United States District Court, S.D. New York
May 10, 2004.
ALEXANDER DEJESUS, Petitioner
DAVID MILLER, Respondent
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 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 ). 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
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
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.
V. FILING OF OBJECTIONS TO THIS REPORT AND
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).