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Thomas Walker, Pro Se v. Robert Ercole

March 8, 2011

THOMAS WALKER, PRO SE, PETITIONER,
v.
ROBERT ERCOLE, SUPERINTENDENT, GREEN HAVEN CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge:

MEMORANDUM AND ORDER

Pro se petitioner Thomas Walker seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On January 28, 2005, Petitioner was convicted, after a jury trial, in New York State Supreme Court, Queens County, of one count of assault in the first degree (N.Y. Penal Law § 120.10[3]) and one count of endangering the welfare of a child (N.Y. Penal Law § 260.10[1]). Petitioner challenges his conviction on the grounds that: (1) the State failed to prove that he had committed depraved indifference first degree assault because an expert testified at trial that as few as two shakes could have caused the victim‟s injuries; (2) the State failed to prove that he possessed a depraved indifference mens rea because he sought medical attention and performed CPR on the victim; (3) the trial court erred by failing to instruct the jury that depraved indifference is a mental state that the State had to prove beyond a reasonable doubt; and (4) he received ineffective appellate representation when counsel failed to argue that trial counsel was ineffective for failing to preserve appellate issues and for raising unpreserved issues in his appellate brief. (See generally Pet.) For the reasons below, the petition is denied in its entirety.

I.Background

A. Charges and Trial

On August 1, 2003, Petitioner shook Abijah Dalrymple ("the victim"), a ten-month old child, causing her severe brain and eye damage. The incident rendered the victim blind, unable to move her limbs and unable to eat without the assistance of tubes. Petitioner was charged with the crimes of assault in the first degree on a depraved indifference theory and endangering the welfare of a child. During Petitioner‟s trial, which began in September 2004, the following individuals testified for the prosecution ("State"): Stephanie Taylor, the victim‟s mother; Dr. Phyllis Weiner; New York City Police Officer John Roberts, who received the radio call and responded to Petitioner‟s apartment; Scott Rothschild and Sherri Fiebert, both members of the responding Medical Team; Joanna Bernardi, a physician‟s assistance; Dr. Solange Benjamin, Dr. Kevin Bock, Dr. Craig Warshall, Dr. Sylvia Kodsi, Dr. Michael Frogel, all of whom treated the victim; Detective Richard Santangelo, who investigated the case; and Dr. Audrey Berman and Dr. Randell Alexander, both experts in pediatrics. Lisa Marshall, Petitioner‟s wife, Dr. H. Roy Silvers, an expert in neurosurgery, and Dr. Horace Gardner, an expert in ophthalmology, testified for Petitioner. Detective Rodrigo Reyes, an investigator on the case, and Dr. Vincent Deramo, an expert in retinal disease, testified in rebuttal for the State.

Detective Santangelo recounted statements Petitioner made to him describing his version of the incident. Petitioner claimed that the victim needed changing so he put her in the bathtub, went to get a new diaper, heard a noise, and saw the victim‟s eyes rolled up. (Transcript ("Tr.") 1515-16.) He stated that she bit her tongue, arched her back, and vomited, and her body seized. (Id.) Petitioner also stated that he performed CPR and called 911 three times. (Id. at 1510.) At the conclusion of the trial, Petitioner was found guilty of both charges. He was sentenced on January 28, 2005 to a determinate term of fifteen years‟ imprisonment for the assault, and a definite term of one year for endangering the welfare of a child, both sentences to run concurrently.

B. Direct Appeal

Petitioner timely appealed his convictions to the New York State Supreme Court, Appellate Division, Second Department ("Appellate Division"). Petitioner argued that, subsequent to his trial, the New York State Court of Appeals ("Court of Appeals") decided People v. Feingold, 7 N.Y.3d 288 (2006), which overruled existing law and held that "depraved indifference to human life" is a "culpable mental state," and that the State must prove, beyond a reasonable doubt, that a defendant charged with a crime involving depraved indifference possessed that mental state. Petitioner contended that, under the prevailing law at the time of trial, the State sought only to prove depraved indifference by an objective view of the circumstances. Petitioner reasoned that, under the Feingold standard, there was insufficient evidence at trial to convict him of first-degree assault and that the court erred because it did not instruct the jury that it must find that Petitioner possessed the mens reaof depraved indifference in order to convict him of first degree assault. (See generally Def.-Appellant Brief ("Appellant Brief"); Def.-Appellant Supp. Brief ("Appellant Supp").)

On May 15, 2007, the Appellate Division affirmed the conviction, holding that Petitioner‟s sufficiency claim was unpreserved and, "in any event . . . [the evidence] was legally sufficient to establish the defendant‟s guilt beyond a reasonable doubt." People v. Walker, 40 A.D.3d 893 (2d Dep‟t 2007). The Appellate Division also held that Petitioner‟s remaining jury instruction claim was unpreserved for appellate review. Id. On October 17, 2007, the Appellate Division issued a decision denying Petitioner‟s motion to reargue his appeal.

On June 8, 2007, Petitioner sought leave to appeal to the Court of Appeals. On November 7, 2007 the Court of Appeals issued a certificate denying Petitioner‟s application. People v. Walker, 9 N.Y.3d 993 (2007).

C. Petition for Writ of Error Coram Nobis

On February 29, 2008, Petitioner moved, pro se, for a writ of error corum nobis. Petitioner raised the same substantive issues he raised on appeal as well as three additional issues. The additional arguments were: (1) trial counsel was ineffective for failing to preserve the claim that the State failed to prove Petitioner‟s guilt of the charge of assault in the first degree, (2) trial counsel was ineffective for failing to preserve the claim that the State failed to prove that his conduct did not evince a depraved indifference to human life, and (3) appellate counsel was ineffective for failing to argue that trial counsel was ineffective for failing to preserve the above two claims and for raising the unpreserved claims in his brief. (See generally Mem. in Supp. of Application for a Writ of Error Coram Nobis "Coram Nobis Mem.")

On July 8, 2008, the Appellate Division denied Petitioner‟s motion, holding that appellate counsel was effective. People v. Walker, 53 A.D.3d 560 (2d Dep‟t 2008). Petitioner then filed an application for leave to appeal with the Court of Appeals, which was denied on September 29, 2008. People v. Walker, 11 N.Y.3d 795 (2008). Petitioner timely filed this petition for a writ of habeas corpus on October 3, 2008.

II. Applicable Law

A. Standard of Review

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which governs the review of petitions challenging state convictions entered after 1996, federal courts may grant habeas relief only ...


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