The opinion of the court was delivered by: Gershon, District Judge.
Petitioner George Carter brings this petition pro se
pursuant to 28 U.S.C. § 2254 challenging his December 9, 1993
conviction in the New York State Supreme Court, Queens County. A
jury found him guilty after trial of two counts of attempted
murder in the first degree, three counts of attempted murder in
the second degree, one count of criminal possession of a weapon
in the second degree, one count of criminal possession of a
weapon in the third degree, three counts of reckless
endangerment in the first degree and one count of criminal
possession of a weapon in the fourth degree. As is explained
more fully below, the trial judge subsequently dismissed two of
the three counts of attempted murder in the second degree as
lesser included offenses.
Although petitioner never exhausted his claim that his
appellate counsel was ineffective by filing a petition for a
writ of error coram nobis, 28 U.S.C. § 2254(b)(2) gives the
district court the discretion to deny a habeas corpus petition
on the merits "notwithstanding the failure of the applicant to
exhaust the remedies available in the courts of the State."
Because, as is explained below, it is clear from the trial
record that petitioner's claim concerning his appellate counsel
lacks merit, I am exercising my discretion to deny the petition
on the merits.
Sufficiency of the Evidence
A district court should grant habeas corpus relief based on a
claim of insufficiency of the evidence only if it finds, upon
the record evidence adduced at trial, that no rational trier of
fact could have found proof of guilt beyond a reasonable doubt.
See Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979). This question must be reviewed in the light
most favorable to the prosecution. See id. at 319, 99 S.Ct.
2781. To determine the essential elements of the crime, the
habeas corpus court must look to state law, see id. at 324 n.
16, 99 S.Ct. 2781, and the evidence must be reviewed as a whole.
See Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996).
"[A]ssessments of the weight of the evidence or the credibility
of witnesses are for the [factfinder] and not grounds for
reversal on appeal; we defer to the [factfinder's] assessments
of both of these issues." Id. When faced with a record from
which conflicting inferences may be drawn, the habeas corpus
court must presume, even if the record does not show it
affirmatively, that the trier of fact resolved the conflict in
favor of the prosecution and must defer to that resolution. See
Wright v. West, 505 U.S. 277, 296-97, 112 S.Ct. 2482, 120
L.Ed.2d 225 (1992).
Viewing the evidence in the light most favorable to the
prosecution, a rational trier of fact could have found beyond a
reasonable doubt that petitioner had the intent to kill his
wife, Police Officer Joseph Tetonic and Police Officer Joseph
Walas with a loaded gun and, thus, that he had the requisite
intent to be found guilty of both attempted murder in the first
degree and criminal possession of a weapon in the second degree.
See N.Y. Penal Law § 125.27(1)(a)(i) (crime of first degree
murder requires "intent to cause the death" of a police
officer); N.Y. Penal Law § 110.00 (crime of attempt requires
"intent to commit a crime"); N.Y. Penal Law § 265.03 (crime of
criminal possession of a weapon in the second degree requires
"intent to use [weapon] unlawfully against another").
Specifically, both petitioner and his son testified that,
early in the morning on February 27, 1993, petitioner and his
wife were arguing in their apartment. See Tr. at 505, 530. At
one point during the argument, petitioner swung a knife at his
wife, and she ran out of the house to call the police. See Tr.
at 506-08, 532. Officer Tetonic and Officer Walas testified that
they responded to the call, and, after speaking with Ms. Carter,
they accompanied her back to her apartment. See Tr. at 235-36,
389-90. When they arrived there, Ms. Carter knocked on the front
door of the building, and petitioner appeared in a second floor
window. See Tr.
at 236, 391-92. According to their testimony, the officers asked
petitioner to come downstairs so that they could talk to him.
See Tr. 236, 392-93. Officer Walas testified that petitioner
started yelling at Ms. Carter, stating that Ms. Carter "was
being disrespectful to him, and she was abusing him." Tr. 392.
In addition, Officer Walas said petitioner warned the officers
that, if he came downstairs, they should be "prepared to defend"
themselves. Tr. at 393. Similarly, Officer Tetonic stated that
petitioner threatened, "[S]omebody was going to get hurt,
somebody was going to die." Tr. 236; see also Tr. at 262. Both
officers testified that petitioner said, "Today is a good day to
die." Tr. at 237, 264, 266, 393.
According to his own testimony, petitioner retrieved a loaded
gun from the bedroom and then returned to the window. See Tr.
535, 548. Officer Tetonic testified that he saw petitioner
"hanging out of the window and he had the gun drawn in our
direction, right at us, and he fired two rounds in our
direction." Tr. at 237-38; see also Tr. at 264 ("I turned
around, gun was pointed directly at me and he started
shooting"). Officer Walas similarly testified that petitioner
"fired two shots at my direction." Tr. at 393. Petitioner
disappeared from the window, and the two officers and
petitioner's wife ran for cover behind two parked cars. See
Tr. at 265-66, 280, 394. According to Officer Tetonic,
petitioner then "came to the window and he took the firearm in
his hand and aimed it toward our direction and he fired another
round at us." Tr. at 238; see also Tr. at 269. Officer Walas
similarly testified that petitioner "reappeared from the window
and fired a shot in our direction." Tr. at 394. Officer Tetonic
stated that petitioner disappeared from the window again and
then returned once more "with the firearm drawn in our
direction." Tr. at 239.
Several hours after this incident, Sergeant Daniel King
interviewed petitioner in the police precinct. According to
Sergeant King's testimony, petitioner told him that, when his
wife returned to the apartment with the police, he started
arguing with her, and, when she didn't respond, he became
"infuriated." Tr. at 489. Petitioner acknowledged that he went
to get a gun and then pointed it out the window. See Tr. at
489-90. Petitioner also told Sergeant King that he had yelled to
the police officers "that he didn't want to hurt them, he wanted
to hurt her. And he fired several shots at her direction." Tr.
Notwithstanding this evidence, from which a rational jury
could have inferred petitioner intended to kill his wife and the
two officers, petitioner claims that he was so intoxicated
during the relevant events that he could not have formed the
requisite intent. Petitioner testified that he had been "doing
quite a bit of drinking," Tr. at 529, that he was "very angry,
out of control of liquor," Tr. at 532, and that he was
"reasonably" drunk. Tr. at 545. The evidence at trial also
included a hospital record, which was not made a part of the
record on this petition, but, according to defense counsel's
summation, it appears to have included a notation that
petitioner was intoxicated. See Tr. 494, 579.
Based upon all of the evidence, however, a rational jury could
have concluded that, even if petitioner was intoxicated at the
time of the incident, he was lucid enough to form the requisite
intent. See Dorst v. Coombe, No. CV-95-2874, 1996 WL 733072,
*4 (E.D.N.Y. Dec. 11, 1996); Rivera v. Scully, 92 Civ. 6659,
1993 WL 454209, *3 (S.D.N.Y. Nov. 2, 1993), affd, 40 F.3d 1237
(2d Cir. 1994). Specifically, petitioner acknowledged that he
was "fairly" able to remember what occurred during the incident,
Tr. at 545, and, according to Sergeant King's testimony,
provided a detailed statement to the police several hours later.
In addition, despite his earlier testimony, petitioner
repeatedly denied on cross-examination that he had "lost
control" due to his drinking. Tr. at 544. Several of
petitioner's actions also could have been viewed by a rational
jury as evidence that his intoxication did not negate his
intent. For example, petitioner's son testified that he saw his
father load a shotgun in the kitchen, see Tr. at 527-28, and,
upon surrendering to the police, petitioner also was capable of
following their directions on how to disassemble his gun. See
Tr. at 539-40. There was no evidence that petitioner was
slurring his speech or that he was otherwise incapacitated. As a
result, this claim does not entitle petitioner to habeas corpus
Dismissal of Lesser Included Offenses
Petitioner also argues that he is entitled to habeas corpus
relief because the two counts of attempted murder in the second
degree relating to Officers Tetonic and Walas should have been
dismissed as lesser included offenses of the two counts of
attempted murder in the first degree relating to those same
officers. The record shows that Justice Arthur J. Cooperman did
dismiss the two counts of attempted murder in the second degree
as "inclusory concurrent counts" in a decision dated December 9,
1993. See Resp. Ex. B. See also Sentencing Tr. at 8-9
(showing that petitioner was sentenced on two counts of
attempted murder in the ...