United States District Court, S.D. New York
August 16, 2005.
CARLOS DELUCIA, Petitioner,
CALVIN E. WEST, Superintendent, Elmira Correctional Facility, Respondent.
The opinion of the court was delivered by: DENNY CHIN, District Judge
Pro se petitioner Carlos DeLucia brings this petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner
was convicted on June 27, 2000, after a jury trial in the Supreme
Court of the State of New York, New York County, of murder in the
second degree, criminal possession of a weapon in the second
degree, and reckless endangerment in the first degree. He was
sentenced to concurrent terms of imprisonment of twenty-five
years to life on the murder conviction, fifteen years on the
weapons conviction, and three-and-a-half to seven years on the
reckless endangerment conviction. Petitioner contests his conviction on the following grounds:
(1) the trial court improperly modified mid-trial its prior
ruling prohibiting the prosecution from offering certain
evidence; and (2) the trial court's refusal to charge
manslaughter in the first degree as a lesser-included offense to
murder denied appellant a fair trial. The Court has reviewed the
parties' submissions and the record of the proceedings below. For
the reasons that follow, the petition is denied.
I. The Facts
The following is a summary of facts adduced at DeLucia's trial.
On September 25, 1998 at approximately 10 p.m., 32 year-old
DeLucia approached 17-year-old Antony Boynton and Boynton's
half-sister, Onica Bruce, in front of 224 East 28th Street in New
York City, an apartment complex in which Boynton, Bruce, DeLucia,
and DeLucia's girlfriend, Olga Rosado, lived. (Tr. 373, 377-79,
393-94, 675, 782, 809, 844-45).*fn1 DeLucia and Boynton knew
each other from the neighborhood, and Boynton owed DeLucia twenty
dollars. (Tr. 397-98, 797, 832-33, 835, 845, 851-52). DeLucia
threatened Boynton, stating that Boynton "better give him his
money, or he will make an example out of him." (Tr. 393-99,
408-09). The next day at noon, DeLucia repeated his threat that
Boynton "better have his fucking money" and instructed him to give the twenty dollars to him or Rosado. (Tr.
397, 404, 411, 413-14, 422-23).
On Sunday, September 27, 1998 at approximately 3 a.m., DeLucia
and Boynton stood with a group of friends outside of 244 East
28th Street. (Tr. 290, 607-08, 615-16). Renee Ellis, a security
supervisor who lived at 344 East 28th Street on the corner of
First Avenue, and Todd Brown, who had just left his friend's
apartment, were present. (Tr. 281-84, 286, 543-45, 607). DeLucia
slapped Boynton across the face. (Tr. 290, 342, 558-59). Ellis
then stepped in between DeLucia and Boynton to break up the
confrontation. (Tr. 302). DeLucia accused Boynton of "run[ing]
off with [his] twenty dollars." (Tr. 565). When Ellis asked what
was going on, Boynton explained, "I owe him twenty dollars." (Tr.
291, 302, 304, 341). Ellis immediately handed DeLucia twenty
dollars, and DeLucia "snatched" the money, continued cursing, and
then shouted to Ellis, "[i]t is none of your damn business. Stay
out of it. It is the principle." (Tr. 291, 304-05, 343). Brown
then pushed Ellis out of the way of Boynton and DeLucia. (Tr.
562-63, 570-71, 605, 617). Seconds later, DeLucia pulled out his
revolver and shot Boynton in the head from between three and five
feet away. (Tr. 566-67, 604-06, 616). Ellis had not seen the
shooting because he had his back to DeLucia and Boynton, but when
he heard the shot, he turned around, saw DeLucia with his gun
pointed at Boynton, and then ran. (Tr. 291-93, 308-10, 331,
343-45, 360). Brown also ran away from DeLucia. (Tr. 570-71,
644). A few minutes later, Ellis encountered DeLucia exiting from a
side door at 224 East 28th Street. (Tr. 314, 331-32, 343-45, 351,
575, 598). Ellis said to an acquaintance who was standing with
DeLucia that he was looking for Boynton. (Tr. 314, 352). DeLucia
responded, "Anthony is fucking dead and so will you [be]." (Tr.
293, 314, 346, 352-53). DeLucia then pulled out his gun and fired
two shots at Ellis, but missed. (Tr. 293, 316-17, 347, 353).
Around 3:15 a.m., the police found Boynton slumped in front of
the building and bleeding from his head. (Tr. 428). An ambulance
took Boynton to Bellevue Hospital where he was declared "brain
dead" upon arrival. He was declared officially dead at 7:25 p.m.
(Tr. 381, 472).
II. Procedural History
A. The Proceedings in the Trial Court
DeLucia was indicted in 1998 in the Supreme Court, New York
County. The trial commenced on May 25, 2000. During the trial,
the prosecution requested that it be allowed to offer evidence
suggesting that the twenty-dollar debt was a result of a drug
transaction. (Voir Dire Tr. 330; Tr. 195-202). The trial court
ruled, in accordance with People v. Molineux, 168 N.Y. 264
(1901), that evidence suggesting that DeLucia and Boynton were
involved in drug transactions would be overly prejudicial and,
therefore, not admissible. (Tr. 200). The trial court cautioned,
however, that if the defense were to "open the door" by arguing
that "the twenty dollars was not owed . . . [or] that it is illogical for the defendant to have killed [Boynton] for
twenty dollars," the prosecution would be allowed to present
evidence of drug transactions to the jury, including evidence
regarding marijuana sales between DeLucia and Boynton. (Tr.
At trial, DeLucia took the stand and testified that he was
generous and had previously given Boynton money just like he
"gave all the other kids in the neighborhood money when they
asked" for money to buy ice cream or go to a movie. (Tr. 787-88,
799, 834-35, 851-52). The prosecution argued that the direct
testimony "opened the door" and the trial court agreed. (Tr.
798-800). As a result, the prosecution elicited testimony that
Boynton sold drugs for DeLucia. Specifically, Bruce testified
that she observed Boynton selling drugs, and on one occasion two
weeks prior to the murder, she saw Boynton hand DeLucia money in
exchange for approximately ten bags of marijuana. (Tr. 913-16,
At the conclusion of the trial, the trial court submitted to
the jury two murder counts and a second-degree weapons possession
count with respect to Boynton's death, and attempted murder,
attempted assault, criminal use of a firearm, and reckless
endangerment counts with respect to DeLucia's alleged conduct
toward Ellis. On June 6, 2000, the jury found DeLucia guilty of
intentional murder and criminal possession of a weapon in the
second degree in the killing of Boynton, and reckless
endangerment in the first degree for shooting at Ellis. The jury found DeLucia not guilty on the remaining charges. On
June 27, 1999, Justice James Yates sentenced DeLucia to an
indeterminate term of twenty-five years to life on the murder
conviction, a determinate prison term of fifteen years on the
weapons conviction, and an indeterminate prison term of
three-and-a-half to seven years on the reckless endangerment
conviction, all to be served concurrently.
B. The Appeals
On September 26, 2000, the Appellate Division, First
Department, granted DeLucia leave to appeal his conviction.
(Resp. Mem., Ex. A). DeLucia's appellate counsel claimed error in
the trial court's mid-trial change in its Molineux ruling and
the trial court's refusal to charge manslaughter in the first
degree as a lesser-included offense of murder in the second
degree. Id. On February 20, 2003, the First Department
unanimously affirmed DeLucia's conviction. People v. DeLucia,
754 N.Y.S.2d 637 (1st Dep't 2003). The court ruled that the
modification of the Molineux ruling was proper because
DeLucia's "testi[mony] that the debt had an innocuous origin"
opened the door to evidence regarding the reason why Boynton owed
DeLucia money. Id. In addition, the court found that the
refusal to submit the manslaughter charge was appropriate
considering that "there was no reasonable view of the evidence,
viewed most favorably to the defendant, that he merely intended
to inflict serious physical injury but not to cause death." Id. On or about April 30, 2003, DeLucia filed a letter in support
of his application to appeal to the Court of Appeals. (Resp.
Mem., Ex. D). On June 16, 2003, DeLucia's application for leave
to appeal to the Court of Appeals was denied. People v.
DeLucia, 100 N.Y.2d 561 (2003).
C. The Habeas Petition
DeLucia's habeas petition was filed in this Court on May 12,
I. The Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA") vastly altered the landscape of habeas jurisprudence
and "placed a new restriction on the power of federal courts to
grant writs of habeas corpus to state prisoners." Williams v.
Taylor, 529 U.S. 362, 399 (2000). AEDPA sets forth new standards
of review that make it more difficult for a habeas petitioner to
obtain federal relief from a state conviction. AEDPA provides
An application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of a
State court shall not be granted with respect to any
claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the
(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
28 U.S.C. § 2254(d)(1), (2). The statute has been interpreted to
require a petitioner to show not only that clearly established
federal law was erroneously or incorrectly applied, but that the
application was unreasonable. See Williams, 529 U.S. at 411;
see also Lockyer v. Andrade, 538 U.S. 63
, 64 (2003); Bell
v. Cone, 535 U.S. 685, 685-86 (2002). As the Second Circuit
explained: "A state court decision is `contrary to' Supreme Court
precedent only if it either `arrives at a conclusion opposite to
that reached by [the Supreme Court] on a question of law' or
`confronts facts that are materially indistinguishable from a
relevant Supreme Court precedent and arrives at [the opposite
result].'" Lainfiesta v. Artuz, 253 F.3d 151
, 155 (2d Cir.
2001) (quoting Williams, 529 U.S. at 405). The standards set
forth by AEDPA apply to all habeas petitions filed after the
statute's effective date of April 24, 1996. See Boyette v.
Lefevre, 246 F.3d 76
, 88 (2d Cir. 2001) (citing Williams,
529 U.S. at 402).
A. Modification of the Molineux Ruling
With respect to the issue regarding the mid-trial modification
of the Molineux ruling, DeLucia argues that his Sixth Amendment
right to testify on his own behalf and present a defense was
violated when the trial court allowed the prosecutor to offer evidence concerning marijuana sales that had been
precluded by the Molineux ruling. (DeLucia Aug. 4, 2004 Mem. of
Law at 2-6).*fn2 I will first address whether the claim is
procedurally barred and then address its merits.
1. Exhaustion of Remedies
Respondent argues that DeLucia failed to present the Molineux
claim in his letter application for leave to appeal to the New
York Court of Appeals. Respondent contends, therefore, that
DeLucia did not exhaust his state court remedies and that his
petition is procedurally barred. DeLucia responds that both
claims were properly raised in his brief to the Court of
Appeals.*fn3 In his letter application, DeLucia thoroughly
discussed his claim that the trial court improperly refused to
submit a manslaughter charge to the jury, but only made a passing
reference to other claims. Even so, I find for the reasons set
for below that DeLucia fairly presented his claim regarding the
mid-trial Molineux ruling to the Court of Appeals and,
therefore, this Court may consider its merits.
Before a federal court may evaluate habeas corpus petitions,
the petitioner must have exhausted his state court remedies. In
other words, he must have (1) "fairly presented" his federal
claims to the state's highest court and (2) not retain any legal right to raise the question presented in the state
courts. 28 U.S.C. § 2254(b)(1); see also Picard v. Connor,
404 U.S. 270, 275-76 (1971); Grey v. Hoke, 933 F.2d 117, 120
(2d Cir. 1991). A petitioner may fulfill these requirements by
directly appealing or collaterally attacking his conviction in
the highest state court on the same factual and legal bases
presented in his federal habeas petition. See Klein v.
Harris, 667 F.2d 274, 282 (2d Cir. 1981).
If a petitioner does not "fairly present" his claims to the
appeals court, the claims may be considered abandoned, resulting
in a procedural default. See Galdamez v. Keane, 394 F.3d 68,
73-75 (2d Cir. 2005). "[D]efaulted claims are barred from habeas
corpus review unless the petitioner can show good cause for the
default external to himself and his legal representative, and
prejudice resulting from the asserted claim." Jordan v.
LeFevre, 22 F. Supp. 2d 259, 262 (S.D.N.Y. 1998).
Several recent Second Circuit cases have addressed the issue of
what constitutes a fair presentation to the appellate court for
habeas corpus purposes. In Grey v. Hoke, 933 F.2d at 120, a
petitioner attached an Appellate Division brief to his letter
application for appeal to the Court of Appeals. The letter
mentioned only one claim without any reference to the other two
that were addressed in the brief. The Second Circuit held that
"[t]his did not fairly apprise the court of the two claims."
Id. Moreover, the Second Circuit "decline[d] to presume that
the New York Court of Appeals has `a duty to look for a needle in a paper haystack.'" Id. (quoting Mele v.
Fitchburg Dist. Ct., 850 F.2d 817, 822 (1st Cir. 1988)).
Likewise, in Jordan v. LeFevre, the Second Circuit held that
where the petitioner's counsel argued one claim at length, the
language "for all these reasons and the reasons set forth in his
Appellate Division briefs" was insufficient to "fairly apprise
the state court of those remaining claims." 206 F.3d 196, 198 (2d
Cir. 2000). The Second Circuit concluded that each claim was not
fairly presented to the state court. Id. "The letter's
concluding language might as easily have been a reference to
additional reasons for reviewing the . . . claim as an
incorporation of other, different claims asserted in the lower
courts." Galdamez, 394 F.3d at 75 (citing Ramirez v. Att'y
Gen. of N.Y., 280 F.3d 87, 97 (2d Cir. 2001) (interpreting
A more explicit statement in a petitioner's letter, on the
other hand, is sufficient to preserve issues presented in the
brief that are not specifically delineated in the letter
application. For example, in Morgan v. Bennett, the statement
"we request this Court to consider and review all issues
outlined in defendant-appellant's brief and pro se supplemental
brief" was found to specifically preserve for review all of the
petitioner's claims from his prior brief. 204 F.3d 360, 369-71
(2d Cir. 2000) (emphasis in original). In Morgan, even after
the petitioner submitted a follow-up letter addressing only two
of the claims, the Second Circuit held that the letter could not
be construed as "eliminating issues as to which review had been expressly
requested." Id. at 371.
Here, DeLucia's counsel provided detailed argument regarding
only one of his claims the trial court's refusal to charge the
jury with manslaughter in his letter application to the Court
of Appeals. Employing similar language as that at issue in
Jordan, DeLucia's counsel included in the last paragraph,
"[f]or all of these reasons, as well as those cited in
appellant's main brief, he respectfully requests leave to appeal
to the Court of Appeals." (Resp. Mem., Ex. D). This case differs
from Jordan, however, because in the first paragraph of
DeLucia's letter application, counsel referred to the issue
discussed in detail as the "primary issue urged for appeal."
Id. This language should have alerted the Court of Appeals to
other issues, aside from the primary issue discussed in the
letter application, that required consideration. Moreover,
interpreting the sentence in the last paragraph in conjunction
with the word "primary" leads to the conclusion that the "reasons
. . . cited in appellant's main brief" refer to more than one
issue. Therefore, I find that even though DeLucia failed to argue
the Molineux issue specifically, he nonetheless provided
sufficient notice to the New York Court of Appeals by attaching
the appellate brief and alerting the court in his introductory
and final paragraphs that he was raising more than one issue.
Because the Molineux issue was fairly presented to the Court of Appeals, that claim is deemed exhausted and I may address the
merits of the claim.
2. The Merits
Under New York law, previously inadmissible evidence may become
admissible where a party "`opens the door' on cross-examination
to matters not touched upon during the direct examination."
People v. Melendez, 55 N.Y.2d 445, 451 (1982). In such
situations, an opposing party has the right on redirect
examination "to explain, clarify and fully elicit [the] question
only partially examined on cross-examination" to present the full
picture to the fact finder. Id. (quoting People v. Regina,
19 N.Y.2d 65, 78 (1966)) (internal quotations omitted); see also
United States v. Bilzerian, 926 F.2d 1285, 1296 (2d Cir. 1991).
This rule also applies to situations in which defendants on
direct examination open the door to cross-examination by giving
misleading or inconsistent testimony. See, e.g., People v.
Wise, 46 N.Y.2d 321, 327 (1978). If a defendant gives a
misleading impression of prior bad acts or crimes during trial,
the prosecution may be allowed to offer evidence to refute the
defendant's contentions, even if the prosecution had not
originally intended to proffer such evidence. People v. Rojas,
97 N.Y.2d 32, 38 (2001). The trial court has discretion to
consider "whether, and to what extent, the evidence or argument
said to open the door is incomplete and misleading, and what if
any otherwise inadmissible evidence is reasonably necessary to
correct the misleading impression." People v. Massie, 2 N.Y.3d 179, 184 (2004).
In this case, the trial court's evidentiary ruling that DeLucia
opened the door to evidence of drug transactions was an
appropriate exercise of discretion and did not violate clearly
established federal law. The trial judge had initially denied the
prosecutor's request to elicit evidence that Boynton owed DeLucia
twenty dollars as a result of a drug transaction because of the
potential prejudicial effect on the jury. (Tr. 201). The trial
court warned the defense counsel, however, that if counsel
"open[s] the door, if you argue that the twenty dollars was not
owed, or if you argue to the jury that it makes no sense, that it
is illogical for the defendant to have killed him for twenty
dollars," then the prosecution would be permitted to tell the
jury the "whole story." (Tr. 202). DeLucia opened the door during
his own testimony by misleading the jury about the origin of the
twenty-dollar debt. Testifying that he was "generous" and gave
money to the neighborhood children whenever they asked or needed
it created a false impression that the debt had an innocuous
origin. (Tr. 787-88). Accordingly, evidence of DeLucia's alleged
drug dealings was properly offered "to explain, clarify and fully
elicit [the] question only partially examined" during the
testimony. Melendez, 55 N.Y.2d at 451. The mid-trial
modification of the Molineux ruling was reasonable in light of
DeLucia's testimony. Therefore, DeLucia's contention that he was
denied his right to a fair trial in violation of the Sixth
Amendment is rejected and his petition is denied on this claim. B. Refusal to Charge Lesser Offense of First-Degree
DeLucia asserts as his second ground for habeas relief that the
trial court's refusal to charge the jury with first-degree
manslaughter as a lesser-included offense deprived him of his
federal due process rights.
Errors in state jury charges are questions of state law and
therefore are not reviewable on a petition for a writ of habeas
corpus absent a showing that the jury charge deprived the
defendant of a federal constitutional right. See Blazic v.
Henderson, 900 F.2d 534, 540 (2d Cir. 1990); United States ex
rel. Stanbridge v. Zelker, 514 F.2d 45, 50 (2d Cir. 1975),
cert. denied, 423 U.S. 872 (1975). The standard for habeas
review of state jury instruction "is not whether the state
court's `instruction is undesirable, erroneous, or even
universally condemned.'" Wright v. Smith, 569 F.2d 1188, 1191
(2d Cir. 1978) (quoting Cupp v. Naughten, 414 U.S. 141, 146-47
(1973)) (quotations omitted). For an error in state law to
violate the federal constitution, the error "by itself [must
have] so infected the entire trial that the resulting conviction
violates due process.'" Blazic, 900 F.2d at 541 (quoting
Cupp, 414 U.S. at 147).
To establish entitlement to a lesser included offense charge, a
defendant must show that "(1) it is theoretically impossible to
commit the greater crime without committing the lesser and (2) a
reasonable view of the evidence would permit the jury to find that the defendant had committed the lesser, but not
the greater, offense." Rice v. Hoke, 846 F.2d 160, 165 (2d Cir.
1988); see also Keeble v. United States, 412 U.S. 205, 208
(1973); N.Y. Crim. Proc. Law § 300.50(1) (McKinney 2005).
Here, it is not disputed that DeLucia's conduct satisfied the
first prong: first-degree manslaughter is a lesser included
offense of intentional murder. See N.Y. Penal Law §§ 125.20(1),
125.25(1) (McKinney 2005); see also People v. Green,
452 N.Y.S.2d 389, 433 (1982) (holding that lower mental states are
"necessarily subsumed within the higher mental states"). DeLucia
fails to satisfy the second prong, however, for no reasonable
view of the evidence supports a finding that he committed
first-degree manslaughter as opposed to intentional murder. The
record fully supports the state court's finding that petitioner
acted with the intention to cause death. See Knapp v.
Leonardo, 46 F.3d 170, 175 (2d Cir. 1995) ("[F]actual findings
of trial and appellate state courts are presumed to be correct in
federal habeas proceedings unless they are not `fairly supported
by the record.'"), cert. denied, 515 U.S. 1136 (1995). Brown
and Ellis testified, for example, that DeLucia shot Boynton
directly in the head from a distance of three to five feet away.
(Tr. 360, 566-67, 604-06, 616). DeLucia then proclaimed to Ellis
that Boynton was "fucking dead and you will be dead next." (Tr.
293). There is no reasonable view of the evidence that would
support a finding that DeLucia did not intend to cause Boynton's
death. As a result, DeLucia was not entitled to the lesser
included charge of reckless assault and, therefore, the trial court's jury charge
did not violate state law. Moreover, DeLucia has not proven that
any error "so infected the entire trial" that his federal due
process rights were violated. See Blazic, 900 F.2d at 541.
Accordingly, this claim does not satisfy the high standards for
relief required by AEDPA, and the claim is denied.
For the foregoing reasons, the petition for a writ of habeas
corpus is denied. Because DeLucia has not made a substantial
showing of the denial of a constitutional right, I decline to
issue a certificate of appealability. See 28 U.S.C. § 2253 (as
amended by AEDPA). I certify pursuant to 28 U.S.C. § 1915(a) (3)
that any appeal taken from this decision would not be taken in
good faith. The Clerk of the Court is directed to enter judgment
accordingly and to close this case.