The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge
REPORT and RECOMMENDATION
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
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, ) for causing the death of A. Mejia; two counts of
assault in the first degree (N.Y. Penal Law § 120.10, ) for
causing serious physical injury to Lopez; and one count of attempted
murder in the second degree (N.Y. Penal Law §§ 110, 125.25) 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
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 ...