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Brown v. Greene

November 6, 2007

DWAYNE BROWN, PETITIONER,
v.
JERRY GREENE, SUPERINTENDENT, GREAT MEADOW CORRECTIONAL FACILITY, AND ELIOT SPITZER, ATTORNEY GENERAL OF NEW YORK STATE, RESPONDENTS.



The opinion of the court was delivered by: Kimba M. Wood, U.S.D.J.

OPINION AND ORDER

Petitioner Dwayne Brown brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner asserts that he was denied effective assistance of counsel because his lawyer did not object to the jury charge given at trial. By report and recommendation dated May 11, 2007 (the "Report"), Magistrate Judge Andrew J. Peck recommended that the petition be granted. Respondents objected to portions of the Report. For the reasons stated below, the Court disagrees with the Report and denies the petition.

BACKGROUND

The Report contains a more detailed description of the facts, familiarity with which is assumed. See Brown v. Greene, 06 Civ. 4824, 2007 WL 1379873, at *1-8 (S.D.N.Y. May 11, 2007). Petitioner was charged by a New York County Grand Jury with Robbery in the Second Degree and Grand Larceny in the Fourth Degree. In June 2002, Petitioner was tried in Supreme Court, New York County, before Justice Edward J. McLaughlin and a jury.

As part of the jury charge, Justice McLaughlin instructed the jury on the concept of reasonable doubt ("reasonable doubt instruction"), and gave the following instruction regarding the burden of proof for certain fact finding ("subsidiary fact instruction"):

Crimes are defined by elements. The focus of a trial is to determine whether or not the prosecution can prove the elements of a crime beyond a reasonable doubt.

During the course of a trial, things happen. You hear testimony. You can spend your deliberation time trying to resolve each and everything that you heard. My suggestion is you try to resolve only the things that you need to resolve in order to make a determination whether the People have proven the elements of a charge beyond a reasonable doubt.

A jury makes factual findings. 50.1 to 49.9, factual findings can be made, although they are not established beyond a reasonable doubt.

The elements must be established beyond a reasonable doubt if they're going to be established at all. (Tr. 716:22 - 717:15.) Neither party objected to this instruction at the time.

On June 26, 2002, Petitioner was convicted of second-degree robbery. He was subsequently sentenced to a minimum term of 16 years to life imprisonment. Petitioner appealed his conviction to the Appellate Division, claiming that he was denied effective assistance of counsel because his lawyer failed to object to the jury charge given at trial. On January 6, 2005, the Appellate Division affirmed Petitioner's conviction, summarily rejecting his ineffective assistance of counsel claim. See People v. Brown, 789 N.Y.S.2d 106, 107-08 (N.Y. App. Div. 2005) ("The record establishes that [Petitioner] received effective assistance of counsel."). On April 4, 2005, the New York Court of Appeals denied Petitioner leave to appeal. See People v. Brown, 830 N.E.2d 325 (N.Y. 2005).

Petitioner timely filed this petition, pursuant to 28 U.S.C. § 2254 ("Section 2254"), on June 22, 2006, raising a single claim: that he was denied effective assistance of counsel at trial because his lawyer failed to object to Justice McLaughlin's jury charge, which Petitioner claims "diminished the Prosecution's burden of proving [Petitioner's] guilt beyond a reasonable doubt." (Pet. ¶ 12.)

The Report recommended that the petition be granted. See Brown, 2007 WL 1379873, at *27. Respondents filed timely written objections to the Report on May 25, 2007. Petitioner responded to these objections in a June 4, 2007 letter to the Court.

STANDARD OF REVIEW

The Court must consider the Report de novo because Respondents filed timely written objections. See 28 U.S.C. ยง ...


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