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United States District Court, Southern District of New York

May 20, 2003


The opinion of the court was delivered by: Harold Baer, Jr., United States District Judge

Petitioner Eugene Perez ("Perez") proceeding pro se, filed the instant habeas corpus petition pursuant to 28 U.S.C. § 2254(d)(1) in which he challenges the validity of his conviction. Specifically, Perez alleges that his appellate counsel was ineffective because he failed to argue (1) Perez's entitlement to the lesser-included offenses of manslaughter in the first and second degrees and (2) that a justification charge was required. For the following reasons, the petition is DENIED.


On June 2, 1995, a jury found Perez guilty of murder in the second degree (N.Y. Penal Law § 125.25(1)).*fn2 The government's evidence consisted primarily of testimony from three witnesses who were assembled around the corner from the shooting, the pathologist who performed the autopsy on the victim, and two confessions that Perez made, one to a long-time friend the day after the incident and another to a cellmate at Rikers Island. This evidence showed that in the early evening of December 7, 1992, Perez learned that Ivan Martinez ("Martinez"), a man with whom Perez had a "beef," was in the neighborhood, and he and two companions went looking for Martinez.*fn3 The witnesses testified that shortly after Martinez walked by them and around a corner, Perez and his companions passed them. When Perez and his companions reached the corner where Martinez turned, Perez took a gun out of his pocket and turned the corner in Martinez's direction while his companions remained on the corner, apparently as look-outs. The witnesses testified that they heard Perez say "Yo" and then heard several shots. Perez's long-time friend, Miguel Montanez, and the jailhouse confidant, Juan Acosta, each testified that Perez admitted that he shot Martinez while Martinez was urinating against a fence. Dr. Yvonne Milewski, the pathologist who performed the autopsy on Martinez, testified that he had been struck by five bullets, including three to Martinez's head, two of which caused fatal injuries. Dr. Milewski also testified that one of the shots entered the back of Martinez's head and that there was black discoloration around this wound, which in her opinion was gun powder and indicated that the shot was fired from a distance of seven to nine inches.*fn4

Perez put on no defense. Nevertheless, Perez's trial counsel requested that the judge permit the jury to consider the lesser-included offense of first-degree manslaughter; he argued that first-degree manslaughter was appropriate because there was evidence that might indicate Perez only intended to injure Martinez or, alternately, that Perez was acting under extreme emotional disturbance. For example, Martinez, who allegedly had shot at Petitioner and his friends in the past, had a loaded gun in his possession when he was killed.*fn5 Perez's attorney also contended that there were no eyewitnesses to the actual shooting and that the witnesses who saw Perez follow Martinez around the corner were not credible. The trial judge rejected this request for a charge of first-degree manslaughter, stating:

There is without a doubt no reasonable view of the evidence to support reckless manslaughter. There is no factual predicate sufficient to warrant a charge of extreme emotional disturbance. . . . I see no reasonable view of the evidence that whoever did this shooting had any intent other than to kill, three bullet wounds to the head.
On October 3, 1995, Justice Donnino of the Supreme Court of New York, Bronx County sentenced Perez to twenty-five years to life.*fn6 Perez appealed his conviction.

On February 11, 1998, Perez's appellate attorney*fn7 filed an Anders brief *fn8 in the Appellate Division, First Department in which he stated that 1) petitioner's guilt was proven beyond a reasonable doubt, 2) petitioner's trial counsel's representations "did not fall outside the broad scope of professional competence," and 3) petitioner's sentence fell "within the legally permissive range . . . and the heinous and deliberate nature of the crime precludes this Court from substituting its discretion for that of the sentencing court." After Perez's appellate attorney withdrew from the case, the Appellate Division, First Department allowed the petitioner to submit a pro se brief. The Appellate Division, First Department unanimously affirmed the conviction, see People v. Perez, 688 N.Y.S.2d 144 (1st Dep't 1999), and the Court of Appeals denied Perez's application for leave to appeal. See People v. Perez, 93 N.Y.2d 1005 (1999).

On September 12, 2000, Perez filed an application for a writ of error coram nobis, in the Appellate Division, First Department, claiming that he was denied effective assistance of appellate counsel. Petitioner alleged that his appellate representation was ineffective because his counsel (1) failed to argue that he was entitled to the lesser-included offenses of manslaughter in the first and second degrees and (2) failed to seek a justification charge. In a Decision and Order dated June 21, 2001, the Appellate Division, First Department denied petitioner's application for a writ of error coram nobis in its entirety. Perez raises the same claims in the instant § 2254 habeas petition.


A. Legal Standard for Habeas Corpus Petitions Brought Pursuant to 28 U.S.C. § 2254.

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court deciding a habeas corpus claim must presume a state court's factual finding to be correct. Scarola v. Kelley, No. 99-CV. 4704, 2001 WL 849449, at *2 (S.D.N.Y. July 27, 2001) (citing 28 § U.S.C. § 2254(e)(1)). Furthermore, the district court may not grant relief unless the court finds that the state court's adjudication of the claims either: (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 of the evidence presented in the state court proceedings. Scarola, 2001 WL 849449, at *2 (citing 28 U.S.C. § 2254(d)(1), (2) and Williams v. Taylor, 529 U.S. 362 (2000)).

B. Ineffective Assistance of Counsel

In order to prevail on a claim of ineffective assistance of counsel the petitioner must meet the two-part test set forth in Strickland v. Washington, 466 U.S. 668 (1984). See Smith v. Robbins, 528 U.S. 259, 285 (2001) ("On remand, the proper standard for evaluating Robbins's claim that appellate counsel was ineffective in neglecting to file a merits brief is that enunciated in Strickland v. Washington[.]" (citing Smith v. Murray, 477 U.S. 527, 535-36 (1986)). First, Perez must show that counsel's performance was deficient — that is, it fell below an "objective standard of reasonableness as measured under prevailing professional norms." Robbins, 528 U.S. at 285 (citing Strickland, 466 U.S. at 687-91). Second, Perez must affirmatively demonstrate prejudice by showing "a reasonable probability that, but for his counsel's unreasonable failure to file a merits brief, he would have prevailed on his appeal." Id. Therefore, Perez bears a heavy "burden of demonstrating that not only did errors at his trial create a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Brown v. Costello, No. 00 CV. 4734, 2003 WL 118499, at *7 (S.D.N.Y. Jan. 13, 2003) (citing United States v. Frady, 456 U.S. 152, 170 (1982)). In attempting to define the exact meaning of prejudice under the Strickland test, the Second Circuit stated that "it is not sufficient for the habeas petitioner to show merely that counsel omitted a nonfrivolous argument, for counsel does not have the duty to advance every nonfrivolous argument that could be made." Brown, 2003 WL 118499, at *7 (citing Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994), cert. denied 513 U.S. 820 (1994)). Consequently, Perez must demonstrate that "counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker." Brown, 2003 WL 118499, at *7 (citing Mayo, 13 F.3d at 533).

Perez challenges the assistance of his appellate counsel. It is well settled that the Sixth Amendment right to counsel includes the right to appointed counsel in the first appeal as of right in state court. See Coleman v. Thompson, 501 U.S. 722, 755-56 (1991) ("Douglas v. California, 372 U.S. 353 (1963), established that an indigent criminal defendant has a right to appointed counsel in his first appeal as of right in state court. Evitts v. Lucey, [469 U.S. 387 (1985)], held that this right encompasses a right to effective assistance of counsel for all criminal defendants in their first appeal as of right."); People v. Stokes, 95 N.Y.2d 633, 635-36 (2001) ("Where a State creates an appellate procedure in criminal matters, the Fourteenth Amendment mandates that an indigent criminal defendant be afforded equal rights to appeal through the representation and advocacy of assigned counsel." (citing Evitts v. Lucey and Douglas v. California)). However, "[t]he one limitation on this constitutional right is that it "does not include the right to bring a frivolous appeal and, concomitantly, does not include the right to counsel for bringing a frivolous appeal."` Stokes, 95 N.Y.2d at 635-36 (quoting Robbins, 528 U.S. at 278).

A. Failure to advocate for the lesser-included offenses

Perez was charged with and convicted of murder in the second degree. Perez argues that it was error for the trial judge not to submit the lesser-included offenses of manslaughter in the first degree and manslaughter in the second degree to the jury, *fn9 and that his appellate counsel's failure to argue this issue on appeal constitutes ineffective counsel. See Petitioner's Brief at 6. New York law differentiates murder from manslaughter based upon the defendant's mens rea. See People v. Sanchez, 748 N.Y.2d 373 (2002). In substance, Perez claims that the jury could have found that because his conduct was reckless or that he only intended to injure Martinez, and thus his appellate counsel's failure to appeal on this issue was objectively unreasonable.

A court has the discretion to include a lesser-included offense if "there is a reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater." N.Y. Crim. Proc. Law § 300.50; People v. Heide, 84 N.Y.2d 943, 944 (1994). However, "[i]f there is no reasonable view of the evidence which would support such a finding, the court may not submit such lesser offense." N.Y. Crim. Proc. Law § 300.50. In this case, the evidence overwhelmingly indicates that Perez intended to kill Martinez: Perez approached Martinez, who was defenseless, and shot him five times, including three shots to the head, at close range. Consequently, the record does not provide any basis to conclude that Perez only intended to seriously injure the victim or that he only acted recklessly. Without evidence to call into question the facts presented at trial, this Court finds no grounds to second-guess the appellate counsel's failure to find merit in this issue or the Appellate Division's acceptance of his Anders brief.

Perez cites People v. Ford, 66 N.Y.2d 428 (1985), and People v. Cotton, 191 A.D.2d 577 (1993), for the proposition that he was entitled to the lesser-included offense of first-degree manslaughter for intending only to injure Martinez, but both cases are distinguishable. Unlike in Ford, where the victim was shot in the chest, and Cotton, where the victim was hit in the head with an object, Perez shot Martinez five times, including three to the head. Reviewing the record and considering Perez's argument, I reach the same conclusion that the trial court did, namely that all evidence indicates that Perez intended to kill Martinez and that nothing suggests that he intended only to injure him or that he acted recklessly. Furthermore, in his reconstruction of events, Perez totally ignores the confessions he made to his friend the day after the killing and to a cellmate. Although it is conceivable that another advocate might have felt that there was merit to the issue, *fn10 this Court fails to see that Perez can demonstrate that failure to advance this issue on appeal constituted objectively unreasonable counsel.*fn11

B. Failure to raise self-defense

Perez's second claim, namely that his trial counsel's failure to pursue a justification defense constituted ineffective assistance, also fails on both Strickland prongs.

Under New York law, a person is justified in using deadly force against another "when and to the extent he reasonably believes such force to be necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by such other person." See N.Y. Penal Law § 35.15(1). In general, the "initial aggressor" is not permitted to use force in self-defense. See id. § 35.15(1)(b). The use of deadly force is justified only when the actor reasonably believes that the other person is using or about to use deadly physical force and the actor cannot safely retreat. See id. § 35.15(2). The evidence introduced at trial contains no indication that Martinez was using or about to use force against another person, let alone deadly force, or that Perez could not retreat safely. Finally, as noted in the cases Perez relies on, a justification defense requires a sufficient evidentiary predicate. See People v. Steele, 26 N.Y.2d 526, 528 (1970) ("Ordinarily, the possibility of the defense would not appear until injected by the defendant. . . ."); People v. McManus, 67 N.Y.2d 541, 546-47 (1986) ("[W]henever justification is sufficiently interposed by the defendant, the People must prove its absence to the same degree as any element of the crime charged.").

The evidence introduced at trial contains no indication that Martinez was using or about to use force against another person, let alone deadly force, or that Perez could not retreat safely. To the contrary, the evidence indicated that Perez was the instigator of this fatal confrontation. Although he concedes that he did not produce any witnesses or defense at trial, he argues that he was still entitled to a justification defense because the evidence that Martinez had a gun created the possibility that Perez fired in self-defense. The case Perez relies on for the proposition that the state may have the burden of disproving self-defense even where there is no defense, People v. Steele, is readily distinguishable. In that case, the court held that the denial of a justification charge was error where the evidence showed that the victim was the instigator and was shot after lunging with a knife at the defendant. See Steele, 26 N.Y.2d at 528-29. Although Martinez had a gun, the evidence introduced at trial showed that Martinez did not have the weapon out. Further, Perez does not suggest, nor can he, that Martinez instigated the confrontation with Perez. Thus, there was no evidentiary basis for a justification defense. Accordingly, it was not objectively unreasonable for his appellate counsel to have failed to identify and pursue this issue on appeal, nor can Perez demonstrate a reasonable probability that if argued he would have prevailed on appeal.


For the foregoing reasons, the petitioner's habeas corpus motion pursuant to 28 U.S.C. § 2254 is DENIED and the petition is dismissed. The Clerk of the Clerk is instructed to close this case and remove it from my docket.


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