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DEJESUS v. MILLER

May 10, 2004.

ALEXANDER DEJESUS, Petitioner
v.
DAVID MILLER, Respondent



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

REPORT and RECOMMENDATION

I. INTRODUCTION

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.

  II. BACKGROUND

  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 ...


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