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CORELLA v. RICKS

United States District Court, E.D. New York


March 1, 2004.

THOMAS CORELLA, -against- Petitioner, THOMAS L. RICKS, Superintendent, Upstate Correctional Facility, Respondent

The opinion of the court was delivered by: JOHN GLEESON, District Judge

MEMORANDUM AND ORDER

Petitioner Thomas Corella, an inmate at the Attica Correctional Facility,*fn1 seeks habeas corpus relief from a judgment of conviction entered after a jury trial in state court. I held Page 2 oral argument by telephone conference on February 27, 2004. For the reasons set forth below, the petition is denied.

  BACKGROUND

  On June 19, 1996, Corella*fn2 attacked his brother, Victor Corella ("V. Corolla"), with a knife and stabbed him to death in their home in Staten Island. During the struggle, the brothers' mother, Ramona Corella ("R, Corella"), was slashed on the nose by Corella's knife. Corella was charged with two counts each of murder in the second degree and assault in the second degree. He was convicted by a jury of one count each of manslaughter in the first degree and assault in the third degree. On March 26, 1999, Corella was sentenced, as a persistent felony offender, to concurrent terms of imprisonment of twenty years to life for the first degree manslaughter charge and one year for the assault count.

  In June 1999, Corella appealed his judgment of conviction to the Appellate Division, Second Department, claiming that (1) he was denied a fair trial by an impartial jury as a result of the trial court's decision not to dismiss a juror; (2) the trial court's preliminary and supplemental instructions violated the mode of proceedings under state law; and (3) the trial court violated his rights under People v. Molineux, 168 N.Y. 264 (1901), by admitting evidence that Corella had, just eighteen days prior to the charged crimes, chased V. Corella and another brother down the street with a meat cleaver. The Appellate Division unanimously affirmed Corella's judgment of conviction on March 5, 2001:

  We reject the defendant's contention that the trial court erred in permitting testimony concerning a prior uncharged crime. Since the defendant claimed that he acted in self-defense, the issue of his motive Page 3 was significant. Thus, while the proffered evidence was potentially prejudicial to the defendant's case, it was highly probative in showing that the stabbing was intentional. Further, any prejudice was minimized by the trial court's instruction to the jury that the evidence was to be considered only on the issues of whether the defendant was the initial aggressor, and whether he was the first to use deadly force.

 

The defendant's remaining contentions are without merit.
  People v. Corella, 721 N.Y.S.2d 550, 551 (2d Dep't 2001) (citations omitted). Corella's application for leave to appeal to the New York Court of Appeals was denied on May 23, 2001. People v. Corella, 96 N.Y.2d 827 (2001) (Wesley, J.).

  In the instant petition for a writ of habeas corpus, Corella raises, by reference to his Appellate Division brief, the same three claims he raised on direct appeal.

  DISCUSSION

 A. The Standard of Review

  The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") has narrowed the scope of federal habeas review of state convictions where the state court has adjudicated a petitioner's federal claim on the merits. See 28 U.S.C. § 2254(d). Under the AEDPA standard, which applies to habeas petitions filed after AEDPA's enactment in 1996, the reviewing court may grant habeas relief only if the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). The Supreme Court has interpreted the phrase "clearly established Federal law" to mean "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000); see also Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001). Page 4

  A decision is "contrary to" clearly established federal law, as determined by the Supreme Court, 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 [the Supreme Court] has on a set of materially indistinguishable facts." Williams, 5 29 U.S. at 413. A decision is an "unreasonable application" of clearly established Supreme Court law if a state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case." Id. "In other words, a federal court may grant relief when a state court has misapplied a `governing legal principle' to `a set of facts different from those of the case in which the principle was announced.'" Wiggins v. Smith, 123 S.Ct. 2527, 2535 (2003) (quoting Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 1175 (2003)).

  Under the latter standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Gilchrist, 260 F.3d at 93 (citing Williams, 529 U.S. at 411); see also Yarborough v. Gentry, 124 S.Ct. 1, 4 (2003) (per curiam) ("Where . . . the state court's application of governing federal law is challenged, it must be shown to be not only erroneous, but objectively unreasonable."); Wiggins, 123 S.Ct. at 2535 (same). Interpreting Williams, the Second Circuit has added that although "[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Gilchrist, 260 F.3d at 93 (citing Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)). Page 5

  This standard of review applies whenever the state court has adjudicated the federal claim on the merits, regardless of whether it has alluded to federal law in its decision. As the Second Circuit stated in Sellan v. Kuhlman:

For the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.
261 F.3d 303, 312 (2d Cir. 2001).

  In addition, a state court's determination of a factual issue is presumed to be correct, and is unreasonable only where the petitioner meets the burden of "rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).

 

However, "even in the context of federal habeas, deference does not imply abandonment or abdication of judicial review. . . . A federal court can disagree with a state court's credibility determination and, when guided by AEDPA, conclude the decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence."
  Shabazz v. Artuz, 336 F.3d 154, 161 (2d Cir. 2003) (ellipsis in original) (quoting Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1041 (2003)).

 B. Corella's Claims

  1. Juror Bias

  Corella claims that he was denied a fair trial as a result of the trial court's decision not to dismiss a juror who revealed, during trial, that he and his wife had been counseled on five or six occasions by Sister Francesca Cloutier, a grief and bereavement counselor at Staten Island Page 6 University Hospital, who testified as part of the government's case. Cloutier testified to certain statements made by R. Corella at the hospital shortly after the murder of her son.

  The Sixth Amendment to the United States Constitution provides that an "accused shall enjoy the right to a speedy and public trial, by an impartial jury." This right is protected against state action by the Fourteenth Amendment. See Duncan v. Louisiana, 391 U.S. 145 (1968). "`In essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, "indifferent" jurors. The failure to accord an accused a fair hearing violates even the minimal standards of due process.'" Morgan v. Illinois, 504 U.S. 719, 727 (1992) (quoting Irvin v. Dowd, 366 U.S. 717, 722 (1961)). A fair and impartial jury is therefore a basic requirement of due process. See id; see also Genfile v. State Bar, 501 U.S. 1030, 1075 (1991) (Few, if any, interests under the Constitution are more fundamental than the right to a fair trial by `impartial' jurors. . . ."). "In the language of Lord Coke, a juror must be `as indifferent as he stands unsworne.'" Id. (quotation marks omitted).

  During trial, juror number eleven informed the court that Sister Cloutier, a government witness, had counseled him and his wife:

THE COURT: For the record, after we broke for lunch, the Juror . . . informed the Court Officer that he recognized [Cloutier] from her responsibilities at Staten Island Hospital. The Court Officer told me that he instructed the Juror not to discuss this with any of the other Jurors and to be ready to discuss this with the Court at two o'clock. So, since the defendant is out, we will bring the Juror in.
THE COURT: You told the Court Officer that you know [Cloutier]?
THE JUROR: Yes.
THE COURT: How do you know her?
  THE JUROR: My mother-in-law was in the hospital. She was in the hospital about a year and-a-half ago. I had spent a lot of Page 7 time there. So, she would come in and out of the room for bereavement counseling and that type of thing.

 

THE COURT: Would she be speaking to you or your wife or both of you? What was the nature of the conversation?
THE JUROR: To both of us. Basically, talk just about what was going on. Counseling, that type of thing.
THE COURT: Do you think that prior contact with her would affect your ability to judge her as a witness in this case?
THE JUROR: No, I don't think so.
THE COURT: Do we have your assurance that you can still keep an open mind about the evidence in this case and wait until you have heard all of the facts before you make up your mind?
THE JUROR: Yes.
THE COURT: Let me just get some more details. Okay? You said this was about a year and-a-half ago? How long was your mother-in-law in the hospital for?
THE JUROR: Probably, I guess, two or three weeks.
THE COURT: And, about how many times did you see [Cloutier]?
THE JUROR: I would say about five or six times.
THE COURT: Did you ever see her alone or was it always with your wife?
THE JUROR: No, I did not see her alone. I would be spending time with my mother-in-law. She would come in to see how everything was going.
THE COURT: How long were the visits on each of those times?
THE JUROR: Five or ten minutes.
THE COURT: I am not saying it's required but sometimes when you are finish [sic], when you are involved in the hospital, people make a donation to the hospital or to other people they may have had contact with. Sir, did you make any donations to the Sister or anything like that?
THE JUROR: No.
THE COURT: Did you form any opinion about her as far as whether she did a good job as far as you were concerned?
THE JUROR: Did I think she was doing a good job?
THE COURT: You can still judge whether or not she's telling the truth, you believe, based on the evidence that you hear in the courtroom?
THE JUROR: Yes.
THE COURT: You can put aside any emotions that this memory of what happened with your mother-in-law might bring back?
  THE JUROR: Yes. Page 8

  (Tr. at 675-78.) The judge then reserved decision on Corella's mistrial motion and allowed the trial to proceed. (Id. at 681-82.) Based on these statements, the trial court found that juror number eleven could be fair and impartial: "The juror swore that the prior contact with the witness would not influence his ability to judge the credibility of the witness' testimony, and the juror was unequivocal in his statements, and I credit the juror's statements that he, in fact, can be fair and impartial." (Id. at 763-64.) The court therefore denied Corella's motion for a mistrial.*fn3 (Id. at 767.)

  As Corella has failed to rebut, by clear and convincing evidence, the presumption of correctness given to the hearing court's factual determinations, I adhere to those findings. See 28 U.S.C. § 2254(e)(1). "The question presented is whether there is `fair support in the record for the state court's conclusion that the juror[] here would be impartial.'" Wheel y. Robinson, 34 F.3d 60, 65 (2d Cir. 1994) (quoting Patton v. Yount, 467 U.S. 1025, 1038 (1984)); see also Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 813 (2d Cir. 2000) ("On § 2254 review, the state trial court is entitled to a presumption of correctness with respect to its conclusion that the jury was impartial."). Here, as in Wheel, the incident giving rise to the claim of jury bias "was the subject of careful inquiry" by the hearing court — including the testimony of juror number eleven — "and resulted in a determination that the impartiality of the jur[or] had not been compromised." Wheel 34 F.3d at 65. Therefore, this claim does not justify issuance of the writ.*fn4 Page 9

 2. The Admission of the June 1, 1996 Chase

  The evidence at trial established that on June 1, 1996, Corella, armed with a meat cleaver, chased V. Corella and another brother, Chris Corella ("C. Corella"), down the street outside there home. Corella also swung the cleaver at his brothers. V. Corella and C. Corella managed to outrun Corella, who was arrested shortly afterwards. (See Sept. 8, 1998 Hr'g Tr. at 32-46.) After discussing the relevant state law, the trial court ruled that evidence of this incident was admissible:

I think the analogy is particularly applicable to this case. If the People have evidence showing that the defendant chased the deceased and another brother with a meat cleaver and was the aggressor and that this incident originated in the home, where the crime charged is alleged to have taken place, although it's not two, three days before. It's maybe two and-a-half weeks before, but the same people are involved, at least with the deceased, is involved in both cases. It was the same location, showing that the same people were inside the doorway. Here you have more of an identity.
You have an incident arising out of the same location and the deceased actually being involved in both incidents.
If there is evidence to show that the defendant was the aggressor in the prior incident, that evidence is relevant for the jury to consider as to whether or not the defendant was the aggressor in the crime charged. . . .
In addition, the other case decided [sic: cited] by the People is also persuasive that I should allow in evidence the prior altercation, because evidence of prior fights between defendant and the deceased have in many cases been held to be acceptable to show motive and background information. Particularly, in this case, where the defense is self-defense evidence, as I said, that defendant was the aggressor.
Here, you have an incident occurring in the home. The jury has to decide whether or not it is self-defense. The only witness to this case is the mother who is since deceased.
  I think the probative value of the prior incident is particularly useful based on the rationale of [People v. Peek, 365 N.Y.S.2d 867, 868-69 (1st Dep't 1975)]. The jury will be given appropriate limited [sic: limiting] instructions that they are not to consider as evidence that the defendant has a propensity to commit crimes or that he has a propensity to Page 10 use weapons but rather only insofar as the jury thinks it's relevant to show whether or not the defendant was the, was acting in self-defense on the date of the crime.

 

If the jury does not think it's relevant to show that in their arguments, whether it is relevant, that is for the jury to consider. If the jury feels it is not relevant, that he was acting in self-defense, they should totally disregard evidence of the prior incident.
(Voir Dire Tr. at 4-7.)

  The Appellate Division affirmed this ruling:

We reject the defendant's contention that the trial court erred in permitting testimony concerning a prior uncharged crime. Since the defendant claimed that he acted in self-defense, the issue of his motive was significant. Thus, while the proffered evidence was potentially prejudicial to the defendant's case, it was highly probative in showing that the stabbing was intentional. Further, any prejudice was minimized by the trial court's instruction to the jury that the evidence was to be considered only on the issues of whether the defendant was the initial aggressor, and whether he was the first to use deadly force.
  People v. Corella, 721 N.Y.S.2d 550, 551 (2d Dep't 2001) (citations omitted).

  Erroneous evidentiary rulings by a state trial court generally do not rise to the level of constitutional violations upon which a federal court may issue a writ of habeas corpus. See Jenkins v. Bara, 663 F. Supp. 891, 899 (E.D.N.Y. 1987) (citing Lipinski v. New York, 557 F.2d 289, 292 (2d Cir. 1977)). Erroneously admitted evidence must be "crucial, critical, [and] highly significant." Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985). In this regard, petitioner bears a "heavy burden." Roberts v. Scully, 875 F. Supp. 182, 189 (S.D.N.Y. 1993), aff'd, 71 F.3d 406 (2d Cir. 1995) (unpublished table decision). However, the Due Process Clause of the Fourteenth Amendment is violated where "the evidence in question `was sufficiently material to provide the basis for conviction or to remove reasonable doubt that would have existed on the Page 11 record without it.'" Johnson v. Ross, 955 F.2d 178, 181 (2d Cir. 1992) (quoting Collins, 755 F.2d at 19). This test applies post-AEDPA. See Wade v. Mantello, 333 F.3d 51 (2d Cir. 2003).

  Corella admitted at trial that he had killed V. Corella, but claimed that he had acted in self-defense. Therefore, evidence of the June 1, 1996 incident — an incident very similar to the confrontation that led to V. Corella's death — was, as the Appellate Division held, highly probative as to whether Corella was the initial aggressor when he killed his brother. Furthermore, any unfair prejudice was mitigated by the trial court's instructions on the point. (See Tr. at 29-31, 122-23). This claim therefore does not justify issuance of the writ.

  3. The Jury Instructions

  Corella claims that the trial court violated the "mode of proceedings" prescribed by state law and deprived him of a fair trial by instructing the jury (1) after opening statements, but before the first witness testified, on uncharged crimes evidence and the justification defense, and (2) again, immediately before summations, on the elements of the charged crimes and the justification defense.

  In order to obtain a writ of habeas corpus based on an error in the state court's instructions to the jury, Corella must show that the error violated a right guaranteed by federal constitutional law. See CUPP v. Naughten, 414 U.S. 141, 146 (1973); Casillas v. Scully, 769 F.2d 60, 63 (2d Cir. 1985). The relevant issue is not whether the instruction was "undesirable" or "erroneous," but rather "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Cupp, 414 U.S. at 147. "In weighing the prejudice from an allegedly improper charge, a reviewing court must view the instruction in its total Page 12 context." Brooks v. Ricks, No. 00-CV-3746, 2003 U.S. Dist. LEXIS 13646, at *11 (E.D.N.Y. July 29, 2003) (citing Cupp. 414 U.S. at 146-47).

  To the extent that Corella's argument is based on a claimed violation of various provisions of New York's criminal procedure law, he does not raise a federal claim cognizable on habeas review. However, Corella's brief to the Appellate Division also alleged deprivations of his federal constitutional rights. Those arguments are addressed below.

  a. The Presumption of Innocence and Burden of Proof

  Corella first contends that the trial court "minimized" the presumption of innocence and "glossed over" the burden of proof. I disagree. In the preliminary instructions to the jury, the court stated:

As you know, this is a criminal case. There are three basic rules about a criminal case that you must keep in mind. First, the defendant is presumed innocent unless proved guilty. That means the indictment against the defendant is only an accusation. Nothing more. It is not proof of guilt or anything else. The defendant, therefore, starts out with a clean slate.
Second, the burden of proof is on the People. The defendant has no burden to prove his innocence. Third, the People must prove the defendant's guilt beyond a reasonable doubt. I will give you further instructions on this point at the end of the trial.
(Tr. at 11-12.) The court had previously instructed the prospective jurors on these topics during voir dire:
The fact that the defendant has been arrested and charged with a crime isn't any evidence that he is guilty. Every person who goes to trial is arrested and charged with a crime and there is a piece of paper called "an indictment" that has the charge on it. That is not any evidence that he is guilty. All of that stuff happened outside of the courtroom. You have to decide the case based on the evidence that you hear inside the courtroom.
  So just because the police officers may have arrested and charged the defendant with a crime, that is not any evidence that he is guilty; that is not proof that he is guilty. The proof has to come from what you hear Page 13 inside the courtroom. Do you all understand that; can all of you follow that instruction?

 

Under our law, any person accused of a crime and brought to trial is presumed to be innocent, until proven guilty beyond a reasonable doubt. He is presumed innocent.
The People are the ones who have accused the defendant of the crime charged. They have the burden of proof to prove the defendant guilty beyond a reasonable doubt. All right. You all understand that.
THE COURT: I mentioned burden of proof. I said the prosecution has the burden to prove the defendant guilty beyond a reasonable doubt. . . .
If the defendant and his attorney wanted to — although this really has never happened — they would not have to say anything to you during the trial. They would not have to speak to you during jury selection. They would not have to question witnesses. They wouldn't have to testify. They wouldn't have to call any witnesses. They would not have to speak to you at the beginning of the case. During summations, they could sit at that table and say nothing because they don't have to prove anything.
At the end of the case after you heard all of the evidence presented to you by the prosecution and they did not prove to you beyond a reasonable doubt that the defendant was guilty, then the defendant would not be guilty because the prosecution has the burden of proof. . . .
The standard of proof is proof of guilt beyond a reasonable doubt. If the prosecution proves the defendant guilty beyond a reasonable doubt, your verdict must be guilty. If they don't prove the defendant guilty beyond a reasonable doubt, your verdict must be not guilty.
(Voir Dire Tr. at 76-80.) The court again instructed the jury on these points in its final charge:
One of the most important safeguards in our law is the presumption of innocence. It simply says all persons charged with a crime and brought to trial are presumed to be innocent unless proved guilty beyond a reasonable doubt. The law, therefore, presumes this defendant to be innocent unless proved guilty beyond a reasonable doubt.
  A defendant is never required to prove anything. The People have the burden of proving the defendant's guilt as to every fact and every element essential to conviction. That burden never shifts. It remains on the People and the presumption of innocence remains with every defendant from the beginning of the trial until such time when, during Page 14 final deliberations., the jury may be convinced that the People have proved the defendant's guilt beyond a reasonable doubt.*fn5

 (Tr. at 920-21.)

  The court's thorough instructions on this topic, of which I have quoted only a portion, viewed in "total context," Brooks v. Ricks, No. 00-CV-3746, 2003 U.S. Dist. LEXIS 13646, at * 11 (E.D.N.Y. July 29, 2003) (citing Cupp v. Naughten, 414 U.S. 141, 146-47 (1973)), in no way minimized the presumption of innocence or the government's burden. As it could hardly be said that the trial court glossed over or minimized the burden of proof and presumption of innocence, the Appellate Division reasonably dismissed this claim as meritless.

  b. Uncharged Crimes Evidence, the Justification Defense, Outlining the Charges, and Premature Deliberations

  Corella also claims that the trial court gave undue emphasis to the uncharged crimes evidence and an inaccurate description of the justification defense. The court also, Corella alleges, encouraged the jury to engage in premature deliberations.

  i. Premature Deliberations

  First, the claim that the trial court's preliminary instructions encouraged the jury to engage in premature deliberations is meritless. Corella relies on the concern expressed by the New York Court of Appeals in People v. Townsend, 67 N.Y.2d 815, 817 (1986), that "extra" instructions will lead to premature deliberations by the jurors. Assuming arguendo that the harm is cognizable on habeas review, it fails on the merits here, as the court instructed the jurors not to "form any opinion about the case until all the evidence is in" and to "[k]eep an open mind until you start your deliberations at the end of the case." (Tr. at 14.) It further instructed them each Page 15 time they left the courtroom to keep an open mind and not discuss the case (see id. at 77, 121-22, 136, 205, 308, 319, 431-32, 507, 545, 670, 731, 757-58, 809, 815, 839, 913). The jurors are presumed to have followed these instructions. See, e. g., Richardson v. Marsh, 481 U.S. 200, 211 (1987).

  ii. The Uncharged Crimes Instruction

  Corella contends that the trial court's instructions lent undue weight to the June 1, 1996 incident described above, in which Corella, armed with a meat cleaver, chased V. Corella down the street outside their home.

  After opening statements,*fn6 during which Corella's attorney referred to the June 1, 1996 incident (see Tr. at 24-25), the trial court instructed the jury, in pertinent part:

Now, I am going to allow — you heard the lawyers mention it — testimony concerning an incident that took place June 1, 1996 involving the defendant and a meat cleaver. Now, the reason why I am allowing that testimony in is that you are going to have to decide in this case whether or not the homicide was committed in self defense or justification. And one of the issues that you are going to have to decide concerning whether or not the killing was justified — and I will define it very carefully for you at the end of the case — is you are going to have to decide who was the first person to use — who started the fight and who was the first person to use what's known as deadly physical force.
[The court then defined "deadly physical force" and explained the conditions that must be met to justify its use.]
  So those are the facts that you are going to have to decide concerning the incident on June 19. I am allowing testimony about an incident on June 1 because it may be helpful to you in deciding whether or not the defendant was the first person to use deadly physical force on June 19. That will be up to you to decide. If you find it is helpful, then you can use it for whatever purposes you wish, but if you find it doesn't help you decide what happened on June 19, then you should disregard the June 1 Page 16 incident because I am not allowing the testimony of the June 1 incident to prove to you that the defendant is a bad man or that he has a propensity or a habit of assaulting people. That's not the purpose for which I am allowing that testimony in. And you shouldn't consider that as evidence that the defendant is a bad man or has a propensity to assault people.

 

I am letting it in because it may be helpful to you in deciding what happened specifically on June 19. And if it doesn't help you decide that, then you should ignore it. But if it does help you decide it, then you should use it for whatever purposes you think. But that's the limited purpose for which the evidence on June 1 is being admitted. I will repeat this instruction to you later, but I wanted to remind you at the beginning.
(Id. at 29-31; see also id. at 959-61 (repeating this limiting instruction); cf. id. at 928-29 (instructing jurors not to consider evidence of Corella's prior crimes as evidence that he murdered V. Corella).)

  Contrary to Corella's assertion, the court's instruction did not imply that once the government introduced evidence as to who first used deadly force, the justification issue was settled. Rather, the court stressed that the issue of who first used deadly physical force was only "one of the issues" the jury would have to think about during deliberations (id. at 30), and that the full instruction had yet to be given (id. ("I will define [justification] very carefully for you at the end of the case. . . ."); see also id. at 954-59 (justification instruction)). This instruction was not harmful to Corella; rather, it helped assure that the jurors would consider the evidence of the June 1, 1996 incident, which his lawyer had already brought to the jury's attention in his opening statement, only for the limited purpose for which it was admitted. Therefore, this claim does not justify issuance of the writ.

  iii. Outlining the Charges and the Justification Instruction

  Prior to summations, the court outlined for the jury the nature of the charges against Corella. (See id. at 846-48.) Corella claims that the court misstated the law and also Page 17 failed to convey to the jury that the justification defense applied to all of the lesser included homicide counts. Though I will not set out the court's pre-summation charge in full, the court concluded this point saying: "I'll give you the legal definition of all these charges, but I want to let you know what the charges are so when the attorneys refer to them during summations, you will have some side idea of what they mean." (Id. at 848.) Shortly thereafter, in its final charge, the court instructed the jury on the charges in detail, and made it clear that the justification defense was applicable to all charges. (See id. at 936-55.) Therefore, even assuming arguendo that the pre-summation charge was ambiguous, any such ambiguity was remedied by the extensive final instructions.

  Finally, as to Corella's allegation that the pre-summation instruction failed to convey to the jury that the justification defense applied not just to the top homicide count, murder in the second degree, but also to the lesser included homicide offenses, it is belied by the record. Aside from instructing the jurors that "at the end of the summations, I am going to give you the legal definition of what self-defense is and what justification is" (id. at 845), the court, after briefly listing the charges, stated: "Again, as to all these charges, the prosecution has to prove that it was not done in self defense" (id. at 846). In any event, in its final instruction, the court, in defining each charge, stated that justification was a defense. (See id. at 941, 944-45, 947, 948-50, 952-54; see also id. at 954-59.) This instruction on justification and self-defense emphasized the "reasonable belief aspect of that defense. (Id. at 955-59.) Therefore, this claim does not justify issuance of the writ. Page 18

  CONCLUSION

  For the foregoing reasons, the petition is denied. Because Corella has failed to make a substantial showing of a denial of a constitutional right, no certificate of appealability shall issue.

  So Ordered.


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