Appeal from order of United States District Court for the Eastern District of New York, Charles P. Sifton, J., denying petition for habeas corpus based on claim that felony-murder conviction cannot constitutionally be predicated on reckless felony. Affirmed.
Feinberg, Chief Judge, Newman and Winter, Circuit Judges.
Willie Bethea appeals from an order of the United States District Court for the Eastern District of New York, Charles P. Sifton, J., which denied Bethea's petition for habeas corpus. Bethea claims his convictions in state court for felony murder were unconstitutional because punishing him as a murderer is fundamentally unfair when the felony underlying each conviction required proof of only reckless rather than intentional misconduct. For reasons set forth below, we do not agree, and we affirm the decision of the district court.
The facts leading to this appeal can be succinctly stated. In April 1979, a fire in a New York City apartment building killed two people: a 74-year-old woman and her two-year-old granddaughter. Willie Bethea was arrested two days later and indicted on two counts of felony murder based on his having committed arson in the fourth degree.
Under New York law, a person is guilty of felony murder (one of the types of second-degree murder) when he commits or attempts to commit, among other listed crimes, "robbery, burglary, kidnapping, arson, [or] rape . . . and in the course of and in furtherance of such crime . . . he . . . causes the death of a person," N.Y. Penal Law § 125.25(3) (McKinney 1987), and is guilty of fourth-degree arson "when he recklessly damages a building . . . by intentionally starting a fire." N.Y. Penal Law § 150.05(1) (McKinney Supp. 1987). "Reckless" action is action taken when a defendant "is aware of and consciously disregards a substantial and unjustifiable risk" that a particular result will occur, provided the risk is "of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation." N.Y. Penal Law § 15.05(3) (McKinney 1987).
During Bethea's jury trial in the New York Supreme Court, Kings County, the state argued that Bethea, angered that someone had broken into his mailbox and stolen his welfare check, set fire to his mattress, and after his attempts to extinguish the blaze failed, left the building without sounding the alarm, and walked past a fire station without notifying the fire department. The jury found Bethea guilty on both counts, and he was sentenced to two concurrent terms of 25 years to life in prison, which he is now serving. The Appellate Division affirmed without opinion, 94 A.D.2d 982 (1983), and the New York Court of Appeals denied leave to appeal, 60 N.Y.2d 589 (1983).
In July 1986, Bethea, represented by counsel, filed a petition for habeas corpus with the United States District Court for the Eastern District of New York. Judge Sifton denied the petition in February 1987, and this appeal followed.
A. Jurisdiction and Standard of Review
At the outset, we note that the state, citing People v. Iannelli, 69 N.Y.2d 684, 512 N.Y.S.2d 16, 504 N.E.2d 383 (1986), desultorily argues that Bethea waived his constitutional claim by not raising it at trial. We assume that the state is obliquely arguing that Wainwright v. Sykes, 433 U.S. 72, 87-91, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977), strips us of jurisdiction to consider Bethea's constitutional claim because Bethea's failure to raise that claim at trial violated state procedural rules, thereby providing an independent and adequate state ground for the Appellate Division's affirmance. However, we have previously held that "if the prosecutor does not raise the procedural point [in state court], and if the [state] court gives no indication that it is relying on it, then the federal claim is open for our consideration." Martinez v. Harris, 675 F.2d 51, 54 (2d Cir.), cert. denied, 459 U.S. 849, 74 L. Ed. 2d 97, 103 S. Ct. 109 (1982). This is such a case, since the Appellate Division wrote no opinion and since, as the parties apparently agree, the state's brief in that court made no mention of procedural default. We therefore conclude that we have jurisdiction over this appeal, and turn to its substance.
Bethea argues that his convictions and sentence were unconstitutional. Although he does not clearly state which provisions are violated, we construe his argument as raising fifth, eighth, and fourteenth amendment claims. As we understand him, Bethea makes two claims: that the Constitution forbids punishing as a murderer any felon guilty of a ...