United States District Court, Southern District of New York
December 8, 2000
ANTHONY SANTORELLI, PETITIONER,
JAMES R. COWHEY, JUSTICE OF THE SUPREME COURT OF THE STATE OF NEW YORK, ROCCO A. POZZI, COMMISSIONER, DEPARTMENT OF CORRECTIONS, WESTCHESTER COUNTY, NEW YORK, AND ELIOT L. SPITZER, ATTORNEY GENERAL, NEW YORK, RESPONDENTS.
The opinion of the court was delivered by: Parker, District Judge.
MEMORANDUM DECISION AND ORDER
Anthony Santorelli filed this Petition for a writ of habeas corpus
challenging his 1998 conviction on charges of tampering with physical
evidence. For the reasons set forth below, the Petition is denied.
Petitioner was tried in Supreme Court, Westchester County on four
counts of tampering with physical evidence, namely, the bloody clothing
worn by the killers of Louis Balancio — a knifing victim — on
February 4, 1994. An FBI agent witnessed the Petitioner disposing of
bloody clothes in two plastic trash bags behind a fast food restaurant in
the Bronx hours after Balancio was murdered. The results of tests
conducted in the FBI laboratory revealed that petitioner's fingerprints
were found both on the inside and the outside of one of the bags. Tests
further confirmed that the blood on the clothing was that of Balancio.
On March 19, 1998, Petitioner was found guilty on all four counts, and
was sentenced to a term of imprisonment of 1 and 1/3 to 4 years. The
judgment of conviction was stayed pending appeal by order of the New York
Appellate Division upon $350,000 bail. The Appellate Division affirmed the
conviction on December 6, 1999, and the New York Court of Appeals
followed by affirming on October 26, 2000. Petitioner was ordered to
surrender on November 1, 2000.
Petitioner filed an emergency petition in federal court for a stay of
his sentence pending a determination of his federal habeas claim.
Following a hearing before Part I Judge Lewis Kaplan on October 31,
2000, Petitioner was granted a temporary stay from the execution of
judgment pending a further hearing on his stay application. The
application was granted by this Court on November 15, 2000, staying the
execution of his sentence pending an expedited determination of this
habeas Petition on the merits.
Mr. Santorelli sets forth a single exhausted claim as the basis of his
habeas Petition — namely, that the state trial judge, Justice James
Cowhey, incorrectly instructed the jury on the meaning of "reasonable
doubt," depriving him of his federal constitutional rights to due
process. In his charge, Justice Cowhey instructed the jury, in relevant
You do not have to believe that he is guilty to such
a degree that there can be no possibility of doubt
about it. The law does not require that because
nothing in this life is so absolutely certain that it
can be proven that completely; but you do [sic], if
you're going to convict the defendant after being
satisfied of his guilt in a way that leaves you
without any reasonable doubt of it. Those words
"reasonable doubt" means nothing more or less than the
two words themselves mean.
You know perfectly well what is doubt. It's something
that makes you unsure or uncertain. If your doubt is
simply of the fleeting or minimal type, it's not a
basis for avoiding the conclusion or for avoiding the
determination of the facts in this matter. A
reasonable doubt goes a good deal further. A
reasonable doubt is a doubt for which you have what
appears important to be a reason based upon the
evidence in the case or lack of evidence in the case.
It refers to a good deal more than a mere
possibility. If such reasonable doubt remains after
all of the proof has been
given, then the People have not established guilt
under our law. If you do not have a reason —
something that a reasonable person would recognize as
making sense for that doubt — you should
disregard that doubt if you have [sic] otherwise
convinced of guilt. But if you have a reasonable
doubt, one based upon the testimony in this case, one
that seems to make sense, not just some kind of mere
whim or impulsive idea or some kind of emotional gut
reaction, because that would not be a reasonable
doubt, or if you have a reason based upon the lack of
evidence in the case, on one of the essential elements
of the crime charged and thereby they are being
considered by you [sic], then you have come up with a
reasoning for voting not guilty.
Now in order to understand this term "proof beyond a
reasonable doubt," I am going to approach its
definition both from the positive as well as from the
negative point of view.
Firstly, from the negative point of view, I will
tell you what the term is not. The term does not refer
to just any kind of a doubt, such as a mere whim, a
guess, a surmise or even a feeling that the accused
may not be guilty. . . . It is not a requirement of
proof beyond all doubt. It is not a requirement of
proof to some kind of mathematical or scientific
certainty. On the other hand, it's not proof that the
defendant is guilty by a mere preponderance of the
weight of credible evidence.
Now having indicated to you what that term is not,
we shall now approach the definition from the positive
point of new. And I will tell you what reasonable
doubt is. A reasonable doubt is a doubt which you
conscientiously have at the use of your power of
reasoning which arising [sic] out of the credible
evidence or lack of credible evidence. It is a doubt
for which you have a reason. And when you're convinced
that you have no doubt in reason of the defendant's
guilt then that is sufficient and you must render a
Transcript of Proceedings, at 1016-19 (emphasis added).
In particular, Petitioner contends that because of the underlined
portions of the charge above — that a reasonable doubt "goes a good
deal further" than a fleeting or minimal doubt, and is "a good deal more
than a mere possibility" — the jury was likely to apply those
instructions in an unconstitutional manner.
I. Preservation of Federal Issue
Respondents first contend that Petitioner is barred from advancing his
habeas claim because he failed to sufficiently object to the reasonable
doubt charge at trial. While the parties acknowledge that Petitioner did
object to the "good deal more"/"good deal further" phrases at side bar,
Respondents assert that because counsel never articulated federal
constitutional grounds to the trial court at that time, Petitioner failed
to properly preserve that issue.
However, "[t]he Supreme Court has held that a procedural default does
not bar consideration of a federal claim on habeas review unless the last
state court rendering a judgment in the case `clearly and expressly'
states that its judgment rests on a state procedural bar." Tankleff v.
Senkowski, 135 F.3d 235, 247 (2d Cir. 1998) (quoting Coleman v.
Thompson, 501 U.S. 722, 735, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)). In
Tankleff the New York Appellate Division rejected the defendant's
arguments by simply stating, "We have examined the defendant's remaining
contentions and find them to be without merit." People v. Tankleff
606 N.Y.S.2d 707, 711, 199 A.D.2d 550 (1993). Similarly, the New York
Court of Appeals said only, "We have examined defendant's remaining
contentions and find them to be either meritless or unpreserved." People
v. Tankleff 622 N.Y.S.2d 503, 505, 84 N.Y.2d 992,
646 N.E.2d 805 (1994). Because our Court of Appeals found it unclear
whether the New York high court rejected the defendant's claim because it
was unpreserved or because it was deemed meritless as a matter of federal
constitutional law, it found that it could address the claim on habeas
review. See Tankleff, 135 F.3d at 247.
This holding was reconfirmed in Jones v. Stinson, 229 F.3d 112 (2d
Cir. 2000), where the Second Circuit recently stated that "[while] the
[state] appellate division may have believed that [the defendant] was
procedurally barred . . . . we follow the presumption established by the
Supreme Court and ask not what we think the state court actually might
have intended but whether the state court plainly stated its intention."
Id. at 118. There, though the state appeals court set forth the factual
predicate for finding a procedural default, "it never actually stated that
the issue was not preserved." Id. Accordingly, our Court of Appeals held
that the district court below correctly reached the merits of the habeas
In this case, the N.Y. Appellate Division expressly reached the merits
of Petitioner's claim, stating that "[c]ontrary to the defendant's
contention, the reasonable doubt charge was proper." People v.
Santorelli, 267 A.D.2d 259, 259, 699 N.Y.S.2d 291 (1999). The New York
Court of Appeals, however, was unclear as to whether it addressed the
claim on the merits, stating only that "[d]efendant's remaining
contentions, to the extent preserved, are without merit." People v.
Santorelli, 2000 WL 1599191, 96 N.Y. 412, ___, 2000 N.Y. Slip op. 09151,
at *15 (2000).
This Court finds the New York Court of Appeals ruling to be, at best,
ambiguous as to whether it determined that Petitioner's federal
constitutional claims concerning the jury instruction had been dismissed
because they were unpreserved as a matter of state law or because they
lacked merit. Absent a clear expression of that court's intent, the Court
finds that it may address Petitioner's habeas claim. See Jones, 229 F.3d
at 118-19 ("Because the appellate division . . . did not explicitly state
its intention to rely upon an independent and adequate state ground, we
conclude that the district court correctly reached the merits of the
habeas petition."); Tankleff 135 F.3d at 247; Bolling v. Stinson, 1999 WL
287733, *4 (E.D.N Y 1999) ("The Appellate Division's statement is too
ambiguous to preclude federal review on the independent ground of
II. 28 U.S.C. § 2254 (d)(1)
In order to prevail on his habeas Petition, Mr. Santorelli must satisfy
the requirements of 28 U.S.C. § 2254 (d)(1). That statute reads:
An application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of a
State court shall not be granted with respect to any
claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim
. . . resulted in 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
28 U.S.C. § 2254 (d)(1). As Petitioner concedes that the "contrary
to" prong of § 2254(d)(1) is not applicable, he must show that
Justice Cowhey's "reasonable doubt" charge was an "unreasonable
application" of clearly established Supreme Court precedent.
A. Unreasonable Application
While the Supreme Court has not yet defined the exact contours of the
reasonableness standard under § 2254(d)(1), it has clarified the
standard in two ways. First, to determine whether an application of
Supreme Court law is unreasonable, federal habeas courts must employ an
objective standard. See Williams v. Taylor, 529 U.S. 362, ___, 120 S.Ct.
146 L.Ed.2d 389 (2000). "Rather than decide reasonableness by
reference to the decisions of `all reasonable jurists,' . . federal
courts `should ask whether the state court's application of clearly
established federal law was objectively [as opposed to subjectively]
unreasonable.'" Lurie v. Wittner, 228 F.3d 113 (2d Cir. 2000) (quoting
Williams v. Taylor, 529 U.S. at 120 S.Ct. at 1521).
Second, an unreasonable application is more than a mere incorrect or
erroneous application of federal law. Williams v. Taylor, 529 U.S. at
___, 120 S.Ct. at 1522-23. Recently, our Court of Appeals has stated that
the increment of error need only be a small degree beyond being
incorrect. Francis v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) ("Some
increment of incorrectness beyond error is required. We caution,
however, that the increment need not be great; otherwise, habeas relief
would be limited to state court decisions so far off the mark as to
suggest judicial incompetence.") (internal quotations omitted);
Lainfiesta v. Artuz, 2000 WL 1459800 (S.D.N.Y. Sept. 29, 2000).
The Court is mindful that whether § 2254(d)(1) is triggered where
there is an unreasonable refusal by a state court to extend Supreme Court
precedents is an issue not yet conclusively resolved in this Circuit. See
Ramdass v. Angelone, 530 U.S. 156, 120 S.Ct. 2113, 2120, 147 L.Ed.2d 125
(2000) (plurality opinion of Kennedy, J., in which Rehnquist, C.J., and
Scalia and Thomas, JJ. join) ("a state determination may be set aside
under [AEDPA's] standard if, under clearly established federal law, the
state court was unreasonable in refusing to extend the governing legal
principle to a context in which the principle should have controlled.");
Lurie, 228 F.3d at 129 ("we decline to decide . . . whether unreasonable
refusals to extend Supreme Court precedents are sufficient to satisfy
AEDPA's requirements of an `unreasonable application of' Supreme Court
caselaw."). Because this Court finds that there was no unreasonable
refusal to extend or apply Supreme Court precedent, that open question
need not be decided here. Instead, for purposes of this opinion, the
Court assumes arguendo that § 2254(d)(1) is triggered where there is
an unreasonable refusal to extend federal law as clearly established by
the Supreme Court.
B. Clearly Established Supreme Court Precedent
"Clearly established Federal law, as determined by the Supreme Court of
the United States," 28 U.S.C. § 2254 (d)(1), refers to the
"holdings, as opposed to the dicta, of [the Supreme Court's] decisions as
of the time of the relevant state-court decision." Williams v. Taylor,
529 U.S. at ___, 120 S.Ct. at 1522. Under § 2254(d)(1), "the source
of clearly established law [is restricted] to [the Supreme Court's]
In reviewing jury instructions on habeas relief, the Supreme Court
instructs that the federal court must inquire as to "whether there is a
reasonable likelihood that the jury has applied the challenged
instruction in a way that violates the Constitution." Estelle v.
McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). The
instruction "may not be judged in artificial isolation, but must be
considered in the context of the instructions as a whole and the trial
Moreover, in Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124
L.Ed.2d 182 (1993), the Supreme Court held that if a jury instruction
defining the reasonable doubt standard failed to meet constitutional
muster, a harmless error analysis would not apply. Constitutionally
deficient reasonable doubt charges are "structurally flawed," and strike
at the very heart of the "trial mechanism." Id. at 281, 113 S.Ct. 2078.
Such deficiencies — if they can be demonstrated — are so
fundamentally problematic that they should not be subjected
to the further layer of a "harmless error" analysis. Id.
Petitioner cites Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112
L.Ed.2d 339 (1990), to challenge the trial court's instruction on
"reasonable doubt." There, the Supreme Court — in a per curiam
decision — found the charge to be constitutionally deficient
because the trial court equated a reasonable doubt with a "grave
uncertainty" and an "actual substantial doubt," and stated that what was
required was a "moral certainty" that the defendant was guilty. The
Supreme Court held that the words "substantial" and "grave," as they are
commonly understood, suggested a higher degree of doubt than is necessary
under the reasonable doubt standard. Id., at 329. Taken in combination
with the reference to "moral certainty" — as opposed to evidentiary
certainty — the court found that a reasonable juror could have
interpreted the instruction to allow a finding of guilt below that which
is required under the Due Process Clause, and reversed the conviction.
Id. at 330.
C. Did Trial Court's Charge Violate § 2254(d)(1)?
As noted, Petitioner contends that the "good deal further"/"good deal
more" formulations in Justice Cowhey's reasonable doubt charge was
reasonably likely to instruct the jury to apply that standard in a way
that violates the Constitution, and, accordingly, violated §
2254(d)(1). See Estelle v. McGuire, 502 U.S. at 72, 112 S.Ct. 475.
Specifically, Petitioner argues that the words used in Justice Cowhey's
charge — stating that reasonable doubt goes "a good deal further"
than fleeting or minimal doubt, and that it "refers to a good deal more
than a mere possibility"— was of the same nature objected to in
Cage because they refer to an indefinite quantity and magnitude of
doubt. By permitting the jury to determine his guilt based upon that
standard, Petitioner contends that Justice Cowhey unreasonably applied
and/or extended the holding in Cage, and violated Petitioner's clearly
established constitutional rights.
Petitioner's reliance upon Cage v. Louisiana falls short. As an initial
matter, Justice Cowhey's charge did not equate reasonable doubt with the
phrases Petitioner objects to. Rather, both phrases were articulated as
comparative terms, to be compared with capricious or unreasonable doubt.
Accordingly, those phrases did not limit the definitional parameters of
reasonable doubt as they did in Cage, nor did they define a higher
quantum or degree of doubt than what is permitted under the Due Process
Second, nothing in Justice Cowhey's charge can be analogized to the
term "moral certainty," which was the phrase in Cage that — in
combination with "grave uncertainty" and "actual substantial
doubt"— made it reasonably likely that a juror could have applied
"reasonable doubt" in a way that violated the Constitution. See Cage, 498
U.S. at 41, 111 S.Ct. 328. Accordingly, it cannot be said that the state
court's instruction on reasonable doubt misapplied the holding in Cage or
unreasonably refused to extend that holding to Petitioner's case.
Moreover, while there may be some force to Petitioners s contentions
that the objectionable language, considered in isolation, may have been
somewhat imprecise, "not every unhelpful, unwise, or even erroneous
formulation of the concept of reasonable doubt in a jury charge renders
the instruction constitutionally deficient. The reviewing court must
examine the charge as a whole, see Cupp v. Naughten, 414 U.S. 141,
146-47, 94 S.Ct. 396, 400-01, 38 L.Ed.2d 368 (1973), and assess `whether
there is a reasonable likelihood that the jury understood the
instructions to allow conviction based on proof insufficient to meet' the
standard of proof beyond a reasonable doubt." Vargas v. Keane,
86 F.3d 1273, 1276 (2d Cir. 1996) (quoting Victor v. Nebraska, 511 U.S. 1,
6, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994)).
After review of the charge, the Court finds that the reasonable doubt
instruction — viewing it as a whole — was not reasonably
likely to instruct the jury to apply that standard in a way that violated
the Constitution. See Estelle v. McGuire, 502 U.S. at 72, 112 S.Ct. 475.
In later portions of the charge, the trial court instructed that a doubt
founded in "reason" was "something that a reasonable person would
recognize as making sense for that doubt," that a reasonable doubt could
be based upon "the lack of evidence in the case," or "upon the testimony
in [the] case," and was one "that seems to make sense." Transcript at
Moreover, the trial judge told the jury that he would approach the
definition of reasonable doubt from both a negative and a positive point
of view. From the "negative" point of view, he stated that reasonable
doubt "does not refer to just any kind of a doubt, such as a mere whim, a
guess, a surmise or even a feeling that the accused may not be guilty."
Transcript at 1019. From the "positive" point of view, reasonable doubt
was said to be "a doubt which you conscientiously have at the use of your
power of reasoning which aris[es] out of the credible evidence or lack of
evidence. It is a doubt for which you have a reason." Transcript at
The Court is satisfied that these later portions of the reasonable
doubt charge — which were delivered immediately after the language
objected to by the Petitioner — were sufficient to defeat
Petitioner's claim that the objectionable language was reasonably likely
to instruct the jury to apply that standard in a way that violates the
Constitution. See Vargas, 86 F.3d at 1276 ("an asserted error in a
reasonable doubt instruction may be innocuous or inconsequential when
viewed in the context of the charge as a whole"); Chalmers v. Mitchell,
73 F.3d 1262, 1267 ("Sometimes, erroneous portions of the jury
instructions are offset when considered in the context or explained by
the trial court in later sections of the instruction.").
"Courts have long recognized that the concept of `reasonable doubt' is
not susceptible of easy definition." Vargas, 86 F.3d at 1280. While this
Court recognizes that the concept can be described in different ways,
Petitioner's challenge to the state trial court's instruction "arises on
habeas review, and [this Court's] inquiry is whether the instruction is
constitutional, not whether it is exemplary." Id.
For the foregoing reasons, the Petition is denied. The Clerk of the
Court is directed to dismiss the Petition. In addition, the stay of the
execution of the state judgment shall expire 30 days after the date of
this Order. A Certificate of Appealability is granted.
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