UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
November 6, 2007
DWAYNE BROWN, PETITIONER,
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.
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. § 636(b)(1); Fed. R. Civ. P. 72(b).
I. THE SECTION 2254 STANDARD OF REVIEW FOR HABEAS PETITIONS
Under Section 2254, a court may grant a petition for a writ of habeas corpus filed by a person held in state custody only where the adjudication of the person's claim in state court "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." 28 U.S.C. § 2254(d)(1) (2007).
A state court decision constitutes an "unreasonable application" of federal law "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams v. Taylor, 529 U.S. 362, 407 (2000). The Supreme Court clarified that "an unreasonable application of federal law is different from an incorrect or erroneous application of federal law." Id. at 412 (emphasis in original). Thus, a federal court cannot grant habeas relief simply because, in its independent judgment, it would have decided the federal law question differently than the state court. See Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir. 2001). Rather, the state court's application of federal law must reflect some "additional increment of incorrectness such that it may be said to be unreasonable." Id.
In this case, the parties agree that the relevant "clearly established Federal law, as determined by the Supreme Court of the United States" is the law regarding ineffective assistance of counsel that was articulated in Strickland v. Washington, 466 U.S. 668, 687 (1984). To prevail on an ineffective assistance of counsel claim, Petitioner must show that (1) his lawyer's performance fell below an "objective standard of reasonableness," and (2) Petitioner was prejudiced as a result. Id. at 688, 692; see also Kieser v. New York, 56 F.3d 16, 18 (2d Cir. 1995). In applying Strickland, a reviewing court need not "address both components of the inquiry if the defendant makes an insufficient showing on one." Strickland, 466 U.S. at 697.
Therefore, to succeed on this Section 2254 petition, Petitioner must show that the Appellate Division's application of Strickland to the facts of his case was "objectively unreasonable." Bell v. Cone, 535 U.S. 685, 698-99 (2002).
II. THE APPELLATE DIVISION'S APPLICATION OF STRICKLAND TO PETITIONER'S CASE WAS REASONABLE
The Appellate Division could have reasonably concluded that Petitioner failed to show that he was prejudiced as a result of his lawyer's conduct at trial. The court's decision to deny Petitioner's ineffective assistance of counsel claim under Strickland was therefore reasonable.
To show such prejudice under Strickland, Petitioner must demonstrate that there is a "reasonable probability" that, but for his lawyer's failure to object to Justice McLaughlin's jury charge, "the result of the proceeding would have been different."
Strickland, 466 U.S. at 694. A court may presume that Petitioner was prejudiced in this manner if the jury charge contained a reasonable doubt instruction that was constitutionally deficient. Bloomer v. United States, 162 F.3d 187, 194 (2d Cir. 1998). A reasonable doubt instruction is constitutionally deficient where there is a "reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the Winship standard" of "proof beyond a reasonable doubt of every fact necessary to constitute the crime with which [Petitioner] is charged." Gaines v. Kelly, 202 F.3d 598, 602, 605 (2d Cir. 2000) (quoting Victor v. Nebraska, 511 U.S. 1, 6 (1994) and In re Winship, 397 U.S. 358, 364 (1970)). In making this determination, a reviewing court must view the challenged portions of the jury charge "not 'in artificial isolation,' but rather 'in the context of the overall charge.'" Justice v. Hoke, 45 F.3d 33, 34 (2d Cir. 1995) (quoting Cupp v. Naughten, 414 U.S. 141, 146-47 (1973)).
Petitioner argues that the reasonable doubt instruction given at his trial was constitutionally deficient because it lowered the prosecution's burden of proof for conviction. Specifically, Petitioner contends that because the subsidiary fact instruction referenced the preponderance of the evidence standard ("50.1 to 49.9") in the context of explaining the concept of reasonable doubt, there was a reasonable likelihood that the jury understood the charge to permit conviction based on proof insufficient to meet the standard of proof beyond a reasonable doubt. (Pet. § 12.)
Reviewing the record de novo, the Court finds that the Appellate Division could have reasonably concluded that the jury charge, "taken as a whole . . . correctly conveyed the concept of reasonable doubt to the jury." Holland v. United States, 348 U.S. 121, 140 (1954).
A. JUSTICE MCLAUGHLIN'S JURY CHARGE, TAKEN AS A WHOLE, WAS CONSTITUTIONALLY PERMISSIBLE
The Second Circuit has upheld instructions similar to Justice McLaughlin's subsidiary fact instruction where the charge as a whole correctly conveyed the concept of reasonable doubt. For example, in Justice v. Hoke, 45 F.3d 33, 35 (2d Cir. 1995), the Second Circuit found that language suggesting a separate burden of proof for subsidiary facts was constitutionally permissible when viewed in the context of the entire jury charge.*fn1 The court noted that while the problematic language "was hardly a model explanation of the reasonable doubt standard," it was "highly unlikely" that the jury convicted the defendant using an incorrect burden of proof given the fact that "[t]hey were instructed many times that the prosecution must prove each element of the charged crimes beyond a reasonable doubt." Hoke, 45 F.3d at 35.
Similarly, in United States v. Delibac, 925 F.2d 610, 614 (2d Cir. 1991), the Second Circuit upheld jury instructions that stated that the jury "need not find every fact beyond a reasonable doubt."*fn2 In that case, the court advised that while such instructions were "probably confusing and certainly unnecessary," they were nevertheless a "correct statement of the law." Id. In upholding the challenged instructions, the court concluded that the charge "taken as a whole, adequately conveys the concept of reasonable doubt." Id. (internal citation omitted); see also United States v. Gatzonis, 805 F.2d 72, 74 (2d Cir. 1986) (upholding a jury charge containing similarly worded instructions); United States v. Viafara-Rodriguez, 729 F.2d 912, 914 (2d Cir. 1984) (same).*fn3
Given this precedent, the Appellate Division could have reasonably concluded that the subsidiary fact instruction survives constitutional scrutiny because Justice McLaughlin's jury charge as a whole correctly conveyed the concept of reasonable doubt. During the charge, Justice McLaughlin instructed the jury multiple times that the prosecution must prove each element of the offense beyond a reasonable doubt.*fn4
(Tr. 713:23 - 716:6; 717:13-25; 721:13 - 723:4.) Justice McLaughlin also specifically explained which facts comprise the three elements of the robbery offense, and emphasized that these facts must be proven beyond a reasonable doubt in order to support a conviction. (Tr. 721:13 - 723:4.) The subsidiary fact instruction itself states that facts determined using the "50.1 to 49.9" standard "are not established beyond a reasonable doubt," whereas "[t]he elements [of the offense] must be established beyond a reasonable doubt." (Tr. 717:9-15.) Given these numerous and express references to the proper burden of proof for conviction, the Appellate Division could have reasonably concluded that Justice McLaughlin's jury charge, taken as a whole, was constitutionally permissible.*fn5 See Hoke, 45 F.3d at 35 (upholding similar jury charge where jury was instructed "many times" on the proper burden of proof for conviction).
The Report distinguishes the subsidiary fact instruction from the challenged instructions in Hoke and Delibac, reasoning that the subsidiary fact instruction is "more analogous" to instructions where "even a single use of [the] 'preponderance' language . . . resulted in reversal." Brown, 2007 WL 1379873, at *21. But those "single use" preponderance instructions explicitly permitted the jury to convict the defendant on a preponderance of the evidence standard. See, e.g., People v. Young, 653 N.Y.S.2d 471, 472 (N.Y. App. Div. 1997) (striking down instruction that stated "it is possible to establish the guilt of a defendant charged with a crime to a reasonable degree of certainty") (emphasis in original); People v. Bailey, 503 N.Y.S.2d 16, 18 (N.Y. App. Div. 1986) (reversing conviction where the court instructed the jury that "there must be a preponderance in order to establish guilt"). By contrast, the subsidiary fact instruction here does not explicitly permit conviction on a preponderance standard. Rather, the subsidiary fact instruction states that the elements of the crime must be proven beyond a reasonable doubt in order to support conviction. (Tr. 717:13-15.) The Report's comparison is therefore inappropriate.*fn6 The Report also concludes that Justice McLaughlin's "fail[ure] to explain the distinction between those elemental facts which required proof beyond a reasonable doubt and those subsidiary facts which did not need to be proven beyond a reasonable doubt" tainted the otherwise proper reasonable doubt instructions given in the charge, and allowed the jury to convict Petitioner using an incorrect standard. Brown, 2007 WL 1379873, at *23. But in Delibac, Gatzonis, and Viafara-Rodriguez, the Second Circuit upheld instructions that similarly did not explain the distinction between which facts required proof beyond a reasonable doubt, and which facts "need not be proven beyond a reasonable doubt." Gatzonis, 805 F.2d at 73; see also Delibac, 925 F.2d at 614; Viafara-Rodriguez, 729 F.2d at 913. Thus, Justice McLaughlin's failure to fully explain which facts can be proven using a preponderance standard, as opposed to a reasonable doubt standard, is insufficient to render his jury charge constitutionally deficient.*fn7 See Cupp v. Naughten, 414 U.S. 141, 149 (1973) ("Whatever tangential undercutting of [the charge's] clearly stated propositions may, as a theoretical matter, have resulted from the giving of the [challenged instruction] is not of constitutional dimension.").
The Court is similarly unpersuaded by the Report's conclusion that the "election example" instruction given at the end of Justice McLaughlin's jury charge was likely to mislead the jury as to the proper burden of proof.*fn8 Brown, 2007 WL 1379873, at *22 (citing Bollenbach v. United States, 326 U.S. 607, 612 (1946)). Although this instruction repeats the "50.1 to 49.9" language of the subsidiary fact instruction, that language, fairly read, refers not to any applicable burden of proof, but to an example of simple majority voting, which the court then used as a foil to explain how the jury should deliberate to reach a unanimous verdict. Any risk that the repetition of this numerical expression would confuse the jury is further mitigated by the numerous and emphatic references to the proper reasonable doubt standard given throughout the charge. See Hoke, 45 F.3d at 35 (finding it "highly unlikely" that jury used a lower burden of proof where they were "instructed many times" on the proper reasonable doubt standard).
Thus, the Appellate Division could have reasonably concluded that the jury charge given at Petitioner's trial, taken as a whole, was constitutionally permissible.
B. JUSTICE MCLAUGHLIN'S JURY CHARGE IS DISTINGUISHABLE FROM THE JURY CHARGE IN PEOPLE v. JOHNSON
In concluding that Justice McLaughlin's jury charge was constitutionally deficient, the Report relies heavily on People v. Johnson, 783 N.Y.S.2d 5 (N.Y. App. Div. 2004). Brown, 2007 WL 1379873, at *13-16, 27. In that case, the court reversed the defendant's conviction, finding that three particular portions of the overall jury charge - the "two-inference instruction,"*fn9 the "preponderance of the evidence for fact finding instruction,"*fn10 and the "unanimous verdict instruction"*fn11 - were improper. Johnson, 783 N.Y.S.2d at 8. The Report found that the preponderance of the evidence for fact finding instruction and the unanimous verdict instruction were similar to the subsidiary fact instruction and the election example instruction, respectively, given in this case. Brown, 2007 WL 1379873, at *13 n.28, 14 n.29. Although the Court agrees that there are similarities in the language used by these particular instructions, the Court ultimately concludes that the charge at issue here, taken as a whole, is distinguishable from the charge struck down in Johnson.
Critically, the jury charge in this case did not include the two-inference instruction; this lessened the risk that the charge as a whole conveyed the improper standard. The Johnson court's decision to disapprove of the jury charge was based primarily on the deficiencies found in the two-inference instruction. See Johnson, 783 N.Y.S.2d at 7, 7-9 ("This Court has repeatedly expressed its disapproval of the 'two-inference' charge."). After expressing its disapproval of that instruction, the Johnson court noted that the jury had heard the two-inference instruction and the preponderance of the evidence for fact finding instruction in succession. Id. at 8. In that context, the court then found that:
These instructions are not merely potentially confusing. They could undermine the jury's understanding of the presumption of innocence, the burden of proof and the standard of proof beyond a reasonable doubt. Instead of reducing the risk "that a juror might draw the negative inference that if the scales are uneven, that is enough to convict," they increase it.
Id. (emphasis added). The Johnson court's ruling was therefore based on the risk of jury confusion created by the combined effect of the two-inference instruction and preponderance of the evidence for fact finding instruction. No such risk exists in this case because the jury charge here does not include the two-inference instruction.*fn12
The absence of the two-inference instruction in this case also eliminates the risk, identified by the Report, that the election example instruction would confuse the jury as to the appropriate burden of proof for conviction. See Brown, 2007 WL 1379873, at *22. The Johnson court found that the unanimous verdict instruction, which the Report concludes is similar to the election example instruction, "could only have reinforced the court's improper instruction on the standard of proof." Johnson, 783 N.Y.S.2d at 9. However, as discussed above, the "improper instruction on the standard of proof" in Johnson refers to the combination of the two-inference instruction and preponderance of the evidence for fact finding instruction. The jury charge here includes only the subsidiary fact instruction, which is constitutionally permissible when given in the context of a charge that, as here, included multiple references to the proper burden of proof. Delibac, 925 F.2d at 614. Therefore, Johnson's reasoning regarding the unanimous verdict instruction does not apply to the election example instruction here.
For the reasons set forth above, the Court concludes that the Appellate Division's application of Strickland to Petitioner's case was reasonable. Specifically, after reviewing applicable federal and state precedent, the Court finds that the Appellate Division could have reasonably concluded that Justice McLaughlin's jury charge, taken as a whole, was constitutionally permissible.
The Court emphasizes that under Section 2254, the Court's inquiry is limited to whether the Appellate Division unreasonably applied Strickland to the facts of this case. Williams v. Taylor, 529 U.S. 362, 412 (2000). Given this standard, the Court concludes that despite the close question of law presented by this petition, the Appellate Division could have reasonably found that Petitioner received effective assistance of counsel.
Accordingly, Petitioner's Section 2254 petition (Dkt. No. 2) is DENIED. A certificate of appealability will issue because "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner." See Slack v. McDaniel, 529 U.S. 473, 475 (2000). The Clerk of Court is directed to close this case; any pending motions are moot.