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CORTIJO v. BENNETT

United States District Court, S.D. New York


July 6, 2004.

ELEUTORIO CORTIJO, Petitioner,
v.
FLOYD G. BENNETT, JR., Superintendent, Elmira Correctional Facility, and ELIOT SPITZER, New York State Attorney General, Respondents.

The opinion of the court was delivered by: RICHARD CASEY, District Judge

MEMORANDUM OPINION & ORDER

Eleutorio Cortijo ("Petitioner") filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his state-court conviction on the ground that he was denied due process of law. Petitioner argues that the trial judge's supplemental jury instructions impermissibly reduced the prosecution's burden of proving its case beyond a reasonable doubt. Specifically, Petitioner contends that the supplemental instructions suggested to the jury that he bore the burden of proving that his inculpatory statements were false, and/or that the prosecution did not bear the burden of proving beyond a reasonable doubt the truthfulness of the statements.

This Court referred the matter to Magistrate Judge Gabriel W. Gorenstein, who issued a Report and Recommendation ("Report") recommending that the Court grant the petition. Floyd G. Bennett, Jr., Superintendent of Elmira Correctional Facility, and New York State Attorney General Eliot Spitzer ("Respondents") objected to the Report. For the reasons stated below, the Court declines to adopt the Report, and the petition is DENIED.

  I. BACKGROUND

  The Court briefly states the relevant facts here. For a more complete statement, see Judge Gorenstein's Report, No. 03 CV 5102 (RCC)(GWG), 2004 WL 418091, at * *1-15 (Mar. 8, 2004).

  A. The Charges and Petitioner's Confession

  On December 12, 1977, the body of Petitioner's father, José Antonio Cortijo, was found in the office building where he had worked as a superintendent. Petitioner lived in that same building. An autopsy revealed that the victim died as a result of a shotgun wound to the back of the head. According to the pathologist, the shotgun was fired no more than two feet from Cortijo's head. The murder weapon was never located.

  In 1995, Petitioner became a suspect in the murder investigation. On April 11, 1995, a New York State probation officer interviewed Petitioner for a presentence report before Petitioner's sentencing on a drug conviction. During the interview, the probation officer asked about Petitioner's father. Petitioner at first responded that he had killed his father; he then retracted the statement and said someone else killed his father. After the officer inquired further, Petitioner repeated that he killed his father.

  The probation officer contacted Detective Frank Colaianni, who was investigating the murder, and informed him of Petitioner's statements. Detective Colaianni and two other officers interviewed Petitioner on October 12, 1995. At trial, Colaianni testified that Petitioner told him that he was hearing voices telling him that he shot his father. After the officers read Petitioner Miranda warnings, he refused to answer any further questions.

  Detective Daniel Danaher interviewed Petitioner on April 2, 1998. Petitioner waived his Miranda rights and again stated that he had killed his father. When asked why, Petitioner said he killed his father because "he felt like it."

  Detective Colaianni contacted Petitioner's brother Richard in April 1997. Richard said that in November 1986, Petitioner had told him that he killed his father. Richard repeated these statements in January 1998 to Detective Danaher. Petitioner was charged with second degree murder in connection with his father's death.

  B. Trial Testimony and Closing Arguments

  Petitioner was tried in June 1998.*fn1 At trial, Petitioner presented the testimony of Dr. Robert Berger, director of forensic psychiatry at Bellevue Hospital. Dr. Berger opined that Petitioner suffered from paranoid schizophrenia, a disorder which includes symptoms such as hallucinations, delusions, and hearing voices. Dr. Berger testified that "[a] delusion is an idea. It's an inaccurate false idea that the person maintains in spite of any logic or reason that he is confronted with still maintains that false idea." (Trial Transcript at 414.) Petitioner's medical records led Dr. Berger to conclude that Petitioner began hearing voices and having sensations of lights flashing shortly after his father's death. Dr. Berger believed that Petitioner's disorder affected his ability to perceive reality, and that Petitioner's statements to the probation officer, the detectives, and his brother may have been distortions and the product of hearing voices.

  During closing arguments, Petitioner's counsel argued that the jury should disregard the statements because of Petitioner's mental disorder. Defense counsel argued, "[The prosecutors] have a number of problems and the first problem is they have to prove that Cortijo's statements are truthful when every single person in this courtroom knows you can't believe what he says and that his statements can never be proven as truthful." (Id. at 666.) He also maintained, "[T]his case always comes back to the exact same issue, the statements of that mental patient, the mental patient, are they truthful and [has the prosecution] proved that his statements are truthful. The answer is no, not now, not ever. It cannot be done." (Id. at 695.)

  The prosecution responded to the defense attorney's argument about Petitioner's statements:

What is [Petitioner's] diagnosis from Dr. Berger and from everyone else's treatment? He's a paranoid schizophrenic. Absolutely true. Does that prevent him from being truthful? No. Dr. Berger said no. Does that prevent him from being accurate? No, Dr. Berger said so. Is there any evidence whatsoever that the defendant is more or less likely to be truthful, to be accurate? No, none whatsoever. There is no single piece of evidence in the record that indicates that the defendant because he is a paranoid schizophrenic is any more likely or less likely to be truthful or accurate.
(Id. at 730.)

  C. Jury Charge and Deliberations

  The trial judge instructed the jury that the prosecution had the burden of proof to establish Petitioner's guilt beyond a reasonable doubt. The judge stated, "A defendant is never required to prove anything. The People . . . have the burden of proving the defendant's guilt beyond a reasonable doubt and that burden never shifts. It remains on the People. . . ." (Id. at 760.)

  The judge further instructed the jury that Petitioner's statements to the detectives were to be disregarded unless the jury determined that they were actually made, that they were voluntarily made, and that they were truthful. As the judge put it, "[Y]ou must give no weight whatsoever to the statements in arriving at your verdict unless you find . . . first, that the statements were, in fact, made; second, that the statements were voluntarily made, and third, that the statements were truthful in whole or in part." (Id. at 765.) The judge told the jury that the People had the burden of proving beyond a reasonable doubt that the statements were voluntarily made and were truthful in whole or in part. After instructing the jury on the meaning of "voluntary," the judge repeated that the prosecution had to prove beyond a reasonable doubt that the statements were truthful. The judge concluded his instructions regarding the inculpatory statements by again emphasizing the prosecution's burden.

  During deliberations, the jury sent the judge a note asking to hear Dr. Berger's testimony about Petitioner's statements. The jury requested "to hear Dr. Berger's testimony as to whether each of the specific statements could be the result of the defendant's illness." (Id. at 812-13.) The judge replied that there was no such testimony because "[t]he effect of the defendant's mental illness on the defendant's statements, if any, is a question of fact for the jury to decide from all of the evidence in the case." (Id. at 818.)

  The jury then sent another note asking to hear "Dr. Berger's testimony regarding whether a person suffering from paranoid schizophrenia could claim to commit a crime which they did not commit," and any testimony by Dr. Berger referring to whether statements made by a paranoid schizophrenic could result from the illness. (Id. at 821.) The jury also asked to hear testimony of the detectives, Petitioner's brother, and the probation officer related to the inculpatory statements.

  On the third day of deliberations, the jury sent the judge another note:

We the jury request that we receive further instructions on reasonable doubt and the burden of proof in the context of the People's rebuttal to the defendant's case.
With regards to the People's initial case, [you] instructed us that the People must prove beyond a reasonable doubt that the defendant's statement[s] were one, made in fact; two, voluntary[;] and three, truthful.
The defendant's case included evidence that the defendant's statements may not be truthful and that the statements [may] be the result of delusions.
Do the People have the burden to rebut this evidence? And what is the standard of proof? In other words, must the People prove beyond a reasonable doubt that the defendant's statements were not a result of delusions?
(Id. at 847-48.) The judge solicited comments from the attorneys on how to respond. Petitioner's attorney believed that the jury was questioning whether the fact that Petitioner presented evidence at trial shifted the burden of persuasion. Defense counsel requested that the court charge as follows:
That the People always have the burden of proof, beyond a reasonable doubt, that the defendant is guilty of the crime charged. That burden never shifts to a defendant, whether or not he offers evidence on his own behalf.
As part of that burden, the People must prove, beyond a reasonable doubt, that the statements . . . were made, were voluntary and were truthful in whole or in part.
[E]ven though he was not required to present evidence, the defendant offered evidence, then the statements made by the defendant might not be truthful because of the defendant's psychiatric condition.
I charge you that if you believe that the People have not proven, beyond a reasonable doubt, that the defendant's statements were truthful; whether they were the product of delusions or not, that you must acquit.
(Id. at 849-50.)

  There was some ensuing colloquy among the judge and the attorneys. The prosecutor suggested that the court provide a direct response to the jury's question about whether the prosecution had to prove that the statements were not the result of delusions. He requested that the court reply, "The answer is no." (Id. at 853.) He also suggested that the court repeat the admonition that the People had to prove beyond a reasonable doubt that the statements were actually and voluntarily made, and were truthful.

  Petitioner's attorney stated that the jury's question about delusions should not be taken literally because it was the product of the jury's lack of sophistication. The defense counsel emphasized that he was not asking the court to tell the jury that the prosecution had the burden to prove that the statements were not the product of delusions. Instead, he proposed that the court instruct, "[I]f you find that his statements were the product of delusion, and have not been proven truthful beyond a reasonable doubt, then you have to disregard the statement." (Id. at 857.)

  The judge responded to Petitioner's attorney, "I have to answer [the jury's question] no. The question is, do you want me to say a simple no or do you want me to say that the People do not have to prove beyond a reasonable doubt that the statements were not a result of delusions?" (Id. at 858.) The prosecutor suggested simply reading the question and saying "no," while the defense counsel believed that would merely confuse the jury and create an impression that the burden of persuasion had shifted to the defendant.

  The end result of the extended discussion was the following supplemental instructions:

The burden of proof at a criminal trial is always on the People []and never shifts to the defendant. It doesn't matter if the defendant presents evidence or doesn't present evidence. The burden of proof is always on the People and that standard is proof of guilt beyond a reasonable doubt. It never shifts to the defendant.
Concerning the statements . . . allegedly made to the two detectives, the People have the burden of proof, beyond a reasonable doubt, to show three things: First, that the statements were in fact made; that they were voluntarily made and that they were truthful in whole or in part. Those three things must be . . . proven concerning the detectives. . . . They must be proven beyond a reasonable doubt.
Concerning the statements allegedly made to Probation Officer Vullo and to Richard Cortijo, People again have the burden of proof, beyond a reasonable doubt, to show that the statements were, in fact, made and they were truthful in whole or in part.
Concerning all four statements, you can only accept those portions of the statements which you believe are truthful and you reject such portions of the statements that you believe are not truthful. . . . The burden always remains on the People.
In response to your last question, "Must the People prove beyond a reasonable doubt the defendant's statements were not the result of delusions?" The answer is no. That doesn't shift the burden of proof to the defense but the answer to that question is no. The People are not required to prove that the statements the defendant allegedly made were not the result of delusions.
(Id. at 861-63.)

  After the judge gave these instructions, some of the jurors indicated that they had not heard everything he said; the jury requested that the judge's supplemental instructions on the question about delusions be repeated. The judge brought the jury back into the courtroom and stated:

The last thing I said in response to your question . . . "Must the People prove beyond a reasonable doubt that the defendant's statements were not a result of delusions." And the answer is no.
However, the People have the burden of proof to prove their case beyond a reasonable doubt and the burden never shifts to the defendant to prove or disprove anything.
(Id. at 868.)

  After four days of deliberations, the jury returned a verdict of guilty. On October 5, 1999, Petitioner was sentenced to twenty-five years to life imprisonment.

  D. Postconviction Proceedings

  Petitioner appealed his conviction to the Appellate Division. He argued, among other things, that the supplemental jury charge was unconstitutional because it reduced the prosecution's burden below reasonable doubt. The Appellate Division affirmed the conviction in an opinion dated February 28, 2002. See People v. Cortijo, 291 A.D.2d 352 (1st Dep't 2002). The court held that the trial judge's "supplemental charge meaningfully responded to a jury note . . . and correctly stated the law with respect to the People's burden of proving that defendant's statements were truthful." Id. at 353. The Court of Appeals denied Petitioner's application for leave to appeal. See People v. Cortijo, 98 N.Y.2d 674 (2002).

  On July 10, 2003, Petitioner filed this petition, arguing that the supplemental jury instruction violated his Fourteenth Amendment right to due process because it reduced and shifted the prosecution's burden of proof on an essential element of the case. Magistrate Judge Gorenstein agreed. Judge Gorenstein interpreted the jury's question to be synonymous with, "Must the People prove beyond a reasonable doubt that the defendant's statements were not false." Because the prosecution's case depended on the incriminatory statements, Judge Gorenstein concluded that the prosecution had the burden of proving their truthfulness. He then determined that the trial judge's negative answer to the jury's question was likely to have suggested to the jury that (1) the prosecution did not have a burden to show that the confessions were true, and (2) Petitioner had a burden to prove that the statements were false. Judge Gorenstein concluded that the instructions violated Petitioner's right to a finding of guilt beyond a reasonable doubt.

  Respondents filed written objections to the Report in which they argue that Judge Gorenstein misinterpreted the meaning of the jury's question and misapplied the law.

  II. DISCUSSION

  The Court reviews de novo all portions of a magistrate's report to which there are objections. 28 U.S.C. § 636(b)(2); Fed.R.Civ.P. 72(b).

  28 U.S.C. § 2254 governs relief from custody pursuant to state-court convictions. It provides in relevant part:

[A] district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
28 U.S.C. § 2254(a). When a state court has decided the prisoner's claim on the merits, a federal court may only grant habeas relief when the state adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
Id. § 2254(d).

  A decision is on the merits when it finally resolves the claim, with res judicata effect, and is based on substantive rather than procedural grounds. Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001). It is the state court's ultimate decision, and not its reasoning or the absence of reasoning, that determines whether it was on the merits. See id. at 311-12. Therefore, "even if the state court does not explicitly refer to either the federal claim or to relevant federal case law," § 2254(d) applies. Id. at 312. Indeed, a state court need not even be aware of Supreme Court case law for § 2254(d) to apply. Early v. Packer, 537 U.S. 3, 8 (2002).

  Here, the Appellate Division rejected Petitioner's challenge to the trial court's supplemental jury charge on the merits even though it did not explicitly refer to federal law. See Sellan, 261 F.3d at 314 (holding state decision was on the merits when court simply stated claim was denied). There is no suggestion that the decision was procedurally based. Instead, the Appellate Division held that the jury instruction was correct as a matter of law. See 291 A.D.2d at 353. It is irrelevant that it did not discuss the federal right at stake or cite applicable Supreme Court case law. Therefore, the Court must apply § 2254(d)'s deferential standard of review.

  Respondents argue that the case must be analyzed under § 2254(d)(2) because the Appellate Division's decision involved an implicit factual determination about what the jury's questions meant. According to Respondents, the petition can only be granted if Petitioner shows that such a factual determination was unreasonable in light of the state-court record. Respondents' interpretation of the issue is incorrect. The relevant determination is a matter of law — what impression were the supplemental jury instructions likely to have had on the jury. Because the supplemental jury instructions expressly incorporated the jury's question, the analysis necessarily involves consideration of what the jury's question meant. This does not, however, transform the legal inquiry into a factual one. The applicable provision of the habeas statute is § 2254(d)(1), the provision that Magistrate Judge Gorenstein applied.

  Section 2254(d)(1) provides two grounds for habeas relief. The first occurs if a state court has made a decision contrary to clearly established Supreme Court case law; the second occurs when the state-court decision involved an unreasonable application of clearly established Supreme Court precedent. The phrases "contrary to" and "involved an unreasonable application of" have independent meaning and require separate analyses. See Bell v. Cone, 535 U.S. 685, 694 (2002); Harris v. Kuhlmann, 346 F.3d 330, 344 (2d Cir. 2003).

  A decision involves an unreasonable application of clearly established Supreme Court case law if a state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case," Williams v. Taylor, 529 U.S. 362, 413 (2000), or when a state court "fails to extend a principle of clearly established law `to situations which that principle should have, in reason, governed,'" Tueros v. Greiner, 343 F.3d 587, 591 (2d Cir. 2003) (quoting Kennaugh v. Miller, 289 F.3d 36, 45 (2d Cir. 2002)). To be an unreasonable application, the habeas court must do more than "conclude[] in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams, 529 U.S. at 411. As the Court in Williams put it, "[A]n unreasonable application of federal law is different from an incorrect or erroneous application of federal law." Id. at 412.

  State-court adjudication is contrary to clearly established Supreme Court case law if it "arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law" or "decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Id. at 413. The Supreme Court has defined "contrary to" as "diametrically different," "opposite in character or nature," or "mutually opposed." Id. at 405.

  Judge Gorenstein correctly analyzed Petitioner's claim under the "unreasonable application" prong of § 2254(d)(1). "When, as in this case, a state court fails to explicate a coherent rationale for its rejection of a petitioner's claim, but that rejection nevertheless is clearly on the merits," the habeas court must focus on whether the state court unreasonably applied clearly established Supreme Court precedent. Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir. 2001).

  To determine whether the Appellate Division's rejection of Petitioner's claim was an unreasonable application of clearly established federal law, the Court must first identify what that federal law is. In undertaking the first step of the analysis, the Court looks to both general standards articulated by the Supreme Court and specific bright-line rules meant to effectuate such standards in particular factual contexts. See Kennaugh, 289 F.3d at 42.

  For a jury instruction to violate a defendant's constitutional rights, "it must be established not merely that the instruction is undesirable, erroneous, or even `universally condemned' but that it violated some right which was guaranteed . . . by the Fourteenth Amendment." Cupp v. Naughten, 414 U.S. 141, 147 (1973). There must be "a reasonable likelihood that the jury . . . applied the challenged instruction in a way that violates the Constitution." Estelle v. McGuire, 502 U.S. 62, 72 (1991) (internal quotation marks omitted). An erroneous jury instruction is unconstitutional if it "so infected the entire trial that the resulting conviction violates due process." Cupp, 414 U.S. at 147. The challenged instruction must be considered in the context of the instructions as a whole and the trial record. Id.

  The constitutional right at issue in this case is the Due Process Clause guarantee that one may be found guilty only if the prosecution has proven its case beyond a reasonable doubt. See Sullivan v. Louisiana, 508 U.S. 275, 277 (1993) (recognizing this right). Due process requires that the prosecution in both state and federal cases prove all elements of a criminal offense, and persuade the factfinder of the facts necessary to establish those elements, beyond a reasonable doubt. See id. at 277-78. A verdict following jury instructions that have reduced this burden is automatically invalid. See id. at 281. Thus, a jury instruction that is constitutionally deficient because it reduces the prosecution's burden or shifts the burden to a defendant cannot be harmless error. See id.

  The Supreme Court has clearly established that the Due Process Clause is violated when there is a reasonable likelihood that the jury applied instructions in a manner that reduced or shifted the prosecution's burden to prove beyond a reasonable doubt the elements of the offense and the facts necessary to establish those elements. The "only question that matters under § 2254(d)(1)," however, is whether the Appellate Division's ruling that the supplemental charge did not violate Petitioner's due process rights was an unreasonable application of the Supreme Court's holdings in Cupp, Estelle, and Sullivan. See Lockyer v. Andrade, 538 U.S. 63, 71 (2003).

  There is much dispute about what the jury meant in its note asking whether the People had to prove beyond a reasonable doubt that the defendant's statements were not the result of delusions. Petitioner contends that by using the word "delusions" the jury meant "false," and hence the jury was asking whether the People had to prove beyond a reasonable doubt that the defendant's statements were not false, in other words, that the statements were true.

  Respondents assert that the jury was concerned with whether the prosecution had a burden to prove that the statements were not the result of delusions, separate and apart from whether the statements were truthful. Respondents argue that the jury differentiated between the truthfulness of the statements, that is, that Petitioner actually killed his father, and whether delusions prompted him to make the statements. In sum, Petitioner claims that the jury was asking about the content of Petitioner's statements, whereas Respondents maintain that the jury was focusing on the motivation for making the statements.

  As Judge Gorenstein recognized in his Report, it is no easy task for a judge to get inside the heads of deliberating jurors. See Report at 49 (citing United States v. Doyle, 130 F.3d 523, 539 (2d Cir. 1997)). The constitutional standard here, however, is whether it is reasonably likely that the jury believed the trial judge to be saying that the prosecution did not have the burden to prove beyond a reasonable doubt that Petitioner's statements were truthful. The Court does not believe that such a reasonable likelihood exists.

  Petitioner's interpretation would mean that the trial judge was instructing the jury that the prosecution did not have to prove beyond a reasonable doubt that Petitioner actually killed his father. Petitioner's incriminating statements were all nearly identical: "I killed my father," was the gist of all four. If the jury was inquiring whether the prosecution had to prove beyond a reasonable doubt that Petitioner's statements were not false (but rather were made because of Petitioner's mental disorder), then the trial judge would have informed the jury that the prosecution need not prove the alleged criminal act beyond a reasonable doubt. It is highly doubtful that a jury, which was instructed multiple times that the prosecution must prove the elements of second degree murder beyond a reasonable doubt, would have understood the supplemental charge in this way. As the Supreme Court recently stated in rejecting a habeas challenge based on imperfect jury instructions, "This interpretation would require such . . . extremely gullible acceptance of a result that makes no conceivable sense, that the state court's implicit rejection of the possibility was surely not an unreasonable application of federal law." Middleton v. McNeil, 124 S.Ct. 1830, 1833 (2004) (per curiam).

  As Respondents point out, Petitioner's trial counsel did not interpret delusional as meaning false. During the colloquy with the attorneys, the judge stated, "I can't answer [the jury's question] with a yes." (Tr. at 857.) Petitioner's attorney responded, "I am not saying answer it with a yes," and suggested to the court, "[Y]ou can say look, the answer . . . to that question is no. . . . However, if you find that his statements were the product of delusion, and have not been proven truthful beyond a reasonable doubt, then you have to disregard the statement." (Id.) If the jury was asking whether the prosecution had to prove beyond a reasonable doubt that Petitioner's statements were true, then a reasonable defense attorney would have prodded the court to answer the question in the affirmative. Petitioner does not assert that his trial counsel was unconstitutionally ineffective.

  The trial judge's jury instructions were replete with references to the prosecution's burden. He emphasized that Petitioner's presentation of evidence regarding delusions had no effect on the burden of proof:

The burden of proof at a criminal trial is always on the People and never shifts to the defendant. It doesn't matter if the defendant presents evidence or doesn't present evidence. The burden of proof is always on the People and that standard is proof beyond a reasonable doubt. It never shifts to the defendant.
(Tr. at 861-62.) In addition, the court stressed that the People had to prove beyond a reasonable doubt that Petitioner's statements were true:
Should you be satisfied beyond a reasonable doubt that the statements were in fact made, and they were voluntarily made, such statements can be considered by the jury only if you find the People have proven beyond a reasonable doubt that the statements were truthful in whole or in part. . . . For . . . a juror is required to disregard . . . any statement of the defendant which it finds to be false in whole or in part.
(Id. at 769.) The judge repeated this admonition twice during the initial charge. (Id. at 770.) It was not unreasonable for the state court to conclude that these repetitions were sufficient to cure any potentially misleading effect the judge's "no" answer might have had. See Middleton, 124 S.Ct. at 1832 ("Given three correct instructions and one contrary one, the state court did not unreasonably apply federal law when it found that there was no reasonable likelihood the jury was misled."). Finally, Petitioner makes much of the argument that the trial court's final word on Petitioner's statements was likely to have made the greatest impression. The trial court's final word, however, was, "[T]he People have the burden of proof to prove their case beyond a reasonable doubt and the burden never shifts to the defendant to prove or disprove anything." (Tr. at 868.) Thus, the trial court again stressed that Petitioner's evidence regarding delusions did not shift or reduce the prosecution's burden to prove that the statements were true, and therefore, that Petitioner did kill his father.

  Judge Gorenstein's opinion suggests that the constitutional issue in this case may be a close one. But whether Judge Gorenstein or this Court would come out differently on Petitioner's due process claim is not the question for habeas purposes. Petitioner's burden is to demonstrate that the Appellate Division's decision was objectively unreasonable, which means more than erroneous and even more than clearly erroneous. See Lockyer, 538 U.S. at 74 ("The gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness.").

  Given the unlikelihood of Petitioner's proffered interpretation of the supplemental instruction and the trial court's repetition of the correct standard, it was not objectively unreasonable for the Appellate Division to have concluded that the jury was unlikely to have applied the supplemental instructions in a manner that violated Petitioner's right to a finding of guilt beyond a reasonable doubt. The opposite conclusion would fail to give appropriate deference to the state court's decision. See Middleton, 124 S.Ct. at 1832; Lockyer, 538 U.S. at 74.

  III. CONCLUSION

  For the foregoing reasons, the petition for a writ of habeas corpus is DENIED. So Ordered.


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