The opinion of the court was delivered by: John Gleeson, United States District Judge.
Bruce Biggs petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, seeking to overturn his conviction in New York State Supreme Court, Kings County, of two counts of manslaughter in the second degree. Biggs, who was found guilty of these charges in his third trial for the shooting deaths of Henry Carter and Marion Mabry, claims that the prosecution was barred by the Double Jeopardy Clause and that he was denied effective assistance of counsel. For the reasons discussed below, I deny his petition.
The government's evidence at trial established that Bruce Biggs shot to death Henry Carter and Marion Mabry on February 19, 1999 at 595 Halsey Street in Brooklyn.
After the killings, Biggs was charged with two counts of murder in the first degree, two counts of intentional murder in the second degree, two counts of depraved indifference murder in the second degree, criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree. At the first trial, the judge dismissed the first-degree murder and second-degree intentional murder counts because he found the evidence legally insufficient to establish that Biggs intentionally murdered Carter and Mabry. The judge submitted the two counts of depraved indifference murder in the second degree and two counts of second-degree manslaughter (as a lesser included offense) to the jury. The jury acquitted Biggs of the two counts of depraved indifference murder and hung on the second-degree manslaughter counts.
The state obtained a second indictment, this time charging Biggs with two counts of manslaughter in the first degree and two counts of manslaughter in the second degree. At the second trial, the jury found Biggs guilty of the two counts of first-degree manslaughter and consequently did not consider the second-degree manslaughter counts.
Biggs appealed his conviction, arguing that the trial judge's dismissal of the intentional murder charges at his first trial constituted an acquittal of any lesser included offenses, including first-degree manslaughter. Accordingly, he argued, the prosecution for these counts and his conviction violated the Double Jeopardy Clause. The Appellate Division denied his claim, People v. Biggs, 751 N.Y.S.2d 222 (2d Dep't 2002),but the Court of Appeals granted him leave to appeal, 99 N.Y.2d 626 (2003), and agreed that the Double Jeopardy Clause barred a prosecution for first-degree manslaughter, 1 N.Y.3d 225 (2003). The Court of Appeals vacated his conviction and ordered the state to retry him on the second-degree manslaughter counts. Id.
Relying on the second indictment, the state tried Biggs again. A jury found him guilty of the two counts of second-degree manslaughter, and he was sentenced to two consecutive prison terms of seven and one-half to fifteen years.
Biggs appealed his second conviction on the grounds, among others, that his conviction violated double jeopardy principles under New York and federal law and that certain statements made by the prosecution in its summation were improper. Biggs also argued that his trial counsel was constitutionally ineffective for failing to adequately raise a double jeopardy defense, failing to move to dismiss the second-degree manslaughter charges on the ground that the evidence established only intentional homicides, and failing to preserve a claim regarding the prosecution's improper statements during summation. The Appellate Division rejected these claims as meritless without further elaboration and denied Biggs relief. 859 N.Y.S.2d 724 (2d Dep't 2008). The Court of Appeals denied him leave to appeal. 11 N.Y.3d 785 (2008).*fn1
Biggs filed this habeas petition on September 28, 2009. He asserts the same double jeopardy and ineffective assistance claims he pressed in his direct appeal.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") limits the scope of federal habeas review of claims challenging a state conviction that state courts have adjudicated on the merits. 28 U.S.C. § 2254(d). A federal court may overturn a state court's ruling on the merits of a claim only if the ruling "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Id.
A. The Double Jeopardy Claim
Biggs argues that his conviction of two counts of second-degree manslaughter violates the Double Jeopardy Clause because he was acquitted of the intentional murder or the depraved indifference murder of Carter and Mabry at his first trial.*fn2 Biggs misunderstands the protections of the Double Jeopardy Clause. At Biggs's first trial, two counts of second-degree manslaughter were submitted to the jury as lesser included offenses of the depraved indifference second-degree murder counts returned by the grand jury. Once the jury was sworn, jeopardy for the second-degree manslaughter charges attached. See Richardson v. United States, 468 U.S. 317, 325 (1984). At that point, "the protection of the Double Jeopardy Clause by its terms applies only if there has been some event, such as an acquittal, which terminates the original jeopardy." Id. Failure to reach a verdict is not such an event. See United States v. Chestaro, 197 F.3d 600, 608 (2d Cir. 1999) ("[I]t is well established that a defendant may be retried, with no offense to double jeopardy, after his first trial results in a deadlocked jury."). Accordingly, because the jury hung on the second-degree manslaughter charges in Biggs's first trial and did not consider the second-degree manslaughter charges at all in his second trial, the Double Jeopardy Clause posed no bar to the state's third prosecution of Biggs for those same charges. It is true that if the second-degree manslaughter counts had not been submitted to the jury in Biggs's first trial, ...