United States District Court, E.D. New York
June 12, 2003
Rodney COX (95-A-0751), Petitioner,
Edward R. DONNELLY, Superintendent of Wende Correctional Facility; and Eliot Spitzer, New York State Attorney General, Respondents.
The opinion of the court was delivered by: JACK WEINSTEIN, Senior District Judge.
JUDGMENT & ORDER
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,
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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 been exhausted and has not been procedurally
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
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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).
[267 F. Supp.2d 422]
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.
This places the burden of proof on the People. . . .
The defendant presented witnesses. The fact that he
presented a case does not in any way shift the burden
of proof from the prosecutor to the defendant. This
means that the People must establish each and every
element of the crimes charged, with which the
defendant is on trial, to your satisfaction beyond a
reasonable doubt. . . .
A person is guilty of murder in the second degree
when, with intent to cause the death of another
person, he causes the death of such person.
In order for you to find defendant guilty of this
crime, the People are required to prove, from all of
the evidence in the case, beyond a reasonable doubt,
each of the following three elements: One, that . . .
the defendant shot Eric Copeland with a gun.
Two, that the defendant shot the gun with the intent
to cause the death of Eric Copeland. According to our
law, a person intends to cause the death of another
person when his conscious aim or objective is to
cause the death of that person.
It is not necessary for the People to establish that
the intent to kill was present in the mind of the
defendant for any period of time before he shot the
gun. It is sufficient if you find that such intent to
kill was in the mind of defendant when he shot the
gun. The law states that a person intends the natural
consequences of his acts.
Element number three: That the defendant did acts
that caused the death of Eric Copeland.
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Therefore, with respect to the first count of the
indictment, if you find that the People have proved
to your satisfaction, beyond a reasonable doubt, each
of these elements as I have just explained them, then
you must find the defendant guilty of murder in the
second degree. On the other hand, if you find that
the People have failed to prove to your satisfaction,
beyond a reasonable doubt, any one or more of these
three elements, then you must find the defendant not
guilty of murder in the second degree.
Trial Tr. at 929-35 (emphasis added). In response to a jury note
asking for a list of all the elements in each charge, the trial
court repeated the relevant instruction, essentially as
"The threshold inquiry in ascertaining the constitutional
analysis applicable to this kind of jury instruction is to
determine the nature of the presumption it describes." Sandstrom,
442 U.S. at 514, 99 S.Ct. 2450. The court must determine whether
the challenged portion of the instruction creates a mandatory
presumption or merely a permissive inference. See Ulster County
Court v. Allen, 442 U.S. 140, 157-63, 99 S.Ct. 2213,
60 L.Ed.2d 777. "Mandatory presumptions . . . violate the Due Process Clause
if they relieve the State of the burden of persuasion on an
element of an offense. A permissive inference does not relieve
the State of its burden of persuasion because it still requires
the State to convince the jury that the suggested conclusion
should be inferred based on the predicate facts proved." Francis
v. Franklin, 471 U.S. 307, 314, 105 S.Ct. 1965, 85 L.Ed.2d 344
(1985) (citations omitted).
In Sandstrom, the Supreme Court explicitly held that an
instruction stating that "the law presumes that a person intends
the ordinary consequences of his voluntary acts" could easily be
viewed by a reasonable juror as a mandatory presumption, and that
such an instruction therefore violates the Fourteenth Amendment
requirement that the state prove each element of the criminal
offense beyond a reasonable doubt. 442 U.S. at 512,
99 S.Ct. 2450. It is "well established that, while a jury instruction in a
criminal case that the law presumes that a person intends the
ordinary consequences of his voluntary acts violates due process,
an instruction that merely permits a jury to infer that an
accused intends such consequences of such acts is acceptable."
United States v. Nelson, 277 F.3d 164, 197 (2d Cir. 2002) (citing
Sandstrom and Francis).
Even "if a specific portion of the jury charge, considered in
isolation, could reasonably have been understood as creating a
presumption that relieves the State of its burden of persuasion
on an element of an offense, the potentially offending words must
be considered in the context of the charge as a whole," because
other instructions "might explain the particular infirm language
to the extent that a reasonable juror could not have considered
the charge to have created an unconstitutional presumption."
Francis, 471 U.S. at 315, 105 S.Ct. 1965. Nonetheless, general
instructions on the government's burden of persuasion and the
defendant's presumption of innocence are insufficient to
"dissipate the error in the challenged portion of the
instructions." Id. at 319, 105 S.Ct. 1965. In sum, an instruction
is constitutionally infirm if "a reasonable juror could have
understood the challenged portions of the jury instruction . . .
as creating a mandatory presumption that shifted to the defendant
the burden of persuasion on the crucial element of intent, and
[if] the charge read as a whole does not explain or cure the
error." Id. at 325, 105 S.Ct. 1965.
In the instant case, the intent instruction would likely have
led at least
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some reasonable jurors and perhaps the jury as a whole
to understand that the burden on intent had been shifted
to petitioner in contravention of the Due Process Clause. It
would be rational and reasonable for a juror to believe on the
facts of the case that when petitioner pointed a gun at the man
facing him and pulled the trigger, death might result. And yet,
petitioner on the facts could have been found not to have
intended to kill, but merely to wound or even to frighten a
feared aggressor. The prosecutor should have been burdened with
the task of proving that it was petitioner's intent to kill. The
charge failed to accomplish its required task.
Respondent, by contending that analogous charges have been
upheld in cases from the Second Circuit Court of Appeals, ignores
the distinguishing contexts of those cases. In Brayboy v. Scully,
695 F.2d 62, 66 (2d Cir. 1982), the challenged language
"a man is deemed to intend the natural consequences of his acts"
was followed by curative language "unless the act
is done under circumstances or conditions that might preclude the
existence of such an intent" that was absent from the
instant case. In Washington v. Harris, 650 F.2d 447, 453 (2d Cir.
1981), the jury was told only that it "may infer intent from
actions" a permissive rather than mandatory presumption.
In Rivera v. Coombe, 683 F.2d 697, 701 (2d Cir. 1982), the
district court's erroneous instruction that a "person is
presumed to intend the natural consequences of his acts"
was deemed cured by statements that the Supreme Court in Francis
subsequently found to be inadequate.
Respondent's argument that it was reasonable for trial counsel
not to object to the proposed intent instruction because it was
his "strategic choice" to "forego any challenge to the People's
proof of intent to kill," Memo. of Law in Opposition to Pet'n for
Writ of Habeas Corpus at 31, in lieu of an appeal to the jury to
engage in nullification is, in a word, illogical. Even if counsel
deemed it wise not to press an "intent" argument by introducing
new evidence or by highlighting during summation his client's
lack of intent to kill, there could be no strategic disadvantage
to requiring the court to properly instruct the jury that it
could not shift the burden of proof onto petitioner with respect
to intent. Cf. Harris v. Scully, 779 F.2d 875, 880 (2d Cir. 1985)
(defendant does not concede the intent to kill by asserting the
defense of self defense). Because objections to jury charges are
ordinarily made outside of the presence of the jury, defense
counsel could not have been concerned that an overruled objection
to the intent charge would highlight the instruction for the
Serious errors of this type are reviewable for harmlessness.
See Rose v. Clark, 478 U.S. 570, 577-78, 106 S.Ct. 3101,
92 L.Ed.2d 460 (1986) (applying the Chapman v. California,
386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), "harmless beyond a
reasonable doubt" standard to Sandstrom violation). Because the
harmlessness of the Sandstrom error was never reached in the
state courts and there is no ruling which commands AEDPA
deference, it is unclear what the standard for review for
harmlessness should be in this collateral attack. Should it
proceed under the "beyond a reasonable doubt" Chapman standard
(conviction infected by constitutional error must be overturned
unless "harmless beyond a reasonable doubt") or under the
"substantial and injurious effect or influence" standard of
Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710,
123 L.Ed.2d 353 (1993) (for cases on collateral review, an error is
generally considered harmless if it did not have a "substantial
and injurious effect or influence in determining the jury's
verdict")? The correct
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standard of review is an open question in this circuit. See Cotto
v. Herbert, 331 F.3d 217, 253 (2d Cir. 2003).
Under either standard, the constitutional error complained of
had the potential to be exceedingly harmful, not harmless. Unlike
the situation in Rose, petitioner's guilt was not plain. Although
petitioner conceded at trial that he shot the victim, he did not
concede that in doing so he intended to kill him rather than
injure him. It is not plain that he is guilty of the intent to
kill element required to prove second degree murder rather than
manslaughter. While a jury could surmise just such an intent, it
could also reasonably infer the contrary. It cannot be said
beyond a reasonable doubt that the mandatory presumption on
intent issued by the trial court in its instruction was harmless.
It is highly likely that the mandatory presumption had a
substantial and injurious effect or influence in determining the
jury's verdict. This conclusion is buttressed by the fact that
the jury at one point seemed to be unable to reach a verdict, and
specifically asked for the "legal definition of intent to kill."
Since the court's constitutionally erroneous instruction was
not harmless, and counsel lacked a strategic reason for failing
to object to the instruction and its shifting of the burden of
proof onto petitioner, both prongs of the United States Supreme
Court's Strickland holding are satisfied.
Federal courts regret having to disagree with a court so
eminent and fair as the New York Court of Appeals. The conclusion
of the state court was, however, an unreasonable application of
United States Supreme Court precedent as set forth in Sandstrom
The petition for a writ of habeas corpus is granted. The
prisoner shall be released unless within sixty days the state
commences prosecution or takes other action appropriate in light
of this decision. This decision is stayed until all appellate
proceedings are completed and a final mandate is received by this
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