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WASHINGTON v. SCULLY

August 7, 1986

BOBBY WASHINGTON, Petitioner,
v.
CHARLES J. SCULLY, Superintendent Green Haven Correctional Facility, Respondent



The opinion of the court was delivered by: SPRIZZO

OPINION AND ORDER

SPRIZZO, D.J. :

I. BACKGROUND

 Petitioner Bobby Washington has made application for a writ of habeas corpus pursuant to 28 U.S.C. 2254 (1982). On November 19, 1975, following a jury trial in the Supreme Court of the State of New York, Bronx County (Tierney, J.), petitioner was convicted of murder in the second degree (New York Penal Law § 125.25) and criminal possession of a weapon in the third and fourth degrees (New York Penal Law §§ 265.01,.02). Washington was sentenced to concurrent terms of fifteen years to life and zero to seven years, respectively, on the murder and possession of a weapon in the third degree convictions. Petitioner was not sentenced on his conviction of possession of a weapon in the fourth degree.

 The instant petition for a writ of habeas corpus was referred by the Court to a Magistrate for a report and recommendation ("Mag. R."). After receipt of petitioner's objections and respondent's objections, the Court has considered the petition de novo, see 28 U.S.C. 636(b)(1)(1982), and heard oral argument on the issues raised by counsel for the parties.

 A. Petitioner's Trial and the Trial Judge's Jury Instructions

 The facts relating to petitioner's trial and conviction are set forth in Washington v. Harris, 650 F.2d 447, 449 (2d Cir. 1981), cert. denied, 455 U.S. 951, 71 L. Ed. 2d 666, 102 S. Ct. 1455 (1982). Familiarity with that decision is presumed. Briefly, the evidence at trial established that petitioner intervened in a struggle between his wife and Peggy Mickens, after Mickens had attacked Mrs. Washington with a knife. See id. at 449. The petitioner shot Mickens through the eye and then, after wrestling the knife from Mickens, slashed Mickens repeatedly. See id.

 At trial, defense counsel relied solely on a theory of self defense and justification. See id.; N.Y. Penal Law § 35.15 (McKinney 1975 & Supp. 1986). The trial court submitted four counts to the jury; murder in the second degree, see N.Y. Penal Law § 125.25(1), manslaughter in the first degree, see N.Y. Penal Law 125.20(1), and criminal possession of a weapon in the third and fourth degrees. See Trial Transcript ("Tr.") at 376.

 The issues raised by the instant petition center around the trial court's charge to the jury. Early on in the court's charge, the trial judge instructed the jury on the legal presumption of innocence and the State's burden of proof as follows:

 
In all criminal cases, the defendant is presumed to be innocent unless and until his guilt is established beyond a reasonable doubt, and the burden of proving the guilt of the defendant rests at all times upon the People.

 See Tr. at 347-48.

 The trial court then repeated its instruction to the jury regarding the prosecution's burden of proof:

 
I urge you most strenuously to keep in mind the following admonition:
 
In any criminal case the People have the burden of establishing each and every element of the crime charged by proof beyond a reasonable doubt before a jury may convict a defendant.

 See Tr. at 365; see also Tr. at 347.

 Turning to the subject of intent, the trial judge instructed the jury that the People must prove the requisite intent for each count beyond a reasonable doubt. See Tr. at 378-79. With respect ...


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