The opinion of the court was delivered by: John S. Martin, Jr., District Judge
Terry Johnson, who was convicted in the New York State Supreme Court, New York County, on charges of Criminal Sale of a Controlled Substance in the Third Degree, brings this action pursuant to 28 U.S.C. § 2254 seeking to vacate his conviction.
Petitioner claims that the following portion of the trial judge's instruction to the jury was so coercive as to violate his constitutional due process rights:
When you get into the jury room you discuss the case.
For the jury to arrive at a verdict it has to be
unanimous. Everybody has to agree, not proven or is
Two most important civic functions anybody does is
voting and serving on juries. In voting close counts
with terrible results. Sometimes. 50.1 beats 49.9
every time and you're stuck with that person for two,
four or six years.
For over 200 years New Yorkers have been reaching
unanimous verdicts. That's people who can't agree on
the time of day, what they have for lunch, whether
it's sunny or whether it's winter or summer. Yet for
200 years they agree on criminal jury verdicts.
What that means is inside the jury room despite the
fact there's disagreements, ultimately people change
their minds so that there are unanimous verdicts.
There is a rule, needless to say, with regard to
that. You can change your mind for a valid and not an
invalid reason. You are allowed to change your mind
even if you have expressed the thought, even if you
offended (sic) the thought, even if you arduously
defended the thought that you expressed.
You can still change your mind if by virtue of the
record of this trial and reason and logic somebody can
cause you to change your position that you have taken
and advocated. You are prohibited from changing your
mind for an invalid reason like I have had enough of
this. I don't like your attitude. You said something
that offended me.
Any other of the enumerable invalid reasons that you
are prohibited from using to change your mind. Any
valid reason is fair game to change your mind.
The point of the enumerable invalid reasons that you
are prohibited from using to change your mind. Any
valid reason is fair game to change your mind.
The point of all of that is before the foreperson
announces the collective verdict of the jury it has to
be the individual verdict of twelve voting jurors.
Before turning to Petitioner's specific claims, it must be noted that Congress has limited the jurisdiction of the federal courts to provide relief under 22 U.S.C. § 2254.
(d) 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 —
(1) 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; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.
See generally Williams v. Taylor, 529 U.S. 362
, 120 S.Ct. 1495
The Respondent argues that the trial court's charge could, not violate "clearly established Federal law, as determined by the Supreme Court of the United States" because no Supreme Court case has considered the coercive effect of a charge given as part of the original charge of the court, as contrasted with a supplemental charge given after the jury has indicated that it is deadlocked. See Allen v. United States, 164 U.S. 492, 17 S.Ct. 154 (1896); Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546 (1988).
The standard for determining if a constitutional principle is clearly established was set forth by the Second Circuit in Kennaugh v. Miller, 289 F.3d 36, 42-43 (2d Cir. 2002) as follows:
The threshold inquiry under AEDPA is whether the
petitioner "seeks to apply a rule of law that was
clearly established at the time his state-court
conviction became final." Williams, 529 U.S. at 390,
120 S.Ct. 1495. That determination will ordinarily be
made by the lower federal courts which retain their
independent obligation to say what the law is under
governing Supreme Court precedents. Morris v.
Reynolds, 264 F.3d 38, 46 (2d Cir. 2001) (quoting
Williams, 529 U.S. at 411, 120 S.Ct. 1495 (emphasis
omitted)). That federal law, as defined by the Supreme
Court, may be either a generalized standard enunciated
in the Court's case law or a bright-line particular
context. See, e.g., Gilchrist v. O'Keefe, 260 F.3d 87
(2d Cir. 2001) (which analyzed a habeas petition
relative both to the general holding in Gideon v.
Wainwright, 372 U.S. 335, 340, 83 S.Ct. 792, 9 L.Ed.2d
799 (1963), that the right to counsel may only be
waived if the waiver is competent and intelligent, and
to the more specific, bright-line application of that
holding established in Faretta v. California,
422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562
(1975), which set forth the requirements that must be
met before a defendant may proceed pro se).
Thus in Gilchrist we considered whether a state court
unreasonably refused to assign new counsel to a
criminal defendant who physically assaulted his
court-appointed attorney. In examining the difference
between waiver and forfeiture of the right to
counsel, we first noted that the Supreme Court had not
spoken on the question of forfeiture of this right,
and, therefore, that the state court decision was
not, when made, contrary to a Supreme Court case that
had dealt with "materially indistinguishable facts."
Williams, 529 U.S. at 413, 120 S.Ct. 1495. We then
recognized, however, that the Court, through its
general precedents in cases such as Gideon v.
Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799
(1963), had established that the right to counsel is
fundamental. The remaining question for the Gilchrist
court was, therefore, whether the state court's
failure to appoint new counsel was an unreasonable
application of this more general precedent,
Gilchrist, 260 F.3d at 97. We concluded that it was
not. Id. at 98; see also Lainfiesta v. Artuz,
253 F.3d 151, 154 (2d Cir. 2001) (deciding that the
refusal to permit co-counsel for the defendant to
cross-examine a witness was not an unreasonable
application of the "qualified right to counsel of
choice" which "emerges out of a defendant's broader
right to control the presentation of his defense").
The Supreme Court's opinions in Allen and Lowenfield clearly establish the general principle that a charge that is unduly coercive can deprive a defendant of due process. Indeed, the Court in Lowenfield considered the issue in the context of a habeas corpus application by a state prisoner. While the Court there found that the lower court's charge was not unduly coercive, the fact that the Supreme Court considered the issue indicates that the Court recognized that an unduly coercive charge would violate due process.
It is also established Supreme Court law that errors in a charge can deprive a defendant of due process. However, where an error in a jury instruction is alleged, "it must be established not merely that the instruction is undesirable, erroneous, or even "universally condemned,' but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment." Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 400 (1973). The question is not whether the trial court gave a faulty instruction, but rather "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Id. at 147, 94 S.Ct. at 400; see also Estelle v. McGuire, 502 U.S. 62, 67-72, 112 S.Ct. 475, 479-482 (1991) (quoting and reaffirming Cupp).
While the charge at issue may not be one that the Court would consider ideal, it did not deny Petitioner due process. First, the charge at issue was part of the initial charge and was not preceded by a declaration that the jury was deadlocked. As the Ninth Circuit observed in United States v. Williams, 624 F.2d 75, 77 (9th Cir. 1980): "There is less likelihood of coercion when an `Allen' instruction is given with the original instructions." Accord United States v. Malizia, 503 F.2d 578 (2d Cir. 1974); United States v. Wills, 88 F.3d 704 (9th Cir. 1996); United States v. Guglielmini, 598 F.2d 1149 (9th Cir.), cert. denied, 444 U.S. 943, 100 S.Ct. 300 (1979).
Equally significant, the charge did not contain that portion of the traditional Allen charge that "if much the larger number were for conviction, a dissenting juror should consider whether his doubt was a reasonable one which made no impression upon the minds of so many men, equally honest, equally intelligent with himself." Allen v. United States, supra at 501, 17 S.Ct. at 157. Since the charge did not urge a minority juror to give particular weight to the views of the majority, the failure to include specific language that the jurors should not abandon their conscientiously held convictions is less significant. See Lowenfield v. Phelps, supra at 238, 108 S.Ct. at 551 ("The continuing validity of this Court's observations in Allen are beyond dispute, and they apply with even greater force in a case such as this, where the charge given, in contrast to the so-called `traditional Allen charge,' does not speak specifically to the minority jurors.")
"A given jury instruction cannot be viewed in isolation and its impact must be evaluated in light of the entire charge." Smalls v. Batista, 191 F.3d 272, 280 (2d Cir. 1999).*fn1 Read in its entirety and in the context in which it was given, the charge in question was not coercive. While the trial judge did stress the importance of reaching a unanimous verdict, he also made it clear that there had to be a valid reason for a juror to change his or her vote and indicated that the change should occur "if by virtue of the record of this trial and reason and logic somebody can cause you to change your position that you have taken and advocated." This statement was immediately followed by the admonition: "You are prohibited from changing your mind for an invalid reason like I have had enough of this." This portion of the charge concluded by telling the jurors: "The point of all this is before the foreperson announces the collective verdict of the jury, it has to be the individual verdict of the twelve voting jurors." (Emphasis added).
Read in its entirety, the charge told the jury that a decision to change a vote should be based on the record and reason and logic and it did not suggest that a juror in the minority should give up a conscientiously held view simply to have a unanimous verdict. But even if this Court were to conclude that the charge was coercive, that would not entitle Petitioner to relief. Since the question whether the charge was coercive involves a factual determination, the federal courts may reject the state court's conclusion that the charge was not coercive only if it constituted "an unreasonable determination of the facts." Early v. Packer, 123 S.Ct. 362 (2002).
For the foregoing reasons, the petition for relief pursuant to 28 U.S.C. § 2254 is denied and the action is dismissed. In addition, pursuant to 28 U.S.C. § 1915(a), the Court certifies that an appeal from this case may not be taken in forma pauperis; such an appeal would be frivolous and cannot be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S.Ct. 917, 920-21 (1962). The Court determines that the petition presents no question of substance for appellate review and that Petitioner has failed to make a "substantial showing of the ...