The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge
TO THE HONORABLE HAROLD BAER, UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION
Petitioner Ernest Williams ("Williams") has made an application
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Williams contends that his confinement by the state of New York
is unconstitutional because the evidence submitted at his trial
was insufficient for a jury to find him criminally culpable for
robbery in the second degree. He maintains that the judgment of
conviction must be modified to robbery in the third degree. The
respondent opposes Williams' application for a writ of habeas
corpus. He contends that Williams' claim is procedurally barred
and, in any event, lacks merit.
On May 25, 1999, Williams entered the Manhattan office of an
octogenarian semi-retired attorney. Williams was carrying
envelopes and mentioned several names to the attorney. Williams
was advised that none of the named persons was associated with
the attorney's office. Williams handed the attorney a slip of paper that contained a
woman's name and a telephone number. Williams was asked to leave
the attorney's office. He did not. Instead, Williams placed the
attorney in a choke hold that caused him to lose consciousness
for several minutes. Williams relieved the attorney of the cash
that was in the attorney's pants pocket. When the attorney
regained consciousness and discovered that he had been robbed, he
dialed the telephone number that appeared on the slip of paper
Williams had given to him earlier. The telephone number was
assigned to the home of Williams' former girlfriend. The robbery
victim made two telephone calls to Williams' former girlfriend.
During the second telephone call, he persuaded her to contact
security personnel at the building where his law office was
located. When Williams' former girlfriend did so, she was
connected to the New York City Police Department to whom she
reported the robbery on the victim's behalf.
Williams was apprehended and was later indicted by a New York
County grand jury. Williams proceeded to trial before a petit
jury. During the trial, the jury heard testimony from James Gill,
M.D., Associate Medical Examiner for the City of New York. Dr.
Gill testified on behalf of the prosecution. The prosecution
elicited uncontroverted testimony from Dr. Gill concerning the
physiological effect on the human body when a person loses
consciousness. Dr. Gill informed the jury that:
Losing consciousness is also known as passing-out,
and it can be due to a lot of different things, but
the ultimate problem is the brain not getting enough
oxygen. And when your brain senses that, it kind of
shuts down all of your voluntary systems and you pass
Under New York law, a person commits robbery in the second
degree when the person forcibly steals property and "[i]n the
course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime: (a)
[c]auses physical injury to any person who is not a participant
in the crime. . . ." New York Penal Law § 160.10. New York's
Penal Law explains that physical injury "means impairment of
physical condition or substantial pain." New York Penal Law §
The jury returned a verdict convicting Williams for robbery in
the second degree.
Following his conviction, Williams appealed from the judgment
of conviction to the New York State Supreme Court, Appellate
Division, First Department. He urged that court to reduce the
conviction he suffered for robbery in the second degree to
robbery in the third degree. Williams argued that the evidence
presented to the jury was legally insufficient to establish the
crime of robbery in the second degree because the victim did not
suffer either a physical impairment or substantial pain.
For its part, the prosecution asked the Appellate Division to
deny Williams' request for relief because he had failed to
preserve his claim of insufficient evidence for that court's
review. The prosecution noted that Williams' attorney had made
only a general protest at the close of the prosecution's case,
when he asked the trial court to issue a trial order of dismissal
because the prosecution had "failed to prove the case beyond a
reasonable doubt and there is not sufficient [evidence] [to]
submit the case to the jury." The prosecution claimed that,
without greater specificity, the protest raised by Williams'
counsel did not alert the trial court to the precise theory under
which he believed the evidence was wanting. Therefore, according
to the prosecution, the claim of insufficient evidence was not
preserved for appellate review.
The Appellate Division agreed with the prosecution. It found
that Williams' challenge to the sufficiency of the evidence
supporting the physical injury element of the offense robbery in the second degree "[was] unpreserved" for appellate review.
Notwithstanding that determination, the court noted that if it
reviewed the substance of Williams' claim it would find that, by
choking the robbery victim and causing him to lose consciousness,
Williams inflicted physical injury on the victim. See People
v. Williams, 294 A.D.2d 312-313, 742 N.Y.S.2d 544 (App. Div.
1st Dep't 2002). Williams applied for leave to appeal from
the decision of the Appellate Division to the New York Court of
Appeals. That application was denied by an associate judge of
that court on July 25, 2002. See People v. Williams,
98 N.Y.2d 703, 747 N.Y.S.2d 423 (2002). The instant application for
a writ of habeas corpus was made shortly thereafter.
Williams contends that he is entitled to the relief he seeks,
through the application for a writ of habeas corpus, because the
evidence presented at his trial by the prosecution did not
establish that the robbery victim suffered a physical injury,
specifically, substantial pain. Therefore, according to Williams,
the jury could not find him criminally culpable for the crime
robbery in the second degree.
A federal court may not review a question of federal law
decided by a state court if the state court's decision rested on
a state law ground, be it substantive or procedural, that is
independent of the federal question and adequate to support the
judgment. See Coleman v. Thompson, 501 U.S. 722, 729, 111 So.
Ct. 2546, 2553-54 (1991). This proscription applies even in those
circumstances where a state court expressly relies on a
procedural default as an independent and adequate state law
ground but, nevertheless, has ruled in the alternative on the
merits of the federal claim. See Velasquez v. Leonardo,
898 F.2d 7, 9 (2d Cir. 1990). However, a habeas corpus petitioner may bypass the independent and
adequate state law ground by showing cause for the default and
prejudice attributable thereto or by demonstrating that a
fundamental miscarriage of justice ...