Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.


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


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. Page 2


  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, that,

  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 Page 3 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. Page 4 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 Page 5 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: Page 6


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 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 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. 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. Page 7

  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 be sent.
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 Page 8 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 themselves." Id.

  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 Page 9 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 this ground.*fn3

  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. Page 10

  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 (E.D.N.Y. 1987). Page 11

  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. Page 12

  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.

  So Ordered.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.