of second degree murder. The events leading to his convictions were as follows. Petitioner and five other men had been traveling in an automobile in New York; during the journey, petitioner fatally shot one of his companions in the back of the head. These facts were not in dispute; the controversy at trial centered on the reason for the shooting. Three of petitioner's four surviving companions from the fatal car trip were called by the prosecution. Petitioner testified on his own behalf.
None of the companion witnesses had actually seen the shooting, but all testified to statements made by petitioner immediately afterward. The first, Spiros Tsiolis, had been sitting in the middle of the front seat of the car, to the left of the deceased; petitioner had been sitting in the back seat, directly behind the deceased. Tsiolis testified that he had heard an angry dispute between petitioner and the deceased; and he was changing tapes in the car's music system, he heard a shot. He then saw a gun in petitioner's hand and heard petitioner say, "Forget about what you saw." The second witness, John Vogiatzis, the driver of the car, testified that after he heard the shot, he asked what had happened, and petitioner sid, "I killed him before he killed me." Vogiatzis noticed that the car's windshield had been smashed. The third passenger witness testified that after hearing the shot, he asked petitioner if he had killed the deceased, and petitioner first said, "I kill[ed] him because he was going to kill me," and then stated, "You know why I did it? Because he kidnapped Vogiatzis' little girl and he wanted money for that." The prosecution also called, inter alios, two other acquaintances of petitioner who testified to statements made by petitioner to them sometime after the shooting. One testified that petitioner told him, "Yes, I killed [the deceased] because he killed my brother in Greece." The other testified to petitioner's statement that he had had words with the deceased and that petitioner had drawn his gun and killed the deceased.
Petitioner, on the other hand, testified that he had shot the deceased because he feared for his own life and the lives of the other men in the car. He stated that in the course of a heated discussion the deceased had drawn a gun and put it to the head of Tsiolis; that petitioner had grabbed the deceased's hand and face and had pulled his arm and head back in an attempt to make him drop the gun; and that the gun had discharged, shooting the deceased through the head. Petitioner denied having told anyone that he killed the deceased. Petitioner and the prosecution presented conflicting expert testimony about whether abrasions on the deceased's face had been caused by a struggle such as that described by petitioner, or by dragging the body across a rough surface.
In charging the jury on intent, the trial court stated, inter alia, that
[a] person does not advertise or say beforehand what he intends to do, and so the law says that a person is presumed to intend what he actually does. . . . [A] person's intention is the natural and reasonable and probable consequences of his acts.
(Trial Trancript ("Tr.") 735.) One of petitioner's attorneys stated a general objection to the charge on intent and proffered a proposed instruction of his own; but neither of his attorneys specified any objection to the language set forth above.*fn1
At defense counsel's request, the court also gave a charge on justification. The justification charge as given included the following language:
You must . . . decide whether the testimony introduced by the defendant is truthful and believable. If you believe it, if you are convinced that these acts were done in the manner and for the purpose testified, you must acquit the defendant. If you do not believe them, however, provided still that you are convinced beyond a reasonable doubt that the People have proved that the defendant's acts were intended to harm and complied with all the requirements of murder as I have charged them to you, then you must convict the defendant.
(Id. 739-40.) The trial court did not inform the jury that under New York law, one the defense of justification had been raised, the prosecution bore the burden of disproving the defense beyond a reasonable doubt. See N.Y. Penal Law § 25.00(1) (McKinney 1975); People v. Reed, 40 N.Y.2d 204, 209, 386 N.Y.S.2d 371, 375, 352 N.E.2d 558 (1976).Upon the prosecutor's objection, the court recharged the jury to instruct that the prosecution's burden was to prove that the defendant intended to "kill" the deceased, not merely to "harm" him. Petitioner's attorneys objected to this change but did not express any other objection to the charge on justification. They did not mention the court's failure to inform the jury of the prosection's burden of proof on this issue.
The jury found petitioner guilty of second degree murder, and he was sentenced to an indeterminate term of imprisonment of from twenty years to life.
Represented by new counsel, petitioner appealed to the Appellate Division. His new attorney filed a 54-page brief arguing five points: (1) that the evidence was insufficient, (2) that the prosecutor's summation had been unfair, (3) that the trial court should have given a lesser-included-offense charge, (4) that the trial court had failed to give the jury proper instruction on the burden of proof as to the issue of justification, and (5) that the sentence given petitioner was excessive. Counsel did not argue that the language ofthe trial court's ...