United States District Court, E.D. New York
March 16, 2004.
LIVINGSTON GAYLE, Petitioner, -against- DANIEL SENKOWSKI, Superintendent, Clinton Correctional Facility, Respondent
The opinion of the court was delivered by: JOHN GLEESON, District Judge
MEMORANDUM AND ORDER
Petitioner Livingston Gayle, an inmate at the Shawangunk Correctional
Facility, seeks habeas corpus relief from a judgment of conviction
entered after a jury trial in state court. I held oral argument by
telephone conference on March 12, 2004. For the reasons set forth below,
the petition is denied.
The government's evidence at trial established that on September 23,
1981, Jeffrey Albert, armed with a knife, challenged Livingston Gayle to
a fight. Gayle accepted the challenge by shooting Albert with a gun.
After Albert fell to the ground, Gayle ran down the block, but then
returned to the scene to shoot Albert while Albert was attempting to
crawl under a car for protection. Albert died from his gun shot wounds.
After this incident, Gayle fled New York and lived as a fugitive until
his capture in Massachusetts on October 7, 1996, nearly fifteen years
after he was originally charged for his crimes. On October 17, 1996, the
grand jury voted to indict him on two counts of murder in the second
degree, one count of criminal possession of a weapon in the third degree
and one count of criminal possession of a weapon in the fourth degree.
Unbeknownst to the government, on that date, Gayle was extradited from
Massachusetts and arrested in Kings County. On October 21, 1996, Gayle
appeared in court and served his notice to testify in the grand jury
pursuant to N.Y. Crim. Proc. Law § 190.50(5)(a). The government
informed Gayle that the indictment had been voted but not filed, and
offered to expunge the vote to allow Gayle to testify before that same
grand jury. Gayle refused on the ground that he wished to testify before
a new grand jury.
The government thereupon filed the indictment, and Gayle moved to
dismiss it. In denying the motion, the court ruled, in relevant part,
A literal reading of the statute from which the
defendant's right to appear in the grand jury
derives reveals that . . . the defendant may
be afforded an opportunity to testify in the grand
jury ". . . at any time prior to the
filing of the indictment. . . ." CPL
190.50(5)(a). The defendant may exercise this
right even when, as here, the charges have already
been submitted to the grand jury and the grand
jury has already voted to indict him. . . . [T]he
People were not required to re-present the
case to a different grand jury in order to afford
the defendant an opportunity to appear before a
different grand jury.
People v. Gayle, Indict. No. 13188-96 (N.Y.Sup.Ct.
Kings County Mar. 14, 1997) (J. Dabiri) (citations omitted).*fn1
Gayle presented a justification defense at trial. He testified that
Albert lunged at him with a knife and threatened to kill him, at which
point Gayle jumped backwards, pulled out his gun, and fired. He further
testified that once he returned to the scene after running away, Albert
grabbed his lower body and swung his knife at him, causing Gayle to fire
another shot to escape Albert's hold on him and to flee the area. After
deliberations, the jury convicted him of one count of murder in the
second degree. He was sentenced to an indeterminate term of imprisonment
of twenty-two years to life.
In June of 2000, Gayle, through counsel, appealed his judgment of
conviction to the Appellate Division, Second Department. Appellate
counsel claimed that the government deprived Gayle of his right to
testify to a grand jury that had not yet voted to indict him, and that
the court improperly marshaled the evidence during its justification
charge to the jury. The Appellate Division rejected this challenge and
affirmed Gayle's conviction on March 12, 2001. People v.
Gayle, 721 N.Y.S.2d 776 (2d Dep't 2001). It determined that,
Contrary to the defendant's contention, there was
no violation of his right to appear before the
Grand Jury pursuant to CPL 190.50. . . . .
[T]he defendant gave notice to appear before the
Grand Jury after it had voted to indict, albeit
before the indictment was filed. Therefore, he was
properly relegated to testifying before a Grand
Jury which had already voted to indict.
The court's justification charge was balanced and
the court only marshalled [sic] the evidence to
the extent necessary to explain the application of
the law to the facts.
Id. (citations omitted). On August 21, 2001, the New York
Court of Appeals denied Gayle's application for leave to appeal his
conviction. People v. Gayle, 96 N.Y.2d 918 (2001).
In the instant petition for a writ of habeas corpus, Gayle raises the
same two claims he raised on direct appeal.
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).
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, 529 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. l, 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)).
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
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 reviewy. . . . 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
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. Gayle's Claims
1. The Right to Testify Before the Grand Jury
Gayle asserts that he was denied his right under N.Y. Crim. Proc. Law
§ 190.50 to testify before the grand jury, and that this resulted in
a denial of due process under the Fourteenth Amendment. Essentially, he
argues that although he gave the government notice of his intent to
testify to the grand jury after it had already voted to indict him, the
prosecutor should have represented the case to a new grand jury and
allowed him to testify in front of that new grand jury. I do not agree.
A defendant has no clearly established federal constitutional right to
testify before the grand jury that indicted him. See Mirrer v.
Smyley, 703 F. Supp. 10, 11-12 (S.D.N.Y. 1989) ("[T]here is no
federal constitutional right to a grand jury in a state criminal
proceeding. The right to a grand jury is a matter of New York State law
and as such is not reviewable on a petition for habeas corpus."),
aff'd, 876 F.2d 890 (2d Cir. 1989). Nevertheless, states may
create the right to testify before a grand jury, thereby implicating due
process concerns. Indeed, the Supreme Court has "repeatedly held that
state statutes may create liberty interests that are entitled to the
procedural protections of the Due Process Clause of the Fourteenth
Amendment." Vitek v. Jones, 445 U.S. 480, 488 (1980). Such
state-created rights may not be "arbitrarily abrogated." Wolff v.
McDonnell, 418 U.S. 539, 557 (1974); see also Mirrer,
703 F. Supp. at 12 (though there is no federal constitutional right to a
grand jury in a state criminal proceeding, state cannot deny right
arbitrarily once it has created it); Saldana v. New York,
665 F. Supp. 271, 275 (S.D.N.Y. 1987) (once a state creates a right for a
defendant to testify before a grand jury, "it cannot cause that right to
be forfeited in a manner which is arbitrary or fundamentally unfair"),
rev'd on other grounds, 850 F.2d 117 (2d Cir. 1988).
New York has created such a right:
When a criminal charge against a person is being
or is about to be or has been submitted to a grand
jury, such person has a right to appear before
such grand jury as a witness in his own behalf if,
prior to the filing of any indictment or any
direction to file a prosecutor's information in
the matter, he serves upon the district attorney
of the county a written notice making such request
and stating an address to which communications may
N.Y. Crim. Proc. Law § 190.50(5)(a).
Here, the record does not establish that Gayle's right to testify
before the grand jury was forfeited in an arbitrary or fundamentally
unfair manner. A grand jury was convened on
October 10 and 15 and voted to indict on October 17, 1996. Gayle
appeared in court on October 21 and served the prosecutor with his notice
of intent to testify. The indictment had not yet been filed. The
prosecutor informed him that the vote would be withdrawn and Gayle could
testify before the same grand jury, but Gayle refused and moved to
dismiss the indictment. He did not allege at the time (or now) that the
government failed to meet its obligation of providing him with timely
grand jury notice pursuant to § 190.50(5)(a). Affirming the trial
court, the Appellate Division determined that Gayle gave notice to appear
after the grand jury had voted to indict (although prior to the
filing of the indictment), and thus he was properly only allowed to
testify before that same grand jury that had already voted. People
v. Gayle, 721 N.Y.S.2d 776 (2d Dep't 2001). The Appellate Division
relied, in part, on People v. Evans, 79 N.Y.2d 407, 415 (1992),
where the Court of Appeals stated that pursuant to § 190.50, "[b]y
providing timely notice reasonably prior to Grand Jury presentment and
vote, defendants establish their statutory right to testify before a vote
is taken, assuming, of course, that any failure to afford these
individuals a prevote appearance is not attributable to defendants
Even if the Appellate Division made a mistake in interpreting state
law, I cannot say it was a substantial constitutional one. Gayle was
given the opportunity to have the vote expunged, to testify before the
grand jury that had heard the government's evidence, and to have a new
vote taken. I see little harm to him in the fact that the grand jury had
first voted without hearing from him. There is no reason to believe it
would not have reconsidered whether to indict in light of his testimony
if he had chosen to give it. In any event, Gayle was subsequently tried
before a petit jury. See Lopez v. Riley, 865 F.2d 30, 32 (2d
Cir. 1989) ("If federal grand jury rights are not cognizable on direct
appeal where rendered harmless by a petit jury, similar claims
concerning a state grand jury proceeding are a fortiori
foreclosed in a collateral attack brought in a federal court.");
Jelinek v. Costello, 247 F. Supp.2d 212, 278 (E.D.N.Y. 2003)
("Errors of state law that rise to the level of a constitutional
violation may be corrected by a habeas court, but even an error of
constitutional dimensions will merit habeas corpus relief only if it had
a `substantial and injurious effect or influence in determining the
jury's verdict.'") (quoting Brecht v. Abrahamson,
507 U.S. 619, 623 (1993) (quotations omitted)).*fn2 Nor can I say that the
Appellate Court's decision was an unreasonable application of clearly
established federal constitutional law. Thus, Gayle cannot prevail on
2. Jury Instructions The Marshaling of the Evidence
Gayle contends that he is entitled to a new trial because the trial
court marshaled the evidence in an unbalanced manner, which deprived him
of a fundamentally fair trial. Essentially, he argues that when the court
instructed the jury on justification and excessive force, the court erred
in telling the jury that there was some evidence that supported excessive
force (and thus negated justification) without also informing them that
some evidence supported Gayle's justification theory,*fn4 This
contention has no merit.
In order to obtain habeas relief based on an error in the state court's
instructions to the jury, Gayle 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 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).
Under New York's procedural law, the court's charge to the jury "must
. . . state the material legal principles applicable to the particular
case, and, so far as practicable, explain the application of the law to
the facts, but it need not marshal or refer to the evidence to any
greater extent than is necessary for such explanation." N.Y. Crim. Proc.
Law § 300.10(2). "A trial court is permitted to marshal the evidence
`only to the extent necessary to explain the application of the law to
the facts.'" Pecan v. Edwards, No. 97-CV-1007, 1998 WL 813408,
at * 6 (E.D.N.Y. July 22, 1998) (quoting People v. Culhane,
45 N.Y.2d 757 (1978), cert. denied, 439 U.S. 104 (1978)). In so
doing, the court must refer to the evidence fairly and even-handedly.
See id. When a federal court is asked to review the conduct of
a state court trial judge, the federal court must find the latter' s
conduct "to be substantially significant and substantially adverse to the
defendant before it holds that the trial judge's conduct created an
appearance of partiality which exceeded constitutional limitations."
Id. (quoting Jenkins v. Bara, 663 F. Supp. 891, 898
Here, the trial court instructed the jury as follows:
A person may not use defensive deadly physical
force, if he knows that he can, with complete
safety to himself or others, avoid the use of
defensive deadly physical force by retreating,
even if the defendant was not the initial
aggressor and did not have a duty to retreat.
You must then go on to decide whether all of the
force that he used was justified.
There is some evidence that after the
defendant`s assailant was down and
incapacitated, the defendant continued to use
deadly physical force against this person.
Even if you find that the defendant was initially
justified in using defensive deadly physical
force, our law permits him to do so only to the
extent that he reasonably believes such force to
be necessary to defend himself.
If the evidence convinces you that at some point
the defendant continued to use deadly physical
force where he no longer believed such use was
necessary to defend himself, you must then find
that he was no longer acting in self-defense, and
you may find him guilty of the crime the evidence
establishes that he committed.
(Tr. at 477-78.).
As noted earlier, the Appellate Division held that, "[t]he court's
justification charge was balanced and the court only marshalled [sic] the
evidence to the extent necessary to explain the application of the law to
the facts." People v. Gayle, 721 N.Y.S.2d 776 (2d Dep't 2001).
I agree and find that the jury charge was essentially unobjectionable.
Though Gayle understandably asserts that the trial judge should have
mentioned that there was "some evidence" (i.e., Gayle's
testimony) that Albert had lunged at Gayle again, "[t]here is no
requirement that the court give `equal time' to both parties." Brown
v. Greiner, Nos. 02-CV-2043, 03-0066, 2003 WL 22964395, at *6
(E.D.N.Y. Oct. 2, 2003). Besides, the trial court did not express its
view of the evidence; it merely used the italicized language to explain
the application of the principles of excessive force and justification to
the particular facts of the case, which involved two separate uses of
force by Gayle.
Furthermore, in considering this excerpted charge in the larger context
of the surrounding instructions, the court's charge is neither remarkable
nor misleading. Following the above-quoted instruction, the court stated,
"[a]s with all material factual issues, you should first review all the
evidence you find to be believable and decide what in fact took place
between the defendant and Jeffrey Albert before and during this
encounter." (Tr. at 478-79). Previously, the court explained to the
jurors that they were to be the "judges of the facts" (Tr. at 456-57),
and that the court could not tell the jurors whether to believe or
disbelieve a witness, nor could it tell them what weight to accord any of
the evidence (Tr. at 457). In sum, the jury was sufficiently informed
that determining the facts was the jury's province, not the court's.
Thus, I conclude that the Appellate Division's rejection of Gayle's
claims was correct. At the very least, it was not an unreasonable
application of clearly established federal law. Therefore, this claim
does not justify issuance of the writ.
For the foregoing reasons, the petition is denied. Because Gayle has
failed to make a substantial showing of a denial of a constitutional
right, no certificate of appealability shall issue.