The opinion of the court was delivered by: McLAUGHLIN, District Judge.
Petitioner, proceeding pro se, seeks a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. For the reasons discussed below,
the petition is denied.
On February 18, 1963 petitioner was convicted in New York
Supreme Court, Kings County, for murder in the first degree.
New York Penal Law § 1044(2) (McKinney 1944). Petitioner
received a sentence of death, which was commuted to life
imprisonment in October 1965 by executive order of the
Petitioner filed numerous appeals in the New York and
federal courts, including a petition for certiorari to the
United States Supreme Court which was denied. New York v.
Rosenberg, 382 U.S. 1009, 86 S.Ct. 612, 15 L.Ed.2d 1009 (1966).
Petitioner has also pursued several applications for habeas
corpus relief, including a petition filed before this court
alleging grounds separate from those listed in the present
petition. The prior petition was denied. U.S. ex rel. Rosenberg
v. Shubin, Docket No. 73-CR-532 (E.D.N.Y. 1974).
Petitioner now renews a motion for a writ of habeas corpus,
alleging specifically that New York's felony murder statute is
Petitioner contends that because New York's felony murder
statute is unconstitutional, he "could never have been
indicted as the grand jury lacked jurisdiction to indict for
felony murder and the trial court was devoid of jurisdiction
to try the case." Petition at 9. According to petitioner, the
absence of the element of intent to kill is fatal to the
statute's constitutionality. Petitioner cites the Supreme
Court decision of Enmund v. Florida, 458 U.S. 782, 102 S.Ct.
3368, 73 L.Ed.2d 1140 (1982), claiming that it "invalidates the
substantive offense of felony murder." Petition at 7.
Petitioner further relies on the more recent Supreme Court
decision of Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95
L.Ed.2d 127 (1987), to buttress his attack on the
constitutional validity of New York's former felony murder
statute. Petitioner's reliance on such authority, however, is
The cases cited by petitioner deal with an entirely separate
and distinct area of law, namely, eighth amendment prohibition
against the death penalty where such criminal punishment would
be constitutionally excessive in light of the underlying
crime. In Enmund, the court decided that the imposition of the
death penalty upon a defendant was unconstitutional because of
defendant's peripheral involvement in the crime. The Enmund
defendant had been convicted of felony murder for helping a
co-defendant and another individual escape following the
robbery and murder of an elderly couple. Because the defendant
did not intend to kill and had not participated in the killing,
the Supreme Court concluded:
For the purposes of imposing the death penalty,
Enmund's criminal culpability must be limited to
his participation in the robbery, and his
punishment must be tailored to his personal
responsibility and moral guilt.
458 U.S. at 801, 102 S.Ct. at 3378 (emphasis added).
The Supreme Court again spoke on the Enmund culpability
requirement in Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676,
95 L.Ed.2d 127 (1987). The Tison court examined a defendant's
participation in the underlying felony and found that "major
participation in the felony committed, combined with reckless
indifference to human life, is sufficient to satisfy the Enmund
culpability requirement." Id. at 158, 107 S.Ct. at 1688.
Because petitioner does not face a sentence of death, neither
Enmund nor Tison are applicable to this case.
On the facts established at petitioner's trial, a life
sentence does not constitute cruel and unusual punishment. The
underlying crime involved the shooting death of two police
officers during the course of a robbery. Resp. Mem. at 1.
See Carmona v. Ward, 576 F.2d 405, 409-414 (2d Cir.),
cert. denied, 439 U.S. 1091, 99 S.Ct. 874, 59 L.Ed.2d 58
(1979). See also Bellavia v. Fogg, 613 F.2d 369, 372-374 (2d
Cir. 1979); People v. Broadie, 37 N.Y.2d 100, 371 N.Y.S.2d 471,
cert. denied, 423 U.S. 950, 96 S.Ct. 372, 46 L.Ed.2d 287
Putting aside petitioner's misdirected focus on
Enmund and Tison, the New York felony murder statute*fn1 is
not unconstitutional for its lack of the element of an intent
to kill. In People v. Sturgis, 86 A.D.2d 775, 448 N.Y.S.2d 61
(4th Dep't 1982), the court held that "the felony murder
statute is not unconstitutional in that the doctrine of implied
intent creates a mandatory presumption." Id. at 776, 448
N YS.2d 61 (citing Westberry v. Mullaney, 406 F. Supp. 407,
415, aff'd sub nom. Westberry v. Murphy, 535 F.2d 1333 (1st
Cir.), cert. denied, 429 U.S. 889, 97 S.Ct. 245, 50 L.Ed.2d 172
(1976)). See also Guam v. Root, 524 F.2d 195 (9th Cir.), cert.
denied, 423 U.S. 1076, 96 S.Ct. 861, 47 L.Ed.2d 86 (1976);
People v. Fonseca, 36 N.Y.2d 133, 136-137, 365 N.Y.S.2d 818,
325 N.E.2d ...