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United States District Court, Southern District of New York

March 28, 2003


The opinion of the court was delivered by: Kevin Nathaniel Fox, United States Magistrate Judge




Petitioner DeAndre Williams ("Williams") has made an application for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. Williams contends that his confinement by the State of New York is unlawful, in essence, because the trial court presented for the jury's consideration the crime of assault in the second degree, as a lesser included offense of the crime, assault in the first degree. In doing so, petitioner contends, the trial court violated New York's Criminal Procedure Law and his Fourth, Fifth, Sixth, and Fourteenth Amendment rights because the crime assault in the second degree was not charged in the indictment returned against him by a grand jury and was not the subject of his criminal trial.

Respondent opposes petitioner's application. He maintains that the lesser included offense was properly submitted to the jury for its consideration and that Williams' claim to the contrary is without merit. Furthermore, the respondent alleges that, due to a procedural default with respect to the instant claims, petitioner is not entitled to habeas corpus relief.


In March 1998, a Westchester County grand jury returned a six count indictment against petitioner charging him with attempted assault in the second degree, criminal mischief in the third degree, two counts of assault in the first degree and two counts of endangering the welfare of a child. These charges stemmed from events occurring on September 7, 11, and 23, 1997. Petitioner pleaded not guilty and proceeded to trial before a jury in Westchester County Court. At the trial, petitioner represented himself with the aid of "standby" counsel.

On September 7, 1997, Williams and his former girlfriend, Gwendolyn Wilson ("Wilson"), had an altercation at her home. She claimed that, during a struggle, Williams injured her with a knife and forcibly removed dentures from her mouth. Petitioner alleged that Wilson was the aggressor and that when he sought to wrestle the knife from her, his fingernails scratched her.

On September 11, 1997, between 8:00 a.m. and 8:30 a.m., Wilson's downstairs neighbor, Philip Grayer ("Grayer"), a security guard, observed a ladder outside their home leaning against a window of Wilson's apartment. Grayer removed the ladder from the window and then searched the building's interior. He discovered that Wilson's apartment had been ransacked. The furniture had been "cut up," "a big knife was sticking into [a] chair," and paint or blood had been splashed around the apartment. On closer inspection, Grayer found that clothing had been placed in the toilet and in the bathtub, and that a white powder had been sprinkled throughout each room of the apartment. Grayer returned to his own apartment and contacted Wilson to report what he had observed in her home. At this time, Wilson's family was staying at the home of her friend, Stephanie Berry ("Berry"). After speaking with Grayer, Wilson contacted the police and then met police personnel at her apartment.

During the trial, Andrew Mayers ("Mayers"), who was acquainted with Williams and Wilson, testified that on the morning of September 11, 1997, he encountered Williams approximately one block from Wilson's home. Mayers recalled that he observed Williams crouching behind an automobile. Williams called to Mayers and they had a conversation. Mayers testified that, during that conversation, Williams explained to him that he had just come "from destroying [Wilson's] apartment." Williams denied damaging Wilson's apartment. Moreover, he testified that he purchased the items that furnished Wilson's apartment.

On September 23, 1997, Wilson and her youngest daughter were at Berry's home with another child when someone knocked on the door. Wilson went to the door and inquired who was knocking. The person responded "Jessie" and proceeded to kick the door open. Wilson testified that the person who kicked the door was Williams. Wilson recalled for the jury that petitioner held a knife to her face and threatened to kill her if she screamed. Wilson testified that Williams demanded money and when she retrieved her pocketbook to get it, he snatched the pocketbook away from her and took a $100 bill from it. Wilson also claimed that Williams slashed her with the knife about her arms and face, dragged her along the hallway and punched and kicked her. At the end of the hallway, Wilson alleged that petitioner retrieved a metal Tonka toy truck and began "bashing" her about the face with it. Wilson stated that the two children watched as the assault unfolded. When the assault ended, Williams fled from Berry's home. Wilson summoned the police, and officers arrived with paramedics. Wilson was transported to a hospital where she received treatment. Wilson told the jury that, as a result of the September 23, 1997 assault, her face was stinging and swollen. Wilson explained to the jury that she also experienced a great deal of pain. She explained further that lacerations she suffered had to be sutured.

Williams testified in his own behalf at the trial and, among other things, denied being at Berry's home on September 23, 1997. He also presented witness testimony to support his alibi defense. Williams maintained that Wilson had fabricated her testimony to retaliate against him for, inter alia, reporting to the police information about illegal drug transactions in which persons closely related to Wilson had engaged.

Before permitting the jurors to hear the parties' closing arguments, the trial judge solicited from the parties requests respecting the legal instructions that would be presented to the jury. Among other things, Williams requested that the court instruct the jurors on the crime assault in the second degree so that they might consider it with respect to the first degree assault charges stemming from the events that occurred on September 23, 1997. He reasoned that the prosecution had not established the requisite degree of injury (serious physical injury) to support a conviction for assault in the first degree. The trial judge granted petitioner's request and agreed to present to the jurors, for their consideration, the crime assault in the second degree, as a lesser included offense of the crime assault in the first degree.

Petitioner was acquitted of all crimes the jurors considered except assault in the second degree. He appealed from the judgment of conviction to the New York State Supreme Court, Appellate Division, Second Department. There, he urged the court to upset his conviction because: the jury verdict was inconsistent, he did not receive a fair trial, he was not presented at the time of his sentencing with a transcript of the minutes of a 1980 conviction which was relied upon by the court, at the time of his sentencing, in determining that petitioner was a persistent violent felony offender and the sentence imposed upon him was excessive under the circumstances.

On December 11, 2000, the Appellate Division affirmed petitioner's conviction. It found that Williams' sentence was not excessive and, furthermore, that the remaining contentions he made were either unpreserved for appellate review or without merit. See People v. Williams, 278 A.D.2d 348, 718 N.Y.S.2d 198 (App. Div.2d Dep't 2000). Williams sought leave to appeal from the determination of the Appellate Division to the New York Court of Appeals. His application was denied on April 10, 2001. See People v. Williams, 96 N.Y.2d 808, 726 N.Y.S.2d 386 (2001). Thereafter, petitioner made an application for a writ of certiorari to the United States Supreme Court. That application was denied on October 1, 2001.

Following his conviction, Williams made approximately 30 post-trial applications in several state courts asserting various legal theories under which he sought to be granted relief from the judgment of conviction. Included in those post-trial applications, on occasion, were the allegations made in the instant petition that: (a) the trial court erred when it presented assault in the second degree to the jury for its consideration; (b) the trial court violated New York Criminal Procedure Law ("CPL") §§ 200.60(3)(A), 300.30(1), 300.40(5)(6), 300.50(1)(2) and 200.70(2); and (c) the trial court violated rights secured to petitioner by the Fourth, Fifth, Sixth and Fourteenth Amendments. None of those state court post-trial applications garnered petitioner the relief he sought. He has now made the instant application for a writ of habeas corpus.

Respondent contends that in petitioner's most recent collateral attack upon the judgment of conviction in the trial court, made pursuant to CPL § 440.10, he raised all of the claims made in the instant petition for a writ of habeas corpus. However, the trial court denied petitioner's motion to vacate the judgment because "all issues now raised [in petitioner's CPL § 440.10 motion] have either been previously raised or could have been raised in countless previous motions. . . ." See Respondent's Appendix, Exhibit R. Therefore, pursuant to CPL § 440.10(2)(a),(c),(3), petitioner's request that the judgment of conviction be vacated was summarily denied by the trial court.

The record before the Court does not indicate that petitioner appealed from the denial of the subject CPL § 440.10 motion and, therefore, it appears that Williams has not exhausted all available state remedies. However, respondent has expressly waived the exhaustion requirement found at 28 U.S.C. § 2254(b)(1)(A) (see 28 U.S.C. § 2254([b][3]), because, he contends, based on petitioner's prior post-trial litigation in the state courts, it is virtually impossible for a state appellate court to grant petitioner leave to appeal from the trial court's determination on the above-noted CPL § 440.10 motion. In addition, respondent maintains that the interests of comity and federalism will not be served by requiring more state court proceedings before the merits of petitioner's claim can be reviewed through a federal habeas corpus petition.

Moreover, respondent contends that petitioner is not entitled to federal habeas corpus relief because the federal law claims he has asserted in his petition were resolved by the trial court, in deciding petitioner's most recent CPL § 440.10 motion, by relying solely on state law grounds that bar petitioner's claims from being entertained by that court.


Independent and Adequate State Grounds

A federal court may not review a question of federal law decided by a state court if the state court's decision rested on a state law ground, be it substantive or procedural, that is independent of the federal question and adequate to support the judgment. See Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 2553-54 (1991). The "independent and adequate state ground" doctrine applies not only to direct review of state court judgments, but also to federal habeas corpus petitions. See id.; Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1043 (1989); Wainwright v. Sykes, 433 U.S. 72, 81, 97 S.Ct. 2497, 2503-04 (1977).

All of the claims made by Williams in the instant habeas corpus petition were presented by him to the Westchester County Court, in a CPL § 440.10 motion. In denying the motion, that court relied solely upon CPL § 440.10(2)(a),(c),(3).

In their most pertinent parts, the relevant provisions of the CPL are reproduced below:

[T]he court must deny a motion to vacate a judgment when . . .
The ground or issue raised upon the motion was previously determined on the merits upon an appeal from the judgment, unless since the time of such appellate determination there has been a retroactively effective change in the law controlling such issue; or
CPL § 440.10(2)(a)

[a]lthough sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him.
CPL § 440.10(2)(c)

[T]he court may deny a motion to vacate judgment when:

(a) Although facts in support of the ground or issue raised upon the motion could with due diligence by the defendant have readily been made to appear on the record in a manner providing adequate basis for review of such ground or issue upon an appeal from the judgment, the defendant unjustifiably failed to adduce such matter prior to sentence and the ground or issue in question was not subsequently determined upon appeal. This paragraph does not apply to a motion based upon deprivation of the right to counsel at the trial or upon failure of the trial court to advise the defendant of such right; or
(b) The ground or issue raised upon the motion was previously determined on the merits upon a prior motion or proceeding in a court of this state, other than an appeal from the judgment, or upon a motion or proceeding in a federal court, unless since the time of such determination there has been a retroactively effective change in the law controlling such issue; or
(c) Upon a previous motion made pursuant to this section, the defendant was in a position adequately to raise the ground or issue underlying the present motion but did not do so.
CPL § 440.10(3)(a)(b)(c).

The Second Circuit Court of Appeals has held one of the provisions upon which the trial court relied in denying petitioner's motion to vacate judgment, CPL § 440.10(2), to be an independent and adequate state law procedural ground. See Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997); Levine v. Comm'r of Correctional Services, 44 F.3d 121, 126 (2d Cir. 1995); see also Avincola v. Stinson, 60 F. Supp.2d 133, 145 (S.D.N.Y. 1999). Therefore, the trial court's decision on petitioner's CPL § 440.10 motion rested on a state law procedural ground that was independent of the federal claims raised by Williams. Moreover, that state law procedural ground, upon which the trial court's decision rested, in part, was adequate to support the judgment.

Based on the above, Williams' claim that the trial court violated his Fourth, Fifth, Sixth and Fourteenth Amendment rights is barred from federal habeas corpus review.

Cause, Prejudice and Miscarriage of Justice

"In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 749-750, 111 S.Ct. at 2564-2565. Among the factors constituting cause for a procedural default are "objective impediments to compliance," such as a "showing that the factual or legal basis for a claim was not reasonably available to counsel . . . or that `some interference by officials,' . . . made compliance impracticable." Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645 (1986)(citations omitted).

A fundamental miscarriage of justice occurs "where a constitutional violation has probably resulted in the conviction of one who is actually innocent." Washington v. James, 996 F.2d 1442, 1447 (2d Cir. 1993). A habeas corpus petitioner has the burden of demonstrating that he or she is actually innocent by showing there is "a fair probability that . . . the trier of facts would have entertained a reasonable doubt of his [her] guilt." Lebron v. Mann, 40 F.3d 561, 564 (2d Cir. 1994)(quoting Kuhlmann v. Wilson, 477 U.S. 436, 455 n. 17, 106 S.Ct. 2616, 2627 n. 17 [1986]).

In the case at bar, Williams has not shown cause for his procedural defaults. Moreover, he has not met his burden of demonstrating that he is actually innocent. The trial court granted his request and instructed the jury on the crime assault in the second degree. The trier of fact, the jury, considered his alibi defense and rejected it in finding that he committed the second degree assault arising out of the events of September 23, 1997, for which he was convicted. Accordingly, Williams is not entitled to the habeas corpus relief he seeks from the court.


For the reasons set forth above, petitioner's application for a writ of habeas corpus should be denied.


Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Richard M. Berman, 40 Foley Square, Room 201, New York, New York, 10007, and to the chambers of the undersigned, 40 Foley Square, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Berman. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).


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