The opinion of the court was delivered by: JACK WEINSTEIN, Senior District Judge.
A hearing was held in this matter. Petitioner's counsel was
present in person and petitioner was present by telephone. The
petition for a writ of habeas corpus is granted.
I. Facts and Procedural History
The following recitation of the facts of the case is based
primarily upon the opinion of the New York Court of Appeals
affirming petitioner's conviction for second degree murder.
On October 13, 1993, petitioner was visiting Tanisha Brewster
when her boyfriend, Eric Copeland, forced his way into her
apartment. Once inside, Copeland, nicknamed "Bear" because of his
size, told petitioner to leave. When petitioner refused, Copeland
punched petitioner twice, knocking him to the floor. Petitioner
left the apartment. Then Copeland left.
Later that day, petitioner telephoned Brewster and arranged to
stop by her apartment to retrieve the Walkman he had left behind.
Petitioner now armed with a nine-millimeter automatic
handgun entered Brewster's bedroom. Minutes after
petitioner's arrival, Copeland also returned to the apartment,
forcing his way inside when Brewster opened the door to admit a
friend. Repeatedly told to leave, Copeland refused, demanding to
know who else was in the apartment. Copeland and Brewster then
went into her mother's bedroom,
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
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 ...