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January 27, 1992

PEOPLE ex rel. KENNETH MAULA, Petitioner, against LLOYD FRECKLETON, Warden of the Rikers Island Correctional Facility, Respondent.


The opinion of the court was delivered by: DAVID N. EDELSTEIN

EDELSTEIN, District Judge:

 Petitioner Kenneth Maula ("Maula" or "Petitioner") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner claims that his conviction on a gun charge in Supreme Court of the State of New York is invalid under the double jeopardy clause of the United States Constitution. For the reasons stated below, the writ of habeas corpus is denied.


 This cases arises out of the fatal shooting of Dr. Louis DeBellis on July 18, 1985. Petitioner, who was ultimately indicted and convicted on a charge connected with this death, had known DeBellis for some time before the shooting. DeBellis had purchased property in Bronx County from petitioner and, subsequently, petitioner and DeBellis became close friends. The relationship deteriorated, however, when petitioner refused to perform an agreement to sell DeBellis another property. DeBellis commenced an action against petitioner which resulted in a judgment that directed petitioner to sell the property to DeBellis. Petitioner obtained a stay of the decision pending appeal on the condition that he provide a bond and perfect his appeal by a specified date.

 On the day before the bond was due, petitioner and DeBellis engaged in a heated argument at petitioner's printing business, during which DeBellis punched petitioner and threatened him with further injury. DeBellis then left petitioner's office and went downstairs, presumably to leave the building. To assure that DeBellis actually had departed the premises, petitioner, after removing a loaded gun from his desk, followed DeBellis downstairs. After exchanging more words, petitioner fired three shots at DeBellis, one of which struck DeBellis and killed him. *fn1"

 On August 6, 1986, petitioner was indicted in New York Supreme Court, Bronx County, for murder in the second degree, criminal possession of a weapon in the second degree and criminal use of a firearm in the second degree in connection with this shooting. During the trial, petitioner moved to dismiss all three counts due to insufficient evidence. *fn2" The court denied petitioner's motion. Without explanation, however, Justice Warner, who presided at this trial, ultimately asked the jury to consider only the second degree murder count and lesser included homicide offenses; he did not submit the weapons charges to the jury. On January 9, 1987, petitioner was convicted of the lesser included offense of manslaughter in the first degree.

 The Appellate Division, First Department, reversed petitioner's conviction. The Appellate Division found that at trial, petitioner had raised an affirmative defense of lack of criminal responsibility due to mental disease or defect, and had introduced psychiatric testimony in support of this defense. The trial court, however, refused to instruct the jury not to consider such testimony when determining whether defendant committed the crime. The Appellate Division reversed because the lower court should have provided a limiting instruction concerning the psychiatric testimony. See People v. Maula, 526 N.Y.S.2d at 444-45.

 The state decided to seek a new trial. Because petitioner was convicted of a lesser included offense not contained in the original indictment, however, New York law required the State to obtain a new indictment. See People v. Beslanovics, 57 N.Y.2d 726, 454 N.Y.S.2d 976, 440 N.E.2d 1322 (1982). The new indictment charged petitioner with manslaughter in the first degree, criminal use of a firearm in the first and second degrees and criminal possession of a weapon in the second degree.

 On June 28, 1989, petitioner was convicted of fourth degree criminal possession of a weapon, a misdemeanor, and acquitted on all other charges. The court sentenced petitioner to a prison term of one year. On appeal, the Appellate Division vacated the sentence because the lower court "erred when it considered the death of the victim in determining the sentence to be imposed on the defendant for the misdemeanor gun charge." People v. Maula, 163 A.D.2d 180, 558 N.Y.S.2d 42, 43 (1st Dep't 1990). Petitioner never presented to the Appellate Division a claim that his trial on the weapons charge violated the Fifth Amendment's double jeopardy clause. On October 23, 1990, the Supreme Court resentenced petitioner to a one-year prison term. The Appellate Division affirmed the sentence and rejected petitioner's sole argument, that the sentence was excessive.

 Petitioner then sought a writ of habeas corpus in New York Supreme Court on the ground that his retrial on gun possession charges violated federal and state constitutional protections against double jeopardy. The New York Supreme Court determined that it could hear the petition despite petitioner's failure to raise a double jeopardy argument on direct appeal. See People ex rel. Maula v. Freckleton, No. 8497-1991 (Sup. Ct. Bronx Co. Apr. 5, 1991). The court, however, denied the petition on the merits. See id. The court reasoned that the double jeopardy clause bars reprosecution only where a defendant is acquitted or a charge is dismissed due to insufficient evidence. The court found that the decision not to submit gun charges to the jury was not a dismissal based upon a failure of proof or legal insufficiency. Accordingly, the court held that the double jeopardy clause did not bar petitioner's second trial on the gun charges. See id.

 The Appellate Division granted petitioner's application for bail pending appeal of the Supreme Court's order. On October 17, 1991, the Appellate Division affirmed the lower court's decision. See People ex rel. Maula v. Freckleton, 176 A.D.2d 590, 574 N.Y.S.2d 753 (1st Dep't 1991). On November 19, 1991, the New York Court of Appeals denied petitioner leave to appeal. See People ex rel. Maula v. Freckleton, No. 1255 (Nov. 19, 1991).

 On December 2, 1991, petitioner, by order to show cause, asked this Court to stay execution of his sentence pending disposition of this petition for federal habeas relief. Petitioner had been scheduled to return to prison on December 5, 1991. This Court signed the order to show cause and granted petitioner's application for a stay. It also scheduled oral argument and a hearing for December 4, 1991. The argument and hearing took place on December 4 and December 5, 1991.

 Petitioner argues that his retrial on gun charges violates the double jeopardy clause of the Fifth Amendment. The State argues that petitioner may not obtain federal habeas relief because petitioner failed to exhaust his state remedies. In the alternative, the State contends that retrial in this case does not violate the double jeopardy clause.

 A. Exhaustion

 The State concedes that petitioner raised a double jeopardy argument in the state habeas proceedings. The State contends, however, that the double jeopardy argument petitioner presented to the state courts differed from the claim presented here. Specifically, the State asserts that while petitioner argued state statutory and constitutional double jeopardy law before the state courts, the claim before this Court involves federal principles of double jeopardy. The State alleges that these separate theories involve distinct legal contentions and have different factual underpinnings. Because petitioner never expressly presented the federal claim to the state courts, the State asserts that this claim is not exhausted and that this Court, under Rose v. Lundy, 455 U.S. 509, 522, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982), must dismiss Maula's "mixed petition" of exhausted and unexhausted claims.

 Before a federal court may grant habeas relief to a state prisoner, the petitioner must first exhaust available state remedies. See 28 U.S.C. § 2254(b)-(c); Picard v. Connor, 404 U.S. 270, 275, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971); Irvin v. Dowd, 359 U.S. 394, 404-05, 3 L. Ed. 2d 900, 79 S. Ct. 825 (1959). The exhaustion doctrine is not jurisdictional, but rather it is based on principles of comity and federalism. See Castille v. Peoples, 489 U.S. 346, 349, 103 L. Ed. 2d 380, 109 S. Ct. 1056 (1989); Rose, 455 U.S. at 515; Darr v. Burford, 339 U.S. 200, 204-05, 94 L. Ed. 761, 70 S. Ct. 587 (1950). Exhaustion requires that petitioner give state tribunals a fair opportunity to decide any federal constitutional claims. See Rose, 455 U.S. at 515; Picard, 404 U.S. at 275.

 A fair opportunity consists of informing the state court of both the factual and legal premises of a constitutional claim. See Picard, 404 U.S. at 276-77; Gonzalez v. Sullivan, 934 F.2d 419, 422 (2d Cir. 1991). This requirement is satisfied if the legal and factual bases of petitioner's federal habeas claim is the substantial equivalent of claims presented to the state court. See Picard at 278; County Court v. Allen, 442 U.S. 140, 147-48, 60 L. Ed. 2d 777, 99 S. Ct. 2213 n.5 (1979). "Adherence to exhaustion principles does not require a petitioner to raise his claims by citing chapter and verse of hornbook law; it simply mandates that the state be given a fair opportunity to hear the claim." Blissett v. Lefevre, 924 F.2d 434, 439 (2d Cir.) (quoting Abdurrahman v. Henderson, 897 F.2d 71, 73 (2d Cir. 1990)), cert. denied, 112 S. Ct. 158, 116 L. Ed. 2d 123 (1991).

 The Second Circuit, in analyzing the exhaustion doctrine's "fair opportunity" requirement, has stated that:

 even if a particular matter is not treated generally as having constitutional dimension, if the courts of the state in question have themselves previously treated the fact pattern as appropriate for constitutional analysis, it would be unreasonable to suppose that they are not alert to constitutional considerations. Thus we consider that a defendant who cites state [or federal precedent that employs pertinent constitutional analysis has adequately put the state courts on notice of the constitutional thrust of his claim.

 Daye v. Attorney General of New York, 696 F.2d 186, 194 (2d Cir. 1982) (en banc).

 Petitioner has exhausted state remedies by giving the state courts a fair opportunity to adjudicate his Fifth Amendment double jeopardy argument. Petitioner expressly presented a federal constitutional double jeopardy claim to New York's Appellate Division by entitling his brief's primary argument "Did the Court below err in finding that the submission of the weapons counts to the jury in the second trial was not a violation of double jeopardy as set forth in the Constitution of the United States."

 In addition, petitioner's brief to the Appellate Division contains an extensive discussion of the double jeopardy issue, both under New York statutory principles and under federal constitutional law. For instance, petitioner's brief cites United States Supreme Court and federal district court decisions that interpret the Constitution's double jeopardy clause. It also quotes from New York state court decisions that employ United States Supreme Court precedents. Furthermore, the state habeas courts rejected petitioner's claim for relief on double jeopardy grounds, which reveals their awareness of this issue. Even if petitioner did not expressly present a federal constitutional double jeopardy claim, the New York courts were alerted to the existence of a possible federal constitutional claim and had a fair opportunity to adjudicate it. Accordingly, petitioner's claim is exhausted and this Court may address the merits of his habeas petition.

 B. The Merits: Double Jeopardy

 Having exhausted his state court remedies, petitioner seeks a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, on the ground that his gun conviction in the second state court trial violates the double jeopardy clause of the Fifth Amendment. Petitioner asserts that the indictment associated with his first state court trial contained homicide and weapons charges, but the judge in that case, Justice Warner, chose not to submit the weapons counts to the jury. Under New York Criminal Procedure Law ("CPL") section 300.40(6)-(7), *fn3" a count not submitted to the jury is deemed dismissed. After the Appellate Division reversed petitioner's conviction for manslaughter, the State obtained a new indictment that contained homicide and weapons counts. Petitioner argues that because his gun counts were considered dismissed under CPL § 300.40, reprosecution was improper under the double jeopardy clause of the Fifth Amendment of the United States Constitution.

 In opposing the petition, the State cites CPL § 470.55(1), *fn4" which allows retrial on non-submitted counts unless such counts are dismissed on the merits after an adjudication of the facts. The state alleges that because the judge's decision not to submit the gun counts to the jury was not due to insufficient evidence, ...

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