shouting. While Copeland and Brewster argued, petitioner, still alone in Brewster's bedroom, loaded his handgun.
Copeland began walking toward Brewster's bedroom. Brewster attempted to hold Copeland back. He kicked and shoved her, forcing his way into her room. There, petitioner was standing in the corner holding his gun. At first the men talked calmly. The conversation deteriorated into angry argument. After fifteen minutes, Copeland said, "What are you going to do, shoot me?" In response, petitioner fired one fatal bullet into Copeland's head.
The dissenting judges on the Court of Appeals noted that several months earlier, petitioner's friend told him about a prior incident in which Copeland had attacked the friend in a jealous rage over another girl, wielding a beer bottle as a weapon and persisting in the assault despite receiving multiple defensive stabbings until the police intervened.
Petitioner was charged with murder in the second degree and criminal weapons possession. At his jury trial, the Supreme Court refused to charge the defense of justification to terminate a burglary. During deliberations, the jury sent out a note asking for the "legal definition of intent to kill." The next day the jury wrote that it was "hopelessly deadlocked." Ultimately the jury found petitioner guilty of second degree murder.
On appeal, petitioner argued (1) that the trial court erred in failing to give a justification charge; (2) that the court's instruction on intent to kill was erroneous; (3) that the trial court deprived petitioner of a his right to present a defense by precluding evidence that the victim had previously chased a man with a gun; and (4) that trial counsel was ineffective for failing to object to the court's charge on intent to kill. The Appellate Division affirmed the conviction. Leave to appeal was granted by the New York Court of Appeals. The Court of Appeals affirmed, discussing at length whether the trial court properly declined to issue a justification instruction to the jury. Two dissenting judges insisted that a justification instruction should have been given. The Court of Appeals also summarily denied on the merits the remainder of petitioner's claims, including his claim of ineffective assistance of counsel for failure to object to an improper intent instruction.
In the present petition for a writ of habeas corpus, petitioner claims only that his trial counsel was ineffective for failing to object to the court's instructions concerning intent to kill. The claim has been exhausted and has not been procedurally defaulted.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that 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." 28 U.S.C. § 2254(d).
An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim." Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)). Under the "contrary to" clause, "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (O'Connor, J., concurring and writing for the majority in this part). Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413, 120 S.Ct. 1495. "[F]ederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed, as a brightline rule designed to effectuate such a stalldald in a particular context." Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002).
III. Ineffective Assistance of Counsel
The Counsel Clause of the Sixth Amendment provides that a criminal defendant "shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. This right to counsel is "the right to effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970) (emphasis added). The Supreme Court has explained that in giving meaning to this requirement we must be guided by its purpose — "to ensure a fair trial" — and that therefore the "benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to prevail on a Sixth Amendment claim, a petitioner must prove both that counsel's representation "fell below an objective standard of reasonableness" measured under "prevailing professional norms," id. at 688, 104 S.Ct. 2052, and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694, 104 S.Ct. 2052. See also United States v. Eyman, 313 F.3d 741, 743 (2d Cir. 2002). A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. 2052.
The performance and prejudice prongs of Strickland may be addressed in either order, and "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Id. at 697, 104 S.Ct. 2052. In evaluating the prejudice suffered by a petitioner as a result of counsel's deficient performance, the court looks to the "cumulative weight of error" in order to determine whether the prejudice "reache[s] the constitutional threshold." Lindstadt v. Keane, 239 F.3d 191, 202 (2d Cir. 2001). The court must also keep in mind that "a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Strickland, 466 U.S. at 696, 104 S.Ct. 2052. "The result of a [criminal] proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome." Purdy v. Zeldes, 337 F.3d 253, 260, 2003 WL 253144, *6 (2d Cir. 2003) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). Ineffective assistance may be demonstrated where counsel performs competently in some respects but not in others. See Eze v. Senkowski, 321 F.3d 110, 112 (2d Cir. 2003).
As a general matter, strategic choices made by counsel after a thorough investigation of the facts and law are "virtually unchallengeable." Strickland, 466 U.S. at 690, 104 S.Ct. 2052.
There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689, 104 S.Ct. 2052.
Petitioner's claim is straightforward: He contends that the "intent to kill" instruction given by the trial court to the jury shifted the burden of proof from the prosecution onto him in violation of clearly established precedent from the United States Supreme Court in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), and that habeas relief is warranted on account of counsel's inexcusable and prejudicial failure to object to the trial court's erroneous instruction. Respondent replies by urging that the instruction was not erroneous when read in light of the charge as a whole; that counsel opted not to object to the erroneous charge for strategic reasons; and that any error was nonetheless harmless in light of the overwhelming evidence of petitioner's intent to kill the victim.
The following are relevant portions of the trial court's charge. The passage to which petitioner objects is highlighted:
Under our law, every defendant is presumed to be
innocent. And that presumption remains with the
defendant throughout the trial. He is cloaked with
the protection of this presumption even when you go
into the jury room to start your deliberations. And
it remains with him until such time as you, the
jurors, are convinced beyond a reasonable doubt from
the proof submitted that he's guilty of the crimes
charged against him.
It is only at that time that the presumption of
innocence is destroyed and you would be justified in
finding the defendant guilty of a crime.