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United States District Court, S.D. New York

June 29, 2004.

DAVID MILLER, Superintendent, Respondent.

The opinion of the court was delivered by: VICTOR MARRERO, District Judge



Petitioner Alexander DeJesus ("DeJesus"), pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in New York State Supreme Court, New York County, of one count of murder in the second degree and one count of assault in the first degree. DeJesus's indictment on these and other charges arose out of the injury of Luis Lopez ("Lopez") and killing of Antonio Mejia ("Mejia") during a fight early in the morning of January 19, 1991. DeJesus, who was armed with a gun, fired several times, and was arrested by police as he fled the scene. In a statement made to the police during later interrogation, he admitted having fired a gun during this incident, but alleged he did so in self-defense. For these offenses he was sentenced to consecutive terms of imprisonment of twenty-five years to life and seven and one-half to fifteen years, respectively.

  DeJesus appealed to the New York State Supreme Court, Appellate Division, which affirmed his conviction. On March 8, 1999, the New York Court of Appeals denied DeJesus's application for leave to appeal. DeJesus filed a petition for a writ of habeas corpus in this Court in September 1999. At DeJesus's request, the petition was later dismissed without prejudice in order to enable him to present to the state courts an unexhausted claim of ineffective assistance of appellate counsel. That petition was likewise denied by the Appellate Division. DeJesus then returned to this Court with the instant petition. Applying the equitable tolling doctrine, the Court ruled the amended petition timely filed.

  In support of his challenge to his conviction and confinement, DeJesus asserts the trial court violated his due process rights, and his rights to a fair trial and to notice of the charges against him, by reason of the trial court's: (1) erroneous supplemental instructions to the jury concerning the defense of justifiable use of physical force; (2) submission to the jury of an annotated verdict form; (3) jury instruction making DeJesus liable for the conduct of an uncharged individual; and (4) excessive sentencing. DeJesus also raised a claim alleging that appellate counsel's failure to present on appeal certain arguments DeJesus contends should have been asserted deprived him of effective assistance of counsel on appeal.

  Magistrate Judge Kevin N. Fox, to whom this Court referred the petition, issued a Report and Recommendation (the "Report") dated May 10, 2004, recommending that the writ be denied and the petition be dismissed. The Report is incorporated and attached hereto. DeJesus, whose deadline to respond to the Report was extended to June 21, 2004, filed objections dated June 15, 2004 (the "Objections"). He addresses each of the four grounds the Report considered and rejected.

  Pursuant to 28 U.S.C. § 636(b)(1)(C), any portion of a Magistrate Judge's Report and Recommendation to which objection is made is subject to de novo review. The Court is also authorized to accept, reject, or modify, in whole or in part, the Magistrate Judge's findings or recommendations. Accordingly, this Court has reviewed de novo the full record of each of the issues DeJesus raises. On this basis the Court denies the writ and dismisses DeJesus's petition.



  DeJesus takes issue with the trial court's supplemental instructions to the jury regarding the defense of justification, which he characterizes as coercive, and with the court's use of an annotated verdict form. Magistrate Judge Fox found these claims unexhausted because in neither of his state appellate court applications did DeJesus raise any point alleging violation of federal law, or any state authority relying on federal constitutional doctrine, in connection with these claims. Upon review of DeJesus' petition and the objections he raised to the Report, the Court agrees.

  Nothing in DeJesus's papers could be fairly construed to suggest to the state appellate courts that DeJesus was asserting violation fo the federal constitutional rights with respect to these two issues. See Dave v. Attorney Gen., 696 F.2d 186, 194 (2d Cir. 1982) (declaring that a petitioner may fairly present a federal constitutional claim to a state court by relying on federal or state cases employing federal constitutional analysis, or by asserting the claim in terms that call to mind a specific constitutional right or that present a pattern of facts well within the mainstream of federal constitutional litigation). DeJesus is therefore now barred under applicable state law from asserting these grounds as a basis for any further challenge to his conviction in state court. See New York Crim. Proc. Law § 440.10(2)(c).


  In his Objections, DeJesus points out that another ground he had asserted in his petition challenging his sentencing as excessive was not addressed by the State or the Magistrate Judge and thus DeJesus contends, he should prevail by virtue of the State's "waiver" of the issue. DeJesus claimed in his direct appeal that his sentence to consecutive terms was unduly harsh in view of his age, strong family ties, employment and minor criminal history at the time of sentencing. This argument as presented on direct appeal rested entirely on state law factors which New York courts apply in reviewing applications to reduce sentences. With regard to this claim as well there is no indication in DeJesus's brief suggesting any violation of federal constitutional right or claim based on federal law. The sentence DeJesus was given for each of the crimes of which he was convicted fell within the permissible statutory range. The Appellate Division considered and rejected DeJesus's challenge to his sentencing. See People v. DeJesus, 682 N.Y.S.2d 129 (App. Div. 1st Dep't 1998).

  Under New York law, the sentencing decision is committed to the sound discretion of the trial court based on the facts and considerations before the court at the time of sentencing. See People v. Farrar, 419 N.E.2d 864, 865 (N.Y. 1981). In affirming DeJesus's conviction and dismissing his appeal, the Appellate Division implicitly determined that the trial court had properly exercised its discretion. DeJesus offers no basis under federal law to justify a decision by this Court to overturn that determination. Nor does the Court view DeJesus's sentencing as a miscarriage of justice in view of the broad discretion sentencing courts exercise within the range the statute prescribes. Accordingly, the Court finds no grounds to grant DeJesus habeas relief on this basis.

  DeJesus makes no showing in either the petition or in his Objections of cause for his default or particular prejudice resulting from it, or for a finding that failure by the federal court upon habeas review to consider the defaulted grounds would result in a fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722, 750 (1991); Bousley v. United States, 523 U.S. 614, 622 (1998). DeJesus's Objections merely make general reference to the "innocence gateway" he asserts. Upon examination of the trial and appellate record the Court is not persuaded that there was insufficient evidence upon which DeJesus could have been convicted, and that he is actually innocent of the charges of which he was tried and found guilty.

  The trial evidence here established that DeJesus, by his own statement to the police, admitted that at the time of the underlying incident he fired a gun at two men, one of whom allegedly was running away. There was no evidence that either of those two men was the victim, or that the victim was armed, thus casting doubt on the soundness of DeJesus's justification defense. Moreover, the jury heard eyewitness testimony that DeJesus was seen reaching into his pocket and running towards Mejia just before shots were heard. Others testified to having seen DeJesus firing a gun towards Lopez and striking him. A police officer testified that he saw DeJesus fire a gun in the direction of Mejia. Other officers also testified to having seen DeJesus running away from the scene and tossing a handgun to the ground as he fled. There was also sufficient evidence that DeJesus acted in concert with others, including Charlie Chong ("Chong"), Raymond "Ricky" Pabon ("Pabon") and a woman identified as Shelly, in entering into the confrontation that had earlier occurred involving Shelly.

  The jury considered the defense of justification as instructed, from which it is fair to assume that it found the prosecution's witnesses credible, discredited DeJesus's theory and considered the weight of the evidence otherwise sufficient to find DeJesus guilty beyond a reasonable doubt. DeJesus presents nothing in his challenge that would support a finding that his conviction was contrary to the evidence, or that would otherwise raise a reasonable doubt in the mind of a rational trier of fact. C. CONSTRUCTIVE AMENDMENT

  DeJesus claims that the trial court erred in its instructions to the jury making DeJesus criminally liable for the conduct of another person not charged in the indictment. He alleges that he was thereby denied the constitutional right of notice of the charges he had to defend, and thus of a fair trial, because the evidence did not conclusively establish that he appeared at the scene of the crime with the requisite intent to kill and failed to prove that no one else involved in the fight was armed.

  The evidence at trial, however, established that DeJesus was brought to the scene by Shelly and Pabon following an earlier altercation between Shelly and Mejia's sister, and that DeJesus was also accompanied by Chong, who also was armed. DeJesus points to no evidence on the record suggesting that any other person involved in the fight was armed, or that any person other than DeJesus or Chong shot Mejia or Lopez, both of whom suffered injuries from gun fire. The indictment charging DeJesus with second degree murder and first degree assault, the two crimes for which DeJesus was convicted, provided sufficient notice that he could face liability alternatively as a principal or as an accomplice of Chong. The trial court's instructions on accomplice liability, even if referring generally to the acts of "any other person", cannot be deemed to have constructively amended the indictment in the light of the absence of any evidence that any person at the scene other than DeJesus and Chong was armed or acted in concert with DeJesus. The Court thus concludes that this claim has no merit.


  DeJesus claims that his appellate cause was ineffective by failing to argue that the state failed to prove that DeJesus: (1) was not liable by reason of his justification defense; (2) was guilty beyond a reasonable doubt; (3) could be found guilty of depraved indifference murder under the acting in concert theory.

  Claims of ineffective assistance of counsel are evaluated under the test enunciated by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984); see also Evitts v. Lucey, 469 U.S. 387 (1985). The test requires a two-part a determination: (1) that counsel's performance was deficient, in that it fell below an objective standard of reasonableness measured by prevailing professional norms; and (2) a reasonable probability existed that but for counsel's deficient performance the outcome of the trial would have been different. See Strickland, 466 U.S. at 687-88, 694. Strickland cautions, however, that in this assessment defense counsel is "strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690. In this connection, the Supreme Court has also recognized the substantial latitude appellate counsel must be accorded in the winnowing and selection of issues on which to focus an appeal. See Jones v. Barnes, 463 U.S. 745, 751 (1983).

  Applying these standards, the Court is not persuaded that the performance of DeJesus's appellate counsel crossed that rigorous threshold. As an initial matter the Court notes, as the Report also pointed out, the issues that DeJesus faults appellate counsel for not having raised on appeal all entail challenges to the sufficiency of the trial evidence. In evaluating challenge to the sufficiency of the evidence, the Court must view the trial record in the light most favorable to the prosecutor and determine whether, based on reasoning and permissible inferences, a rational jury could find that the prosecution proved all the elements of the charged crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979).

  Viewing the evidence summarized above in the light most favorable to the prosecution, the Court concludes that the record was sufficient to persuade a rational jury that the prosecution proved DeJesus guilty beyond a reasonable doubt. Accordingly, it could not be considered deficient assistance for appellate counsel not to raise on appeal weak or meritless arguments DeJesus now contends should have been presented, and for counsel to focus instead on other grounds that may have had more plausible legal basis.

  DeJesus points out that a court in this District recently granted a habeas petition in St. Helen v. Senkowski, No. 02 Civ. 10248 (S.D.N.Y. Sep. 22, 2003) (Docket #21), on finding constitutional deficiencies in the statute upon which DeJesus was convicted. The matter is now pending before the Court of Appeals for the Second Circuit (Docket No. 03-2777). The Court withholds consideration of the relevance of DeJesus's observation in this proceeding, or the implications of that case to his petition, until a decision is rendered in St. Helen and the parties have had an opportunity to address what bearing, if any, a decision there may have on DeJesus's instant petition.


  For the reasons discussed above, it is hereby

  ORDERED that the petition of petitioner Alexander DeJesus for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DENIED.

  The Clerk of Court is directed to close this case.

  As petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253; see Lozada v. United States, 107 F.3d 1011 (2d Cir. 1997), abrogated on other grounds by United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997).



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