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October 24, 1994

EDWIN GODFREY, Petitioner,
FRANK IRVIN, Superintendent, Respondent.

The opinion of the court was delivered by: CAROL E. HECKMAN

 This petition for habeas corpus under 28 U.S.C. § 2254 has been referred to the undersigned by Hon. Richard J. Arcara to hear and report pursuant to 28 U.S.C. § 636(b)(1)(B). For the following reasons, it is recommended that the petition be denied.

 Plaintiff has also applied for appointment of counsel. Based on the standards for appointment of counsel in civil cases as set forth in Cooper v. A. Sargenti Co., Inc., 877 F.2d 170 (2d Cir. 1989), and Hodge v. Police Officers, 802 F.2d 58 (2d Cir. 1986), and pursuant to Rule 8(c) of the Rules Governing Section 2254 Cases in the United States District Courts, plaintiff's application is denied.


 The following facts are undisputed. At about 9:00 p.m. on October 11, 1982, petitioner and his friends Rodney Marsh and Willie Marsh went to petitioner's home at 1515 Michigan Avenue in the City of Niagara Falls, New York. They drank two quarts of beer and left. They went to a Wilson Farms store in the Highland Avenue area of Niagara Falls, where petitioner bought another quart of beer. After drinking the beer, the three men went to a liquor store where petitioner and Rodney Marsh bought some wine and some brandy. They returned to the Wilson Farms store. While standing outside the store, they were joined by a fourth man, Terry Crittenden, who bought another quart of beer. The four men stood outside the Wilson Farms store for approximately one hour, drinking the beer, wine and brandy. All except for petitioner were also smoking marijuana.

 Petitioner and Rodney Marsh then took a cab to petitioner's house at 1515 Michigan Avenue. As they entered the house, Marsh told petitioner to go and get his gun. Petitioner went to the bedroom and retrieved the gun from the closet. Marsh entered the bedroom and petitioner pointed the gun at Marsh. Marsh attacked petitioner, and they scuffled. Petitioner threw the gun to the floor. He eventually freed himself, and picked up the gun. Marsh then grabbed petitioner from behind, and he again threw the gun down. They wrestled from the bedroom into the dining room and then into the living room.

 When they were through wrestling, they sat on the couch in the living room. They continued to argue about which man could beat up the other. After sitting for a minute, petitioner retrieved the gun and began unloading it while still arguing with Marsh. Petitioner finally told Marsh to get out of his house. Marsh refused to leave, and came toward petitioner. Marsh said, "you got your gun, use it. If you don't I will." Marsh then tried to take the gun from petitioner but petitioner pushed him away. When Marsh came toward him again, petitioner shot him four times. Petitioner then called 911. Police arrived on the scene shortly thereafter, and arrested petitioner.

 Petitioner was indicted for second degree murder under N.Y. Penal Law § 125.25(1). At his trial, which took place on June 6-14, 1983 before Niagara County Judge Charles J. Hannigan, petitioner raised the defense of justification. On June 14, 1983, the jury found petitioner guilty of second degree murder. He was sentenced to an indeterminate sentence of twenty years to life (Item 1).

 Petitioner appealed his conviction to the Appellate Division, Fourth Department. He raised the following claims on appeal:

1. The trial judge improperly charged the jury on the justification defense by (a) using hypothetical examples and negative language to suggest that the defense was unwarranted under the circumstances (Item 4, Ex. A, Point I), (b) providing confusing and inconsistent instructions on the standard for evaluating the reasonableness of the defendant's conduct (id., Point II), and (c) refusing to charge "defense of premises" (id., Point V);
2. The trial judge improperly allowed cross-examination of petitioner concerning his prior convictions for assault and burglary (id., Point III);
3. The deficiency of the record on appeal (id., Point IV);
4. Prosecutorial misconduct (id., Point VI); and,
5. Failure to properly charge the jury on the standard for assessing the credibility of police officers (id., Point VII).

 On March 8, 1991, the Fourth Department reversed petitioner's conviction and granted him a new trial, finding that the trial court should have instructed the jury on the defense of justification for the use of deadly force to prevent the commission of a burglary under N.Y. Penal Law § 35.20(3). People v. Godfrey, 171 A.D.2d 1007, 1007-08, 569 N.Y.S.2d 852, 853 (4th Dept. 1991). Two justices dissented.

 On July 2, 1992, the New York Court of Appeals unanimously reversed the Fourth Department's grant of a new trial. People v. Godfrey, 80 N.Y.2d 860, 587 N.Y.S.2d 594, 600 N.E.2d 225 (1992). The court found that the trial court properly refused to instruct the jury on the justifiable use of deadly force to terminate the commission of a burglary because petitioner had invited Rodney Marsh into his home fully aware that he intended to commit a crime once inside. Id. at 861-62.


 I. Jury Charge on Justification Defense.

 Petitioner claims that the trial judge's instructions to the jury regarding the standards for evaluating the defense of justification were improper, resulting in the denial of a fair trial.

 As a general matter, a jury charge in a state trial is a matter of state law and is not reviewable in a federal habeas corpus proceeding absent a showing that the alleged errors were so serious as to deprive the petitioner of the constitutional right to due process. United States ex rel. Smith v. Montayne, 505 F.2d 1355, 1359 (2d Cir. 1974), cert. denied, 423 U.S. 856 (1975). Thus, "in order to obtain a writ of habeas corpus in federal court on the ground of error in a state court's instruction to the jury on matters of state law, the petitioner must show not only that the instruction misstated state law but also that the error violated a right guaranteed to him by federal law." Casillas v. Scully, 769 F.2d 60, 63 (2d Cir. 1985); see Cupp v. Naughten, 414 U.S. 141, 146, 38 L. Ed. 2d 368, 94 S. Ct. 396 (1973).

 The standard for a federal district court reviewing a state court's proceedings on a habeas corpus petition is "quite different" from the standard required of the federal appellate courts on direct review of proceedings in a federal criminal case. Rogers v. Carver, 833 F.2d 379, 381 (1st Cir. 1987), cert. denied, 485 U.S. 937, 99 L. Ed. 2d 276, 108 S. Ct. 1116 (1988). The habeas petitioner must show that "the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process . . . ," Cupp v. Naughten, supra, 414 U.S. at 147, not merely that "the instruction is undesirable, erroneous, or even 'universally condemned . . . '" Id. at 146; Morales v. Keane, No. 92 Civ. 8189, 1994 WL 38668, at *3-*4 (S.D.N.Y. 1994). The challenged instruction "may not be judged in artificial isolation, but must be viewed in the context of the overall charge" by the reviewing court. Cupp v. Naughten, supra, 414 U.S. at 147.

 New York's statutory defense of justification, set forth at length in Article 35 of the Penal Law, provides that a person may use deadly physical force in self defense, under appropriate circumstances. People v. Goetz, 68 N.Y.2d 96, 105, 107, 506 N.Y.S.2d 18, 497 ...

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