The defense focused on Mr. Lydon's chronic alcoholism and his
alleged emotional distress at the time of the murder. Mr. Lydon's
father, aunt, uncle, sister, and friends all testified to this
effect. These witnesses also testified that it was difficult to
tell when Mr. Lydon was drunk. The defense also presented
evidence of petitioner's school record which showed that he had
been classified as a student with an emotional disturbance and
provided with special education. However, at age 16, various
psychological tests showed him to be an average child with no
major emotional problems. There was also testimony from a
physician and a neuropsychologist that he suffered from alcoholic
blackout, which was described as similar to amnesia, that is, a
loss of memory of events that have occurred. The individual in an
alcoholic blackout is not unconscious, but conscious, during the
events, but does not remember them later. The neuropsychologist
also testified that petitioner had an unstable personality and
that his judgment would be impaired by alcohol.
Petitioner testified as to the events preceding his entry of
Ms. Greene's apartment, and that he and his co-defendant stole
things from her. He further said that he fell asleep there and
woke up with blood on his hands and a knife with him, but said
that he had no memory of murdering her or of confessing. He
claimed that he was upset because his uncle had accused him of
breaking into a truck, his father was ill, and he was having
problems with his girlfriend. He was drunk during the entire
weekend on which the crimes occurred.
Exhaustion of State Remedies
The federal habeas corpus statute, 28 U.S.C. § 2254, requires
that a state prisoner seeking federal habeas corpus review of a
conviction first exhaust all state remedies. To fulfill the
exhaustion requirement, a petitioner must have "fairly presented"
a federal claim to the highest state court from which a decision
can be had. Picard v. Connor, 404 U.S. 270, 275-76, 92 S.Ct.
509, 30 L.Ed.2d 438 (1971); Daye v. Attorney General,
696 F.2d 186, 190 n. 3 (2d Cir. 1982). A petitioner must set forth in the
appropriate state court all of the essential factual allegations
and substantially the same legal doctrines asserted in the
federal petition. See Daye, 696 F.2d at 191-92. Under Daye, a
petitioner has fairly presented to the state courts the legal
basis for a federal claim if he has: (1) identified the specific
provision of the Constitution relied on in his habeas corpus
petition; (2) cited pertinent federal cases employing
constitutional analysis; (3) cited state cases employing
constitutional analysis in like factual situations; (4) asserted
his claim in terms so particular as to call to mind a specific
right protected by the Constitution; or (5) alleged a pattern of
facts well within the mainstream of constitutional litigation.
See id. at 192-94.
Respondent does not dispute that petitioner made the same
factual allegations he makes here in state court, but contends
that petitioner did not exhaust his state remedies because he did
not fairly present to the state courts the federal nature of his
claims. However, petitioner did alert the state courts to his
federal claims by citing federal cases in his appellate brief.
Maiorino v. Scully, 746 F. Supp. 331 (S.D.N.Y. 1990); United
States v. Napolitano, 552 F. Supp. 465 (S.D.N.Y. 1982), and
Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751
(1961). Petitioner therefore presented his federal claims to the
The Charge Regarding Petitioner's Mental Capacity
The federal habeas corpus statute, 28 U.S.C. § 2254(d), limits
federal habeas corpus review to situations in which a
petitioner's custody (1) resulted from a decision that was
contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of
the United States; or (2) resulted from a decision that was
based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding. Mere
questions of state law are not grounds for habeas corpus relief.
Indeed, "it is not the province of a federal habeas court to
reexamine state court determinations on state-law questions. In
conducting habeas corpus review, a federal court is limited to
deciding whether a conviction violated the Constitution, laws, or
treaties of the United States." Estelle v. McGuire,
502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991).
Petitioner's first claim is that "Defendant was denied due
process of law at his trial in violation of his constitutional
rights under the Fifth and Fourteenth Amendments to the United
States Constitution by the trial court's failure to instruct the
jury that defendant had presented evidence of impaired mental
capacity which affected defendant's cognitive abilities and if
found to be true would be a defense to the crimes under state
To begin with, alcoholism and intoxication are not
constitutionally mandated defenses to criminal accountability.
See Powell v. Texas, 392 U.S. 514, 534-35, 88 S.Ct. 2145, 20
L.Ed.2d 1254 (1968). To the extent that petitioner's claim is
that there was constitutional error in refusing to charge the
defense of extreme emotional disturbance to the intentional
murder count, the claim rests upon N.Y. Penal Law § 125.25, which
A person is guilty of murder in the second degree
1. With intent to cause the death of another
person, he causes the death of such person or of a
third person; except that in any prosecution under
this subdivision, it is an affirmative defense
(A) The defendant acted under the influence of
extreme emotional disturbance for which there was a
reasonable explanation or excuse, the reasonableness
of which is to be determined from the viewpoint of a
person in the defendant's situation under the
circumstances as the defendant believed them to be.
Where this defense is established, the defendant is not
exonerated; rather, the crime is reduced to first degree
manslaughter, pursuant to N.Y. Penal Law § 125.20.
In rejecting this defense, the trial judge noted, among other
things, that the defendant had removed the license plate from his
car before the robbery/murder in order to avoid detection and
remembered to replace it after he was away from the scene. After
reviewing state law, the court found that petitioner's conduct
did not rise to the level of extreme emotional disturbance; the
Appellate Division found that the trial court had correctly
followed New York law in reaching this conclusion.
The trial court did, however, agree to charge the lesser
included offense of manslaughter in the second degree on the
third murder count, see N.Y. Penal Law § 125.15(1) (reckless
manslaughter), which was based on the theory of depraved
indifference to human life, see N.Y. Penal Law § 125.25(2), and
the lesser included offense of manslaughter in the first degree,
see N.Y. Penal Law § 125.20(1), on the intentional murder
count. He also charged the jury that it could consider the
defendant's intoxication on the issue of intent.
The petitioner has shown no federal constitutional error in the
state courts' conclusion regarding the applicability of the
extreme emotional disturbance defense to the facts in this case.
Indeed, the claim may well be unreviewable by this court. Cf.
Jones v. Hoffman, 86 F.3d 46 (2d Cir. 1996) (claim of failure to
charge a lesser-included offense in a non-capital case invokes a
new rule under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060,
103 L.Ed.2d 334 (1989), and is therefore unreviewable in federal
Moreover, extreme emotional disturbance is not a defense to
felony murder, N.Y. Penal Law § 125.25(3), of which petitioner
was also convicted and for which he was also sentenced to
twenty-five years to life.
Questioning of Jurors About Publicity
Petitioner's contention that the trial judge committed
constitutional error by failing to individually question jurors
about their exposure to publicity is without merit. The petition
appears to challenge an alleged failure of the court to question
potential jurors individually regarding pretrial publicity. The
record belies this claim. During jury selection, the court first
asked the prospective jurors collectively about their exposure to
publicity, then individually questioned prospective jurors who
acknowledged awareness of pre-trial publicity, and he excused
those who could not be impartial. Treating the claim as the claim
argued by petitioner's counsel on direct appeal, namely, that the
court failed to question the impaneled jurors individually
about pretrial publicity when asked to do so by counsel, the
claim is also without merit. The trial judge reminded the jury
during the trial that they should avoid any media coverage of the
case. He asked the jury as a whole before the defense summation
whether or not they had been affected by anything outside of the
courtroom. The jurors indicated collectively that nothing had
happened to affect their ability to be fair. In the absence of
any claim that a particular juror or jurors had violated the
court's order to avoid exposure to publicity, there was no
occasion, much less constitutional requirement, that the court
question individual jurors during the trial on that subject.
Petitioner contends that the trial judge committed
constitutional error when he refused defense counsel's request to
sequester the jury. Counsel made the request after the separate
jury in the joint trial reached a guilty verdict; he claimed that
sequestration was necessary to shield petitioner's jury from
widespread publicity about the verdict.
Sequestration is considered "one of the most burdensome tools
of the many available to assure a fair trial." United States v.
Porcaro, 648 F.2d 753, 755 (1st Cir. 1981). Moreover, "the
decision to sequester the jury to avoid exposure to publicity is
committed to the discretion of the court, and failure to
sequester the jury can rarely be grounds for reversal." United
States v. Salerno, 868 F.2d 524, 540 (2d Cir. 1989). There was
no constitutional violation in denying sequestration. As noted
above, there is no evidence that the jury in fact had been
tainted by publicity, and the trial court judge instructed the
jury to avoid reading, listening, or watching any media coverage
of the case.
For the above stated reasons, the petition for a writ of habeas
corpus is hereby denied.
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