petitioner of intentional manslaughter) and yet still averred that the prosecution had proven those same elements, plus intent to kill, beyond a reasonable doubt with respect to intentional murder. It was the responsibility of petitioner's counsel to request the verdict sheet and draw any inconsistency to the attention of the trial court. Under these circumstances, failure of counsel to raise the problem does not show lack of adequacy.
At any rate, "[t]he law is clear that a defendant may not attack his conviction on one count because it is inconsistent with an acquittal on another count." United States v. Romano, 879 F.2d 1056, 1060 (2d Cir. 1989), citing United States v. Powell, 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984). Review for sufficiency of the evidence is a sufficient safeguard against jury irrationality. Powell, 469 U.S. at 67, 105 S.Ct. 471. No habeas relief is warranted on this procedurally defaulted claim.
Petitioner next claims that the court's justification charge, in which it charged the jury that petitioner had a duty to retreat before defending himself even though the encounter occurred in his dwelling, deprived him of due process. "In order to obtain a writ of habeas corpus in federal court on the ground of error in a state court's instructions to the jury on matters of state law, the petitioner must show not only that the instruction misstated state law but also that the error violated a right guaranteed to him by federal law." Casillas v. Scully, 769 F.2d 60, 63 (2d Cir. 1985). In weighing the prejudice from an allegedly improper charge, a reviewing court must view the instruction in its total context. Cupp v. Naughten, 414 U.S. 141. 146-47, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973). The question is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Id. at 147, 94 S.Ct. 396.
Under section 35.15 of New York Penal Law, a person "may not use deadly physical force upon another person . . . unless: He reasonably believes that such other person is using or is about to use deadly physical force. Even in such case, however, the actor may not use deadly physical force if he knows that he can with complete safety to himself and others avoid the necessity of doing so by retreating; except that he is under no duty to retreat if he is in his dwelling and not the initial aggressor." The trial court refused to instruct the jury that petitioner had no duty to retreat.
The Appellate Division, in rejecting petitioner's claim that this failure to instruct was erroneous, stated, "Inasmuch as the crime took place in the lobby of the defendant's apartment building and not `in his dwelling,' the court properly refused to charge, as part of the law of justification, that the defendant did not have a duty to retreat." People v. Duren, 234 A.D.2d 560, 652 N.Y.S.2d 297 (1996). The Appellate Division's interpretation of this New York criminal statute is reasonable and presents no issue suitable for review by this federal court. The trial court did not misstate state law, and the instruction to the jury did not violate any right guaranteed him by federal law. No fundamental miscarriage of justice has occurred as a result of this instruction. Habeas relief is not warranted on this ground.
Petitioner finally claims that, because the jury's acquittal of second degree robbery meant that the jury discredited the evidence of a forcible taking and that the acquittal of felony murder meant that the serious physical injury did not occur until after the robbery was completed, his conviction for first degree robbery was against the weight of the evidence. Contrary to respondent's assertion, this claim was exhausted and was not procedurally defaulted in state court. The relevant question for this court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Petitioner "bears a very heavy burden" when challenging the legal sufficiency of the evidence in a state criminal conviction. Einaugler v. Supreme Court, 109 F.3d 836, 840 (2d Cir. 1997).
Habeas relief is not merited on this claim. Petitioner asserts that there was no evidence presented at trial that he had committed a robbery without the aid of an accomplice, and that by acquitting him of second degree robbery (i.e., robbery aided by another person) the jury necessarily found that no robbery had taken place. The claim has no merit. There was sufficient evidence presented at trial for a rational trier of fact to have found each of the elements of the crime beyond a reasonable doubt: Several eyewitness testified that petitioner and Esperson assaulted and caused serious physical injury to the victim (stabbing him to death), and that petitioner forcibly stole property (the victim's ring). There was also evidence that Esperson removed a knife and money from the victim's pocket. The conviction for first degree robbery was not against the weight of the evidence.
Petitioner's acquittal of second degree robbery does not negate this conclusion. As New York courts have repeatedly held, even seemingly illogical verdicts should not be disturbed where the jury was likely exercising mercy and there was sufficient evidence to support the charge of which a defendant was convicted. See Tucker, 447 N.Y.S.2d at 134, 431 N.E.2d at 619 ("The problems of second-guessing are compounded by the possibility that the jury has not necessarily acted irrationally, but instead has exercised mercy. When the jury has decided to show lenity to the defendant, an accepted power of the jury, the court should not then undermine the jury's role and participation by setting aside the verdict." (citations omitted)); People v. Whitmore, 123 A.D.2d 336, 506 N.Y.S.2d 231, 233 (1986). Habeas relief is not warranted on this ground.
The petition for a writ of habeas corpus is denied.
No certificate of appealability is granted with respect to any of petitioner's claims, petitioner having made no substantial showing of the denial of a constitutional right.
Petitioner has a right to seek a certificate of appealability from the Court of Appeals for the Second Circuit. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003).
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