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United States District Court, S.D. New York

August 16, 2005.

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. 201-02).

  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, 918).

  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, 2004.


  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 that:

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 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 proceedings.
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).

  II. Application

  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 Jordan's rationale)).

  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 Manslaughter

  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.


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