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Baker v. Lempke

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


April 26, 2010

EDWARD C. BAKER, PETITIONER,
v.
JOHN LEMPKE, SUPERINTENDENT, FIVE POINTS CORRECTIONAL CENTER, RESPONDENT.

The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge

MEMORANDUM DECISION

Petitioner, Edward C. Baker, a state prisoner proceeding pro se, has filed a petition for habeas corpus relief under 28 U.S.C. 2254. Baker is currently in the custody of the New York Department of Correctional Services, incarcerated at the Five Points Correctional Center. Respondent has answered the Petition, and Baker has replied.

I. BACKGROUND/PRIOR PROCEEDINGS

Baker initially pleaded guilty in the Clinton County Court to attempted murder in the second degree and was sentenced to 15 years in prison under a plea agreement. All other charges were dismissed. Baker successfully appealed to the Appellate Division, Third Department, and the case was remanded to the County Court.*fn1 Following a Huntley hearing,*fn2 the Clinton County Court denied Baker's motion to suppress various oral statements he made to police following his arrest. The case then proceeded to trial before a jury.

Following the jury trial, Baker was convicted of one count each of Attempted Murder in the Second Degree (N.Y. Penal Law §§ 110.00/125.25[1]), Assault in the First Degree (N.Y. Penal Law § 120.10[1]), Criminal Possession of a Weapon in the Third Degree (N.Y. Penal Law § 265.02[1]), Criminal Possession of a Weapon in the Fourth Degree (N.Y. Penal Law § 265.01[4]), and Menacing in the Second Degree (N.Y. Penal Law § 120.14[1]).*fn3 Prior to sentencing, Baker, appearing through counsel, filed two motions under N.Y. Criminal Procedure Law § 330.30 to set aside the verdict in the Clinton County Court. The Clinton County Court consolidated the two motions and denied them in a reasoned decision.*fn4 The Clinton County Court then sentenced Baker, as a second felony offender, to a determinate prison term of 18 years, plus five years of post-release supervision, on the attempted murder and assault counts, an indeterminate prison term of two to four years on the third-degree weapon possession count, and one year each on the fourth-degree weapon possession and menacing counts. All sentences were ordered to run concurrently.

Baker timely appealed his conviction and sentence to the Appellate Division, Third Department. While his appeal was pending, Baker, appearing pro se, filed a motion to set aside his conviction and/or set aside his sentence under N.Y. Criminal Procedure Law §§ 440.10 and 440.20 in the Clinton County Court, which denied his motion in a reasoned decision.*fn5 The Appellate Division granted leave to appeal denial of the §§ 440.10/440.20 motion and consolidated it with the direct appeal. The Appellate Division affirmed both the conviction and sentence as well as the denial of the §§ 440.10/440.20 motion in a reasoned decision, and the New York Court of Appeals denied leave on July 13, 2006.*fn6

On February 15, 2007, Baker, proceeding pro se, filed a second motion under § 410.10 to vacate his conviction in the Clinton County Court, which denied his motion in a reasoned decision on June 29, 2007.*fn7 The Appellate Division, Third Department, denied leave to appeal on August 28, 2007,*fn8 and the New York Court of Appeals dismissed Baker's application to appeal as not appealable on October 2, 2007.*fn9 Baker timely filed his petition for relief in this Court on October 31, 2007.

II. GROUNDS RAISED/DEFENSES

In his petition Baker raises a total of 29 grounds:*fn10 (1) the burglary charge should have been dismissed (improper indictment); (2) the trial court erred in allowing into evidence an answering machine recording; (3) statements made to police should have been suppressed under Miranda;*fn11 (4) insufficiency of the evidence to support conviction of attempted murder and assault; (5) jury misconduct (improper test of shotgun during jury deliberations); (6) failure of trial court to sua sponte instruct jury on intoxication; (7) failure of the trial court to instruct the jury on lesser-included offense of second-degree assault; (8) the trial judge was vindictive in imposing a harsh and excessive sentence after trial; (9) improper treatment as a second-felony offender; (10) the trial court should have accepted second plea offer; (11) the trial court erred by not holding an evidentiary hearing on the rejection of the second plea offer; (12) the trial court erroneously considered second felony offender status; (13) the sentence was vindictive; (14) the restitution order was improper and illegal; (15) the trial court erred by not granting a new trial on jury misconduct charge; (D-1) improper indictment on burglary charge; (D-2) judicial misconduct (trial judge "lied"); (D-3) denial by the trial court of second plea agreement; (D-4) improper grand jury instructions; (D-5) duplicious (sic) and multiplicatious (sic) counts (burglary charges); (D-6) prosecutorial misconduct (subpoena and use of private medical records in cross-examination of Baker, illegal indictment, allowance of perjured testimony, and improper use of an exhibit (shotgun) and various misstatements in closing summation); (D-7) Rosario/Brady violation*fn12 (failure to turnover Baker's medical records or notify defense they were to be used in trial); (D-8) the trial court failed to give instruction on extreme emotional disturbance; (D-9) malicious prosecution (improper indictment on burglary charges, trial judge lied about grand jury minutes, was rude to defense counsel and prevented defense); (D-10) jury misconduct (test of shotgun during deliberations and compromise verdict); (D-11) use of perjured testimony (several prosecution witnesses committed perjury); (D-12) judicial misconduct (allowed trial on unfounded charges and lied about review of grand jury minutes); (D-13) failure to bring up use of medical records at Sandoval hearing;*fn13 and (D-14) ineffective trial counsel (unprepared for trial, failure to interview friendly witnesses, failure to challenge indictment, failure to cross-examine ex-spouse on inconsistencies between testimony and statement to police, failure to use intoxication/mental health as defenses). Respondent contends every claim, except those set forth in Grounds D-1 and D-5, is procedurally barred, and every claim, except those set forth in Grounds 3, D-5, D-9, and D-12, is unexhausted. Respondent raises no other affirmative defense.*fn14

III. STANDARD OF REVIEW

Because the petition was filed after April 24, 1996, it is governed by the standard of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254. Consequently, this Court cannot grant relief unless the decision of the state court "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" at the time the state court rendered its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn15 The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision."*fn16 The holding must also be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts.*fn17 Thus, where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'"*fn18 When a claim falls under the "unreasonable application" prong, a state court's application of Supreme Court precedent must be objectively unreasonable, not just incorrect or erroneous.*fn19 The Supreme Court has made clear that the objectively unreasonable standard is a substantially higher threshold than simply believing the state court determination was incorrect.*fn20 In a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state-court criminal trial is whether the error had a substantial and injurious effect or influence in determining the outcome.*fn21 Baker "bears the burden of proving by a preponderance of the evidence that his constitutional rights have been violated."*fn22

In applying this standard, this Court reviews the last reasoned decision by the state court.*fn23 In addition, the state court's findings of fact are presumed to be correct unless Baker rebuts this presumption by clear and convincing evidence.*fn24 Although the Second Circuit has left the question open,*fn25 pre-AEDPA precedent established that deference is due findings of state appellate courts.*fn26 In the absence of a clear indication from the Second Circuit to the contrary, this Court can find no principled reason not to apply the same rule in the context of AEDPA, i.e., findings of a state appellate court are presumed to be correct.

IV. DISCUSSION

Due to the number of grounds asserted and the differences among the various procedures under which those grounds were presented to the state courts, this Court is dividing its discussion into segments. First, this Court will address the two defenses raised by the Respondent: procedural default and exhaustion. Then, this Court will discuss on the merits those claims that are not procedurally barred or unexhausted. To minimize repetition, grounds discussed will be grouped first in order of the state court proceeding in which they were presented to the state courts and whether they were disposed of on the merits or upon state procedural grounds. This will permit this Court to determine which grounds are procedurally barred or unexhausted. Claims discussed on the merits that fall within the same category will be grouped together.

A. Procedural Default.

Under the adequate-and-independent-state-ground doctrine, federal courts may not review the judgment of a state court that "rests on a state-law ground that is both 'independent' of the merits of the federal claim and an 'adequate' basis for the court's decision."*fn27 Because this doctrine applies on federal habeas review and because the state-law ground may be a procedural bar,*fn28 federal habeas courts often speak of an "adequate and independent procedural bar" to federal review of a claim or simply of a "procedurally barred" federal claim. A federal habeas court lacks jurisdiction to evaluate questions of federal law decided by a state court where the state-court judgment "rests on a state law ground that is independent of the federal question and adequate to support the judgment."*fn29 Where a decision "fairly appear[s] to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion," habeas courts presume that there is no adequate and independent state-law ground supporting the judgment.*fn30 This rule even applies where the state court has ruled on the merits in the alternative.*fn31 Finally, "[s]tate courts may not avoid deciding federal issues by invoking procedural rules that they do not apply evenhandedly to all similar claims."*fn32 Accordingly, a procedural bar will be deemed "adequate" only if it is based on a rule that is "firmly established and regularly followed" by the state in question.*fn33

To classify the decision as either fairly appearing to rest primarily on or interwoven with federal law, or as resting primarily on state procedural law, this Court looks to three factors: (1) the face of the state court opinion; (2) whether the state court was aware of a procedural bar; and (3) the practice of state courts in similar circumstances.*fn34

First §§ 440.10/440.20 Motion. In his first motion under §§ 440.10/440.20 Baker raised the following issues: (1) improper rejection of the second plea agreement by the trial court [Grounds 10, 11, D-3]; (2) failure to properly instruct on handling of exhibits and improper handling of shotgun by the jury [Grounds 5, 15]; (3) improper consideration of predicate prior felony [Grounds 9, 12]; (4) vindictive sentencing [Ground 8]; and (5) improper restitution order [Ground 14]. The Clinton County Court denied the motion on the fourth issue [vindictive sentence, Ground 8] and fifth issue [improper restitution, Ground 14] on the merits. The remaining issues were rejected on procedural grounds, i.e., that they could have been raised on direct appeal, citing N.Y. Criminal Procedure Law § 440.10[2](c).*fn35 New York Criminal Procedure Law § 440.10[2](c) is an adequate independent state ground.*fn36

Appeal of First §§ 440.10/440.20 Motion. In his appeal to the Appellate Division, Baker raised the same issues he raised in the Clinton County Court. The Appellate Division did not discuss any of these issues. Instead, the Appellate Division disposed of them in its catch-all "[w]e have reviewed all remaining contentions and find them without merit."*fn37

Direct Appeal. In his direct appeal to the Appellate Division, Baker raised 11 issues: (1) burglary counts should have been dismissed [Grounds 1, D-1, D-5]; (2) the trial court erred in allowing the answering machine tape into evidence [Ground 2]; (3) Baker's oral statements should have been suppressed [Ground 3]; (4) insufficiency of the evidence [Ground 4]; (5) jury misconduct [Grounds15, D-10]; (6) failure to instruct on intoxication [Ground 6]; (7) failure to include lesser-included assault second instruction [Ground 7]; (8) an omnibus ground based upon (a) juror misconduct (test of shotgun) [Grounds 5, 15, D-10], (b) prosecutorial misconduct (testing of shotgun in closing summation) [Ground D-6 (partial)], (c) sentence enhancement with DWI [not raised in petition to this Court], (d) failure to dismiss burglary [Grounds 1, D-1, D-5], (e) allowance of improper cross-examination by prosecution [not raised in the petition to this Court], (f) preclusion of evidence of lack of gun powder residue on Baker or fingerprints of victim on barrel of shotgun [Ground D-9 (partial)], and error in allowing tape into evidence [Ground 2]; (9) sentence vindictive [Ground 8]; (10) re-sentence harsh and excessive [Ground 8]; and (11) improper treatment as second felony offender [Grounds 9, 12].

The Appellate Division rejected the claim that the Clinton County Court erred in not instructing the jury on intoxication [Ground 8] on the basis that the argument was unpreserved for review. The rule that a claim is unpreserved for review is firmly established and regularly followed by the New York courts.*fn38 All other grounds were decided on the merits, either specifically or in the catch-all "[w]e have reviewed all remaining contentions and find them without merit."*fn39

Request for Leave to Appeal to the Court of Appeals. In his request for leave to appeal the decision of the Appellate Division to the New York Court of Appeals, Baker raised the following issues: (1) admission of the answering machine tape [Ground 2]; (2) suppression of the statements made to police [Ground 3]; (3) improper testing of the shotgun by a juror [Grounds 5, D-10]; (4) improper closing summation by prosecution in showing how shotgun worked [Ground D-6 (partial)]; (5) intoxication instruction [Ground 6]; (6) failure to instruct on lesser-included charge of second-degree assault [Ground 7]; (7) failure to accept second plea bargain [Grounds 10, 11, and D-3]; (8) failure to permit defense to develop lack of gunpowder residue on Baker and fingerprints on the shotgun [Ground D-9 (partial)]; and (9) that the issue of burglary should not have gone to the jury [Grounds 1, D-1, D-5].

Second § 440.10 Motion. In his second § 440.10 motion, Baker raised the following issues: (1) defects in the indictment [Grounds D-1, D-5]; (2) challenged the impartiality of the trial judge [Grounds D-2, D-9, D-12]; (3) validity of the burglary charges [Grounds 1, D-1, D-12]; (4) prosecutorial misconduct [Ground D-6]; (5) Brady/Rosario violation [Ground D-7]; (6) juror misconduct [Ground 5]; (7) use of perjured testimony [Grounds D-6 (partial); D-11]; (8) judicial misconduct [Grounds D-2, D-9]; and (9) ineffective assistance of trial counsel [Ground D-14]. In denying Baker's motion, the Clinton County Court found that the claims raised were procedurally barred under various subdivisions of N.Y. Criminal Procedure Law § 440.10[2];*fn40 an adequate and independent state ground consistently applied.*fn41

The Clinton County Court found the following claims to be procedurally barred.*fn42

1. Claims barred under N.Y. Criminal Procedure Law 440.10[2](b) (could have been raised and determined in Baker's prior 440.10 motion): claims related to the plea bargain [Grounds D-3, D-11] and his allegations of ineffective assistance of counsel [Ground D-14].

2. Claims barred under N.Y. Criminal Procedure Law 440.10[2](c) (appearing of record and could have been raised on direct appeal): the grand jury review was improper [Grounds D-4, D-9]; that the prosecution improperly obtained and presented his medical records during the trial and improperly failed to disclose those records as Rosario or Brady material [Grounds D-6, D-7]; that the court failed to give a charge on extreme emotional disturbance [Ground D-8]; that the prosecution was malicious in relation to the burglary counts and that prosecutorial error was committed throughout the trial [Ground D-9]; that there was perjured testimony [Grounds D-6, D-11]; and that there was an improper Sandoval procedure [Ground D-13].

This Court finds that the following grounds/claims are procedurally barred: Grounds 5, 6, 9, 10, 11, 14, 15, D-2, D-3, D-4, D-6, D-7, D-8, D-9 (claims that trial judge lied about grand jury minutes, was rude to defense counsel, and prevented presentation of a defense), D-10, D-11, D-12, D-13, and D-14.

B. Exhaustion

This Court may not consider claims that have not been fairly presented to the state courts.*fn43 "A petitioner satisfies the fair presentation aspect of the exhaustion requirement by presenting the essential factual and legal premises of his federal constitutional claim to the highest state court capable of reviewing it."*fn44 In New York, to invoke one complete round of the State's established appellate process, a criminal defendant must first appeal his or her conviction to the Appellate Division and then seek further review by applying to the Court of Appeals for leave to appeal.*fn45 Claims are fairly presented to the New York Court of Appeals when the application for leave to appeal clearly states that all claims in the attached brief are being pressed or no arguments are made in detail but simply requests review of all issues outlined in the brief.*fn46

Where the application for leave to appeal refers to specific claims raised before the Appellate Division but omits mention of others, the unmentioned claims are deemed abandoned.*fn47 Where the application for leave to appeal argues one or more specific claims but only makes a passing reference to other possible claims found in the attached briefs, the claims mentioned in passing have not been fairly presented to the Court of Appeals.*fn48

Under AEDPA's exhaustion requirement, a state prisoner ordinarily has not exhausted his claim if "[the state] court must read beyond a petition or a brief (or a similar document) that does not alert it to the presence of a federal claim in order to find material . . . that does so."*fn49

Grounds 4 and 14, although raised on direct appeal before the Appellate Division, were not included in the request for leave to appeal filed with the Court of Appeals. These grounds are, therefore, unexhausted.*fn50

B. Merits

The following grounds/claims, which were raised upon appeal and addressed in the application for leave to the New York Court of Appeals, are neither procedurally barred nor unexhausted: Grounds 1, 2, 3, 7, 8, 9, 12, 13, D-1, D-5, D-9 (the claim of malicious prosecution on burglary charges) and D-12 (the claim of judicial misconduct for improperly allowing charges on burglary charges).*fn51 Because of their similarity and to avoid undue repetition, the grounds related to the burglary charges (Grounds 1, D-1, D-5, D-9, and D-1) and those related to the sentence imposed (Grounds 8, 9, 12, and 13) will each be addressed as their own group.

Ground 1: Dismissal of Burglary Charge.

Ground D-1: Improper Indictment (Burglary Charge).

Ground D-5: Duplicitous and Multiplicitous Charges (Burglarly).

Ground D-9: Malicious Prosecution (Burglary Charge).

Ground D-12: Judicial Misconduct (Allow Trial on Unfounded Burglary Charges). Baker argues that the burglary charges should have been dismissed (Ground 1) because inclusion of the burglary charges rendered the indictment invalid (Ground D-1), were duplicitous and multiplicitious (Ground D-5), supported a claim of malicious prosecution (Ground D-9), and was the result of judicial misconduct (Ground D-12). In a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state court criminal trial is whether the error had a substantial and injurious effect or influence in determining the outcome.*fn52 Because the jury acquitted Baker of the burglary charges, the Appellate Division, finding that Baker's claim that submission of these counts had an improper impact on the jury deliberations was unsupported by the record, held that, even if there was error, it was harmless.*fn53 This Court is bound by this finding.

This Court cannot say that the decision of the Appellate Division 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."*fn54 Nor can this Court find that the state court unreasonably applied the correct legal principle to the facts of Baker's case within the scope of Andrade-Williams-Schriro; i.e., the state court decision was more than incorrect or erroneous, its application of clearly established law was objectively unreasonable. Because submission of the burglary charges to the jury was harmless, it follows, a fortiori, that any error committed leading up to, permitting or causing submission of the burglary charges to the jury was likewise harmless. Baker is not entitled to relief under Grounds 1, D-1, D-5, D-9, and D-12.

Ground 2: Admission of Answering Machine Recording

Baker argues that, because no proper foundation was laid, the recording of a message Baker left on his ex-girlfriend's answering machine should not have been admitted into evidence. The Appellate Division rejected Baker's argument, holding that a proper foundation had been laid for its admission.*fn55

The Supreme Court has acknowledged its "traditional reluctance to impose constitutional restraints on ordinary evidentiary rulings by state trial courts."*fn56 "[T]he Due Process Clause does not permit the federal courts to engage in a finely tuned review of the wisdom of state evidentiary rules."*fn57 In criminal actions, "[t]he States are free to provide such procedures as they choose, including rules of evidence, provided that none of them infringes a guarantee in Federal Constitution."*fn58 The Appellate Division held that the evidence was properly admitted under state evidentiary rules. As an issue of state law, review of that holding by this Court in a federal habeas proceeding is precluded.*fn59 Baker does not raise any issue that admission of the answering machine tape violated any federal constitutional prohibition. Having failed to present a viable federal constitutional issue cognizable in a federal habeas proceeding, Baker is not entitled to relief under his second ground.

Ground 3: Suppression of Statements made to Police.

Baker contends that the statements he made to police after his arrest should have been suppressed because he was not properly given his Miranda rights. The Appellate Division rejected Baker's contentions, holding:

First, upon our review of the testimony adduced at the suppression hearing, we reject defendant's claim that County Court erred in denying his motion to suppress oral statements he made to police investigators immediately following his arrest and again after his invocation of the right to counsel. As to the first set of oral statements, defendant claims that same should have been suppressed because his Miranda rights were not effectively communicated to him. A police investigator, however, testified at the hearing that defendant was read his Miranda rights from a prepared card as he was being led out of his home and into a patrol car, defendant indicated that he understood these rights and agreed to talk to him about the shooting.FN1

FN1. Defendant thereafter revealed, among other details, that he was angry about his ex-girlfriend's new relationship with the victim, that he had planned the shooting for two weeks and that he aimed the shotgun at the victim and stated, "[T]his is for everything you've done to me, buddy." According to this investigator, defendant first invoked his right to counsel when asked to provide a written statement, at which time all questioning stopped. This testimony, which was found to be credible by County Court (citations omitted ), fully supports its determination that defendant received, comprehended and voluntarily waived his Miranda rights such that his motion to suppress these oral statements was properly denied (citations omitted ). Furthermore, County Court also properly ruled that certain other oral statements made by defendant to another investigator, who the court also found to be credible (citations omitted) were admissible as spontaneous statements in that same were neither provoked, induced nor encouraged by police conduct or interrogation (citations omitted ).*fn60

An individual's privilege against self-incrimination while in custody, embodied in Miranda, is not whether he is allowed to talk with the police without the benefit of warnings and counsel, but whether he can be interrogated.*fn61 "Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by [the holding in Miranda]"*fn62 In this case, the Clinton County Court and Appellate Division found as a factual matter that the challenged statements were either made after a proper Miranda warning was given or spontaneously made, not as the result of police interrogation. Baker's arguments are basically nothing more than an attack on the testimony of the police officers. Baker misperceives the role of a federal court in a federal habeas proceeding attacking a state-court conviction. This Court is precluded from either re-weighing the evidence or assessing the credibility of witnesses. The role of this Court is to simply determine whether there is any evidence, if accepted as credible by the trier of fact, sufficient to sustain the finding of fact.*fn63 In the absence of clear and convincing evidence to the contrary, this Court is bound by the factual findings of the state courts.*fn64

This Court cannot say that the decision of the Appellate Division 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."*fn65 Nor can this Court find that the state court unreasonably applied the correct legal principle to the facts of Baker's case within the scope of Andrade-Williams-Schriro; i.e., the state court decision was more than incorrect or erroneous, its application of clearly established law was objectively unreasonable. Baker is not entitled to relief under his third ground.

Ground 7: Failure to Instruct on Lesser-Included Offense of Second-Degree Assault

Baker argues that the trial court erred by not instructing the jury on second-degree assault as a lesser-included offense of first-degree assault. Baker contends that the shooting was a reckless act and the gun discharged by accident. Baker raised this issue in his direct appeal. The Appellate Division disposed of the issue in its catch-all "[w]e have reviewed all remaining contentions and find them without merit."*fn66

Where there is no reasoned decision of the state court addressing the ground or grounds raised on the merits and no independent state grounds exist for not addressing those grounds, this Court must decide the issues de novo on the record before it.*fn67 In so doing, because it is not clear that it did not so do, this Court assumes that the state court decided the claim on the merits and the decision rested on federal grounds.*fn68 This Court gives the assumed decision of the state court the same AEDPA deference that it would give a reasoned decision of the state court.*fn69

Although the Supreme Court has determined that in capital cases a judge must charge the jury on lesser included non-capital offenses where the evidence warrants such a charge,*fn70 it has expressly reserved the question whether due process requires a lesser included offense instruction in a non-capital case.*fn71 Pre-AEDPA, the Second Circuit declined to rule on the issue of whether the refusal to instruct on a lesser included offense presents a federal constitutional issue.*fn72

Subsequently, the Second Circuit affirmed the grant of a writ of habeas corpus under § 2254 in a case in which the trial court declined to give a justification instruction and laid down a three-part test that a habeas petitioner must satisfy in order to prevail in a case where the state court fails to give a requested instruction. First, was the instruction required under state (New York) law. Second, if so, did the failure to give the instruction result in the denial of due process. Third, if so, did the state court's conclusion constitute an unreasonable application of clearly established Supreme Court law.*fn73

Baker fails to satisfy the first prong of the test. Under New York law, the jury may be instructed on a lesser included offense only if, under any reasonable view of the evidence as seen in the light most favorable to defendant, a jury could find that the defendant committed the lesser offense but not the greater offense.*fn74 "A person is guilty of assault in the first degree when: . . . .

[w]ith intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . ."*fn75 "A person is guilty of assault in the second degree when: . . . . [h]e recklessly causes serious physical injury to another person by means of a deadly weapon or dangerous instrument . . . ."*fn76

A dangerous instrument is defined as "any instrument, article or substance . . . which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury."*fn77 The facts of the crime, as recited by the Appellate Division are:

According to the trial testimony, the victim and [Baker's] ex-girlfriend were sharing an evening together in her home when [Baker] knocked on the door, having seen the victim's truck parked in the driveway, and stated to his ex-girlfriend that it "[l]ooks like it's over." He then left but returned a short time later armed with a loaded, 20-gauge shotgun.

At this time, [Baker] walked into the house, walked past his ex-girlfriend stating, "Now we'll see," and fired one shot at the victim injuring him in the hand and abdomen. The ex-girlfriend ran for help, the victim retreated to a bathroom and [Baker] briefly left the house and reloaded the shotgun. Upon finding the victim inside the bathroom, [Baker] told him that he was going to kill him. The victim pleaded for his life, and [Baker] ultimately relinquished the gun, at which time the victim ran to a neighbor's home and [Baker] fled.

It was further established at trial that just prior to the shooting, [Baker] not only left threatening messages on his ex-girlfriend's telephone answering machine, but also yanked the telephone wires to the house. Additionally, following the shooting but before the police arrived at his home to arrest him, [Baker] telephoned, among others, his boss and a friend and told them that he had shot the victim. Moreover, upon being arrested, he made numerous oral statements to a police investigator, including an admission that he shot the victim that evening and had planned it for two weeks . . . .

Viewing this evidence in the light most favorable to the prosecution (citation omitted), we find that it was legally sufficient to establish defendant's intent to cause serious physical injury and death to the victim (citations omitted). Although defendant testified at trial that he brought the shotgun to his exgirlfriend's home to merely scare the victim into leaving and denied intentionally shooting him,FN2 the jury obviously did not credit this version of events, which was its prerogative (citations omitted). Moreover, viewing the evidence in a neutral light and deferring to the jury's credibility determinations, we likewise reject defendant's alternative argument that his convictions on these counts are against the weight of the evidence (citations omitted).

FN2. At trial, defendant claimed that the shotgun went off accidently when the victim grabbed it.*fn78

There is no reasonable view of the evidence that would allow a jury to find that Baker acted recklessly. Baker is not entitled to relief under his seventh ground.*fn79

Ground 8: Sentence was Vindictive and Harsh.

Ground 9: Improper Treatment as Second Felony Offender.

Ground 12: Error in Considering Second Felony Offender Status.

Ground 13: Sentence was Vindictive.

The prison sentence imposed after trial was three years longer than the sentence imposed after the earlier guilty plea (18 years versus 15 years), and included an additional five years of supervised release that was not included in the sentence on the guilty plea. Baker contends that because the trial court was upset by the reversal of the original plea, the trial court vindictively imposed the additional time. The Appellate Division cursorily rejected Baker's argument, holding:

Nor do we agree with defendant's contention that County Court was vindictive in its sentencing or that his sentence, which was less than the maximum that could have been imposed, should be reduced in the interest of justice.*fn80

Baker also argues that the trial court should not have considered his prior driving while intoxicated conviction as a prior felony. The Appellate Division rejected Baker's argument, holding: "[a]lso unavailing is defendant's contention that his prior felony driving while intoxicated conviction could not properly serve as the predicate offense upon which he was adjudicated a second felony offender (citations omitted)."*fn81

The Supreme Court has held that no presumption of vindictiveness arises when the sentence imposed after trial is greater than that imposed after a guilty plea that the defendant succeeded in having vacated.*fn82 In this case, the original 15-year sentence was imposed in accordance with a plea agreement, under the terms of which Baker pleaded guilty to only a single count, attempted second-degree murder.*fn83 After a trial, Baker was convicted of four additional counts, first-degree assault, third-degree criminal possession of a weapon, fourth-degree criminal possession of a weapon, and second-degree menacing. Consequently, this Court cannot say that the decision of the Appellate Division 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."*fn84 Nor can this Court find that the state court unreasonably applied the correct legal principle to the facts of Baker's case within the scope of Andrade-Williams-Schriro; i.e., the state court decision was more than incorrect or erroneous, its application of clearly established law was objectively unreasonable.

To the extent that Baker argues the imposition of the sentence was improper under state law, it is, as noted above, an issue of state law beyond the purview of this Court in a federal habeas proceeding. No federal constitutional issue is presented when the sentence imposed by a state court is within the range allowed by state law.*fn85 Lacking a viable federal constitutional claim cognizable in this proceeding, Baker is not entitled to relief under his eighth, ninth, twelfth, and thirteenth grounds.

V. CONCLUSION AND ORDER

Baker is not entitled to relief under any ground raised in his Petition.

IT IS THEREFORE ORDERED THAT the Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus is DENIED.

IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of Appealability.*fn86 Any further request for a Certificate of Appealability must be addressed to the Court of Appeals. See Fed. R. App. P. 22(b); Second Circuit R. 22.

The Clerk of the Court is to enter final judgment accordingly.


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