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United States District Court, S.D. New York

May 10, 2004.

DAVID MILLER, Respondent

The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge



Before the Court is the petition of Alexander DeJesus ("DeJesus") for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. DeJesus alleges that his confinement by the state of New York is unlawful because: 1) the trial court's supplemental jury instruction on the defense of justifiable use of physical force was erroneous and violated the petitioner's due process right to a fair trial; 2) the trial court's submission of an annotated verdict form to the jury violated the petitioner's due process right to a fair trial; 3) the trial court's jury instruction constructively amended the indictment to make the petitioner criminally liable for the conduct of an uncharged individual, and thereby violated DeJesus' due process right to a fair trial and his right to notice of the charges against him; and 4) the assistance rendered by his appellate counsel was ineffective, and, therefore, DeJesus was denied due process of law and equal protection of the law.

  The respondent opposes the petitioner's application for habeas corpus relief on the grounds that: 1) DeJesus' claims, other than his claim of ineffective assistance of appellate counsel, are unexhausted; and 2) all of the claims raised by DeJesus are without merit.

  For the reasons set forth below, I recommend that the petition be denied.


  During the early morning hours of January 19, 1991, DeJesus was involved in an altercation at the corner of 162nd Street and Broadway, in Manhattan. At sometime earlier that morning, Jesenia Mejia and another woman identified in the trial record only as "Shelly" became engaged in an oral confrontation. Jesenia Mejia's brother, Antonio Mejia ("A. Mejia"), placed himself between the two women in order to prevent them from fighting. Shelly left and returned shortly thereafter with a group of men that included DeJesus and Charlie Chong ("Chong"). DeJesus was armed with a gun. This group confronted A. Mejia and a group of men with whom he had congregated. A fight ensued, during which DeJesus fired his gun several times, injuring Luis Lopez ("Lopez") and fatally injuring A. Mejia. Police officers who were in the vicinity apprehended DeJesus as he fled the scene. In a subsequent statement to police, DeJesus admitted that he had fired his gun. DeJesus explained that he had done so after noticing a man running toward him with his hand in his waistband, shouting "you, you, you."

  A New York County grand jury returned an indictment charging DeJesus and Chong with: two counts of murder in the second degree (N.Y. Penal Law § 125.25[1], [2]) for causing the death of A. Mejia; two counts of assault in the first degree (N.Y. Penal Law § 120.10[1], [3]) for causing serious physical injury to Lopez; and one count of attempted murder in the second degree (N.Y. Penal Law §§ 110, 125.25[1]) for attempting to cause the death of Lopez.

  DeJesus proceeded to trial before a jury in New York State Supreme Court, New York County. At the trial, DeJesus presented a defense, pursuant to New York Penal Law § 35.15(2), that his use of force was justified. At his request, the trial court instructed the jury about the defense of justification. However, the trial court did not include language proposed by the petitioner in its instructions to the jury. In addition to the instruction on the defense of justification, the trial court instructed the jury that DeJesus could be found liable for the acts of any person, if the prosecution proved that DeJesus had "solicited, requested, urged, commanded, or intentionally aided in any manner at all any other person to do an act which contributed to the commission of the crime or acts being done."

  During its deliberations, the jury submitted two questions to the court seeking guidance. The questions concerned: (i) the issue of justification; and (ii) the definition of the phrase "initial aggressor." In response to each of these questions, the trial court gave the jury a supplemental instruction on the issue of justification. As part of its response to the latter question, the trial court instructed the jury that "[o]ne who knows he has placed him or herself in a situation in which deadly physical force is likely to take place, cannot say that his or her use of deadly physical force was justified."

  The jury found DeJesus guilty on one count of murder in the second degree ("depraved indifference murder") and one count of assault in the first degree. Thereafter, he was sentenced to consecutive terms of 25 years to life imprisonment for the second degree murder conviction and seven and one-half to 15 years imprisonment for the assault conviction. The petitioner appealed from the judgment of conviction to the New York State Supreme Court, Appellate Division, First Department ("Appellate Division"). He urged that court to upset his conviction because: 1) the trial court, in its supplemental instruction to the jury, misstated the law concerning the defense of justification; 2) the trial court submitted an annotated verdict form to the jury without the petitioner's consent, in violation of the requirements of New York decisional law and New York Criminal Procedure Law ("NYCPL") § 310.30; 3) the trial court amended the indictment constructively and impermissibly by instructing the jury that DeJesus could be held liable for the acts of persons not mentioned in the indictment, thereby denying DeJesus sufficient notice of the charges against him; and 4) the trial court imposed an excessive sentence on DeJesus, given his criminal record, family ties, and employment history.

  The Appellate Division affirmed the petitioner's conviction. See People v. DeJesus, 255 A.D.2d 256, 682 N.Y.S.2d 129 (App. Div. 1st Dep't 1998). Thereafter, DeJesus sought leave to appeal to the New York Court of Appeals. On March 8, 1999, the Honorable Carmen Beauchamp Ciparick, Associate Judge of the New York Court of Appeals, denied the petitioner's application for leave to appeal to that court.

  On September 24, 1999, DeJesus filed a petition for a writ of habeas corpus. It was subsequently dismissed, without prejudice, at DeJesus' request, so that he might present an unexhausted claim of ineffective assistance of appellate counsel to the state courts for adjudication. Thereafter, DeJesus petitioned the Appellate Division for a writ of error coram nobis. In that petition, DeJesus alleged, inter alia, that the failure of his appellate counsel to raise certain claims, through the appeal, violated DeJesus' federal constitutional rights to effective assistance of appellate counsel, due process, and equal protection of the law. On February 22, 2001, the Appellate Division denied the coram nobis petition.

  DeJesus returned to this court with the instant petition for a writ of habeas corpus. The respondent alleged that the petition was not timely and should be dismissed. However, your Honor determined that equitable tolling of the applicable statute of limitations was appropriate, and, therefore, the petition was timely.


 Supplemental Jury Charge; Annotated Verdict Form

  Before a habeas corpus petitioner may seek judicial relief in a federal court, he must have fairly presented the substance of his federal constitutional claims to the highest state court for adjudication. See 28 U.S.C. § 2254(b)(1)(A). Even without expressly alleging the violation of a specific constitutional provision, a petitioner may fairly present a federal constitutional claim to a state court by "(a) [relying] on pertinent federal cases employing [federal] constitutional analysis, (b) [relying] on state cases employing [federal] constitutional analysis in like fact situations, (c) [asserting] the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) [alleging] a pattern of facts that is well within the mainstream of [federal] constitutional litigation." Daye v. Attorney General, 696 F.2d 186, 194 (2d Cir. 1982). In particular, "the petitioner must have placed before the state court essentially the same legal doctrine he asserts in his federal petition." Id. at 192.

  In his appeal to the Appellate Division and subsequent application for leave to appeal to the New York Court of Appeals, DeJesus did not expressly raise any points of federal law in connection with his claims regarding the supplemental jury instruction concerning the defense of justification or the annotated verdict form.*fn1 Furthermore, DeJesus did not cite any state decisional law employing federal constitutional analysis, or otherwise present these claims to the state courts in a manner that would have alerted those courts that he was alleging violations of his federal due process right to a fair trial. Consequently, the Court finds that DeJesus failed to meet the obligation imposed on him in Daye: that is, he did not fairly present to the state courts as federal constitutional claims the two claims noted above. Therefore, these two claims are unexhausted. Moreover, the trial record provided sufficient facts to permit review of these claims by the Appellate Division on direct appeal. Therefore, DeJesus is now procedurally barred from challenging his conviction on these grounds in state court. See NYCPL § 440.10(2)(c).

  Since DeJesus' claims regarding the supplemental jury instruction concerning the defense of justification and the annotated verdict form were procedurally defaulted in the state courts, in order to obtain federal habeas corpus review of these claims, DeJesus must show cause for his default and prejudice attributable thereto, or that this court's failure to consider his federal claims will result in a fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2564-65 (1991). A fundamental miscarriage of justice exists when a habeas corpus petitioner is actually innocent of the charge(s) for which he has been convicted. See Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 1611 (1998). In the instant case, DeJesus has shown neither cause for his procedural default nor prejudice. Under these circumstances, the above-noted claims should not be entertained by the court.

 Constructive Amendment of Indictment

  In his state court appellate brief, DeJesus cites Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038 (1962), which explains that one of the purposes of an indictment in a federal criminal prosecution is to protect the Sixth Amendment right of the accused to have notice of the charges against him sufficient to permit him to mount a defense, should he choose to do so. In the Appellate Division, the petitioner argued that the trial court's jury instruction regarding criminal liability for the acts of a person(s) not on trial altered the nature of the charges included in the indictment with the result that DeJesus received insufficient notice of the criminal charges against which he might have to defend and those that the jury would be permitted to consider. The Court finds that this argument, in combination with the citation to Russell, was sufficient to alert the Appellate Division that the petitioner was asserting a federal constitutional claim that he was denied his due process right to notice of the charges against him.

  The Supreme Court has held that, pursuant to the Due Process Clause of the Fourteenth Amendment, a state criminal defendant is entitled to notice of the charges against him. See Gray v. Netherland, 518 U.S. 152, 154, 116 S.Ct. 2074, 2076 (1996) (citing In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222 [1968]). Under New York law, "[t]here is no distinction between liability as a principal and criminal culpability as an accessory[,] and the status for which the defendant is convicted has no bearing upon the theory of the prosecution." People v. Duncan, 46 N.Y.2d 74, 79-80, 412 N.Y.S.2d 833, 837 (1978). As the trial court explained in its instructions to the jury, New York permits a defendant to be held criminally liable for an offense committed by another person only if the defendant, with the criminal intent required for that offense, "solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct." N.Y. Penal Law § 20.00.

  By charging DeJesus with second degree murder and first degree assault, the state provided adequate notice that he might face evidence of culpability either as a principal or as an accomplice of Chong in the commission of those crimes. Although the trial court's instruction to the jury about accomplice liability referred to liability for the acts of "any other person" rather than merely for the acts of Chong, no evidence was presented at trial that anyone other than DeJesus or Chong shot Mejia or Lopez. Extensive and unrebutted trial evidence demonstrated that: 1) Mejia was killed and Lopez wounded by gunshot wounds; and 2) Chong and DeJesus were armed with guns during the fight. No evidence was presented that any other person at the fight was armed with a gun. Nor was any evidence presented that DeJesus had solicited, requested, commanded, importuned or intentionally aided any other person to shoot Mejia or Lopez.

  Given this evidentiary record, the trial court's generic instruction to the jury about accomplice liability could not have led the jury to find DeJesus criminally liable for the acts of any person(s) other than Chong. Accordingly, DeJesus was not denied notice of the criminal charges made against him that would be considered by the jury. Thus, he is not entitled to habeas corpus relief on this claim.

 Ineffective Assistance of Appellate Counsel

  The Sixth Amendment guarantees a criminal defendant the "right to effective assistance of counsel." Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063 (1984). This right to counsel also extends to the prosecution of a direct appeal from a judgment of conviction. See Evitts v. Lucey, 469 U.S. 387, 395-96, 105 So. Ct. 830, 836 (1985). To determine whether counsel's assistance was effective, the Supreme Court devised a two-part test. See Strickland. 466 U.S. at 687-696, 104 S.Ct. at 2064-2069. First, a criminal defendant must show that counsel's performance was deficient; that is, that it fell below an "objective standard of reasonableness" measured under "prevailing professional norms." Id. at 687-688, 2064-2065. Second, the criminal defendant must affirmatively demonstrate prejudice, by showing that "there is a reasonable probability that but for counsel's [error], the result of the proceeding would have been different." Id. at 694, 2068. See also United States v. Javino, 960 F.2d 1137, 1145 (2d Cir.), cert. denied, 506 U.S. 979, 113 S.Ct. 477 (1992). A reasonable probability has been defined as "a probability sufficient to undermine confidence in the outcome." See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. Considerable deference is accorded counsel's performance as counsel is "strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. 466 U.S. at 690, 104 S.Ct. at 2066.

  Failure to present every nonfrivolous argument to the appellate court does not constitute ineffective assistance of counsel, since appellate counsel is permitted to exercise professional judgment when determining which issue(s) to pursue on appeal. See Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 3312 (1983). Indeed, the Supreme Court has recognized that effective appellate advocacy entails "winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues." Id. at 751-52, 3312.

  DeJesus claims that his appellate counsel was ineffective because counsel did not argue that the prosecution failed to: a) disprove the petitioner's defense of justification; b) establish petitioner's guilt beyond a reasonable doubt; and c) establish petitioner's guilt for the crime of depraved indifference murder under the theory of acting in concert with one or more other persons. Each of these proposed appellate arguments would have required challenging the sufficiency of the evidence presented at trial by the prosecution. When reviewing the sufficiency of the evidence, New York appellate courts view the evidence "in a light most favorable to the People[,] to determine whether there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt." See People v. Steinberg, 79 N.Y.2d 673, 681-82, 584 N.Y.S.2d 770, 773 (1992).

  In view of the difficulty of meeting of this legal standard and in view of the record evidence supporting the jury's verdict, the petitioner's appellate counsel was not objectively unreasonable in "winnowing out" these claims in favor of those presented in the petitioner's appellate brief Moreover, it is not likely that the outcome of the appellate proceedings would have been different had counsel raised the issues petitioner proposes in lieu of those actually raised. For example, appellate counsel exercised reasonable professional judgment in electing to challenge the trial court's supplemental instruction to the jury about justification. The trial court instructed the jury that a person cannot be justified in using deadly physical force if he has placed himself "in a situation in which deadly physical force is likely to take place." Appellate counsel raised a colorable claim that this instruction was too broad and effectively directed the jury to refrain from considering DeJesus' defense of justification. Since the jury asked multiple questions on the subject of justification, appellate counsel could have concluded reasonably that, based on the record evidence, he could establish clearly that an erroneous instruction about justification had been given by the trial court and that it prejudiced DeJesus. This was a reasonable and appropriate exercise of professional judgment. In like manner, DeJesus' appellate counsel could have concluded reasonably that, based on the trial record, the likelihood of persuading an appellate court that the prosecution offered insufficient evidence to support the underlying criminal charges or to rebut the defense of justification was not great, and, thus, it was prudent not to make those arguments. Accordingly, the Court finds that the petitioner's claim, that the assistance he received from his appellate counsel was ineffective and, therefore, violated his constitutional rights, is without merit.


  For the reasons set forth above, the petitioner's application for a writ of habeas corpus should be denied.


  Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Victor Marrero, 40 Centre Street, Room 414, New York, New York, 10007, and to the chambers of the undersigned, 40 Foley Square, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Marrero. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Hermann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).

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