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United States District Court, E.D. New York

April 30, 2004.

RAMON TORRES, Petitioner,
BRIAN FISCHER, Superintendent, Sing Sing Correctional Facility, Respondent.

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


Petitioner Ramon Torres, an inmate at the Sing Sing Correctional Facility, seeks habeas relief from a judgment of conviction entered after a jury trial in state court. I held oral argument by teleconference on April 30, 2004. For the reasons set forth below, the petition is denied. BACKGROUND

  On October 11, 1998, at around 9:30 p.m., Torres fired a pistol out of his third-floor apartment window, striking Gregory Nelson, Jr. in the neck and killing him. Torres was charged with murder in the second degree and criminal possession of a weapon in the second and fourth degrees. He was convicted by a jury of murder in the second degree on June 14, 1999, and sentenced to fifteen years to life imprisonment.

  Torres thereafter moved in New York Supreme Court, Kings County, to vacate his judgment of conviction pursuant to New York Criminal Procedure Law § 440.10, claiming that he was denied the effective assistance of counsel because his attorney did not put forth the defense of justification. On November 20, 2000, the court denied Torres's motion:

In support of this motion, the defendant relies on the trial evidence, the record of his trial attorney's conduct, and a telephone conversation appellate counsel had with trial counsel after the trial. In that conversation when asked if he had considered the defense of justification, trial counsel replied "that he felt that such a defense `just wasn't there' and, `couldn't be established' since defendant used deadly physical force on a group of people who were outside the apartment. . . ."
To the extent that the defendant's motion relies substantially on the trial evidence and the record of trial counsel's conduct, his claim is surely reviewable on the judgment appeal. To the extent that the defendant's motion relies on the brief comments of trial counsel in a telephone conversation with appellate counsel, the motion fails to support a claim of ineffective assistance of counsel.
Nothing in that telephone conversation supports the claim that trial counsel was not aware of the defense of justification, did not properly investigate or research it, or deprived the defendant of the effective assistance of counsel by [not] raising it. No trial evidence is cited establishing that the defendant was responding to "the imminent use of offensive deadly physical force against him or another by an assailant." The evidence at trial establishes that the defendant had retreated to the safety of his apartment before he fired the fatal shot and that he fired the shot "to scare them away[,]" not to defend himself or another from the offensive use of deadly physical force by another.
Under these circumstances, the defendant's motion is insufficient to warrant any relief.
People v. Torres, Indictment No. 10375/1998, slip op. at 1-2 (N.Y.Sup.Ct. Nov. 30, 2000) (citations omitted) (ellipsis in original) (Resp. Ex. D). The Appellate Division, Second Department, denied Torres leave to appeal this decision on March 13, 2001.

  Torres then appealed his conviction to the Appellate Division, raising the same claim he had raised in his § 440.10 motion, i.e., that he was denied effective assistance because his trial attorney did not raise a justification defense. The Appellate Division unanimously affirmed Torres's conviction:

Contrary to the defendant's contention, he was not denied the effective assistance of counsel because the defense counsel did not raise a justification defense. A review of the record indicates that the defense counsel implemented a reasonable strategy at all stages of the trial. In any event, there was no basis for raising a justification defense. Viewed in the light most favorable to the defendant, the evidence was insufficient to establish that he shot the victim while the victim was attempting to commit a burglary.
The defendant's remaining contentions are without merit.
People v. Torres, 732 N.Y.S.2d 898, 899 (2d Dep't 2001) (citations omitted). Leave to appeal to the New York Court of Appeals was denied. People v. Torres, 97 N.Y.2d 762 (2002) (Kaye, C.J.). Torres now raises the same claim in the instant petition.


  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, 539 U.S. 510, 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, 539 U.S. 510, 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 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. Torres's Claim: Ineffective Assistance of Trial Counsel

  Torres claims that his trial attorney provided ineffective assistance by failing to raise the defense of justification; specifically, justification based on Torres's reasonable belief that the victim was about to burglarize Torres's apartment.

  The Supreme Court has established the following standard for ineffective assistance claims:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984). Thus, to make out this type of claim, Torres must demonstrate both (1) that his attorney's performance "fell below an objective standard of reasonableness," id. at 688, and (2) that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694. In assessing the reasonableness of counsel's performance, judicial scrutiny "must be highly deferential," and the court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Strickland, 466 U.S. at 689 (quotation marks omitted); Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998); see also Yarborough v. Gentry, 124 S.Ct. 1, 4 (2003) (per curiam) ("[C]ounsel has wide latitude in deciding how best to represent a client. . . .").

  In assessing counsel's performance, I "must conduct an objective review . . . measured for `reasonableness under prevailing professional norms,' which includes a context-dependent consideration of the challenged conduct as seen `from counsel's perspective at the time.'" Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 2535 (2003) (citations omitted) (quoting Strickland, 466 U.S. at 688-89)). The Supreme Court has "declined to articulate specific guidelines for appropriate attorney conduct" and has instead emphasized that "`the proper measure of attorney performance remains simply reasonableness under prevailing professional norms.'" Id. at 2535 (quoting Strickland, 466 U.S. at 688).

  To establish the requisite effect of counsel's performance on the outcome of the proceeding, it is not sufficient if the petitioner shows merely that counsel's errors had "some conceivable effect" on the outcome. Strickland, 466 U.S. at 693. Rather, there must be "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome." Id. This determination, unlike the determination whether counsel's performance fell below an objective standard of reasonableness, may be made with the benefit of hindsight. See Lockhart v. Fretwell, 506 U.S. 364, 372 (1993).

  Here, the justification defense was inapplicable to the facts established at trial, even when those facts are viewed in the light most favorable to Torres. Under New York law, a person may use deadly physical force to defend against a burglary when the person using the force has a legal right to be on the premises and reasonably believes that a burglary is in progress and that deadly physical force is necessary to stop its commission. See N.Y. Penal Law §§ 35.15(2)(c), 35.20(3). A burglary is committed when one "knowingly enters or remains unlawfully in a building with intent to commit a crime therein." Id. § 140.20.

  In a videotaped statement made upon his arrest,*fn1 which was admitted into evidence at trial (Tr. at 214), Torres told an assistant district attorney the following:

[D]uring the evening of October 11, 1998, petitioner was standing on the sidewalk in front of his apartment building at 653 Blake Avenue, when he saw youngsters,*fn2 particularly a larger one named "Peanut"*fn3 chasing after a smaller one. Petitioner interceded and started to argue with "Peanut." Peanut left, but before going, he told petitioner that he would return.*fn4
Five to ten minutes later, petitioner saw "Peanut" and a group of young men coming in his direction.*fn5 Petitioner went upstairs to his third floor apartment and took out a pistol. Petitioner looked out the window and saw the group pointing to his building and some were looking up towards his window. Petitioner knew he could not fight all of them so to scare them away, he stuck the pistol out the window, pointed it downwards, and fired one shot. He did not mean to shoot anyone, but when he heard an ambulance, he realized that he must have hit someone.
Petitioner, then, threw the pistol out of the window into the alley below.
(Pet.'s Mem. Law Supp. Pet. at 4-5 (citations omitted).)

  Torres's friend Francis Chevere testified in the defense case that no one involved in the original altercation — in which Torres argued with Peanut — mentioned or displayed a weapon, and that the use of a weapon was not threatened. (Tr. at 237.) Chevere also testified that despite seeing these kids before, he had never had any problems with them. (Id. at 236-37.) After Torres had returned to his apartment, two friends informed his then-girlfriend, who lived with him, that they had spoken to a member of the group of kids who had told them to tell Torres not to come back downstairs, "because he was going to get him." (Id. at 256.) Neither Torres nor his girlfriend called the police before Torres fired the pistol out the window. (Id. at 259, 283-84.)

  Based on these facts, Torres was not entitled to a justification instruction and his attorney was therefore not ineffective in failing to seek such a charge. In his original altercation with Peanut, neither Peanut nor any of his friends threatened to use deadly force, or displayed or mentioned a gun. In any event, Chevere, who was outside with Torres, could not even tell if the group he and Torres saw approaching was comprised of the same kids. That Torres saw a group of "youngsters" pointing at his apartment window is insufficient to create a reasonable belief that the group was about to burglarize Torres's apartment, and that deadly force was necessary to prevent it. Indeed, a friend of Torres passed along the message from the group of youths that Torres should not come down, at least implying that the group was not coming up. None of the youths called up to Torres, entered his building, or threatened him at all before the shooting. In any event, even if Torres did reasonably feel threatened at that point, he should have simply picked up the telephone and called the police.

  At trial, defense counsel argued that Torres, intoxicated during the incident, feared the youths and was simply trying to scare them away by firing a warning shot. Counsel argued that the government had not met its burden of proving intent to kill or depraved indifference. Based on the evidence at trial, including Torres's statement to the authorities, neither this strategy, nor counsel's overall performance, fell below an objective standard of reasonableness. As such, the Appellate Division's dismissal of this claim was entirely reasonable. Therefore, this claim does not justify issuance of the writ.*fn6


  For the foregoing reasons, the petition is denied. Because Torres has failed to make a substantial showing of a denial of a constitutional right, no certificate of appealability shall issue. The Clerk is directed to file a notice of appeal on Torres's behalf.

  So Ordered.

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