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DUREN v. BENNETT

July 31, 2003

KEVIN DUREN (95-A-2363), PETITIONER,
v.
FLOYD BENNETT, SUPERINTENDENT OF ELMIRA CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Jack Weinstein, Senior District Judge.

JUDGMENT & ORDER

A hearing was held in this matter. Petitioner was present by telephone. The petition for a writ of habeas corpus is denied. This memorandum briefly addresses petitioner's claims.

I. Facts and Procedural History

Petitioner was tried for various counts, including First Degree Robbery and Second Degree Murder, arising out of a stabbing that occurred in the lobby of his apartment building. There was testimony at trial that petitioner and a number of his friends were in the lobby when an unknown man put a gun to the side of one of the party, Rodney Greene, and robbed him. Greene and some of the others left the apartment building to discuss what had just happened. While they were outside another man, Vance Crawford, who was not known to any of the group, entered the building and went into the lobby. When Greene re-entered the building he found petitioner and Crawford struggling in the lobby.

Petitioner wrestled Crawford to the floor pinning him on his back. Petitioner started kicking Crawford in the face and shoulders. At that point another member of the original group, Richard Esperson, joined defendant in kicking Crawford in the face. Esperson then went through Crawford's pockets and pulled out some cash and a brown-handled knife. Petitioner was also observed taking a ring off of Crawford's hand.

Esperson backed off from the struggle. Petitioner continued to kick Crawford, who said "You got what you want, leave me alone." Greene, who had been watching the struggle, heard petitioner ask Esperson to give him the knife. Esperson handed the knife to petitioner, who opened it and brandished it over Crawford. Crawford waved his hands back and forth in front of his face to defend himself. Again he asked petitioner to leave him alone. Both Greene and another member of the original group, who was standing outside, heard Crawford plead, "Don't do it, don't do it." Petitioner then stabbed Crawford six or seven times in the chest, killing him.

Petitioner and Esperson then ran up the stairs. Greene followed them, eventually to Esperson's apartment, where petitioner said to him, "I know what I did is wrong and I know I can get 25 years to life for this, but you can't tell what I did cause I can't do 25 years in jail." Petitioner and Greene then left Esperson's apartment and went down in the elevator to the lobby. In the elevator petitioner told Green, "When you go down there, just be easy, just be cool." Police officers were called to the scene. Several days later Esperson was interviewed by detectives. The knife was found underneath a parked car in a lot alongside a nearby community center. After speaking with Esperson, the police officers picked up petitioner and placed him in a line-up. Petitioner was identified by Greene as the man who had committed the stabbing.

In his defense, petitioner testified that Greene had been selling drugs from the lobby that evening, as he had on previous occasions. Petitioner testified that after Greene was robbed he, petitioner, was inside the lobby when Crawford knocked on the lobby door. Petitioner let him in and moved into a corner of the lobby. Petitioner testified that Crawford then approached him in a hostile manner and asked petitioner if he had drugs on him. When petitioner explained that he did not have any drugs, Crawford asked who had them. Petitioner then said, "Mother-fucker, I just told you I ain't got no drugs, man." Crawford responded, "Yo, first of all, shorty, watch the way you talk to me." Crawford then pulled out a folding knife. Petitioner testified that he thought Crawford was going to try to kill him. Crawford attempted to open the knife, but was unsuccessful. Petitioner states that he felt that he had nowhere to run, and therefore began to wrestle with Crawford. When Greene entered the lobby petitioner thought he would help him, but Greene did not.

At that point Esperson came out of the area of the steps in the back of the lobby, and petitioner told him to get the knife from Crawford. Esperson was able to grab the knife from Crawford. Petitioner stated that he and Esperson continued to struggle but soon broke apart from each other. Esperson handed petitioner the knife. Petitioner claims that although he had taken up a defensive stance and had opened the knife, Crawford kept advancing on him. Petitioner states that he had no intention of harming Crawford, and that he only wanted to back him up by making a lot of "furious motions" with the knife in his hand as Crawford advanced towards him, his hands raised in a fighting position. He stated that he was petrified that the knife would be taken from him and that he might be killed, and that he does not recall stabbing Crawford with the knife. Petitioner also testified that he did not run to the lobby staircase to try to escape from Crawford because he felt that if he had, Crawford might catch him from behind. He denied robbing Crawford.

Petitioner was charged with Second Degree Murder (intentional murder); Second Degree Murder (felony murder); First Degree Manslaughter; Second Degree Manslaughter; First Degree Robbery; and Second Degree Robbery. In its instructions, the trial court told the jurors to first consider the felony murder charge and next to consider the intentional murder charge. Only if it found petitioner not guilty of the intentional murder charge was the jury to proceed to consider the first degree manslaughter charge. The jury was further told that it was to consider the second degree manslaughter charge only if it found petitioner not guilty of the first degree manslaughter charge. In court the clerk asked the jury what its verdict in the murder counts was, and the foreperson announced that the jury found petitioner not guilty of felony murder but guilty of intentional murder. The clerk then asked for the robbery verdicts. The foreperson reported that the jury had found petitioner guilty of first degree robbery but not guilty of second degree robbery. The verdict sheet was not inconsistent with the verdicts announced in open court, but the jury had marked petitioner not guilty of murder in the second degree (felony murder) and not guilty of manslaughter in the first degree — which, if the jury had followed the trial court instructions, they should not have reached at all.

Petitioner was sentenced to 25 years to life in prison. His convictions and sentence were affirmed by the Appellate Division. Leave to appeal to the New York Court of Appeals was denied. No collateral motions in state court were filed.

In the present application for a writ of habeas corpus, petitioner claims (1) that he was denied due process of law because his conviction for intentional murder was repugnant with the jury's finding of not guilty on intentional manslaughter; (2) that the court's justification charge, in which it charged the jury that appellant had a duty to retreat before defending himself, even though the encounter occurred in his own dwelling, deprived him of due process of law; and (3) that because the jury's acquittal of second degree robbery meant that the jury discredited the evidence of a forcible taking and because the acquittal of felony murder meant that the serious physical injury did not occur until the robbery was completed, petitioner's conviction of first degree robbery was against the weight of the evidence. Each of these claims was raised by petitioner on direct appeal and was presented to the New York Court of Appeals. Therefore, all claims are exhausted.

II. AEDPA

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 this 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 bright-line rule designed to effectuate such a standard in a particular context." Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002). Determination of factual issues made by a state court "shall be presumed to be correct," and the applicant "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).

This opinion complies with Miranda v. Bennett, 322 F.3d 171, 175-77 (2d Cir. 2003), and Rule 52 of the Federal Rules of Civil Procedure. No other issue open ...


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